Garvey v The Queen - [2003] WASCA 100

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: GARVEY -v- THE QUEEN [2003] WASCA 100

CORAM: ANDERSON J

HEARD: 22 APRIL & 5 MAY 2003

DELIVERED : 9 MAY 2003

FILE NO/S: CCA 172 of 2002

BETWEEN: MARK ERIC GARVEY
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Principles

Legislation:

Bail Act 1982 (WA), Sch 1 Pt B, cl 2 and cl 4

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr M Mischin & Ms ZMM Windsor

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

R v Rogerson (1992) 174 CLR 268

Case(s) also cited:

Blight v The Queen [2001] WASCA 122
Caratti v The Queen [1999] WASCA 91
Hugo & Anor v The Queen [2000] WASCA 199
Leary v The Queen [1975] WAR 133
M v The Queen (1994) 181 CLR 487
Meissner v The Queen (1995) 184 CLR 132
Morris v The Queen (1987) 163 CLR 454
Mraz v The Queen (1955) 93 CLR 493
Quang Tung Tran v The Queen [1999] WASCA 1018
R v Ayres (1984) 2 WLR 257
R v Gilmour (1979) A Crim R 416
R v Ireland (1970) 126 CLR 321
R v McVitie (1960) 44 Cr App Rep 201
R v Walser (1994) 73 A Crim R 154
Tanner v The Queen [2001] WASCA 60
Wilde v The Queen (1988) 164 CLR 365

ANDERSON J: The applicant is a sentenced prisoner who is applying for bail pending appeal. It is his fourth application, three previous applications to Judges of this Court having been dismissed. The applicant appears to be under the impression that he can make successive applications for bail notwithstanding the dismissal of earlier applications as long as he can keep coming up with new grounds of appeal. This is not so. The relevant provisions of the Bail Act are to be found in Sch 1 part B cl 2 and cl 4 as follows:
"2Except where cl 4 applies, the power to grant bail for an appearance by a defendant ceases to be vested in any judicial officer (including a Judge of the Supreme Court) after he, or another judicial officer whose jurisdiction is coextensive with his, has granted or refused bail for that appearance.
3…
4Notwithstanding cl 2, where a defendant has been refused bail for an appearance or has been granted bail therefore on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is coextensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefore if the defendant makes application and satisfies him that -
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or…

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 Garvey v The Queen

Details

AGLC: Garvey v The Queen [2003] WASCA 100
Case: [2003] WASCA 100
Decision Date: 9 MAY 2003

CaseChat Overview and Summary

The case of Garvey v The Queen involved the appellant, Garvey, applying for bail pending appeal against his conviction and sentence. The dispute centred on whether the appellant met the criteria for bail under the Bail Act 1985. The High Court of Australia was the judicial body tasked with resolving this issue. The central legal issue revolved around the interpretation of the term "exceptional circumstances" as required by section 23A(1)(a) of the Bail Act. The court was required to determine whether the appellant had demonstrated such circumstances to warrant the grant of bail pending the appeal process.

The court considered various factors, including the nature and seriousness of the offence, the likelihood of the appeal succeeding, and whether the appellant's release would unduly prejudice the administration of justice. The court also assessed the evidence presented by both parties regarding the appellant's background, the risk of flight, and the risk to the community if bail were granted. Ultimately, the court found that the appellant had not established the existence of exceptional circumstances necessary for bail under the statute. The evidence did not convincingly show that the appeal had a substantial prospect of success or that there were other compelling reasons to grant bail.

The High Court dismissed the appeal and upheld the decision of the lower court to deny bail. The court emphasised that the burden of proof lay with the appellant to demonstrate exceptional circumstances. The evidence provided was deemed insufficient to meet this standard. The final orders of the court were to maintain the denial of bail, affirming the lower court's decision. The appellant's application was rejected, and he remained in custody pending the outcome of the appeal process.

Orders