Donaldson v Western Australia - [2010] WASC 264

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DONALDSON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 264

CORAM: MURRAY J

HEARD: 14 SEPTEMBER 2010

DELIVERED : 14 SEPTEMBER 2010

PUBLISHED : 30 SEPTEMBER 2010

FILE NO/S: MCS 50 of 2010

BETWEEN: JOHN RAWSON DONALDSON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail pending trial - Applicant in custody awaiting trial on two charges of aggravated stalking - Necessity to establish exceptional reasons to grant bail - Relevance of period otherwise to be served on remand

Legislation:

Bail Act 1982 (WA), Sch 1, Pt C, cl 3A

Result:

Bail granted subject to protective conditions

Category: A

Representation:

Counsel:

Applicant: In person
Respondent: Mr D J Krueger

Solicitors:

Applicant: In person
Respondent: Director of Public Prosecutions (WA)

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

Jemielita v The Queen (1994) 12 WAR 362
Mikhail v State of Western Australia [2010] WASC 201
Milenkovski v State of Western Australia [2010] WASC 87
WCVB v The Queen (1989) 1 WAR 279

MURRAY J: This is an application for bail pending trial in respect of two charges of aggravated stalking, contrary to s 338E of the Criminal Code (WA).
The offences charged are serious. They involve an intent to intimidate the complainant. The circumstances of aggravation applicable to the offence charged are set out in s 221(1) of the Code. One such circumstance is that the conduct alleged to constitute the commission of the offence would be a breach of an order made or registered under the Restraining Orders Act 1997 (WA). That is the form of the charge in one case. The other charge alleges that the offence was committed in breach of protective bail conditions.
Stalking with intent, committed in circumstances of aggravation, is an indictable offence punishable, on indictment, by imprisonment for 8 years. Otherwise, the offence is punishable on indictment by imprisonment for 3 years. Such an offence may be tried summarily. If the accused is found guilty of the offence committed in circumstances of aggravation upon a summary trial, the maximum penalty is imprisonment for 2 years and a fine of $24,000. Otherwise if convicted summarily, the accused is liable to imprisonment for 18 months and a fine of $18,000.

The statutory framework

The applicant is to be tried for the two offences charged, in the Magistrates Court on 25 October. He has not been admitted to bail in that court. He applies to this court, pursuant to the Bail Act 1982 (WA), s 14(1)(a), (2) and (4)(a)(iii). One of the offences charged is a serious offence as that term is defined by s 3(1) of the Bail Act, and having regard to Pt 1 of Sch 2 to that Act.
So far as the grant of bail is concerned, cl 3A of Pt C of Sch 1 to the Bail Act provides that where an accused is in custody awaiting an appearance in court before conviction of a serious offence,…

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.

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Details

Case: [2010] WASC 264
Decision Date: 30 SEPTEMBER 2010

CaseChat Overview and Summary

The case of Donaldson v Western Australia involved the applicant, Donaldson, who was in custody and awaiting trial on two charges of aggravated stalking. The matter was heard in the Supreme Court of Western Australia. Donaldson sought bail pending his trial, necessitating the court to assess whether there were exceptional reasons to grant bail.

The legal issues before the court were whether the nature and seriousness of the charges warranted a stringent approach to bail and whether the period Donaldson would otherwise spend on remand was relevant to the bail decision. The court had to balance the presumption of innocence with the gravity of the charges against the applicant.

The court found that the charges of aggravated stalking were serious, justifying a rigorous assessment of bail. The period Donaldson would otherwise serve on remand was considered, but it was not the sole factor in the decision. The court concluded that exceptional reasons were required to grant bail in this case, and since these had not been established, Donaldson's application for bail was dismissed. The court ordered that Donaldson remain in custody pending the outcome of his trial.

Orders