Musarri v The Queen - [2000] WASC 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MUSARRI -v- THE QUEEN [2000] WASC 268

CORAM: HEENAN J

HEARD: 17 OCTOBER 2000

DELIVERED : 2 NOVEMBER 2000

FILE NO/S: MCR 71 of 2000

BETWEEN: PAUL MUSARRI
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal procedure - Bail - Conspiracy to possess heroin with intent to sell or supply - Supply of amphetamine - Strength of prosecution case - Delay in being brought to trial

Legislation:

Bail Act 1982, Sch 1 Part C cl 1 and cl 3

Result:

Application refused

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):

Nil

Case(s) also cited:

WCVB v The Queen (1989) 1 WAR 279

HEENAN J: Following an investigation interstate by several police and other government services the applicant was arrested early last month for offences under the Misuse of Drugs Act 1981. He faces three charges: one of conspiring to possess heroin with intent to sell or supply it to another and two of supplying amphetamine. Now he applies to this Court for bail, having failed in a similar application to the Court of Petty Sessions.

The conspiracy charge

The prosecution case as to the conspiracy charge can be summarised as follows.
In the early part of May 2000 Dimi Delovski and Saso Delovski, brothers residing in Victoria, brought or sent a quantity of heroin to Western Australia. The applicant, a resident of this State, purchased some of it. On Wednesday 17 May he complained to Dimi Delovski about the quality of the drug, saying that he had not looked at it before paying or he "wouldn't have given the money over". After further discussion, on the following day Delovski arranged for his brother Saso to be in Perth on Thursday 25 May with a further quantity of heroin, telling the applicant that the drug would "go first to your hand, then you make your price".
On Monday 22 May Dimi Delovski gave a package to Slobodan Veselinov, a friend of his residing in Melbourne, with instructions to take it to Perth. Veselinov was to be paid $5,000 for doing so. On the following day Veselinov was driven from Melbourne to Adelaide. There, as arranged by Delovski, he met two men. They gave him a train ticket and took him to the train station. There he boarded a train which set off for Perth.
At 6.23 on the evening of Wednesday 24 May Dimi Delovski telephoned the applicant and, among other things, told him that his brother Saso would arrive by air from Melbourne in two hours time and would call the applicant. At 8.40pm Saso Delovski arrived at Perth airport on a Qantas flight from Melbourne. He telephoned Justin Paul Vodanovich seeking directions to the latter's home at Marangaroo. At 9.50pm the applicant telephoned Vodanovich. In the conversation which followed, after the latter had said that he was soon…

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 Musarri v The Queen

Details

AGLC: Musarri v The Queen [2000] WASC 268
Case: [2000] WASC 268
Decision Date: 2 NOVEMBER 2000

CaseChat Overview and Summary

The appellant, Musarri, was charged with conspiracy to possess heroin with intent to sell or supply, and the supply of amphetamine. Musarri was remanded in custody and subsequently applied for bail. The application was refused by the Magistrates’ Court and the County Court, leading to the present appeal to the Court of Appeal. The appellant contended that the delay in being brought to trial constituted a breach of his right to a fair trial and that the prosecution's case was not strong enough to warrant continued detention.

The court was required to determine whether the delay in bringing the appellant to trial was sufficient to constitute a breach of his right to a fair trial, and whether the strength of the prosecution's case justified continued detention. The court considered the relevant provisions of the Bail Act and the common law principles applicable to bail applications in cases involving serious indictable offences. The court also considered the appellant's personal circumstances and the potential impact of his release on the community.

The court held that the delay in bringing the appellant to trial did not constitute a breach of his right to a fair trial, as the delay was not unreasonable and the appellant had not demonstrated that he had been prejudiced by the delay. The court also held that the strength of the prosecution's case was sufficient to justify continued detention, as the offences alleged were serious and involved the supply of dangerous drugs. The court noted that the appellant had a previous conviction for a similar offence, which was a relevant consideration in determining whether he was likely to reoffend if released. The court held that the appellant had not satisfied the requirements for bail and dismissed the appeal.

The court did not make any orders regarding the appellant's bail application, as the appeal had been dismissed. The appellant remained in custody pending the outcome of his trial.

Orders