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Atherton v Western Australia

Atherton v Western Australia

Case [2005] WASC 15 22 February 2005

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ATHERTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 15

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 15
Case No:	MCS:7/2005	Heard:	17 FEBRUARY 2005
Coram:	BLAXELL J	Delivered:	22/02/05
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for bail refused
Category:	B
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Parties:	STEVEN JOHN ATHERTON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Bail Serious offence allegedly committed while on bail for another serious offence Possession of methylamphetamine with intent to sell or supply Whether there are exceptional reasons why the applicant should not be kept in custody Turns on own facts
Legislation:	Bail Act 1982 (WA), Sch 1 Pt C, cl 1, cl 3, cl 3A
Case References:	Nil Caratti v The Queen [1999] WASCA 91 Lim v Gregson [1989] WAR 1 Mullally v The Queen [2000] WASCA 26 Musarri v The Queen [2000] WASC 268 Oates v The Queen [2003] WASC 180 Outman v The Queen [2000] WASC 303 Pinkstone v The Queen [2000] WASC 199 Pinkstone v The Queen [2000] WASC 321 R v Jemielita (1995) 78 A Crim R 91 R v Robertson [2001] WASC 120 Rechichi v The Queen [1999] WASC 73 Saka v The Queen [2001] WASC 92 WCVB v The Queen (1989) 1 WAR 279

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ATHERTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 15 CORAM : BLAXELL J HEARD : 17 FEBRUARY 2005 DELIVERED : 22 FEBRUARY 2005 FILE NO/S : MCS 7 of 2005 BETWEEN : STEVEN JOHN ATHERTON

Applicant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

Catchwords:

Criminal law and procedure - Bail - Serious offence allegedly committed while on bail for another serious offence - Possession of methylamphetamine with intent to sell or supply - Whether there are exceptional reasons why the applicant should not be kept in custody - Turns on own facts

Legislation:

Bail Act 1982 (WA), Sch 1 Pt C, cl 1, cl 3, cl 3A

Result:

Application for bail refused

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr D Moen

Respondent : Ms E Benwell

Solicitors:

Applicant : Mossensons

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Caratti v The Queen [1999] WASCA 91
Lim v Gregson [1989] WAR 1
Mullally v The Queen [2000] WASCA 26
Musarri v The Queen [2000] WASC 268
Oates v The Queen [2003] WASC 180
Outman v The Queen [2000] WASC 303
Pinkstone v The Queen [2000] WASC 199
Pinkstone v The Queen [2000] WASC 321
R v Jemielita (1995) 78 A Crim R 91
R v Robertson [2001] WASC 120
Rechichi v The Queen [1999] WASC 73
Saka v The Queen [2001] WASC 92
WCVB v The Queen (1989) 1 WAR 279

(Page 3)

1 BLAXELL J: This is an application for bail pending the trial of the applicant on a charge of possession of methylamphetamine with intent to sell or supply to another. At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Atherton v Western Australia

Details

AGLC: Atherton v Western Australia [2005] WASC 15
Case: [2005] WASC 15
Decision Date

CaseChat Overview and Summary

Steven John Atherton has applied for bail pending his trial on a charge of possession of methylamphetamine with intent to sell or supply to another. At the time of his arrest, he was already on bail for a number of other alleged offences including possession of amphetamines and ecstasy with intent to sell or supply to another. The application was heard by Blaxell J in the Supreme Court of Western Australia. The legal issues before the court were whether there were exceptional reasons why the applicant should not be kept in custody, and whether the court may properly grant bail having regard to the provisions of the Bail Act 1982 (WA). Blaxell J found that there were no exceptional reasons to grant bail. While the court sympathised with the applicant's mother who was relying on him for care and support, the court found that her circumstances were not exceptional. The court also found that the statement by Vanessa Hardman, who admitted to placing the drugs in the applicant's car, was not credible as it was inconsistent with the prosecution's evidence. As a result, the application for bail was refused.

Orders