Barnes v The State of Western Australia
[2013] WASCA 12
•18 JANUARY 2013
BARNES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 12 | |
| THE COURT OF APPEAL (WA) | 18/01/2013 | ||
| Case No: | CACR:289/2012 | 10 & 11 JANUARY 2013 | |
| Coram: | MAZZA JA | 11/01/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| D | |||
| PDF Version |
| Parties: | CAMERON ROBERT BARNES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail pending appeal Turns on own facts |
Legislation: | Bail Act 1982 (WA), cl 3A Pt C Sch 1, Cl 4A Pt C Sch 1 |
Case References: | Italiano v The State of Western Australia [2012] WASCA 260 Milenkovski v The State of Western Australia [2011] WASCA 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARNES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 12 CORAM : MAZZA JA HEARD : 10 & 11 JANUARY 2013 DELIVERED : 11 JANUARY 2013 PUBLISHED : 18 JANUARY 2013 FILE NO/S : CACR 289 of 2012 BETWEEN : CAMERON ROBERT BARNES
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 475 of 2011
Catchwords:
Criminal law - Application for bail pending appeal - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 3A Pt C Sch 1, Cl 4A Pt C Sch 1
Result:
Application granted
Category: D
Representation:
Counsel:
Appellant : Mr D Manera (10 January 2013) & Mr L Levy SC (11 January 2013)
Respondent : Mr L M Fox
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Italiano v The State of Western Australia [2012] WASCA 260
Milenkovski v The State of Western Australia [2011] WASCA 99
1 MAZZA JA: This is an application for bail pending an appeal against conviction. The appellant brings this application pursuant to cl 4A, Pt C of Sch 1 of the Bail Act 1982 (WA). The application is not opposed by the respondent. On 11 January 2013, I granted the appellant bail, with reasons to follow. These are my reasons.
2 A brief and very general background to the application is as follows.
3 The appellant was charged with one count of supplying 56.4 g of methylamphetamine to Dominic Italiano on 31 July 2009. The appellant was convicted after trial of this offence. He successfully appealed against this conviction and a retrial was ordered: see Italiano v The State of Western Australia [2012] WASCA 260. The appellant is yet to apply for bail in respect of this matter, but any such application will not be opposed.
4 On 12 March 2010, while the appellant was on bail for the offence allegedly committed on 31 July 2009, police discovered, in the car that was he was driving and on his person, a total of four separate quantities of methylamphetamine totalling 51.59 g. He was subsequently charged with one count of possession of methylamphetamine with intent to sell or supply it to another. On 4 August 2011, after a trial before his Honour Judge Stevenson and a jury, the appellant was convicted as charged. He has filed a notice of appeal in relation to this conviction. It is in respect of this matter, that the appellant seeks bail pending appeal.
5 The appeal is at an early stage. No appellant's case has been filed. The draft ground of appeal in the appeal notice, alleges that the appellant's trial before Stevenson DCJ miscarried because the prosecution led, pursuant to s 31A of the Evidence Act 1906 (WA), evidence with respect to the appellant's earlier conviction. Of course, that conviction has now been quashed.
6 Clause 4A provides for a rebuttable statutory presumption against the grant of bail pending appeal. Bail can only be granted if the court is satisfied of two matters. First, bail must be appropriate having regard to the provisions of cls 1 and 3 of Pt C of Sch 1 of the Bail Act. Second, the court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody: Milenkovski v The State of Western Australia [2011] WASCA 99.
7 The respondent does not argue that it would be inappropriate to release the appellant on bail, having regard to cls 1 and 3 of the Bail Act. Further, the State accepts that the appellant's ground of appeal is strongly arguable. In effect, the State concedes that all the preconditions for granting bail pending appeal have been complied with.
8 In the course of oral submissions, I raised with counsel that the offence committed on 12 March 2010 was committed while the appellant was on bail for a similar serious offence and whether cl 3A of Pt C of Sch 1 of the Bail Act applied to the present application.
9 Clause 3A provides that where an accused is, at the time of allegedly committing a serious offence, on bail for another serious offence, bail can only be granted if there are exceptional reasons why the accused should not be kept in custody. Senior counsel for the appellant submitted that cl 3A did not apply in respect of bail pending appeal. Counsel for the respondent did not accept this submission, but in effect submitted that the issue was academic in this case because it conceded exceptional reasons existed for the grant of bail under both clauses.
10 Because of the position taken by the respondent and the fact that the question of the interaction between cls 3A and 4A was not argued, I will not deal with the issue. It is enough to say that I am satisfied that exceptional circumstances exist under both clauses to justify a grant of bail in the present case, being a combination of the following:
1. The conviction for the offence allegedly committed on 31 July 2009 has been set aside.
2. The appellant's prospects of success in the current appeal.
3. The appellant has already been in custody since 18 June 2011, and prior to that he had been in custody for 293 days. Based on what I have been told, the total period spent in custody is a significant portion of the non-parole sentence he must serve for both offences.
4. The likelihood that any retrial in respect of the 31 July 2009 matter is unlikely to take place before mid 2013.
5. Bail conditions can be put into place which will ensure, as far as possible, that the appellant appears as required and does not commit further offences; and
6. Bail is not opposed.
11 Bail is granted on the following conditions:
(a) The appellant enter into a personal undertaking of $50,000.
(b) There be a surety in the sum of $50,000, subject to the approval of a justice of the peace or an associate to a judge of the Supreme Court or District Court.
(c) The appellant must surrender any passport that he holds to the Registrar of the Supreme Court.
(d) The appellant is to reside at [residential address known to the court].
(e) The appellant is to be subject to a curfew Monday to Friday between the hours of 10 pm and 8 am and for the whole of Saturday and Sunday.
(f) The appellant is to report each Monday and Friday to the officer in charge of the Murdoch police station at a time to be set by that officer.
(g) The appellant shall not attend at any airport.
(h) The appellant shall not attend upon any port, railway station or any such point of departure for the purpose of leaving the Perth metropolitan area.
(i) The appellant shall not use or be in possession of any substance prohibited by the Misuse of Drugs Act 1981 (WA) and shall not be in the presence of any person who, to his knowledge, is in possession of or using such prohibited substance.
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