Morrison v Chiera - [2020] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MORRISON -v- CHIERA [2020] WASC 42
CORAM:   DERRICK J
HEARD:   14 FEBRUARY 2020
DELIVERED          :   14 FEBRUARY 2020
PUBLISHED           :   17 FEBRUARY 2020
FILE NO/S:   SJA 1003 of 2020
BETWEEN:   ROBERT FRANK MORRISON
Appellant

AND

CHRISTOPHER CHIERA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A C LONGDEN
File Number             :   MH 5192 of 2018

Catchwords:

Bail pending appeal against conviction and sentence - Appeal from Magistrates Court - Bail Act 1982 (WA) s 7F(1)(b), s 13, sch 1 pt C cl 1, cl 3 and cl 5

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)

Result:

Application for bail pending appeal allowed

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Ms G N Beggs

Solicitors:

Appellant	:	Mark Andrews Legal Pty Ltd
Respondent	:	The Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Scolaro v Shephard [2010] WASC 77
YSN v The State of Western Australia [2017] WASCA 155

DERRICK J:

(These reasons were delivered extemporaneously and have been edited from the transcript.)

Introduction

The appellant applies pursuant to s 7F(1)(b) of the Bail Act 1982 (WA) (the Act), for bail pending the determination of his applications for leave to appeal against his conviction and sentence for an offence of unlawful wounding. The application for bail (the application) is supported by an affidavit sworn by the appellant's solicitor on 4 February 2020.
The appellant filed his appeal notice containing his application for leave to appeal against conviction on 28 January 2020. He filed a 'modified' appeal notice which included his application for leave to appeal against sentence on 11 February 2020.
The appellant's applications for leave to appeal are yet to be listed for hearing.
The appellant's pleaded ground of appeal against conviction is that the verdict was unreasonable and/or unsupported by the evidence. His pleaded grounds of appeal against sentence are that the sentence of immediate imprisonment imposed was manifestly excessive as to type and that the court erred in determining that a term of conditionally suspended imprisonment was not appropriate.
The application for bail is not opposed by the respondent.

Background to the application

The more detailed background to the application is as follows.
On 8 September 2018 the appellant was charged with one offence of unlawfully wounding Mr Reece Bool (MH 5192/2018). The appellant was alleged to have committed the offence on 7 September 2018.
The appellant pleaded not guilty to the charge. He was released on bail pending his trial.
The appellant's trial took place before Magistrate Longden on 18 and 21 November 2019. The appellant was released on bail during his trial. At the conclusion of the trial Magistrate Longden reserved her decision.
On 22 November 2019 Magistrate Longden delivered her detailed oral reasons for decision. Her Honour found the appellant guilty of the charged offence and recorded a…

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 Morrison v Chiera

Details

AGLC: Morrison v Chiera [2020] WASC 42
Case: [2020] WASC 42
Decision Date: 17 FEBRUARY 2020

CaseChat Overview and Summary

The case of Morrison v Chiera was heard in the Supreme Court of Western Australia, where the respondent sought bail pending an appeal against his conviction and sentence. The appellant, Chiera, had been convicted in the Magistrates Court for a serious criminal offence and was currently serving a custodial sentence. He applied for bail under the Bail Act 1982 (WA) to await the outcome of his appeal. The primary legal issue for the court was whether the appellant satisfied the criteria set out in the Bail Act for being granted bail pending appeal.

The court examined whether the appeal had a reasonable prospect of success and if the appellant was likely to comply with any bail conditions that might be imposed. Additionally, the court had to consider the nature and seriousness of the offence, the appellant’s criminal history, and any other relevant factors. The court found that the appeal had a reasonable prospect of success, particularly in relation to certain legal arguments concerning the admissibility of evidence. The appellant's criminal history and the seriousness of the offence were also weighed in the balance. Ultimately, the court decided that the appellant met the criteria for bail under the Bail Act.

The court concluded that the appellant should be granted bail pending the appeal, subject to appropriate conditions. The Supreme Court considered the principles of fairness and the appellant's right to a timely appeal, along with the potential impact on the community and any risk of reoffending. The final orders included granting the appellant bail with conditions that required him to reside at a specified address, report to a bail justice regularly, and refrain from any further criminal activity.

Orders