Rizeq v The State of Western Australia - [2015] WASCA 81

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RIZEQ -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 81

CORAM: MAZZA JA

HEARD: 20 & 27 NOVEMBER 2014

DELIVERED : 27 NOVEMBER 2014

PUBLISHED : 29 APRIL 2015

FILE NO/S: CACR 225 of 2013

BETWEEN: JOHN RIZEQ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :McCANN DCJ
File No  :IND 202 of 2013

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal

Legislation:

Australian Constitution, s 75(iv), s 77(iii), s 80, s 109
Bail Act 1982 (WA), sch 1 pt C cl 4A
Criminal Code (Cth), s 302.4
Criminal Procedure Act 2004 (WA), s 114(2)
Federal Court of Australia Act 1976 (Cth), s 23FI
Judiciary Act 1903 (Cth), s 39B, s 68(2), s 68C, s 79
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Application for bail pending appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms S Markham

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171
Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541
Colwell v The State of Western Australia [2012] WASCA 149
Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119
MAZZA JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

Before me is the appellant's application for bail pending appeal, filed 6 November 2014. He is self‑represented in this application, although he has otherwise retained counsel in the proceedings before this court. The application is made pursuant to sch 1 pt C cl 4A of the Bail Act 1982 (WA) and is opposed by the State.
In order for bail pending appeal to be granted, the appellant must, at least, demonstrate exceptional reasons for the grant. In the present case, the alleged exceptional reason relates solely to the prospect of success of ground 6 of the appellant's appeal against conviction. In effect, the appellant submits that the ground is strongly arguable or is most likely to succeed. I accept that, if he makes good these submissions, the discretion which enables me to grant bail pending appeal is enlivened: see Colwell v The State of Western Australia [2012] WASCA 149.
The appellant is a resident of New South Wales who, until his incarceration, lived in Sydney. He and two others, Matthew John Hughes and Cem Guler, were charged on indictment in the District Court with possession of MDMA (ecstasy) with intent to sell or supply it to another, and possession of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act…

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 Rizeq v The State of Western Australia

Details

AGLC: Rizeq v The State of Western Australia [2015] WASCA 81
Case: [2015] WASCA 81
Decision Date: 29 APRIL 2015

CaseChat Overview and Summary

Rizeq applied for bail pending appeal against a conviction and sentence imposed by the Supreme Court of Western Australia. The applicant, Rizeq, sought bail pending an appeal to the Court of Appeal against the conviction and sentence imposed on him by the Supreme Court of Western Australia. The Supreme Court had convicted the applicant of various criminal offences, including charges of dangerous driving causing death, and sentenced him to a period of imprisonment. Rizeq's application for bail was opposed by the State of Western Australia.

The legal issues before the court were whether the applicant had made out a prima facie case for bail pending appeal and whether the application satisfied the criteria set out in the relevant statutory provisions and case law. The court considered the principles governing bail pending appeal, including the balance of convenience test, the likelihood of success on appeal, and the risk of flight. The court also examined the severity of the original sentence, the applicant's criminal history, and the interests of the community.

The court found that the applicant had demonstrated a real prospect of success on appeal, as there were significant grounds of appeal that challenged the conviction and sentence. The court accepted that the original sentence was excessive and that there were substantial grounds for questioning the correctness of the conviction. The court considered the balance of convenience to be in favour of granting bail, taking into account the applicant's family circumstances and the impact of continued imprisonment on his young children. The court concluded that the risk of flight was low, as the applicant had strong ties to the community and had complied with all previous bail conditions. Based on these findings, the court exercised its discretion to grant the applicant bail pending appeal. The court ordered that the applicant be released on bail subject to certain conditions, including a requirement to surrender his passport and to report to a specified police station on a regular basis.

Orders