HERBERT -v- THE QUEEN [2002] WASCA 256

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 256
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:20/2002	Heard:	12 SEPTEMBER 2002
Coram:	SCOTT J	Delivered:	16/09/02
No of pages:	7	Judgment Part:	1 of 1
Result:	Bail refused
Category:	B
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Parties:	ERIC JOHN HERBERT THE QUEEN
Catchwords:	Criminal law and procedure Bail Bail pending appeal Substantial portion of custodial term served before appeal hearing
Legislation:	Bail Act 1982, Sch 1 Pt C cl 4
Case References:	Caratti v R [1999] WASCA 91 Re Coopers Application for Bail [1961] ALR 584 Walser v R (1994) 73 A Crim R 154 MacKenzie v The Queen (1996) 190 CLR 348 Quang Tung Tran, unreported; SCt of WA; Library No 990117; 11 March 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HERBERT -v- THE QUEEN [2002] WASCA 256 CORAM : SCOTT J HEARD : 12 SEPTEMBER 2002 DELIVERED : 16 SEPTEMBER 2002 FILE NO/S : CCA 20 of 2002 BETWEEN : ERIC JOHN HERBERT

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Bail - Bail pending appeal - Substantial portion of custodial term served before appeal hearing

Legislation:

Bail Act 1982, Sch 1 Pt C cl 4

Result:

Bail refused

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr S I Gallacher

Respondent : Mr P J Urquhart

Solicitors:

Applicant : Dwyer Durack

Respondent : State Director of Public Prosecutions

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

Caratti v R [1999] WASCA 91
Re Coopers Application for Bail [1961] ALR 584
Walser v R (1994) 73 A Crim R 154

Case(s) also cited:

MacKenzie v The Queen (1996) 190 CLR 348
Quang Tung Tran, unreported; SCt of WA; Library No 990117; 11 March 1999

(Page 3)

SCOTT J

Application for bail

1 On Thursday, 12 September 2002 the applicant applied for bail pending his appeal against convictions in the District Court at Perth following his trial on an indictment containing six counts. The indictment alleged:

"(1) On a date unknown between 31 December 1989 and 18 January 1991 at Girrawheen ERIC JOHN HERBERT sexually penetrated 'C', a person under the age of 16 years, by introducing his penis into the mouth of 'J'.

(2) AND FURTHER THAT on a date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT procured 'M', a child under the age of 13 years, to unlawfully and indecently deal with him, by procuring 'M' to lick milk from the penis of ERIC JOHN HERBERT.

(3) AND FURTHER THAT on another date unknown between 31 December 1990 and 18 January 1992 at Girrawheen ERIC JOHN HERBERT unlawfully and indecently assaulted 'M', a person under the age of 16 years, by touching his buttocks.

(4) AND FURTHER THAT at the same time and at the same place as in Count 3 ERIC JOHN HERBERT procured 'C', a child under the age of…

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 Herbert v The Queen

Details

AGLC: Herbert v The Queen [2002] WASCA 256
Case: [2002] WASCA 256
Decision Date: 16 SEPTEMBER 2002

CaseChat Overview and Summary

The case of Herbert v The Queen involved the appellant, Herbert, who sought bail pending an appeal against his conviction and sentence. The dispute revolved around the eligibility for bail, given that Herbert had already served a significant portion of his custodial term before the appeal hearing. The High Court of Australia was tasked with determining the appropriate legal principles governing bail in such circumstances.

The primary legal issue before the court was whether a person who had already served a substantial portion of their custodial sentence could be granted bail pending the outcome of an appeal. The court had to balance the principle that bail is generally available to those facing criminal charges with the need to ensure that sentences are enforced and that the integrity of the criminal justice system is maintained.

The court examined the relevant statutory provisions and case law, concluding that the substantial completion of a custodial sentence by an appellant could be a significant factor in determining bail eligibility. The court held that the appellant's substantial completion of his sentence weighed heavily against granting bail, as it undermined the purpose of the sentence and the finality that should be afforded to criminal convictions. The court emphasised that bail pending appeal should be granted only in exceptional circumstances. Given the appellant's significant custodial term completion, the court refused the application for bail.

Orders

Orders of the court

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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