Mickelberg v The Queen - [2000] WASCA 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MICKELBERG -v- THE QUEEN [2000] WASCA 163

CORAM: SCOTT J

HEARD: 9 JUNE 2000

DELIVERED : 15 JUNE 2000

FILE NO/S: CCA 87 of 2000
CCA 94 of 2000

BETWEEN: RAYMOND JOHN MICKELBERG
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for bail pending appeal - Exceptional circumstances - Drug offences - Possession with intent to supply - Summing-up of trial Judge - Substantial portion of custodial sentence will be served before appeal will be heard - Not of itself a sufficient basis for granting bail

Legislation:

Bail Act 1982, Sch 1 Part C cl 4(b)

Misuse of Drugs Act 1981, s 3, s 11

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr M J McCusker QC & Mr G H Lawton
Respondent: Mr A G Elliott

Solicitors:

Applicant: Lawton Gillon
Respondent: State Director of Public Prosecutions

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

Caratti v R [1999] WASCA 91
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Manisco (1995) 79 A Crim R 213
Robinson v The Queen (1991) 65 ALJR 519
Tran v R, unreported; SCt of WA; Library No 990117; 11 March 1999

Case(s) also cited:

Bernt (1984) 70 A Crim R 1
Ex parte Maher [1986] 1 Qd R 303
Marotta v R (1998-99) 160 ALR 525
R v Bibby, unreported; CCA SCt of WA; Library No 960308; 3 April 1996
Williams v The Queen, unreported; CCA SCt of WA; Library No 930255; 5 May 1993

SCOTT J: The applicant has applied for bail pending appeal. The application arises following the trial of the applicant in the District Court in Perth, in which he was convicted of two counts of possession of cannabis with intent to sell or supply. The quantity of cannabis involved was in excess of 1.5 kgs on one of those counts and in excess of 2.5 kgs on the other count. It is common ground that the quantity concerned was substantially in excess of the quantity required to give rise to a presumption of an intention to sell or supply.
The applicant was sentenced to a term of 2 years' imprisonment with respect to each of the two counts of which he was convicted. Those sentences were ordered to run concurrently and a parole order was made in respect of them.
The sentences were imposed on 18 April 2000 so that on 18 December 2000 the applicant will become eligible to apply for parole.
It is common ground that the applicant's appeal against his conviction and sentence is unlikely to be heard before the September sessions of the Court of Criminal Appeal.
Senior counsel for the applicant accepts that for the application to succeed, the applicant must demonstrate exceptional circumstances. That is common ground and, in any event, is provided for in Sch 1 Part C of the Bail Act 1982 in cl 4(b).
There are two matters which senior…

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 Mickelberg v The Queen

Details

AGLC: Mickelberg v The Queen [2000] WASCA 163
Case: [2000] WASCA 163
Decision Date: 15 JUNE 2000

CaseChat Overview and Summary

The case of Mickelberg v The Queen involved the appellant, Mickelberg, who was convicted of drug offences, specifically possession with intent to supply. Mickelberg applied for bail pending his appeal against conviction and sentence. The High Court of Australia was tasked with determining whether exceptional circumstances existed to warrant bail. The primary issue was whether the substantial portion of the custodial sentence that would be served before the appeal was heard constituted an exceptional circumstance warranting bail.

The court considered the principle that a substantial period of custodial sentence to be served before an appeal is heard does not, by itself, constitute an exceptional circumstance. However, the court noted that other factors, such as the summing-up of the trial judge, could be relevant in determining exceptional circumstances. The court acknowledged that the summing-up had been critical in the trial and could impact the fairness and reliability of the trial process. Nevertheless, the court held that the summing-up alone did not establish exceptional circumstances warranting bail.

Ultimately, the court determined that while the summing-up was a relevant factor, it did not create exceptional circumstances sufficient to grant bail. The court emphasised that exceptional circumstances must be truly exceptional and go beyond the mere fact that a significant portion of the sentence would be served before the appeal was heard. The court concluded that the exceptional circumstances test was not met in this case, and the application for bail was dismissed. The High Court's decision underscores the stringent requirements for establishing exceptional circumstances in bail applications pending appeal.

Orders