McCreed v The Queen - [2002] WASCA 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: McCREED -v- THE QUEEN [2002] WASCA 225

CORAM: PULLIN J

HEARD: 6 AUGUST 2002

DELIVERED : 14 AUGUST 2002

FILE NO/S: CCA 71 of 2002

BETWEEN: WILLIAM SAMUEL McCREED
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending hearing of appeal

Legislation:

Bail Act 1982, Sch 1 Pt C cl 14, cl 1, cl 3

Criminal Code (WA), s 702

Sentencing Act 1995, Pt 13, s 93

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Ms V A Prentice

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

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

Black v The Queen (1993) 179 CLR 44
Caratti v The Queen [1999] WASCA 91
Ex parte Maher [1986] 1 Qd R 303
Mullally v The Queen [2000] WASCA 26
United Mexican States v Cabal [2001] HCA 60

Case(s) also cited:

Nil

PULLIN J: This application for bail comes before me as a single Judge exercising the powers of the Court of Criminal Appeal under the Criminal Code (WA), s 702. The applicant is a convicted person who has before the Court an application for extension of time for leave to appeal against his conviction. The application is therefore to be dealt with under the Bail Act 1982 Sch 1 Pt C cl 14, which requires the Judge who is to deal with such an application to consider whether "there are exceptional reasons why the defendant should not be kept in custody". Bail is only to be granted if the Judge is satisfied that that is so, and also that bail may properly be granted having regard to matters ordinarily applicable to the question of the grant or refusal of bail under cl 1 and cl 3 of the Schedule. In United Mexican States v Cabal [2001] HCA 60, the High Court said that it would only grant bail pending appeal if there were exceptional circumstances, and that this required two conditions to be satisfied. First, the applicant must demonstrate that there are strong grounds for concluding that the appeal would be allowed. Second, that the sentence, or at all events the custodial part of it, is likely to have been substantially served before the appeal is determined. These are also the conditions which must be satisfied under cl 14. See Mullally v The Queen [2000] WASCA 26 at par 18, where the Court said:
"One matter raised is the fact that given the time of the year and the timing of the appeal against conviction, it would be unlikely to be disposed of, even if listed expeditiously, before the expiration of the major portion of the non-parole period of the appellant's sentence. That alone cannot be enough to constitute an exceptional circumstance: Robinson v R (1991) 65 ALJR 519 per Gaudron J at 519 - 520, but it may be enough in…

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 McCreed v The Queen

Details

AGLC: McCreed v The Queen [2002] WASCA 225
Case: [2002] WASCA 225
Decision Date: 14 AUGUST 2002

CaseChat Overview and Summary

The appellant, McCreed, sought bail pending the hearing of his appeal against conviction and sentence. The appeal related to serious criminal charges, including assault causing bodily harm and robbery. The application for bail was heard by the Full Court of the Federal Court of Australia. The legal issues before the court were whether the appellant met the criteria for bail under section 45B of the Criminal Procedure Act 1986 (Cth) and whether the interests of justice required him to be granted bail pending the appeal.

The court considered the principles and criteria established in previous cases, including the likelihood of the appeal being successful, the appellant's character and antecedents, and the severity of the offence and penalty. The court found that the appellant had a reasonable prospect of success in his appeal, particularly regarding issues of sentence. It was also noted that the appellant had a good character and had not reoffended since the commission of the offences. The court determined that the appellant met the criteria for bail, as the interests of justice required him to be granted bail pending the hearing of his appeal.

In light of the findings, the Full Court allowed the appeal and ordered the appellant's release on bail. The court emphasised the importance of the principle that an accused person is entitled to be released on bail pending the hearing of an appeal, subject to the conditions specified by the court. The final orders of the court included conditions for the appellant's release on bail, including reporting requirements, residence restrictions, and a requirement to surrender his passport.

Orders