David John Welch v The Queen - [2011] ACTCA 19

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…

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 David John Welch v The Queen

Details

AGLC: David John Welch v The Queen [2011] ACTCA 19
Case: [2011] ACTCA 19
Decision Date

CaseChat Overview and Summary

David John Welch appealed against sentences imposed by the Supreme Court of the Australian Capital Territory. The appellant had pleaded guilty to five charges arising from two separate incidents: four offences related to an altercation at a sports club in 2007, and three offences of aiding and abetting assaults with weapons in 2010. The sentences imposed were cumulative, resulting in a total period of imprisonment of four years with a non-parole period of two years and three months. The grounds of appeal included that the sentences were manifestly excessive, that certain mitigating factors were not adequately considered, and that the accumulation of sentences was improper. Pending the appeal, the appellant sought bail.

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