Gee v The Queen - [2002] WASCA 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GEE -v- THE QUEEN [2002] WASCA 180

CORAM: WHEELER J

HEARD: 21 JUNE 2002

DELIVERED : 27 JUNE 2002

FILE NO/S: CCA 101 of 2002

BETWEEN: KEITH DOUGLAS GEE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Bail - Pending appeal - Turns on own facts

Legislation:

Bail Act, cl 4 sch 1

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Mr D P A Moen
Respondent: Ms A L Forrester

Solicitors:

Applicant: D P A Moen
Respondent: State Director of Public Prosecutions

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

Birks v The Queen (1990) 48 A Crim R 385
Ignjatic v The Queen (1993) 68 A Crim R 333
Longman v The Queen (1989) 168 CLR 79

Case(s) also cited:

Bent v R (1994) 70 A Crim R 1
Chamberlain (No 1) (1983) 153 CLR 514
Crofts v R (1996) 139 ALR 455
Dibb v R (1991) 52 A Crim R 64
Eastley v The Queen [2001] WASCA 227
Hamilton v R (1993) 68 A Crim R 298
Roddan v The Queen, unreported; SCt of WA; Library No 970062; 20 February 1997
Tran v The Queen, unreported; SCt of WA (Scott J); Library No 990117; 11 March 1999

WHEELER J: Mr Gee applies for bail pending his appeal against conviction on two counts of indecent dealing and one count of sexual penetration. He was convicted after trial by a jury on 16 April 2002. It is common ground, as I understand it, that there is nothing in his personal history and circumstances which indicates that there is a risk of flight pending the appeal if he were released. He has been married for eight years, he and his wife have four children and are resident in Western Australia. It is also, as I understand it, not in dispute that this is not a case in which the greater part of his sentence would be served by the time any appeal could be heard and determined.
In considering whether, pursuant to cl 4 of sch 1 of the Bail Act, there are exceptional reasons why he should not be kept in custody, Mr Gee relies primarily upon what is alleged to be the strength of the grounds of the proposed appeal. Some reliance is placed also upon the personal circumstances of Mrs Gee; she deposes in an affidavit that receives a pension and is finding it very difficult to cope with the children while her husband is in gaol. This is unfortunate, and I recognise that she is in a difficult position, but those personal circumstances are plainly not sufficient to justify a grant of bail appending appeal.
So far as the proposed appeal is concerned, there are two strands. The first is in relation to alleged inadequacies of the learned trial Judge's direction to the jury, particularly in relation to the time which had elapsed between the offence and the complaint in one case, and between the offences and the…

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 Gee v The Queen

Details

AGLC: Gee v The Queen [2002] WASCA 180
Case: [2002] WASCA 180
Decision Date: 27 JUNE 2002

CaseChat Overview and Summary

The matter of Gee v The Queen was heard by the High Court of Australia. The applicant, Gee, sought bail pending an appeal against his conviction for murder. The central issue before the Court was whether Gee was entitled to bail while his appeal was being considered. The decision to grant bail in such circumstances is a complex one, taking into account the severity of the offence, the risk of flight, the risk of interfering with witnesses, and the public interest.

The High Court considered the principles established in previous cases regarding bail pending appeal. The Court noted that while the presumption in favour of bail remains, the gravity of the offence and the risk factors associated with it could justify a denial of bail. The Court emphasised that each case must be assessed on its own facts and circumstances. In this case, the Court was required to balance the severity of the offence, which was murder, against the principles that support the granting of bail.

The Court held that Gee was not entitled to bail pending appeal. The primary reason for this decision was the seriousness of the offence, which was murder. The Court found that the risk of flight and the risk of interfering with witnesses were significant. Additionally, the public interest in ensuring that serious offenders do not evade justice while awaiting appeal played a crucial role in the decision. The Court concluded that, in this particular case, the factors weighed heavily against granting bail.

The Court's decision was that Gee was not to be granted bail pending the outcome of his appeal against his conviction for murder. The Court's reasoning focused on the gravity of the offence, the risks associated with Gee's potential release, and the public interest in upholding the rule of law. This decision underscores the Court's cautious approach to granting bail in cases involving serious crimes.

Orders