Debono v The State of Western Australia

[2010] WASCA 5

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DEBONO -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 5

CORAM:   McLURE P

HEARD:   5 JANUARY 2010

DELIVERED          :   5 JANUARY 2010

PUBLISHED           :  15 JANUARY 2010

FILE NO/S:   CACR 186 of 2009

BETWEEN:   JAMIE CHARLES DEBONO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :BLAXELL J

File No  :MCS 90 of 2009

Catchwords:

Criminal law - Refusal of application for bail - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 15A, s 15B, s 25
Criminal Appeals Act 2004 (WA), s 27
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

1. McLURE P:  This is an application for leave to appeal from the decision of Blaxell J made on 11 December 2009 refusing bail in respect of six charges against the appellant.  The six charges result from the police executing a search warrant at the appellant's home on 8 July 2009.  The most serious of the six charges is an indictable charge alleging that the appellant was in possession of 10.25 g of amphetamine with intent to sell or supply.  He was also allegedly found in possession of 3 g of cannabis and there are other associated charges including possession of a significant sum of money.

2. The appellant was initially released to bail in respect of those matters but while on bail, it is alleged that he committed further offences, four in number.  On 17 September 2009 he pleaded not guilty to two charges of being in possession of a car battery reasonably suspected to be stolen and one charge of stealing spirits, coke and beer to the value of $300.  He pleaded guilty to a charge of receiving two vehicle licence plates which had been stolen.

3. As a result of the further charges the magistrate, on 24 August 2009, revoked bail in respect of the six charges referred to earlier.  Subsequently the appellant made an application to the magistrate to reconsider the revocation of bail because of changed circumstances.  That application came before Magistrate Wheeler on 17 September 2009 and was refused.  Many of the personal matters referred to by the appellant today were canvassed before Magistrate Wheeler on that occasion.

4. Following that unsuccessful application the appellant made a fresh application for bail which came before Blaxell J of the Supreme Court on 11 December 2009.  Blaxell J dismissed the application for bail.  The reasons given by Blaxell J and the transcript show that the fresh application for bail was based primarily on the needs of the appellant's mother, who had a number of medical conditions, and the appellant's partner, who had suffered a miscarriage and was suffering depression.

5. The primary judge, Blaxell J, concluded that (1) there was a very strong prospect, given the strength of the evidence against the appellant, that the appellant would receive a term of imprisonment; (2) there was a strong risk of the appellant committing further offences if released to bail, and in reaching that conclusion Blaxell J had regard to the very significant prior record of offending by the appellant; (3) given the strength of the case against the appellant, there was a risk of flight.

6. The decision of Blaxell J being discretionary in nature, it is necessary for the appellant to demonstrate that Blaxell J made an express or implied material error of fact or law. Section 15A of the Bail Act 1982 (WA) makes provision for appeals to the Court of Appeal from decisions under the Bail Act. Section 15A(3) provides that the leave of the Court of Appeal is required for each ground of appeal in an appeal under that section and s 15A(4) applies s 27 of the Criminal Appeals Act 2004 (WA).

7. Rule 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA) gives a single judge jurisdiction to determine whether leave to appeal should be given for each ground of appeal. In order to get leave to appeal on a ground of appeal the appellant has to demonstrate that the ground has reasonable prospects of succeeding. In a determination under s 15A, the Court of Appeal is required to determine the appeal on the material and the evidence that was before the judge whose decision is the subject of the appeal (s 15B(2) of the Bail Act).

8. The appellant has filed an appeal notice containing three grounds of appeal.  Ground of appeal A is in these terms:

   New facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked.

9. There are a number of points to make about that ground of appeal. No admissible evidence has been filed in support of the alleged change of circumstances and other matters referred to. The Court of Appeal office advised Mr DeBono that if there were any such new circumstances they would have to be deposed to. Finally, and in any event, s 15B(2) of the Bail Act provides that the Court of Appeal is required to determine the appeal having regard to the material and evidence that was before the primary judge. That suggests the express requirements in s 15B of the Bail Act exclude any general power the Court of Appeal otherwise has in relation to fresh or new evidence.  There is, in my view, no merit in ground of appeal A.

10. In ground of appeal B the appellant says he failed to adequately present his case before Blaxell J.  That does not give rise to a relevant reviewable error of law or fact.  Moreover, having read the transcript of what occurred before Blaxell J, I am not persuaded there is any basis to the claim of a failure to adequately present the case.  There is no merit in ground B.

11. The final ground is a claim that Blaxell J erred in fact and in law.  That is an unsubstantiated assertion but it is supplemented by written submissions filed in the court on 4 January 2010.  The document contains 20 matters that the appellant relies on.  The bulk of those matters go to the question of whether the primary judge, Blaxell J, erred in concluding that the case against the appellant was a strong one.

12. This proposition was raised before Blaxell J by Mr O'Donoghue on behalf of the appellant on 11 December 2009.  Blaxell J explained his position on the subject during that hearing.  The background to the matter as stated in the material provided by the prosecution is as follows:  there was a search, pursuant to a search warrant, of the appellant's premises on 8 July 2009.  A smoking implement was found; there were clipseal bags located and digital scales; there was a mobile phone containing SMS messages about cannabis availability; and there was green leaf material, which was admitted by the complainant to be cannabis.  The search of the house also located a hunting style knife hidden in cushions.

13. The appellant was conveyed to the Bayswater police station, where he was subjected to a strip search.  While conducting the search police identified that the appellant was attempting to conceal something and subsequently located a nylon-type bag hanging from his neck and tucked into his jeans.  The police removed the bag from the appellant, who identified it and its contents as belonging to him.  Upon searching the bag, there was $1600 cash, consisting of $100 notes and $50 notes.  Police also located a small number of clipseal bags and a small ball of light brown substance.  When the appellant was questioned about it he stated, 'I don't know what that is'.

14. Police seized all items and advised the appellant that the contents would be tested and upon this advice the appellant identified the substance as amphetamine.  The statement of material facts says subsequent testing confirmed the substance to be amphetamine weighing approximately 10.25 g.  It is now said that the prosecution has advised the Magistrates Court that there has been no testing of the substance but that will be done and the results will be available at the next appearance in the Magistrates Court in early February this year.  I will proceed on the basis that what has been put to me from the bar table is an accurate statement of what the prosecution have put to the Magistrates Court.

15. Blaxell J explained his position on the merits at page 30 of the transcript of the hearing.  He said:

    [O]n the face of things, if [the appellant] is allegedly found with a bag of some substance around his neck, which also contains a large quantity of cash, and he is also found in possession of scales and other paraphernalia usually associated with drug dealing, even though there is not yet any final testing of the substance, there's a very strong inference that it is an illicit drug and, without more, that is the basis on which I will deal with this application.

16. So his Honour dealt with the application on the basis of the circumstantial evidence and, I apprehend, the statement by police officer Collins that the accused admitted that he was in possession of amphetamine.  This does not go to the guilt or otherwise of the appellant; it is simply a question of the strength of the evidence.  That is what Blaxell J considered, based on the material before him.

17. Blaxell J gave the appellant the opportunity to give an explanation for the fact that he was found in possession of the material that was hanging around his neck, together with the money. In doing so, he advised the appellant of s 25 of the Bail Act, which is in the following terms:

    A statement made by an accused to a judicial officer or authorised officer for the purpose of a decision whether bail should be granted to him for any appearance in court for an offence shall not be admissible in evidence against him at his trial for that offence.

18. So the inference available from the circumstances was not muddied by any explanation given to the primary judge by the appellant. There is no basis for the assertion made in point 16 of the appellant's written submissions that Blaxell J acted unfairly, unjustly and unreasonably and punished and sanctioned him because of his inability to identify the substance. What Blaxell J did was give the appellant the opportunity to make a statement, which statement would have been protected under s 25 of the Bail Act, and that fact was drawn to the appellant's attention.

19. There is also no basis for any implication that Blaxell J would have given bail if the appellant had supplied the information concerning the condition of the appellant's mother.  I have read the transcript of the hearings before Blaxell J on 2 December and 11 December 2009.  At the end of the day the primary judge made his decision on bail based on his conclusion that there was a risk that the appellant would continue to commit further offences if released to bail and because of flight risk.  The latter assessment was made on the basis of what the primary judge regarded as a strong case on the material before him in relation to the most serious offence.  The appellant has not demonstrated that the primary judge's assessment of the strength of the case was in error.

20. Having not been able to establish that there was any material error of fact or law in the primary judge's reasons for refusing bail, it is incumbent on me to refuse leave in relation to ground C of the grounds on which the appellant relies. The consequence under s 27(3) of the Criminal Appeals Act is that the appeal is taken to be dismissed.