HUMBLE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 104

[2026] WASCA 104 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HUMBLE -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 104 CORAM : THOMSON P HEARD : 21 JULY 2026 DELIVERED : 21 JULY 2026 PUBLISHED : 21 JULY 2026 FILE NO/S : CACR 57 of 2026 BETWEEN : BRADLEY LESLIE HUMBLE Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : WALLACE DCJ File Number : IND 1747 of 2023 Catchwords: Bail - Release pending determination of appeal - Exceptional reasons - Whether appeal strongly arguable - Bail refused -- 1 of 10 -- [2026] WASCA 104 Page 2 Legislation: Bail Act 1982 (WA), cl 4A, pt C, Sch 1 Result: Application dismissed Category: B Representation: Counsel: Appellant : S Nigam Respondent : N R Sinton Solicitors: Appellant : Nigams Legal Pty Ltd Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Snook v State of Western Australia [2024] WASCA 56 -- 2 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 3 JUDGMENT OF THE COURT: (These reasons were delivered ex temporaneously and have been edited from the court's record of the decision.) 1 The appellant has made an application to be released on bail pending the determination of his conviction appeal. The appellant has read the following affidavits in support of this application: (a) the affidavit of Shashwat Nigam sworn 11 June 2026; (b) the affidavit of Aliesha Louise Sharp sworn 24 June 2026; and (c) the affidavit of Suzanne Maree Humble sworn 23 June 2026. 2 The appellant was convicted on 16 September 2025 of one count of aggravated home burglary contrary to s 401(1)(ba) of the Criminal Code (WA) and one count of impersonating a public officer contrary to s 87(2)(b) of the Criminal Code. He was sentenced to immediate terms of imprisonment on both counts. His sentence for the aggravated home burglary charge was 6 years, and he was sentenced to 16 months, to be served concurrently, in respect of the impersonation charge. 3 The appellant had previously been employed as a police officer. However, he ceased in that occupation sometime before the offences occurred on 9 September 2022. The prosecution alleged that the appellant impersonated a police officer and sought to execute a fake search warrant at the complainant's house. The appellant accepted, in an electronic record of interview, that he was to be paid $25,000 to inflict serious harm, or to unlawfully assault, the complainant at his house. 4 At trial, the appellant denied that there had been any reference to a search warrant when he arrived at the complainant's house. Instead, the appellant claimed that he had been loudly speaking about allegations against the complainant suggesting that the complainant had sexually assaulted a cousin of an acquaintance, and that the complainant had asked him to come inside the house because he did not wish others to hear the discussion. 5 There were factual issues at the trial concerning whether the appellant had obtained consent to enter the complainant's house by threat or fraud. This concerned whether the complainant was led to believe that the appellant had an entitlement to be let into the house -- 3 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 4 because he was a police officer, and whether the appellant had threatened to arrest the complainant if he did not permit the appellant to enter the property. 6 It would seem that the jury must have taken an adverse view against the appellant on this factual issue, given that they convicted him of impersonating a police officer. 7 A further factual issue was whether the appellant had any intention to commit the offence of grievous bodily harm upon the complainant when he entered the house, or whether, at that time, he was only there to warn the complainant that others would take action against him due to the allegations of sexual assault that he had been sent to discuss. 8 There are two appeal grounds against conviction. The first concerns whether the trial judge erred at law in failing to provide the jury with a legal direction as to the meaning of 'consent' to enter a dwelling. The trial judge relied upon the ordinary and natural meaning of the word, and did not direct the jury about the construction or application of those words in the particular case. 9 The second ground of appeal concerns whether the prosecutor made closing submissions to the jury which could not be rectified by judicial directions in four respects. This ground has the following four particulars: (a) the prosecutor made submissions to the jury that improperly invited the jury to compare the evidence of the appellant to the evidence of three State witnesses in support of a submission that, to believe all of the evidence of the appellant, the jury would have to find that all three of the State witnesses were liars, which reversed the onus of proof and was inconsistent with the principles espoused in Liberato v The Queen;1 (b) the prosecutor made submissions to the jury that improperly invited consciousness of guilt lies told by the appellant, in circumstances where the prosecution case was not one of Edwards lies alleged against the appellant; (c) the prosecutor made submissions to the jury that were inflammatory and prejudicial to the defence case, and were 1 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. -- 4 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 5 designed to belittle defence counsel's conduct of the case, and which were improper on the part of the prosecutor; and (d) the prosecutor made submissions to the jury about matters relevant to sentencing 'if [the jury] were to convict', which was inappropriate in all of the circumstances. 10 Whether bail should be granted to an appellant who is in custody waiting for the disposal of his or her appeal proceedings depends upon whether 'there are exceptional reasons why the accused should not be kept in custody'. Bail shall only be granted if the judicial officer considering the matter is satisfied that 'exceptional reasons exist'. See cl 4A, pt C, Sch 1 of the Bail Act 1982 (WA). 11 In the present case, the existence of 'exceptional reasons' is placed upon the basis that the grounds of appeal are 'strongly arguable'. As a result, if the appellant were to be kept in prison, this would give rise to a real concern that he would suffer injustice by having been kept in custody on the basis of an unsound conviction.2 12 At the stage of a bail application, it is necessarily the case that the judicial officer considering the matter will usually only be able to carry out a relatively limited assessment of the grounds, and that the strength of the prospects of success will generally need to be readily apparent without the benefit of detailed argument or analysis.3 I do not think that an application for bail should become a vehicle for a preliminary review of appeal grounds in any detailed way. There must be an outstanding feature of the appeal which warrants the grant of bail. 13 In relation to ground 1, the jury asked about the meaning of 'consent', and whether there was a difference between 'consent' and 'real/true consent'.4 The trial judge directed the jury that the word 'consent' did not have any technical legal meaning, and that it was for the jury to apply its ordinary and natural meaning. The trial judge explained that the State contended that the ordinary and natural meaning in the present case meant that the consent had to be freely and voluntarily given, and that it would not be if the appellant had fraudulently represented himself as a police officer in order to gain entry into the complainant's house. 2 Snook v State of Western Australia [2024] WASCA 56 (Snook) [4]. 3 Snook [5]. 4 Ts 1376. -- 5 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 6 14 On the other hand, the trial judge explained that the defence contended that consent simply meant acquiescing to something, or permitting something, or granting or allowing something. On that basis, the trial judge explained that the position of the defence was that, even if the appellant had made a misrepresentation about being a police officer, the complainant still consented to allowing him into the house on that basis.5 15 The trial judge said that because the meaning of 'consent' was not a legal term of art, the correct application of the definition was a matter for the jury to decide.6 16 My preliminary view is that consent in the context of s 401(1)(ba) of the Criminal Code means consent which has been procured without threat or as a result of a misrepresentation. I do not think there would have been any error by the trial judge to have given a direction in this respect. Consequently, my preliminary view is that if the jury applied the definition of 'consent' which was advocated by the prosecution, this would have been correct. If, however, the jury applied the definition adopted by the defence, this would have been too favourable to the appellant. 17 The appellant claims that the trial judge ought to have provided a direction about the meaning of 'consent'. In my preliminary view, if the approach of the defence had been adopted, that would have been too favourable to the appellant, whereas the position taken by the State would have been correct. 18 My preliminary view is that, whichever definition of the term 'consent' was applied by the jury, or individual members of it, the jury would have applied either a correct approach, or an approach which was too favourable to the appellant. It follows that I do not consider that this ground of appeal is 'strongly arguable' or raises an 'exceptional reason' to release the appellant upon bail. 19 In any event, even if the appeal succeeded on this ground, it would only mean that the conviction on the aggravated burglary charge was set aside, but the sentence for the impersonation charge would still stand. The length of that sentence has not been challenged in the separate sentence appeal commenced by the appellant. As the sentence for the impersonation charge is imprisonment for 16 months, the 5 Ts 1381 - 1382. 6 Ts 1382. -- 6 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 7 appellant would still have to serve that period. The start date for that sentence was 5 November 2025. 20 I accept that the appellant might be eligible for parole in respect of that offence by now, but there were other cumulative sentences totalling a further 7 months imposed for other offences as well. Consequently, even if ground 1 were to succeed, it would not result in the release of the appellant at the present point in time. 21 The first aspect of the prosecutor's closing submissions which is criticised by the appellant in the first particular of appeal ground 2 is the prosecutor's observation that if the appellant had told the truth, it meant that three prosecution witnesses must be regarded as lying, and that it was 'inherently unlikely' that the evidence of the complainant and two sworn police officers were lies.7 The appellant claims that this invites the type of impermissible reasoning which the High Court warned against in Liberato. That is because it invites a comparison of the truthfulness of competing witnesses, rather than a consideration of whether the testimony of the accused person may introduce a reasonable doubt. 22 The State says that there was nothing exceptional or wrong about the observations made by the prosecutor. The State suggests that all the prosecution submitted was that two or more conflicting accounts cannot all be true. The State submits that the prosecutor's observation was nothing more than a recognition of the factual incompatibility of various accounts and the improbability of any party being honestly mistaken about those matters. The State also maintains that the trial judge gave an adequate Liberato direction. 23 In my view, it is not possible at this stage to say that the submissions made by the prosecutor were obviously wrong or that it is clear that the appeal ought to be allowed. Consequently, I do not consider that this particular of appeal ground 2 produces an 'exceptional reason' to grant bail to the appellant. 24 The second particular of appeal ground 2 is that the prosecutor improperly invited the jury to rely upon lies told by the appellant as consciousness of guilt, where this was not part of the prosecution case against the appellant. 7 Ts 1275. -- 7 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 8 25 It is not clear that the prosecutor made the invitation which the appellant alleges. In any event, the prosecutor himself made introductory remarks to the effect that simply because a person has told a lie, that does not necessarily imply guilt.8 As well, the trial judge emphasised that the State did not put its case in that way.9 26 The third particular of appeal ground 2 is that the prosecutor made inflammatory and prejudicial submissions, designed to belittle the defence counsel and his conduct of the case. 27 The appellant's written submissions only specifically identify two instances of inflammatory and prejudicial language. One is a comment that if the complainant was lying then he would have 'betrayed his Islamic oath',10 and that the defence counsel was 'playing'11 with the complainant in the course of cross-examining him. There are general references to six other pages of transcript, but the State says that the two I have mentioned were the worst. The State has identified possible comments made by the prosecutor on those other pages, which may be the passages about which the appellant complains. I have reviewed these. 28 It does not seem to me that the particular instances of inflammatory or prejudicial language which have been identified are so egregious that they would have any prospect of leading a court to consider that the trial fundamentally miscarried. In these circumstances, I do not regard any of the matters which have been raised by the appellant as creating an 'exceptional reason' as to why bail should be granted pending the outcome of the appeal. 29 The fourth particular of appeal ground 2 is that the appellant complains of the prosecutor making submissions to the jury about matters relevant to sentencing, if they were to find the appellant guilty. 30 The comment made by the prosecutor was along the lines that the appellant did not carry out the worst aspects of his original plan to cause harm to the complainant. However, the prosecutor warned that this revision of the original plan did not mean that the appellant had done nothing wrong. It simply meant that there would be a lesser penalty imposed upon the appellant compared to the situation if he had adhered to the initial plan. The prosecutor emphasised that the revision 8 Ts 1274. 9 Ts 1356. 10 Ts 1275. 11 Ts 1284. -- 8 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 9 of the original plan did not mean that the appellant was not guilty of the matters charged. 31 In my view, this was a warning by the prosecutor that the change in plan, and the effective withdrawal from the original purpose, did not exculpate the appellant from guilt, but would be a matter to be considered at the stage of sentencing. I doubt that this last comment by the prosecutor could be regarded as creating a fundamental miscarriage of the trial process. In any event, the trial judge specifically warned the jury that any question about the consequences flowing from a verdict was a matter for her Honour, and that they should not be concerned about it.12 I do not regard this aspect of ground 2 as giving rise to any 'exceptional circumstances' which would warrant the grant of bail pending the resolution of the present appeal. 32 For all these reasons, I do not consider that the application for bail should succeed. I order that the application for bail, as an alternative to an expedited hearing of the conviction appeal, dated 11 June 2026, should be dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DC Associate to the Honourable President Thomson 21 JULY 2026 12 Ts 1349. -- 9 of 10 -- [2026] WASCA 104 JUDGMENT OF THE COURT Page 10 -- 10 of 10 --