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…

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 Climo v The Queen

Details

AGLC: Climo v The Queen [2016] WASCA 119
Case: [2016] WASCA 119
Decision Date: 7 JULY 2016

CaseChat Overview and Summary

The case of Climo v The Queen involved the appellant, who had been convicted of importing a marketable quantity of a border controlled drug. The appellant sought an order for bail pending appeal, which was dismissed by the court. The primary issue before the court was whether the appellant was entitled to bail pending appeal against the conviction. The court had to consider whether the appeal had a reasonable prospect of success and whether the appellant's release on bail would unduly prejudice the administration of justice or cause unacceptable risk to the community.

The court examined the principles governing bail pending appeal, which require a balance between the interests of justice and the rights of the accused. The court noted that the appellant's appeal was based on factual findings that, if accepted, could lead to an acquittal. However, the court found that the appeal did not have a reasonable prospect of success as the evidence against the appellant was strong and the factual findings relied upon by the appellant were not supported by the evidence. The court also considered the risk to the community if the appellant were released on bail, finding that the risk was unacceptable given the nature of the offence.

Having considered the relevant factors, the court dismissed the application for bail pending appeal. The court found that the appeal did not have a reasonable prospect of success and that the release of the appellant on bail would unduly prejudice the administration of justice and cause unacceptable risk to the community. The court noted that the appellant's release on bail would not only undermine the deterrence value of the sentence but also create a risk of reoffending and harm to the community. The court therefore concluded that the appellant was not entitled to bail pending appeal.

Orders

Orders of the court

Application for bail pending appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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