Climo v The Queen

[2016] WASCA 119

CLIMO -v- THE QUEEN [2016] WASCA 119

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 119
Court:	THE COURT OF APPEAL (WA)	Published:	07/07/2016
Case No:	CACR:223/2015	Heard:	29 & 30 JUNE 2016
Coram:	MAZZA JA	Delivered:	30/06/16
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for bail pending appeal dismissed
Category:	B
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Parties:	BENJAMIN GORDON CLIMO THE QUEEN
Catchwords:	Criminal law Appeal against conviction Offence of importing a marketable quantity of a border controlled drug Application for bail pending appeal Turns on own facts
Legislation:	Bail Act 1982 (WA), cl 4A pt C sch 1 Criminal Code (Cth), s 5.4, s 307.2
Case References:	Colwell v The State of Western Australia [2012] WASCA 149 Fermanis v The State of Western Australia [2005] WASCA 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CLIMO -v- THE QUEEN [2016] WASCA 119 CORAM : MAZZA JA HEARD : 29 & 30 JUNE 2016 DELIVERED : 30 JUNE 2016 PUBLISHED : 7 JULY 2016 FILE NO/S : CACR 223 of 2015 BETWEEN : BENJAMIN GORDON CLIMO

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : LEVY DCJ

File No : IND 1112 of 2014

Catchwords:

Criminal law - Appeal against conviction - Offence of importing a marketable quantity of a border controlled drug - Application for bail pending appeal - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1

Criminal Code (Cth), s 5.4, s 307.2

Result:

Application for bail pending appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Ms K A Gregory

Solicitors:

Appellant : Go To Court Lawyers
Respondent : Director of Public Prosecutions (Cth)

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

Colwell v The State of Western Australia [2012] WASCA 149
Fermanis v The State of Western Australia [2005] WASCA 212

MAZZA JA:

(These reasons were delivered extemporaneously on 30 June 2016 and have been edited from the transcript.)

1 Before me is the appellant's application for bail pending his appeal against conviction filed on 21 June 2016.

2 The application is made pursuant to cl 4A pt C of sch 1 to the Bail Act 1982 (WA). That clause provides, in effect, that bail pending appeal may only be granted for exceptional reasons and, even then, only if it is otherwise appropriate to grant bail. Here, if exceptional reasons are demonstrated by the appellant, it is not suggested that there are other reasons to refuse bail.

3 The only alleged exceptional reason for granting bail is the alleged strongly arguable grounds of appeal, as to which see Colwell v The State of Western Australia [2012] WASCA 149 [31] and cases such as Fermanis v The State of Western Australia [2005] WASCA 212 [15].

Background

4 On 18 September 2015, the appellant was convicted in the District Court, after trial by jury, of one count of importing a marketable quantity of a border controlled drug, namely methamphetamine, contrary to s 307.2 of the Criminal Code (Cth). He was subsequently sentenced to 7 years' imprisonment, with a non-parole period of 4 years 7 months.

5 In very broad terms, on 18 May 2013 the appellant flew back to Australia from Thailand. Customs officers detected an anomaly in a welder that was in the appellant's luggage. The anomaly turned out to be a package containing, as later analysis showed, 143.2 g of pure methamphetamine.

6 At trial, there was no issue that the methamphetamine had been imported. The appellant's defence was that he had no knowledge of the drugs in the welder. Put in legal terms, and having regard to s 307.2(2), read with s 5.4 of the Criminal Code, the decisive issue for the jury was whether the Crown had proved beyond reasonable doubt the fault element of recklessness. The concept of recklessness in s 5.4 includes intention, knowledge, or recklessness.

Appeal to this court

7 There are two grounds of appeal, each alleging a miscarriage of justice in connection with the trial judge's summing up. Leave to appeal has been granted in respect of ground 1; leave to appeal on proposed ground 2 has been referred to the hearing of the appeal.

8 Ground 1 alleges, in substance, that his Honour erroneously directed the jury that it was enough for the Crown to establish knowledge for the purposes of s 307.2 of the Criminal Code if it was proved that the appellant had a mere belief as to the presence of the methamphetamine in the welder.

9 Proposed ground 2 alleges, in substance, that his Honour did not clearly direct the jury that the fault element of reckless intention or knowledge was present at the time of the importation of the methamphetamine. I note that the appellant's experienced defence counsel did not take either point at trial.

Disposition of the application

10 I have considered the appellant's affidavit in support of the application; the parties' helpful written submissions; the summing up; the appellant's case; and the respondent's answer. This is not the time to engage in detailed argument or analysis of the grounds of appeal.

11 Counsel for the appellant accepted in argument that, of the two grounds, ground 1 appears to be the strongest (appeal ts 4). It seems to me that a direction that mere belief was sufficient to prove the fault element of recklessness would be erroneous. However, when the direction that was actually given by the learned trial judge is considered in full and in context, it may not have that effect.

12 At this point, I have not been persuaded that ground 1 is strongly arguable. It is unnecessary for me to say anything further about proposed ground 2 other than I have not been persuaded that that proposed ground is strongly arguable.

13 As exceptional circumstances have not been established, the application for bail must be dismissed.