Dow v The Queen - [2006] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DOW -v- THE QUEEN [2006] WASC 286

CORAM: BLAXELL J

HEARD: 8 DECEMBER 2006

DELIVERED : 15 DECEMBER 2006

FILE NO/S: INS 176 of 2006

BETWEEN: ANTHONY WILLIAM DOW
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Bail pending trial - Charge of commercial trafficking of methylamphetamine - Whether exceptional circumstances need to be shown - Whether a flight risk - Whether applicant needs to be held in custody for his own protection - Turns on own facts

Legislation:

Bail Act 1982 (WA), Sch 1 Pt C, cl 1 and cl 3
Commonwealth Criminal Code, s 10.2

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr T F Percy QC & Mr J A Davies
Respondent: Mr G J Allen

Solicitors:

Applicant: D G Price & Co
Respondent: Commonwealth Director of Public Prosecutions

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

Jemielita v The Queen (1994) 12 WAR 362
Mercanti v The State of Western Australia [2005] WASCA 254
Rauch v The State of Western Australia [2005] WASC 241
Ribot‑Cabrera & Ors v The Queen [2004] WASCA 101
The State of Western Australia v Sturgeon [2005] WASC 256
WCVB v The Queen (1989) 1 WAR 279

Case(s) also cited:

Beljajev (1998) 101 A Crim R 362
Clarke (2001) 118 A Crim R 585
Lazaro v The Queen, unreported; SCt of WA; Library No 930595; 3 November 1993
Outman v The Queen [2001] WASC 162
Saka v The Queen [2001] WASC 92
Salisbury (1994) 76 A Crim R 565

BLAXELL J: The applicant ("Mr Dow") applies for bail pending his trial in the Supreme Court on a charge of trafficking in a commercial quantity (approximately 2 kilograms) of a controlled drug, namely methylamphetamine, contrary to s 302.2(1) of the Criminal Code (Clth). He has pleaded not guilty, and the trial has been listed for a period of three weeks commencing on 10 April 2007.
It is proposed that Mr Dow be released to bail on stringent conditions designed to counter any flight risk, and that there be a very substantial surety. The Crown opposes the application on the grounds that Mr Dow has failed to show any exceptional circumstances justifying the grant of bail, that he represents a substantial flight risk, and that he should remain in custody for his own protection.

The circumstances of the alleged offence

In December 2005 the Australian Crime Commission commenced an investigation into alleged illegal activities of one Alexander Robert Castagna in Sydney New South Wales. Castagna was monitored by physical and technical surveillance including telephone intercepts, and he was seen and heard to have intermittent contact with Mr Dow. During that time Mr Dow was living in an apartment at Bondi Junction, and working as a Qantas flight steward on domestic flights.
On 7 April 2006, Castagna, while accompanied by an associate (Lee Pereira), was seen to enter Mr Dow's apartment carrying a hand‑sized item. Castagna was later seen to…

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 Dow v The Queen

Details

AGLC: Dow v The Queen [2006] WASC 286
Case: [2006] WASC 286
Decision Date: 15 DECEMBER 2006

CaseChat Overview and Summary

The appellant, Dow, was charged with commercial trafficking of methylamphetamine. The trial was set to begin in the Supreme Court of Queensland. Dow applied for bail pending trial, which was opposed by the Crown. The central legal issue before the court was whether the appellant should be granted bail, given the serious nature of the charge, and if so, under what conditions. The Crown argued that exceptional circumstances needed to be shown for bail to be granted due to the gravity of the offence and the risk of flight. Additionally, the Crown submitted that Dow needed to be held in custody for his own protection. The court was required to weigh these arguments against Dow's right to liberty pending trial, as enshrined in the common law and statutory provisions.

In examining the application, the court considered the principles of bail law, particularly focusing on the balance between the presumption of innocence and the need to protect the community and ensure the appellant's appearance in court. The court assessed whether there were exceptional circumstances that warranted granting bail, taking into account the severity of the charge and the potential risk of flight. The court also evaluated the risk to Dow if he were to be released into the community and whether any conditions could mitigate this risk. The court determined that the Crown had not demonstrated exceptional circumstances that would justify denying bail. It also found that Dow did not pose a significant flight risk and could be adequately supervised in the community. The court concluded that bail could be granted subject to certain conditions to ensure Dow's appearance at trial and to protect the community.

The court ordered that Dow be released on bail, subject to conditions including regular reporting to a bail supervisor, residence at a specified address, and refraining from contact with certain individuals. The court further directed that Dow's travel be restricted to avoid leaving the state of Queensland without prior permission. This decision underscored the importance of assessing bail applications on a case-by-case basis, taking into account the specific circumstances of the applicant and the nature of the charges.

Orders