EISSA -v- THE QUEEN [2003] WASC 92

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 92
Case No:	MCS:23/2003	Heard:	9 MAY 2003
Coram:	MCKECHNIE J	Delivered:	22/05/03
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	MOHAMMED KAHLIL EISSA THE QUEEN
Catchwords:	Criminal law and procedure Grant of bail Risk of flight No new principles Turns on own facts
Legislation:	Bail Act 1982 (WA)
Case References:	Clark II [2001] ACTSC 39; (2001) 118 A Crim R 585 Re Kurt (1999) 107 A Crim R 424 WCVB v R (1989) 1 WAR 279 Bellissimo v The Queen (1996) 84 A Crim R 465 Christie v The Queen [2002] WASC 256 Gillis v Gawned & Anor (1992) 8 WAR 211 Jemielita v The Queen (1994) 12 WAR 362 KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988 Lim v Gregson [1989] WAR 1 Pinkstone v The Queen [2000] WASC 321 R v Shrestha (1991) 173 CLR 48 Saka v The Queen [2001] WASC 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : EISSA -v- THE QUEEN [2003] WASC 92 CORAM : MCKECHNIE J HEARD : 9 MAY 2003 DELIVERED : 22 MAY 2003 FILE NO/S : MCS 23 of 2003 BETWEEN : MOHAMMED KAHLIL EISSA

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Grant of bail - Risk of flight - No new principles - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr D Grace QC

Respondent : Ms J Martin

Solicitors:

Applicant : Shane Michael Brennan

Respondent : State Director of Public Prosecutions

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

Clark II [2001] ACTSC 39; (2001) 118 A Crim R 585
Re Kurt (1999) 107 A Crim R 424
WCVB v The Queen (1989) 1 WAR 279

Case(s) also cited:

Bellissimo v The Queen (1996) 84 A Crim R 465
Christie v The Queen [2002] WASC 256
Gillis v Gawned & Anor (1992) 8 WAR 211
Jemielita v The Queen (1994) 12 WAR 362
KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988
Lim v Gregson [1989] WAR 1
Pinkstone v The Queen [2000] WASC 321
R v Shrestha (1991) 173 CLR 48
Saka v The Queen [2001] WASC 92

(Page 3)

MCKECHNIE J

Introduction

1 This is an application for bail under the Bail Act s 14, bail having been refused in the Court of Petty Sessions on 7 April 2003.

2 At the time of hearing of this application, the applicant faced one charge of possessing a prohibited drug with intent to sell or supply contrary to s 61A of the Misuse of Drugs Act 1981 (WA). He also faced one charge of unlawful possession of a firearm, the charge being aggravated by reason of the fact that the firearm was alleged to be a handgun.

3 I was told…

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 Eissa v The Queen

Details

AGLC: Eissa v The Queen [2003] WASC 92
Case: [2003] WASC 92
Decision Date

CaseChat Overview and Summary

In the case of Eissa v The Queen, the applicant, Mohammed Kahlil Eissa, sought bail under the Bail Act 1982 (WA) after being denied bail by the Court of Petty Sessions. The applicant faced various charges, including possessing a prohibited drug with intent to sell or supply, unlawful possession of a firearm, and possession of amphetamines with intent to sell or supply. The court was tasked with determining whether the applicant should be granted bail, considering the seriousness of the charges and the risk of flight.

The legal issues at the heart of this case were whether the applicant's charges were so serious that they necessitated exceptional grounds for bail and whether there was a significant risk of the applicant failing to appear in court if released on bail. The court considered the applicant's background, including his entry into Australia without documentation and the strength of the Crown's case against him. Additionally, the court evaluated the applicant's ties to Australia, or lack thereof, and the possibility that he would abscond if granted bail.

In its reasoning, the court found that although the charges were serious, they did not impose exceptional circumstances for bail. The court acknowledged the strong case against the applicant but noted that many people charged with similar offences were granted bail. The court's primary concern was the risk of flight, which it found to be real and not merely speculative. Factors contributing to this conclusion included the applicant's access to significant funds, his knowledge of international travel without proper documentation, and the potential consequences of conviction, such as the loss of his temporary visa and ineligibility for a permanent visa.

Ultimately, the court dismissed the application for bail, stating that the interests of justice required the applicant to remain in custody due to the risk of flight. The court considered the possibility of adjourning the proceedings to allow for further evidence to be presented but ultimately decided that dismissing the application was the best course of action.

Orders