De Alwis v The State of Western Australia

The appellant, De Alwis, appealed against a decision by Wisbey DCJ of the Supreme Court of Western Australia refusing his application for bail pending trial on a charge of grievous bodily harm. The appellant was in custody since the day of the alleged offence and had been represented by counsel at the first trial which was aborted when the appellant became unwell. At a directions hearing, the appellant, now unrepresented, made an application for bail and for an adjournment of the trial. Both applications were refused. The appellant appealed against the decision to refuse bail.

The legal issues before the court were whether the reasons given by Wisbey DCJ for refusing bail were inadequate and whether the Court of Appeal could admit evidence contained in affidavits sworn during the course of the appeal. The appellant argued that Wisbey DCJ failed to properly consider the appellant's health issues and the appellant's prospects of acquittal. The appellant also sought to adduce evidence contained in affidavits which he had sworn during the course of this appeal.

The court held that the reasons given by Wisbey DCJ were adequate and that the evidence in the affidavits was not admissible. The court noted that the Bail Act required the court to decide an appeal under s 15A on the material and evidence before the primary judge. There was no provision in the Bail Act which allowed the court to admit other evidence. The court held that the appellant had not made out a case for leave to appeal against the decision to refuse bail. The court also held that the Criminal Appeals Act did not apply to an appeal in respect of bail. Accordingly, the court dismissed the appeal. The court granted leave to appeal only on the issue of the admissibility of the affidavit evidence because it was a novel issue of law which ought to be authoritatively resolved by the Court of Appeal.

The court ordered that leave to appeal was granted on ground 1; leave to appeal was refused on all other grounds; and the appeal was dismissed.