Hagart v Viles - [2010] WASC 200

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HAGART -v- VILES [2010] WASC 200

CORAM: SIMMONDS J

HEARD: 8 & 9 JULY 2010

DELIVERED : 9 JULY 2010

PUBLISHED : 4 AUGUST 2010

FILE NO/S: SJA 1065 of 2010

BETWEEN: PETER CLIFFORD HAGART
Appellant
AND
CHRISTOPHER JON VILES
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M E PONTIFEX
File No  :BU 4583 of 2009, BU 845 of 2010

Catchwords:

Bail pending appeal - Appeal from sentence and other order in Magistrates Court following plea of guilty - Proper approach to such bail application

Criminal procedure - Appeal notice's appeal details not matching grounds of appeal - Substitution of new appeal notice - Suspension of orders for immediate imprisonment

Legislation:

Bail Act 1982 (WA), s 13, sch 1 pt C cl 1, cl 3, cl 4
Criminal Appeals Act 2004 (WA), s 10, s 12
Criminal Procedure Rules 2005 (WA), r 65
Sentencing Act 1995 (WA), s 80 s 84F

Result:

Orders made

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Mr P B Cassidy (8 July 2010) Mr P B Cassidy (9 July 2010)
Respondent: Ms S T Fox (8 July 2010) Mr S M Nunn (9 July 2010)

Solicitors:

Appellant: Thames Legal
Respondent: State Solicitor for Western Australia

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

Cullen v Rollings [2009] WASC 80
Dabag v The State of Western Australia [2005] WASC 22
Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364
KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988)
Lutey v Jacques [2010] WASC 78
Mieli v Beros [2006] WASC 294
Sabau v The State of Western Australia [2007] WASC 183
Saka v The Queen [2001] WASC 92
Scolaro v Shephard [2010] WASC 77
The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34

SIMMONDS J:

Introduction

This is an application for the court to grant bail. The applicant for bail has applied for leave to appeal against his sentence of 7 months imprisonment to be immediately served, following his plea of guilty in the Magistrates Court to a charge of breach of an interim violence restraining order. The sentencing magistrate had both sentenced the applicant for that offence and, as a result, activated a sentence of suspended imprisonment of 7 months for a traffic offence, with the sentences of immediate imprisonment to be served concurrently. The grounds for the leave to appeal make it plain that the appeal is against both orders.
At the same time the appeal notice (form 20 under Criminal Procedure Rules 2005 (WA) r 65) might appear on its face (see the entries in the box under 'Primary Court's Decision') to relate to the sentencing disposition for the breach of the violence restraining order as well as a charge of common assault. The latter is a charge that was withdrawn. Also, there is no reference in that box on 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 Hagart v Viles

Details

AGLC: Hagart v Viles [2010] WASC 200
Case: [2010] WASC 200
Decision Date: 4 AUGUST 2010

CaseChat Overview and Summary

Hagart v Viles was a case involving the applicant, Hagart, and the respondent, Viles. The applicant had been convicted in the Magistrates Court and was seeking bail pending appeal against both the sentence and other orders made by the court. The legal issues the court had to address were whether the applicant was eligible for bail pending appeal, the correct approach to such a bail application, and whether the appeal notice should be substituted with a new one that matched the grounds of appeal. Additionally, the court needed to determine whether the suspension of the orders for immediate imprisonment should be considered.

The court examined the relevant provisions of the Bail Act and considered the principles applicable to a grant of bail prior to conviction. It noted that the general approach to the grant of bail under the Bail Act is that a person accused of a crime should be allowed their liberty before the hearing to ensure a full and thorough preparation of their case. However, this prima facie position must be balanced against the risk of the accused failing to appear at the hearing. The court also considered the nature and seriousness of the offence, the applicant's character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position, as well as the strength of the evidence against the applicant. The court found that the appeal notice's appeal details did not match the grounds of appeal and substituted a new appeal notice. The court also considered whether to suspend the orders for immediate imprisonment.

Ultimately, the court granted bail to the applicant pending appeal, subject to certain conditions. The court found that the applicant was eligible for bail, and the approach to the bail application was appropriate. The substitution of the new appeal notice was also deemed necessary to ensure that the appeal proceeded on the correct grounds. The court did not suspend the orders for immediate imprisonment but granted bail with conditions to ensure the applicant's appearance at the appeal hearing.

Orders

Orders of the court

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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

Schedule 1 pt C cl 3 is as follows:3.Matters relevant to consideration of clause 1(a) In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant ‑ (a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; (b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; (c)the history of any previous grants of bail to him; and (d)the strength of the evidence against him. The general principles applicable to a grant of bail prior to conviction where Bail Act sch 1 pt C cl 3A and 3C are inapplicable are, in my view, as I reviewed them in Dabag v The State of Western Australia [2005] WASC 22 [13] ‑ [15], from which the following is taken. Saka v The Queen [2001] WASC 92 [16] ‑ [17] (McKechnie J) is authority that the general approach to the grant of bail under the Bail Act, except to the extent it expressly modifies that approach, is as stated in a frequently cited passage from the judgment of Nicholson J in KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988) (dealing with applications for bail under the Criminal Code (WA) s 573). See also The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34 [31] ‑ [32] (EM Heenan J). Nicholson J in KM as quoted in Saka [17] said:It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The Court is therefore called upon to balance the interests of the accused and the public interest in the trial proceeding. The onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it. This position is well established; R v Fraser (1892) 13 LR (NSW) 150; R v Lythgoe (1950) QSR 5; R v Watson (1947) 24 WN (NSW) 100; R v Light [1954] VLR 152; R v Fisher [1964] Tas SR NC 7; R v Appleby 83 WN (PT1) (NSW) 300; Reg v Wakefield [(1969) 89 WN (Pt 1) (NSW) 325] and Burton v R (1974) 3 ACTR 77. Those decisions discuss factors which are relevant to the exercise of the Court's discretion, attention to which is directed in the sub‑headings which follow in these reasons. I turn now to the circumstances of this case. I had a handwritten account of the statement of the material facts as to the offending presented by the prosecution to the sentencing magistrate, which was compiled by the solicitor for the applicant who represented him at that hearing. I also had the printed (less detailed) statement of material facts forming part of the prosecution brief, as well as a copy of the violence restraining order and a letter from that solicitor to another solicitor dated 1 July 2010 which, among other things, provides further background. From a reading of all of that material, the following appeared.