DAVID JOHN WELCH v THE QUEEN
[2011] ACTCA 19 (22 September 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – bail pending appeal – need for special or exceptional circumstances – no special or exceptional circumstances shown – application for bail refused.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – stay or suspension of sentence – principles for stay or suspension – preference to proceed by way of bail.
Court Procedures Rules 2006 (ACT), r 4733
Bail Act 1992 (ACT), s 9E
Bail Act 1978 (NSW), s 30AA
Bail Act (NT), s 23A
Bail Act 1982 (WA), Sch 1 Pt C cl 4A
Crimes (Sentencing) Act 2005 (ACT), s 78
Sherd v The Queen [2011] ACTCA 17
Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1988) 52 NTR 13
Dwyer v National Companies & Securities Commission (No 2) (1988) 15 NSWLR 285
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
The Annot Lyle (1886) 11 PD 114
Griffiths v Australian Postal Commission (1987) 87 FLR 139
Henderson v Amadio Pty Ltd (No 3) (1996) 65 FCR 66
Ex parte Maher [1986] 1 Qd R 303
R v Collins (1986) 41 SASR 208
Brown v The Queen [1979] Tas R 304
Re Zoudi (2006) 14 VR 580
United Mexican States v Cabal and Ors (2001) 209 CLR 165
Eastman v The Queen (1997) 72 FCR 190
Abbott (1997) 97 A Crim R 19
The Queen v Giordano (1982) 31 SASR 241
Markovina v The Queen (1998) 72 ALJR 1522
Stevenson v The Queen (1984) 58 ALJR 422
Willers v The Queen (WACCA, Parker J, 64 of 1995, 7 June 1995, unreported)
Griffiths v The Queen (1977) 137 CLR 293
Tindall & Gunton (1994) 74 A Crim R 275
R v Todd [1982] 2 NSWLR 517
R v Law; Ex parte Attorney-General (Qld) [1996] 2 Qd R 63
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 20 of 2011
No. SCC 250 of 2010
No. SCC 35 of 2010
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 22 September 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 20 of 2011
) No. SCC 250 of 2010
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 35 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID JOHN WELCH
Appellant
AND:THE QUEEN
Respondent
ORDER
Judge: Refshauge J
Date: 22 September 2011
Place: Canberra
THE COURT ORDERS THAT:
The Application in relation to bail dated 1 August 2011 be dismissed.
The Application in Proceedings dated 5 August 2011 be dismissed.
It be strongly recommended to the appropriate correctional authorities that they take all reasonable steps to ensure that the antiepileptic drugs prescribed for David John Welch are provided to him in accordance with the appropriate prescription.
The appeal be expedited and, so far as is practicable, heard in the…
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- AGLC
- David John Welch v The Queen [2011] ACTCA 19
- Case
- [2011] ACTCA 19
- Decision Date
CaseChat Overview and Summary
The Court of Appeal of the Australian Capital Territory was required to determine whether to grant bail to the appellant pending his appeal against sentence. This involved considering the legal principles governing the grant of bail in such circumstances, particularly the requirement for special or exceptional circumstances. The Court also considered whether a stay or suspension of the sentence was an appropriate alternative to bail, and the principles applicable to such applications.
The Court affirmed that the test for granting bail pending appeal in criminal matters requires the applicant to demonstrate special or exceptional circumstances. These circumstances must address, at a minimum, whether the applicant will have served a substantial portion of their sentence before the appeal can be heard, and whether the appeal has strong prospects of success. The Court emphasised that while these are key considerations, the totality of the circumstances must be assessed, and the applicant must show that in all the circumstances, the grounds for bail are exceptional. In this instance, the Court found that no special or exceptional circumstances had been shown to justify the grant of bail.
The Court ordered that the applications for bail and for a stay or suspension of sentence be dismissed. It also made a strong recommendation to correctional authorities to ensure the appellant received his prescribed anti-epileptic medication and ordered that the appeal be expedited for hearing in February 2012.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
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