Musarri v The Queen

Case [2001] WASC 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MUSARRI -v- THE QUEEN [2001] WASC 200

CORAM:   WHITE AUJ

HEARD:   25 JULY 2001

DELIVERED          :   3 AUGUST 2001

FILE NO/S:   MCS 71 of 2000

BETWEEN:   PAOLO MUSARRI

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Application for bail - Second application to this Court after earlier refusal to grant bail - Whether new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously refused by a Judge of this Court, to overcome the effect of Pt B, cl 2 of the first Schedule to the Bail Act 1982 - Turns on own facts

Legislation:

Bail Act 1982, 1st Sch, cl 2 and cl 4

Criminal Property Confiscation of Property Act 2000

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr R Richter QC

Respondent:     Mr J Mactaggart

Solicitors:

Applicant:     Pryles & Defteros

Respondent:     State Director of Public Prosecutions

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

Edwards (1988) 35 A Crim R 465

Munro v The Queen [2001] WASC 159

Pinkstone v The Queen [2000] WASC 321

Case(s) also cited:

R v Rechichi [1999] WASC 73

Rus v The Queen [2001] WASC 69

Yanko v The Queen [2001] WASC 114

  1. WHITE AUJ:  This is an application to be released on bail pending the trial of the applicant on a charge of conspiring to possess heroin with intent to sell or supply it to another and two charges of supplying amphetamine.  After the matter came on before me, my attention was drawn to an affidavit which had, it seems, been filed in court shortly before, but which had not yet reached me.  It is the affidavit of Gavin George Wells, the solicitor acting for the applicant.  In that affidavit, Mr Wells deals with the events subsequently to the hearing before Heenan J and, particularly, with the state of the business (which has closed down), the actions of Citibank and of Westpac in relation to the calling up of mortgages and the evidence at the preliminary hearing.  He submits that an analysis of that evidence shows that the Crown case has been exposed as much weaker than previously submitted, with a clear likelihood that the applicant will be acquitted at trial.

  2. Nonetheless, it is true that, at the conclusion of the preliminary hearing, the learned Magistrate did commit the applicant for trial.

  3. Annexed to Mr Wells' affidavit is a letter from Dr Phil Watts, a Clinical and Forensic Psychologist, who described the effects upon the applicant of his imprisonment. Having perused his letter carefully, I am not persuaded that its contents establish a relevant change of circumstance or a new fact, within the meaning of cl 4.

  4. The applicant was arrested in October 2000 and has been in custody ever since.  He made an application to this Court to be released on bail on 17 October 2000 and that application was refused by Heenan J for reasons which his Honour published on 2 November 2000.

  5. Clauses 2…

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Musarri v The Queen [2001] WASC 200
Case
[2001] WASC 200
Decision Date

CaseChat Overview and Summary

The matter of Musarri v The Queen involved an application for bail by the defendant, Musarri, after an earlier application to the court was refused. The case was before the Supreme Court, where the primary issue was whether new facts, circumstances, or changed situations had emerged since the initial refusal of bail, thus potentially warranting a reconsideration of the bail decision. The legal framework under consideration was primarily the Bail Act 1982, specifically clauses 2 and 4 of Part B of the first Schedule, which respectively restrict the power of judicial officers to grant bail after an initial decision and provide exceptions where new facts or changed circumstances exist.

The court needed to determine if the new facts or circumstances presented by Musarri were substantial enough to justify a reconsideration of the bail decision. Counsel for Musarri argued that three factors indicated new facts or changed circumstances: the absence of committal proceedings during the initial bail application, the outcome of these proceedings, and the nature of the Crown's case, which was circumstantial and relied on inferences from telephonic communications. The court had to assess whether these factors constituted new and significant considerations that could influence the bail decision.

After thorough consideration, the court concluded that the new facts and circumstances presented by Musarri did not sufficiently alter the balance of considerations to warrant a reconsideration of the bail decision. The court found that the additional material did not introduce new considerations that would likely have changed the outcome of the initial bail refusal. Consequently, the application for bail was dismissed, and the court upheld the earlier decision to deny bail.

In conclusion, the court's decision emphasized the importance of new and significant considerations in justifying a reconsideration of a bail decision under the Bail Act 1982. The court's ruling reflected a cautious approach to successive bail applications, ensuring that such applications are not granted lightly unless they present compelling new evidence or circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Clauses 2 and 4 of Part B of the first Schedule to the Bail Act provide respectively:"2. Upon decision by judicial officer, his power and that of his peers ceases Except where clause 4 applies, the power to grant bail for an appearance by a defendant ceases to be vested in any judicial officer (including a Judge of the Supreme Court) after he, or another judicial officer whose jurisdiction is co‑extensive with his, has granted or refused bail for that appearance.…4.Judicial officer’s powers where defendant proves new facts or changed circumstances Notwithstanding clause 2, where a defendant has been refused bail for an appearance or has been granted bail therefor on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is co‑extensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefor if the defendant makes application and satisfies him that — (a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance;(b)he failed to adequately present his case for bail on the previous occasion when it was considered; or(c)where bail was granted subject to a home detention condition, he has, since the previous occasion when his case for bail was considered, complied with the home detention condition for a period of one month or more." The first question to arise, therefore, is as to whether there have been established new facts, new circumstances or changed circumstances sufficient to confer jurisdiction upon me to consider afresh whether or not to grant bail to the applicant. Unless this is demonstrated, cl 2 (supra) precludes my being able to reconsider the question of bail. In the course of his persuasive argument, senior counsel for the applicant submitted that there are three factors establishing new facts or circumstances and changed circumstances. Firstly, Mr Richter QC pointed out that when the matter was before Heenan J, no committal proceedings had yet been held. It fact, such proceedings were held during June, 2001. In the result, the applicant was committed for trial. In his submission, the matters put before the learned Magistrate were such that the Crown case was not strengthened. The Crown case, it was submitted, is entirely circumstantial and will require the jury to draw inferences from telephonic communications attributed to the applicant. None of the alleged co‑offenders, Mr Richter submitted, had given any evidence implicating the applicant in the alleged offences and the applicant has denied any involvement in the commission of the offences in question. The fact that the Crown case is circumstantial and dependent upon inferences was recognised by Heenan J and referred to in his Honour's reasons for decision. The provisions of the Bail Act 1980 of Queensland are different from those of the Western Australian statute, and do not preclude successive applications for bail after unsuccessful applications. Nonetheless, as was pointed out by McPherson J in Edwards (1988) 35 A Crim R 465, the practical effect of the Queensland Act is that any further application will, unless supported by additional relevant facts, be "fruitless" (applying O 45 r 1 of the Rules of the Supreme Court 1901 (Qld)). In Edwards, his Honour held that the mere fact of a committal having taken place is not of itself sufficient to attract the application of O 45 r 1. As to that rule, his Honour referred to:" … the provisions of O 45 r 1 of the Rules of the Supreme Court 1901 (Qld). Which expressly cater for both the case in which facts arise after the making or an order; and the case in which facts are discovered after the order which if discovered in time would have entitled the party against whom the order was made to an order in his favour: see KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13.The question is whether there are new considerations which were not before the court on the occasion of the previous application when bail was refused. His Honour held that a persuasive and satisfying case is required, and not one in which the differences disclosed by the additional material go only to matters of mere detail, or to considerations which, although not previously raised, would not have been likely to alter the balance to one favouring the granting of bail."

Ratio Decidendi

Legal Principle Established

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