JSD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2026] WASCA 42 (30 March 2026)

Jurisdiction in relation to a second application for bail

1. The appellant has previously applied to be released on bail pending his appeal. On 14 January 2026, Mazza JA dismissed the appellant's application[2] on the basis that he had not demonstrated that there are exceptional reasons for a grant of bail and that, accordingly, there was no basis for his Honour to grant bail pending appeal. This second application was filed 9 February 2026.
2. In mounting the second application for bail before a judicial officer of co‑extensive jurisdiction for the same hearing date, namely the hearing of the appeal itself, the appellant now faces a new hurdle.
3. Schedule 1 pt B cl 2 of the Bail Act provides that, subject to cl 4, the power to grant bail ceases to vest in any judicial officer after he, or another judicial officer whose jurisdiction is co‑extensive with his, has refused bail. The exception provided by cl 4 is to the effect that I may grant bail on a new application if the appellant satisfies me that new facts have been discovered, new circumstances have arisen, or the circumstances have changed since bail was previously refused.

1. When the appellant appeared before Mazza JA, he sought to be released on bail so that he would have the opportunity to obtain additional evidence, in addition, that is, to the various documents which he has filed already in his application for leave to adduce evidence in his pending appeal. By an affidavit dated 17 November 2025, the appellant has annexed 156 pages of materials. The appellant also swore an affidavit on 8 December 2025, which was before Mazza JA, which annexed additional material.
2. The appellant submitted before Mazza JA that, due to being in prison, he was unable to obtain all of the documents that he needed and that, while he had strong family support from his parents, and his former partner and mother of the complainants, Ms Smith (a pseudonym), he did not wish to impose on them to obtain the documentation.
3. According to his affidavit sworn on 8 December 2025, he was looking for text messages from the biological father of the complainants (the father) threatening to fabricate allegations of sexual abuse against the appellant, a voice message left on the mobile phone of Ms Smith, family photographs, all records from the Department of Communities 'and other digital files, documents, records and witness material'.
4. Mazza JA acknowledged the difficulties that confront an in‑person litigant, but observed that, while it is preferable for an appellant to be legally represented, it is the experience of this court that in‑person litigants are able to adequately present their appeals. His Honour also concluded that, having regard to the nature of the material the appellant wished to adduce, it appears that it would be possible for him to obtain the additional evidence from custody, firstly, by the assistance of family members, or others, and, secondly, by seeking leave to issue witness summonses to produce the records or documents the appellant says exist.
5. Finally, while the appellant submitted that the additional evidence he wishes to produce will prove that at least one of the four complainants' evidence at trial was untruthful, his Honour was unable, on the state of the material before the court at that time, to reach a conclusion that the additional evidence would have the result that the appeal was most likely to succeed.[3] As Mazza JA said, exceptional reasons might be constituted by a combination of factors, but the merits of the appeal will always be an important, if not decisive, consideration.[4]
6. Accordingly, exceptional reasons for a grant of bail were not demonstrated, and his Honour found it unnecessary to decide whether, had exceptional circumstances been demonstrated, a grant of bail would otherwise have been appropriate.

1. Since the bail hearing was dismissed by Mazza JA, the appellant filed a further affidavit sworn 9 February 2026 and submissions of the same date, and also relies upon his previously filed affidavit material which provides context to his latest materials but is, by definition, not new. The appellant deposed in his affidavit of 9 February 2026 that 'key documents relevant to my appeal are held in my personal email account' and 'despite genuine attempts, no family member has been able to access my email account or retrieve the additional material on my behalf'.
2. On 9 March 2026, I adjourned the matter to enable the appellant to file a more detailed affidavit in support of his application particularising, amongst other things, the documents he sought, where he understood them to be and how they would assist his appeal. The appellant did so on 17 March 2026 (latest affidavit) and I have taken its contents into account. One of the documents mentioned in his latest affidavit, being a police incident report, has since been provided to the appellant by the State.
3. In his latest affidavit the appellant deposes that the materials he continues to seek are:
   1. text messages sent by the father of the complainants to Ms Smith in which the father threatens to make sexual abuse allegations against the appellant to the Department of Child Protection if she does not agree to his demands;
   2. further text messages sent by the father which the appellant says consisted of 15 pages of material which he provided to his former lawyer who represented him at trial, only 5 pages of which were produced at trial for the purpose of cross‑examination of the father. The appellant says that his former lawyer either did not receive the rest of the material or misplaced it;
   3. more text messages between the father and Ms Smith threatening to have the appellant and Ms Smith charged for lighting a fire on a property years previously, if Ms Smith did not agree to his demands. The appellant deposes that he once had these documents in files which Ms Smith had gathered and kept, and the only surviving copy of the documents is in the files. The appellant says the documents go to prove that the ex‑husband had a motive to fabricate allegations of sexual abuse of the children against the appellant;
   4. family photographs depicting the appellant, his former partner and the complainants, showing that the children were happy and not abused, and which also tend to prove that one of the complainants stayed with her mother and the appellant at that time, rebutting her claim to have cut all contact; and
   5. an email to the appellant from Ms Smith in which she is said to have emailed to him, during his trial, a voice message left on her phone from one of the complainants, to the effect that the father was angry at the complainant for talking to her brother and told her that, as a result, the appellant will not be going to gaol. The original voicemail is apparently unlocatable by Ms Smith. The matter was the subject of the police incident report referred to at [17] above.
4. None of the above amounts to any new fact or circumstance arising since the dismissal of the first bail application. These are simply the details of what the appellant says remains outstanding.
5. As to any new fact, new circumstance or change in circumstances since the dismissal of his first bail application, the appellant relies chiefly upon two matters.
6. Firstly, at the time of his first bail application, Mazza JA proceeded on the premise that family members and the appellant's former partner would be able to assist the appellant to obtain further evidence, but now the appellant contends that they cannot.
7. In his latest affidavit he explains that, since the dismissal of his first bail application, his mother has passed away. His father is aged in his eighties, suffers with significant health issues and is just not capable of searching for electronic documents or physically searching for documents. The appellant's father has also just lost his wife of many years. The appellant explained during the hearing that, while he has two siblings, one lives in the Eastern States and his other sibling has a disability which would prevent her from assisting him.
8. The appellant's other source of assistance was his former partner. The appellant deposes that she is busy, stressed, estranged from his parents (relevantly, now, his father) and under pressure from three of the complainants (her children) and her former husband, the father, and this all combines to limit her ability to assist him to locate documents to further his appeal.
9. The second matter the appellant relies upon as a change in circumstance is that, since Mazza JA refused his bail application, the appeal now has a hearing date. From the appellant's perspective that makes it all the more important and pressing that he be released on bail.

1. The fact that the appeal now has a hearing date simply shrinks the period of time under consideration for a determination of bail. That is not a relevant change in circumstance.
2. I accept what the appellant says about his father, although the reasons given in relation to his former partner fall short of establishing that she cannot assist him. Reading between the lines, the former partner appears now unwilling to assist the appellant. There is still no suggestion that the appellant has sought the leave of this court to subpoena any documents falling within his list of outstanding documents that may be in her possession. It is not clear, however, that she would now be able to locate any such documents.
3. I accept that the latest affidavit establishes the impracticability of the appellant relying upon his elderly father to assist him, and the likely unwillingness of his former partner to assist him in searching for any further materials. Mazza JA having proceeded on the basis that both could assist the appellant, I am prepared to regard that as a changed circumstance. The passing of the appellant's mother is also a changed circumstance, in that he puts that forward as an additional reason why bail should be granted.
4. In the circumstances, I accept that I have jurisdiction to hear this second bail application.

1. Like Mazza JA in the first bail application, any view expressed about the strength of the appeal is only for the purposes of this application.
2. The appeal grounds do not appear to me to be strongly arguable. The affidavit of 9 February 2026 and the latest affidavit do not lend any increased strength to the apparent merits of the appeal itself.
3. The appellant refers in his affidavit of 9 February 2026 to the learned trial judge having commented about the motive of the father, a State witness in the trial, to 'coach the girls to make up a false complaint'.[5] This exchange between counsel and the learned trial judge occurred in the absence of the jury, during the course of the determination of an objection to certain cross‑examination by defence counsel, and her Honour's assessment of the proper aims of that cross‑examination. The comment adds nothing to the strength of the appeal.
4. The father was cross‑examined about his very obvious hostility towards the appellant, his threats of violence toward the appellant, his convictions for violent offences, years of involvement with the Family Court in connection with the complainants, and an exchange between the father and one of the complainants in which they discussed whether the complainant could have the appellant charged. The complainants were also cross‑examined along the same theme. It is unnecessary to go into further detail in these reasons. The issue of potential motive to make a false complaint was before the jury.
5. The documentary items enumerated in [18] above relate largely to this issue. The appellant asserts that there is more material that demonstrates the father's hostility and willingness to make allegations of child abuse. It is unclear as to why defence counsel would not have been in possession of every such document that could be located during the trial in June 2024.
6. It does not constitute exceptional reasons justifying a grant of bail that the appellant asserts that there are more documents that go to the same theme of the father's hostility towards him and a motive to encourage his children to fabricate allegations against the appellant.
7. Looking at the other outstanding documents, the police incident report in relation to an occasion of contact between one of the complainants and her brother suggests a matter of low significance to the appeal. Family photographs are in a similar vein, even if they may have tended to prove that one of the complainants had not cut off all contact with her mother after the period during which the appellant is said to have offended against her. The appellant's description of the documents he wishes to search for or investigate, does not suggest to me that any of these materials, if locatable, will add anything substantive to the merits of his appeal.
8. An additional matter annexed to the appellant's affidavit of 9 February 2026 was a draft Individual Management Plan created by an officer at the prison where the appellant is currently housed. The document reports that the appellant is a compliant inmate who is in self‑care and is part of the prisoner support team.
9. That is to the appellant's credit. I understand the relevance of the document to be, however, that it should satisfy this court that, if released on bail, the appellant is unlikely to breach bail by absconding. Against that, of course, is the 19‑year term of imprisonment imposed by the learned trial judge. But the favourable management plan does not amount to an exceptional circumstance justifying a release to bail.
10. Finally, in his latest affidavit, the appellant also seeks bail on compassionate grounds, as he wishes to grieve his mother's passing with his family and assist his father with arrangements. Though very understandable, the appellant's desire to be with family at this time is not an exceptional reason to grant bail pending appeal against conviction for multiple serious offences.
11. I am not satisfied that the appellant has established exceptional circumstances justifying a grant of bail pending the hearing of his appeal. It is unnecessary to consider whether this is otherwise a proper case in which to grant bail.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Serukai v The State of Western Australia [2020] WASCA 127 [13].

[2] JSD v The State of Western Australia [2026] WASCA 7.