Flowers v The Queen

[2003] WASC 170

FLOWERS -v- THE QUEEN [2003] WASC 170

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 170
Published:	29/08/2003
Case No:	MCS:25/2003	Heard:	10 JUNE 2003
Coram:	MCLURE J	Delivered:	10/06/03
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for bail granted
Category:	B
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Parties:	RODERICK DONALD FLOWERS THE QUEEN
Catchwords:	Criminal law Bail Serving prisoner after expiration of non-parole period Jurisdiction to grant bail
Legislation:	Bail Act 1982 (WA), s 5, s 6, s 7, s 10, s 13, s 14
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : FLOWERS -v- THE QUEEN [2003] WASC 170 CORAM : MCLURE J HEARD : 10 JUNE 2003 DELIVERED : 10 JUNE 2003 PUBLISHED : 29 AUGUST 2003 FILE NO/S : MCS 25 of 2003 MATTER : Section 14 of the Bail Act 1982 BETWEEN : RODERICK DONALD FLOWERS

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Bail - Serving prisoner after expiration of non-parole period - Jurisdiction to grant bail

Legislation:

Bail Act 1982 (WA), s 5, s 6, s 7, s 10, s 13, s 14

Result:

Application for bail granted

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr C L J Miocevich
Respondent : Mr C Williams

Solicitors:

Applicant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

(Page 3)

MCLURE J:

Introduction

1 The applicant, Roderick Donald Flowers, made an application for bail dated 27 May 2003 in relation to a charge of stealing contrary to s 378(5)(a) of the Criminal Code (WA). The charge was to be heard in the Perth Court of Petty Sessions on 18 July 2003.

2 The bail application was heard by Magistrate Calder SM on 8 May 2003. The learned Magistrate refused to grant bail.

3 The application came before me on 10 June 2003 pursuant to s 14 of the Bail Act 1982 (WA) (the "Act"). The Crown did not oppose the grant of bail. At the conclusion of the hearing I granted the applicant bail. These are my reasons for granting bail.

Background

4 On 18 December 2002 the applicant was sentenced to 15 months' imprisonment for other offences. At the time of his bail application in relation to the stealing charge he was eligible for parole in relation to the sentence imposed in December 2002.

5 At the time of the hearing of the bail application the Parole Board ("Board") had reviewed the applicant's parole application but deferred a decision until after the outcome of the stealing charge or after bail had been granted in respect of that charge. By facsimile dated 8 May 2003 the Board advised as follows:

"… On 6.5.03 the Parole Board reviewed [the applicant's] application for parole. The decision was to review his case again on the outcome of charges or when bail was set. Whilst I am unable to pre-empt the Board's decision, should bail be set, it would appear likely that his release to parole would be approved."

6 The Magistrate refused to grant bail on the ground that by virtue of s 10 of the Act he had no jurisdiction to do so while the applicant was a serving prisoner.
(Page 4)

The Bail Act

7 Section 10 of the Act provides:

"10. Sections 5, 6 and 7 do not apply where defendant imprisoned for other cause

Notwithstanding sections 5, 6 and 7, the rights conferred on a defendant and the duties imposed on police officers, authorized officers and judicial officers by those sections in respect of an appearance in court for an offence do not arise where –


(a) the defendant is in custody for some other offence or reason (including the non-payment of a sum of money);

and

(b) the police officer, authorized officer or judicial officer is satisfied that the defendant is likely to remain in custody for that other offence or reason until or beyond the time for the appearance for the first-mentioned offence."

8 Section 5 of the Act confers on a defendant the right to have bail considered as soon as practicable, s 6 imposes a duty on an arresting officer or other person to consider bail, or to bring a defendant before a court to consider bail, as soon as practicable and s 7 imposes duties on judicial officers to consider bail in specified circumstances whether or not a bail application is made. Thus, these sections confer on a defendant a right to have bail considered as soon as practicable and impose correlative and other duties on a judicial officer, arresting officer or other person. The effect of s 10 of the Act is that the rights and duties do not arise where subparagraphs (a) and (b) of s10 are satisfied. However, ss 5, 6 and 7 of the Act are not the source of the jurisdiction or power to grant bail. Those sections simply specify particular rights and duties in relation to bail. Jurisdiction to grant bail is granted under Pt III of the Act. Section 13(1) of the Act provides:

"13. Jurisdiction to grant bail

(1) Jurisdiction to grant bail for any appearance described in the first column of Part A of Schedule 1 is vested in the judicial officer or authorized officer specified in the

(Page 5)

second column of that Part opposite thereto and shall be exercised subject to and in accordance with this Part and the further provisions in Parts B, C and D of Schedule 1."

9 Sections 5, 6, 7 and 10 are in Pt II of the Act. Even if ss 5, 6 and 7 do not apply by virtue of s 10 of the Act, a judicial officer continues to have jurisdiction or power to grant bail pursuant to s 13 where both the first column of Pt A of Sch 1 and the relevant part of column 2 are satisfied. However, the judicial officer is not under the particular duties specified in s 7 of the Act. Thus, the Magistrate had jurisdiction to grant bail to the applicant under s 13 of the Act. Under s 14(1(a) of the Act, a Judge of the Supreme Court may exercise the power to grant bail which is conferred on any other judicial officer and to revoke or vary any bail previously granted. Accordingly, this Court had jurisdiction to grant bail under s 14(1)(a) of the Act. Having regard to the relevant provisions of the Act and the Crown's lack of opposition, I granted bail.