Clegg v The State of Western Australia
[2016] WASCA 61
•14 APRIL 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CLEGG -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 61
CORAM: MAZZA JA
HEARD: 5 & 11 APRIL 2016
DELIVERED : 11 APRIL 2016
PUBLISHED : 14 APRIL 2016
FILE NO/S: CACR 151 of 2015
BETWEEN: KERRY PATRICIA CLEGG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :LEVY DCJ
File No :IND 1274 of 2014
Catchwords:
Criminal law - Drug offences - Appeal against conviction - Application for bail pending appeal; alternatively, an expedited hearing of the appeal - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 4A pt C sch 1
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: Mr R Kashyap
Respondent: Ms K C Cook
Solicitors:
Appellant: Morris Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Caratti v The Queen [1999] WASCA 91
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Shrivastava v The State of Western Australia [2010] WASCA 96
MAZZA JA:
(This judgment was delivered extemporaneously on 11 April 2016 and has been edited from the transcript.)
This is Ms Clegg's application filed on 24 March 2016 for bail pending her appeal against conviction pursuant to cl 4A of pt C of sch 1 to the Bail Act 1982 (WA) or, in the alternative, an expedited hearing of the appeal.
The appellant and her co‑accused, Karl Matthew Thornton, were jointly charged on indictment in the District Court with four counts of selling a prohibited drug, namely, Alpha‑PVP, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). In each count it was alleged that Alpha‑PVP is a prohibited drug because it is a derivative of MDPV.
On 9 June 2015, the appellant and Mr Thornton were convicted of the four counts I have just mentioned. On 5 August 2015, the appellant was sentenced to a total effective term of 2 years 4 months' imprisonment to commence on that day, with eligibility for parole. Her earliest date for release on parole is on or about 4 October 2016.
The following chronology with respect to the appeal is relevant:
(a)The appeal notice was filed within time on 24 August 2015.
(b)The appellant's case was not filed within the time prescribed by the Supreme Court (Court of Appeal) Rules 2005 (WA) and not until 25 January 2016. It was not served on the State until 4 March 2016.
(c)On 3 March 2016, the appellant was ordered to file a schedule and certificate in compliance with practice direction 7.4. A schedule which complies with the practice direction remains outstanding.
(d)On 24 March 2016, the respondent filed its answer to the appellant's case.
The sole proposed ground of appeal alleges that the verdicts of guilty were unreasonable and cannot be supported on the evidence. Based on the appellant's case, the issue boils down to whether there was evidence upon which it was open for the jury to conclude beyond reasonable doubt that Alpha‑PVP was a derivative of MDPV. At trial the State adduced expert evidence from a chemist, Dr Oliver Locos, to that effect based primarily (but not, as I read his evidence, exclusively) upon the chemical structure of the two drugs (ts 229 ‑ 316). No other expert evidence was adduced at trial.
The appellant's argument in this court is essentially a repetition of the argument put at trial and is based upon the applicability, and then the construction, of the introductory text to the Poisons Standard 2013 (known as SUSMP No. 4). It was submitted at trial and now to this court that, in order for a substance to be a derivative of a scheduled poison, there must be consideration of the substance's structure, pharmacology and toxicology. The appellant submitted that Dr Locos' evidence was limited only to the chemical structure and nothing else. The appellant argues that according to the introductory text of SUSMP No. 4, without a consideration of the pharmacology and toxicology of the substances, it could not reasonably be concluded that Alpha‑PVP was a derivative of MDPV.
The State says that the evidence of Dr Locos was sufficient to prove that Alpha‑PVP was a derivative of MDPV, and that the appellant's submissions stem from a fundamental misapprehension of the introductory text of the SUSMP No. 4.
Clause 4A of pt C of sch 1 to the Bail Act provides that a judicial officer shall only grant bail pending appeal if he or she is satisfied that there exists exceptional reasons why the appellant should not be kept in custody and it is otherwise appropriate to grant bail. See Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [37].
The term 'exceptional reasons' means what it says. A very significant factor is the appeal's prospects of success. The appeal must be demonstrated to have strong prospects of success. See Caratti v The Queen [1999] WASCA 91 [11] and Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. An additional relevant factor may be that, by the time the appeal is heard and determined, the appellant will have served much, if not all, of his or her non‑parole period. As to this factor in the present case, it must be observed that a good deal of the delay in progressing this appeal lies at the feet of the appellant.
I have given careful consideration to all of the materials which have been put before me by the parties including the oral and written submissions made in support of the application. It is unnecessary and inappropriate for me to analyse in detail the arguments for and against the ground of appeal as if I was determining the appeal. It is sufficient for me to say that, at this stage in the proceedings, I have not been persuaded that the proposed ground of appeal has sufficient strength to justify a grant of bail.
There is nothing else which, to my mind, relevantly constitutes 'exceptional reasons'. As I have not been persuaded that exceptional reasons exist for a grant of bail pending appeal, I have no power to so order. Accordingly, I dismiss the application.
With respect to the application for an expedited hearing, the appellant must take responsibility for the fact that the progress of this appeal has been delayed. In the circumstances, it is not appropriate that this case, in effect, jump the queue of other cases awaiting hearing.
In any event, the preparation of the appeal appears well advanced, save for the preparation of a satisfactory practice direction 7.4 schedule by the appellant. Once this is filed, the matter will, for all intents and purposes, be ready.
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