Green v The State of Western Australia
[2013] WASCA 145
•10 JUNE 2013
GREEN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 145
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 145 | |
| THE COURT OF APPEAL (WA) | 10/06/2013 | ||
| Case No: | CACR:58/2013 | 19 APRIL 2013 | |
| Coram: | MAZZA JA | 19/04/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | DAVID MARK GREEN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending appeal Exceptional circumstances Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 4A |
Case References: | EAGD v State of Western Australia [2013] WASCA 81 Milenkovski v State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Willers v The Queen (1995) 81 A Crim R 219 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GREEN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 145 CORAM : MAZZA JA HEARD : 19 APRIL 2013 DELIVERED : 19 APRIL 2013 PUBLISHED : 10 JUNE 2013 FILE NO/S : CACR 58 of 2013 BETWEEN : DAVID MARK GREEN
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND 360 of 2012
Catchwords:
Criminal law and procedure - Bail - Application for bail pending appeal - Exceptional circumstances - Turns on own facts
(Page 2)
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 4A
Result:
Application granted
Category: B
Representation:
Counsel:
Appellant : Mr R C M Hofmann
Respondent : Ms S Markham
Solicitors:
Appellant : Curt Hofmann & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
EAGD v State of Western Australia [2013] WASCA 81
Milenkovski v State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Willers v The Queen (1995) 81 A Crim R 219
(Page 3)
- MAZZA JA:
(This is a decision delivered orally and subsequently edited from the transcript).
1 This is an application for bail pending appeal against conviction pursuant to cl 4A of pt C of sch 1 of the Bail Act 1982 (WA). The application is not opposed by the respondent.
2 The appellant was convicted on 4 September 2012 after trial in the District Court before a judge and jury on one count of possession of methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 9 November 2012, he was sentenced to 18 months' immediate imprisonment with eligibility for parole.
3 Clause 4A creates a rebuttable statutory presumption against the grant of bail. Bail may only be granted if the court is satisfied of two matters. First, bail must be appropriate having regard to the provisions of cls 1 and 3 of pt C sch 1. Second, the court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody: Milenkovski v State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
4 I have discussed the meaning of the expression 'exceptional reasons' in a number of cases. It is unnecessary to repeat that discussion. I simply refer to what I said in EAGD v State of Western Australia[2013] WASCA 81 [8] - [9].
5 In the present case, the appellant has submitted that his grounds of appeal are strongly arguable and, in addition, given the relatively short length of his sentence, if his appeal is successful it will be rendered substantially nugatory. Although the respondent does not accept that the appellant's appeal will inevitably succeed, it concedes at this stage that exceptional reasons for a grant of bail exist. Of course, ultimately the question of whether there are exceptional reasons is a matter for the court to decide, but the respondent's concession is, I consider, a matter of relevance.
6 The State's case at trial, put briefly, was that on 11 May 2011, police executed a search warrant at the appellant's house. There, in a dresser in the appellant's bedroom, the police discovered four clipseal bags which contained methylamphetamine. In plain view were two bags which contained a total of 1.84 g of the drug in the form of white powder. On
(Page 4)
- top of the dresser, and hidden, were another two bags containing a total of 8.15 g of methylamphetamine in beige crystal form. Police also discovered in the house a number of items which are common indicia of drug dealing, including other illicit drugs, electronic scales with traces of methylamphetamine on them and some empty clipseal bags.
7 The State's case was that the appellant possessed all of the methylamphetamine weighing in total 9.99 g with an intent to sell or supply it to another. The appellant elected to give evidence and adduced evidence from a man named Sutcliffe. The appellant testified that he was a user of methylamphetamine but he did not deal in it. He admitted possession of the smaller quantity of drug on the dresser for his own use but not the larger quantity. As to this, he said he knew nothing of it.
8 Mr Sutcliffe testified that the larger quantity had been put there by him without the appellant's knowledge. He testified that he stayed at the appellant's house on occasions. On one of those occasions someone stole his methylamphetamine. He said that he set a trap for any would-be thieves by lacing a quantity of the drug with Ratsak and leaving it on the dresser. He said that he did not tell the appellant about this. It was claimed that Sutcliffe was the owner of the larger quantity of the methylamphetamine found by the police.
9 The appeal is at an early stage. There are four proposed grounds of appeal contained in the appellant's amended appeal notice filed 12 April 2013. In oral submissions, Ms Lonsdale, on behalf of the appellant, submitted, in essence, three points:
(1) There was a miscarriage of justice because although the indictment was not duplicitous on its face, it was latently duplicitous.
(2) There was a miscarriage of justice because the conviction was uncertain.
10 As I understand the appellant's argument, it is that it was not clear whether the jury's verdict related to the smaller or larger quantity of methylamphetamine: see Willers v The Queen(1995) 81 A Crim R 219.
(3) His Honour misdirected the jury with respect to the element of intention to sell or supply to another.
(Page 5)
11 On a preliminary basis there are, I perceive, some difficulties with his Honour's summing up. At this stage it is unnecessary for me to say anything more than that.
12 In all of the circumstances I am satisfied that exceptional reasons exist justifying a grant of bail pending appeal. There is no other reason why bail should not be granted. I will grant bail subject to further discussion about the relevant terms and conditions.
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