Criminal law - Bail - Application for bail pending trial - Previous application to Judge of Supreme Court refused - Strength of prosecution case - Likely delay before trial equivalent to sentence of imprisonment in excess of 4 years - Whether exceptional circumstances

Legislation:

Bail Act 1982 (WA), Schedule 1, Part C, cl 3A

Misuse of Drugs Act 1981 (WA), s 6(1)(b)

Result:

Bail granted

Representation:

Counsel:

Applicant: Mr J J Scudds
Respondent: Ms H L Porter

Solicitors:

Applicant: J J Scudds & Associates
Respondent: State Director of Public Prosecutions

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

Alexopoulos v The Queen, unreported; SCt of Victoria; 23 February 1998
Outman v The Queen [2000] WASC 303
Pinkstone v The Queen [2000] WASC 321
Saka v The Queen [2001] WASC 92

Case(s) also cited:

Dobrosarlyeric v Allen, unreported; SCt of WA (Pidgeon J); Library No 6656; 1 April 1987
Rus v The Queen [2001] WASC
Townsend v The Queen [2000] WASC 63
Unchango & Ors v The Queen, unreported; SCt of WA (Templeman J); Library No 980346; 12 June 1998

ROBERTS-SMITH J: This is an application for bail pending trial in the District Court. It is made by a notice dated 30 May 2001. The material filed in support of the application was an affidavit of the applicant sworn on 23 May and filed on 30 May 2001, the affidavit of Danielo Adam Montaperto sworn 13 March 2001 and a copy of the police statement of Michelle Evelyn McFarlane dated 31 August 1999, together with outlines of submissions from the applicant and respondent.
There had been a previous bail application before Hasluck J on 1 December last year. On that occasion his Honour refused bail, giving written reasons on 14 December, (Outman v The Queen [2000] WASC 303). I was asked to have regard also to the material which had been before Hasluck J. Apart from the application itself, that comprised (a) the affidavit of the applicant sworn on 24 November 2000; (b) the affidavit of Jeremy James Scudds sworn and filed on 27 November 2000; and (c) in addition, at the hearing before me on 7 June 2001 the respondent handed up a further police statement of Michelle McFarlane dated 15 November 2000.
The charge in respect of which this application is made was originally one that on 9 March 2000 at Belmont, the applicant, together with Danielo Montaperto and Michelle McFarlane, manufactured a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).
I am informed that Montaperto has since pleaded guilty and on 9 June 2001 was sentenced in respect of the March 2000 charge to 18 months' imprisonment, that being part of an overall sentence…

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 Outman v The Queen

Details

AGLC: Outman v The Queen [2001] WASC 162
Case: [2001] WASC 162
Decision Date

CaseChat Overview and Summary

David John Louis Outman applied for bail pending trial in the District Court, which was originally refused by Hasluck J on 14 December 2000. The applicant was charged with manufacturing methylamphetamine on 9 March 2000, while on bail for another charge, and the applicant argued that he should be granted bail due to the length of the delay in bringing the case to trial, which would amount to almost four years' imprisonment if the applicant were to remain in custody until the trial. The applicant also argued that the prosecution case was not particularly strong, and therefore, there was no risk of the applicant absconding if bail was granted.

The court had to decide whether there were exceptional reasons for granting bail, as the applicant was alleged to have committed the offence while on bail for another serious offence. The applicant argued that the delay in bringing the case to trial and the strength of the prosecution case constituted exceptional reasons for granting bail. The court found that the delay in bringing the case to trial did amount to exceptional circumstances, and the length of delay between the applicant's arrest and the possible date of trial, even if that was in October, did constitute an exceptional reason for the grant of bail.

The court granted the applicant bail subject to stringent conditions. The court considered the delay in bringing the case to trial and the strength of the prosecution case when making its decision, and ultimately decided that the exceptional circumstances of the case warranted the grant of bail.

Orders