EAGD v The State of Western Australia
[2013] WASCA 81
•21 MARCH 2013
EAGD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 81
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 81 | |
| THE COURT OF APPEAL (WA) | 21/03/2013 | ||
| Case No: | CACR:24/2013 | 14 MARCH 2013 | |
| Coram: | MAZZA JA | 14/03/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail dismissed Urgent appeal order made | ||
| B | |||
| PDF Version |
| Parties: | EAGD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail application Urgent appeal order application Exceptional circumstances Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A Supreme Court (Court of Appeal) Rules 2005 (WA), r 46 |
Case References: | Huynh v The Queen (1999) WASCA 45 Milenkovski v The State of Western Australia [2011] WASCA 99 Ness v The State of Western Australia [2012] WASCA 273 Scolaro v Shephard [No 2] [2010] WASC 271 Shrivastava v The State of Western Australia [2010] WASCA 96 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EAGD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 81 CORAM : MAZZA JA HEARD : 14 MARCH 2013 DELIVERED : 14 MARCH 2013 PUBLISHED : 21 MARCH 2013 FILE NO/S : CACR 24 of 2013 BETWEEN : EAGD
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File No : CC 1801 of 2011
Catchwords:
Criminal law and procedure - Bail application - Urgent appeal order application - Exceptional circumstances - Turns on own facts
(Page 2)
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Supreme Court (Court of Appeal) Rules 2005 (WA), r 46
Result:
Application for bail dismissed
Urgent appeal order made
Category: B
Representation:
Counsel:
Appellant : Mr A G Elliott
Respondent : Mr L M Fox
Solicitors:
Appellant : D G Price & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Huynh v The Queen [1999] WASCA 45
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Ness v The State of Western Australia [2012] WASCA 273
Scolaro v Shephard [No 2] [2010] WASC 271
Shrivastava v The State of Western Australia [2010] WASCA 96
(Page 3)
- MAZZA JA:
(This judgment was delivered extemporaneously on 14 March 2013 and has been edited from the transcript.)
1 This is an application for bail pending appeal pursuant to cl 4A pt C of sch 1 of the Bail Act 1982 (WA). The appellant was convicted by Fenbury DCJ sitting in the Perth Children's Court on 30 November 2012 of one count of manslaughter. On 16 January 2013, the appellant was sentenced to 14 months' imprisonment with eligibility for parole. On 7 February 2013, the appellant filed an appeal against conviction. The appeal notice contains 10 proposed grounds of appeal, alleging various errors of law and fact.
2 In very general terms, the facts of the offence are as follows. The appellant and a school friend, YH, were 16-year-old learner drivers. There was evidence that they had discussed how fast the motor vehicles they had access to could go and that they contemplated a race to settle the issue. These discussions occurred both prior to and on the day the offence was allegedly committed. At about 3 pm on Friday, 4 February 2011, each was driving their motor vehicle, contrary to the conditions of their learner's permit, on Vahland Avenue, Southlands. Vahland Avenue is in a built-up area near a school.
3 The State's case was that the two boys raced each other over an approximately 700 metre stretch of road between Collins Road and Apsley Road. According to the State, the appellant's vehicle was initially in front of YH's vehicle, but YH then overtook the appellant. The State alleged that both vehicles travelled well over the local speed limit of 70 kilometres per hour. As the vehicles approached Apsley Road, both boys applied the brakes. YH was unable to stop and went through the intersection, colliding with a Holden Rodeo utility, causing the death of the driver of that utility. The appellant, in the meantime, had slowed sufficiently to turn left into Apsley Road.
4 The prosecution case against the appellant was based on s 8 of the Criminal Code (WA). It was alleged that the appellant and YH formed a common intention to prosecute an unlawful purpose; that is, to drive in a wilfully dangerous or dangerous manner along Vahland Avenue in conjunction with each other and that the unlawful killing of the driver of the utility was a probable consequence of engaging in that unlawful purpose.
(Page 4)
5 The appellant's case at trial was that he had not formed a common intention to race YH and he was not racing him. Further, even if he engaged in the alleged unlawful purpose with YH, that ended prior to the collision. Finally, the unlawful killing was not a probable consequence of the unlawful purpose.
6 Fenbury DCJ was satisfied beyond reasonable doubt that the appellant and YH had formed a common intention to drive recklessly or, at the very least, dangerously, along Vahland Avenue in conjunction with each other, and that they did just that. He found that the vehicles raced each other along Vahland Avenue between Collins Road and Apsley Road at high speeds which were dangerous to the public. He was satisfied that the unlawful killing of the driver of the utility was a probable consequence of the unlawful purpose (ts 299).
7 The legal principles relating to bail pending appeal are well known. Clause 4A creates a rebuttable statutory presumption against the grant of bail. Bail can only be granted if the court is satisfied of two matters. First, bail must be appropriate having regard to the provisions of cls 1 and 3 of pt C sch 1. Second, the court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody: Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
8 In this case, there is no argument that, if exceptional reasons exist, a grant of bail would not otherwise be appropriate. The key question is whether exceptional reasons exist. The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case. However, because the context of the application for bail is an appeal, the focal point must be on the merits of the appeal. Of course, other matters may be considered.
9 So far as the merits of the appeal are concerned, I consider it necessary for the appellant to show, without detailed argument, that the appeal has strong arguable grounds. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. The many cases in this area reveal various formulations, although I do not regard them as being materially different to the one I have just stated. Whatever the formulation, each one is predicated on the notion that the prospects of success must be sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound
(Page 5)
- conviction: Ness v The State of Western Australia [2012] WASCA 273 [9].
10 The appellant submits that the grounds of appeal, in particular ground 1, are strongly arguable and, given the relatively short length of the sentence, there is a real risk that the appeal would be rendered nugatory or substantially nugatory, unless the appellant is granted bail. The primary argument of the respondent is that none of the appellant's grounds is strongly arguable.
11 Before me the oral argument was focused on the merits of ground 1. This ground, in effect, alleges that his Honour erred by convicting the appellant on a different basis to that relied upon by the State.
12 Mr Elliott, for the appellant, submitted that the State's case, as opened, was implicitly put on the narrow basis that the appellant and YH had come to an actual agreement to race their cars on Vahland Avenue and that his Honour did not decide the case on this basis. Mr Fox, for the respondent, submitted that the State's case was not confined in the way asserted by the appellant. Both parties drew my attention to various parts of the transcript of the trial which were said to be relevant to this ground. I was also referred to the cases of Huynh v The Queen [1999] WASCA 45 and to Scolaro v Shephard [No 2] [2010] WASC 271.
13 I have considered all of this material. Without in any way pre-judging the appellant's case, I am not persuaded at this stage of the proceedings, based on the material before me, that any of the proposed grounds of appeal are strongly arguable. Specifically in relation to ground 1, I am not yet persuaded that it is strongly arguable that the State's case was as narrowly confined as alleged.
Conclusion and orders
14 Therefore, I am not satisfied that the appellant has demonstrated exceptional reasons why he should not be kept in custody. In arriving at this conclusion, I have considered the possibility that any appeal may be rendered nugatory or substantially nugatory given the relatively short sentence imposed.
15 Although I would dismiss the appellant's application for bail, it is, in all the circumstances, an appropriate case to make an urgent appeal order.
(Page 6)
16 In respect of the appellant's application filed 22 February 2013:
1. the application for bail is dismissed.
2. an urgent appeal order pursuant to r 46 of the Supreme Court (Court of Appeal) Rules 2005 (WA) is made.
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