GARVEY -v- THE QUEEN [2003] WASCA 10

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 10
Case No:	CCA:172/2002	Heard:	15 JANUARY 2003
Coram:	ROBERTS-SMITH J	Delivered:	15/01/03
No of pages:	15	Judgment Part:	1 of 1
Result:	Application dismissed Bail refused
Category:	A
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Parties:	MARK ERIC GARVEY THE QUEEN
Catchwords:	Criminal law Bail Bail pending appeal Successive applications for bail Third application Jurisdiction to hear Failure to adequately present case to bail on earlier occasions Bail Whether exceptional reasons for granting Difficulty of preparing appeal while in prison Prospect that substantial part of term before eligibility for parole would be served by hearing of appeal Likely prospect of success of appeal
Legislation:	Bail Act 1982 (WA), cl 4, Pt B, Sch 1 & cl 4, Pt C, Sch 1
Case References:	Caratti v The Queen [1999] WASCA 91 Ex parte Maher [1986] 1 Qd R 303 Mullally v The Queen [2000] WASCA 26 Stalker v The Queen [2002] WASCA 364 Walser (1994) 73 A Crim R 154 Weston v The Queen [1999] WASCA 203 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Johansen v The Queen, unreported; CCA SCt of WA (Wallwork J); Library No 980087; 23 February 1998 Peacock v The Queen (1911) 13 CLR 619 Penney v The Queen (1993) 155 ALR 605 Plomp v The Queen (1963) 110 CLR 234 R v Clarke (1995) 78 A Crim R 226 R v Maleckas (1991) 1 VR 363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : GARVEY -v- THE QUEEN [2003] WASCA 10 CORAM : ROBERTS-SMITH J HEARD : 15 JANUARY 2003 DELIVERED : 15 JANUARY 2003 FILE NO/S : CCA 172 of 2002 BETWEEN : MARK ERIC GARVEY

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Bail - Bail pending appeal - Successive applications for bail - Third application - Jurisdiction to hear - Failure to adequately present case to bail on earlier occasions - Bail - Whether exceptional reasons for granting - Difficulty of preparing appeal while in prison - Prospect that substantial part of term before eligibility for parole would be served by hearing of appeal - Likely prospect of success of appeal

Legislation:

Bail Act 1982 (WA), cl 4, Pt B, Sch 1 & cl 4, Pt C, Sch 1

Result:

Application dismissed

Bail refused

(Page 2)

Category: A

Representation:

Counsel:

Applicant : In person

Respondent : Mr B D Meertens

Solicitors:

Applicant : In person

Respondent : State Director of Public Prosecutions

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

Caratti v The Queen [1999] WASCA 91
Ex parte Maher [1986] 1 Qd R 303
Mullally v The Queen [2000] WASCA 26
Stalker v The Queen [2002] WASCA 364
Walser (1994) 73 A Crim R 154
Weston v The Queen [1999] WASCA 203

Case(s) also cited:

Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Johansen v The Queen, unreported; CCA SCt of WA (Wallwork J); Library No 980087; 23 February 1998
Peacock v The Queen (1911)…

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 10
Case: [2003] WASCA 10
Decision Date: 15 JANUARY 2003

CaseChat Overview and Summary

The case of Garvey v The Queen involved an appellant, Garvey, and the respondent, The Queen. Garvey sought bail pending appeal against his conviction and sentence. This was his third application for bail. The legal issues the court had to decide included whether it had jurisdiction to hear the application given the failure to adequately present the case for bail at earlier stages, and whether there were exceptional reasons for granting bail. Garvey argued that the difficulties of preparing his appeal while in prison and the prospect that a substantial part of his term would be served before his eligibility for parole and the hearing of his appeal were exceptional reasons. Additionally, he submitted a likely prospect of success on appeal.

The court found that it did have jurisdiction to hear the application despite the previous failures. It noted that the appellant had not shown any exceptional reasons for granting bail. The court was not satisfied that the difficulties of preparing the appeal while in prison were exceptional, and there was no evidence that these difficulties would result in an unfair trial. Furthermore, the prospect that a substantial part of the term would be served before parole eligibility and the hearing of the appeal did not constitute an exceptional reason for bail. The court was also not convinced by Garvey's submission regarding the likely prospect of success on appeal. Given these considerations, the application for bail was dismissed, and bail was refused.

Orders

Orders of the court

Application dismissed

Bail refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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