King v Nash - [2022] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KING -v- NASH [2022] WASC 102
CORAM:   MCGRATH J
HEARD:   10 MARCH 2022 and 15 MARCH 2022
DELIVERED          :   30 MARCH 2022
PUBLISHED           :   30 MARCH 2022
FILE NO/S:   INS 51 of 2021
BETWEEN:   JAKE RICHARD KING
Prosecution
AND
MARK STEPHEN NASH
Accused

Catchwords:

Criminal law and procedure - Prosecution - Breach of bail (failure to appear) - Summary prosecution trial conducted before Judge

Legislation:

Bail Act 1982 (WA), s 28, s 51(2), s 52
Criminal Procedure Act 2004 (WA), s 126

Result:

Verdict guilty

Category: B

Representation:

Counsel:

Prosecution	:	Mr T B L Scutt
Accused	:	In Person

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	In Person

Cases referred to in decision:

Geldert v The State of Western Australia [2012] WASCA 226
Nash v Director of Public Prosecutions (WA) [2021] WASC 313
Wright v Western Australia (2010) 203 A Crim R 339

MCGRATH J:

Introduction

Mark Stephen Nash is charged that on 17 September 2021, without reasonable cause, he failed to appear at the Supreme Court Stirling Gardens Courthouse and failed to appear as soon as practicable thereafter, with such appearance being a requirement of a bail undertaking entered into by him on Wednesday, 25 August 2021, contrary to s 51(2) of the Bail Act 1982 (WA) (the charge).
On 27 January 2022, the accused declined to enter a plea to the charge.[1] Accordingly, Curthoys J entered a plea of not guilty pursuant to s 126 of the Criminal Procedure Act 2004 (WA). On 10 March 2022, the first day of the hearing of the charge, the accused once again declined to enter a plea to the charge. Accordingly, given that the accused did not plead, I entered a plea of not guilty on behalf of the accused, pursuant to s 126 of the Criminal Procedure Act. Therefore, the accused, having refused to enter a plea, proceeded to trial on a plea of not guilty.
[1] ts 18 (27/01/2022).
Section 52 of the Bail Act provides that where the accused was bound to appear before the General Division of the Supreme Court, a breach of bail shall be dealt with before a judge of the Supreme Court. Further, s 52 provides that the charge is to be dealt with under the Criminal Procedure Act as if it were a prosecution of a simple offence in a court of summary jurisdiction.
The prosecution's case against the accused was that he entered into a bail undertaking on 25 August 2021 and that he was granted a bail extension on 15 September 2021 to appear on 17 September 2021 and that the accused failed to appear without reasonable cause and, further, failed to appear as soon as practicable thereafter, as he was required to do pursuant to the bail undertaking. The accused maintained at trial that he had answered his bail on 15 September 2021 and, therefore, was not required to attend on 17 September 2021.…

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 King v Nash

Details

AGLC: King v Nash [2022] WASC 102
Case: [2022] WASC 102
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard the case of King v Nash, where the accused, Mark Stephen Nash, was charged with failing to appear at a court hearing as required by his bail conditions, contrary to the Bail Act 1982 (WA). The accused had entered into a bail undertaking on 25 August 2021 and was subsequently granted a bail extension to appear at the Supreme Court on 17 September 2021. However, the accused failed to appear at the hearing, and a bench warrant was issued for his arrest. The court was required to decide whether the accused had failed to comply with his bail conditions without reasonable cause. The court found the accused guilty of the charge, as he was subject to a bail requirement to attend the court hearing on 17 September 2021, but failed to do so. Additionally, the accused did not appear as soon as practicable after the hearing and did not reside at the address stipulated in his bail conditions. The court was satisfied that the accused failed to appear without reasonable cause, as he deliberately avoided apprehension by the police.

The final orders of the court are not explicitly stated in the provided text, but typically, the court would impose a sentence or other appropriate penalty for the offence committed by the accused.

Orders