On 14 January 2026, I heard the appellant's application for bail pending his appeal against conviction, filed 11 December 2025. The application was supported by the appellant's affidavit, sworn 8 December 2025. The appellant and the respondent each filed written submissions in relation to the application. At the conclusion of the hearing, I dismissed the application. These are my reasons for doing so.
On 20 June 2024, the appellant was convicted after trial in the District Court of 25 offences of a sexual nature, involving four children aged between 9 and 13 years, who were his de facto children. On 20 December 2024, the appellant was sentenced to a total effective sentence of 19 years' imprisonment, with eligibility for parole.
On 30 September 2025, the appellant filed a notice of appeal against conviction. The appeal has been filed (taking into account the Christmas/New Year recess) about eight months out of time. The appellant is an in‑person litigant, although he was legally represented at his trial.
On 29 November 2025, the appellant filed his appellant's case. There are two grounds of appeal. Ground 1 alleges that he is in possession of 'new' evidence (by which, he appears to mean fresh evidence), which, he alleges, shows that one of the complainants gave 'false and misleading testimony' at his trial. Ground 2 alleges, in effect, that he has suffered a miscarriage of justice because two witnesses were not called to give evidence at his trial. In support of ground 1, the appellant's case refers to a number of annexures (annexures A to J). The annexures are the subject of the appellant's application to adduce additional evidence in the appeal, also filed 29 November 2025. They are contained in the appellant's affidavit sworn 17 November 2025. The annexures total approximately 200 pages, comprising mostly text messages between one of the complainants and their mother.
A convenient summary of the facts of the offending is set out in the learned sentencing judge's sentencing remarks, delivered on 20 December 2024. The offending involved various acts of indecent dealing and sexual penetration. I incorporate into these reasons, without repetition, that summary. It scarcely needs to be said that the offences involved very serious conduct in respect of each of the four children.
The legal framework applicable to the appellant's application was explained by me in Frigger v The State of Western Australia,[2] and repeated in the recent case of Downes v The State of Western Australia.[3]
The Bail Act 1982 (WA) confers power on this court to grant bail after conviction and sentencing for an appellant awaiting the disposal of an appeal. Clause 4A of sch 1 pt C of the Bail Act creates a rebuttable presumption against a grant of bail to an accused who is in custody waiting for the disposal of appeal proceedings. The court shall only grant bail if satisfied that there are exceptional reasons why an appellant should not be kept in custody and it is otherwise proper to do so having regard to the provisions of cl 1 and cl 3 of sch 1 pt C.
The use of the word 'exceptional' in cl 4A connotes something that is unusual or out of the ordinary, in some way special, or an exception to the general run of cases. What might constitute 'exceptional reasons' will depend upon the circumstances of each particular case. Exceptional reasons can, of course, be constituted by a combination of factors. However, when considering whether exceptional reasons exist, the strength of the appellant's case will almost always be an important, if not decisive, consideration. It is usually necessary for an appellant to demonstrate that his or her ground, or grounds, of appeal are strongly arguable, and, without detailed argument, that the appeal is most likely to succeed. Put another way, the prospects of success must be sufficiently likely as to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction (or an unjust sentence). The appellant's written (and oral) submissions appear to be based on an understanding that bail pending appeal is governed by the same principles as an application for bail prior to trial. As I informed him at the hearing, this is incorrect, and, as I have said, the appellant must demonstrate that exceptional reasons exist for a grant of bail.
The appellant's main point in respect of this application is that he seeks to be released on bail so that he can obtain additional evidence to support ground 1. I say 'additional' evidence because, as the appellant's case and his application to adduce additional evidence show, he already possesses various documents which he says undermine the credibility of at least one of the complainants. In his oral submissions, the appellant said that he had '70% of the material' he needed, but the additional evidence has, due to his incarceration, been difficult to obtain. The appellant also said that, although he had 'strong family support', including from his parents and ex‑wife, he did not want to impose on them due to the advanced age of his parents and his ex‑wife's family and work responsibilities. Rather, he asserts that he should be released on bail pending his appeal so that he could obtain the additional evidence himself.
The respondent submitted that the circumstances described by the appellant do not constitute exceptional reasons for a grant of bail. Further, even if exceptional reasons were demonstrated, it would not be proper to grant bail, having regard to the provisions of cl 1 and cl 3 of sch 1 pt C of the Bail Act. Given the length of the sentence imposed on him, if released, the appellant would be a flight risk; and there is no bail condition which could be reasonably imposed that would obviate that risk.
I am well aware of the difficulties that confront an in‑person litigant in preparing an appeal, particularly when that person is incarcerated. While it is plainly better for an appellant to be legally represented, it is the experience of this court that in‑person litigants in custody are able to adequately present their appeals, including appeals where additional evidence is adduced.
The additional evidence the appellant wishes to adduce is summarised, in general terms, in his written submissions in support of this application for bail. Having regard to the nature of this material and the fact that the appellant has already obtained substantial material in support of ground 1, it appears that it would be possible for the appellant to obtain the additional evidence he seeks from prison. It may be that the appellant might more easily obtain this material with the assistance of family members or others. Any inconvenience that might be caused to them in assisting the appellant to obtain those materials is not a sufficient reason for a grant of bail pending appeal. It is also open to the appellant to seek leave to issue witness summonses to produce the records or documents which he says exist. Whether the court would grant leave is not a matter I can determine at this point.
The appellant submitted that the evidence he has, and the additional evidence he wishes to adduce, compellingly proves that at least one of the complainants' evidence at trial was untruthful, and that his appeal is strongly arguable. On the state of the material before me, at this stage in the proceedings, I could not reach the conclusion that the appeal is most likely to succeed.
For these reasons, I concluded that the appellant has not demonstrated that there are exceptional reasons for a grant of bail pursuant to cl 4A of sch 1 pt C of the Bail Act. Accordingly, there is no basis for me to grant the appellant bail pending appeal. In these circumstances, it was unnecessary to decide whether, had exceptional circumstances been demonstrated, a grant of bail was otherwise appropriate.
[2]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.