DAVY-RUSSO v The State of Western Australia
[2022] WASCA 115
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DAVY-RUSSO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 115
CORAM: BUSS P
HEARD: 30 AUGUST 2022
DELIVERED : 30 AUGUST 2022
FILE NO/S: CACR 78 of 2022
BETWEEN: BEAU SEBASTIAN DAVY-RUSSO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WALLACE DCJ
File Number : IND 1746 of 2020
Catchwords:
Criminal law - Appeal against conviction - Application for bail - Whether exceptional reasons why the appellant should not be kept in custody pending the determination of his appeal
Legislation:
Misuse of Drugs Act 1981 (WA)
Result:
Application for bail granted
Category: B
Representation:
Counsel:
| Appellant | : | Mr R Kashyap |
| Respondent | : | Ms G N Beggs |
Solicitors:
| Appellant | : | Rishi Kashyap |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Hargraves v The Queen (2011) 245 CLR 257
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen (1991) 180 CLR 531
Serukai v The State of Western Australia [2020] WASCA 127
Stafford v The Queen (1993) 67 ALJR 510
XHA v The State of Western Australia [2022] WASCA 8
REASONS OF THE COURT:
The appellant has appealed against conviction.
On 28 January 2022, the appellant was convicted, after a trial before Wallace DCJ and a jury, of possession of a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
On 9 August 2022, the trial judge sentenced the appellant to 2 years' immediate imprisonment with eligibility for parole. The sentence began on 9 August 2022.
On 19 August 2022, the appellant filed his appeal notice in respect of his conviction. On that date the appellant also filed his appellant's case.
The sole ground of appeal in the appellant's case alleges that the trial judge erred in law in her directions to the jury in relation to the appellant's evidence, thereby giving rise to a substantial miscarriage of justice.
There are three particulars of the ground of appeal. The first particular refers to her Honour's directions requiring the jury to consider carefully the evidence of the appellant because 'he does have a certain degree of self-interest in giving the evidence that he gave' (ts 746). The second particular refers to her Honour's directions requiring the jury to consider 'whether there is any other evidence which confirms the evidence of' the appellant 'because you might not want to accept the evidence of' the appellant 'without seeing other independent evidence which confirms his evidence' (ts 747). The third particular asserts, in the alternative, that any directions of the type given by her Honour (the appropriateness of which is not conceded) should have been restricted in terms to those parts of the evidence that implicated the appellant's co-accused, Edward D'uva. The appellant and Mr D'uva were charged and tried jointly on, relevantly, the charge of which the appellant was convicted. Mr D'uva was acquitted of that charge.
On 23 August 2022, I granted leave to appeal on the sole ground of appeal in the appellant's case.
The appellant has made an application in the appeal for an order that he be granted bail pending the determination of his appeal.
By letter dated 26 August 2022, a Senior State Prosecutor with the Director of Public Prosecutions (WA) informed the Court of Appeal Registrar that:
(a)the State's preliminary view is that the ground of appeal is strongly arguable;
(b)accordingly, the State does not oppose the appellant's application for bail;
(c)the State emphasised that its position in relation to the ground of appeal is preliminary in nature and may change following a full review of the matter in the preparation of the respondent's answer;
(d)however, the fact that the State's view of the ground of appeal was preliminary in nature did not detract from the appropriateness of a grant of bail pending the hearing of the appeal.
I am satisfied that the State's concession is proper.
The principles relating to the granting of bail pending the determination of an appeal are well established. See, for example, Serukai v The State of Western Australia.[1]
[1] Serukai v The State of Western Australia [2020] WASCA 127 [12] - [15].
I consider that the merits of the appellant's appeal are of sufficient strength to justify a grant of bail. See, generally, Robinson v The Queen;[2] Stafford v The Queen;[3] Ramey v The Queen;[4] Hargraves v The Queen.[5] See also XHA v The State of Western Australia[6] where this court analysed those High Court cases in relation to a trial judge directing a jury that the interest of an accused in the outcome of his or her trial is a factor to be taken into account in assessing his or her evidence.
[2] Robinson v The Queen (1991) 180 CLR 531.
[3] Stafford v The Queen (1993) 67 ALJR 510.
[4] Ramey v The Queen (1994) 68 ALJR 917.
[5] Hargraves v The Queen (2011) 245 CLR 257.
[6] XHA v The State of Western Australia [2022] WASCA 8.
In particular, I consider that the appellant has a strongly arguable case that the trial judge misdirected the jury, as alleged in the sole ground of appeal, and that the misdirection occasioned a miscarriage of justice.
In my opinion:
(a)the strength of the appellant's case;
(b)the imposition on the appellant of a reasonably short term of immediate imprisonment; and
(c)the inability of the court to hear the appellant's appeal until February 2023, by which time the appellant will have been held in custody for about 6 months,
constitute, in combination, exceptional reasons why he should not be kept in custody pending the determination of the appeal.
The appellant's application for bail should be granted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
30 AUGUST 2022
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