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 1981 (WA). Each offence was alleged to have been committed on 16 July 2012 at Redcliffe.
Count 1 concerned 2,035 ecstasy tablets, weighing a total of 509 g with a purity of 18%. Count 2 concerned two bottles of methylamphetamine in liquid form, with a total volume of 403 ml and a purity of 80%. These drugs were secreted in the bull bar of a vehicle that the appellant and his co‑offenders had driven from Sydney to Perth.
Guler pleaded guilty to these offences and, on 23 August 2013, was sentenced to a total effective sentence of 8 years' imprisonment.
The appellant and Mr Hughes went to trial. On 26 September 2013, the appellant was convicted of the two offences by majority verdict, pursuant to s 114(2) of the Criminal Procedure Act 2004 (WA). On 30 October 2013, the appellant received a total effective sentence of 10 years' imprisonment.
The appellant's case was filed on 13 May 2014. The appellant relies on seven grounds of appeal. Leave to appeal in relation to each of these grounds has been referred to the hearing of the appeal. As I mentioned earlier, the present application is based solely on the alleged strength of proposed ground 6. That ground reads as follows:
In relation to Constitutional Law, the appellants [sic] situation falls under Federal jurisdiction and should have been triad [sic] under Federal law and not State law, as inconsistencies between the two are immensely significant.
Before I say anything more about this ground, it is appropriate to say something about what my function is today. As I have pointed out to the appellant, I am not hearing or deciding upon his appeal, or ground 6 in particular. Any view that I express is tentative, and may change after the full hearing of the appeal. The question is whether, at this point, the ground can be said to be strongly arguable or is most likely to succeed. Failure to demonstrate this does not mean the ground will fail at the hearing of the appeal.
The appellant, in his written and his oral submissions before me, referred to s 75(iv), s 77(iii), s 80 and s 109 of the Australian Constitution; s 39B, s 68(2), s 68C and s 79 of the Judiciary Act 1903 (Cth); and s 23FI of the Federal Court of Australia Act 1976 (Cth). He also referred to the decisions of the High Court in Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171; Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541; Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491; and Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1.
The gist of his argument, as I understand it, is as follows. Although the appellant was charged with State offences, because he was a resident of New South Wales at the time of the offence, and further, because the criminal proceedings were brought against him by the State of Western Australia, the District Court of Western Australia was invested with Federal jurisdiction and exercised that jurisdiction at his trial. As a result, s 80 of the Australian Constitution applied to him and unanimous verdicts were required. To this extent, and by virtue of s 109 of the Australian Constitution, s 114(2) of the Criminal Procedure Act cannot consistently operate with s 80 of the Australian Constitution. Specifically, the appellant submits that the majority verdicts against him were unconstitutional and must be set aside, and that a new trial must be ordered.
The appellant was, at the time of his arrest, a resident of New South Wales. The proceedings which were brought against him were between him and the State of Western Australia. Having regard to s 75(iv) and s 77(iii) of the Australian Constitution, s 39(2) of the Judiciary Act and what was said by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Momcilovic, it may be accepted that the District Court was invested with Federal jurisdiction for the purposes of prosecuting the appellant.
However, from this, and the operation of s 68(2) and s 79 of the Judiciary Act, I do not think that it is strongly arguable that s 80 of the Australian Constitution applied to the appellant's trial. I will, as briefly as I can, explain why.
The various limbs of the appellant's arguments before me depended upon s 80 of the Australian Constitution. Section 80 of the Australian Constitution relevantly provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury.
In Cheatle, the High Court held that s 80 precluded a majority verdict where an offender is tried on indictment of an offence against the law of the Commonwealth. In the present case, unlike Cheatle, the appellant was not charged with offences against the law of the Commonwealth; he was charged with offences against the State law of Western Australia. While the District Court was invested with Federal jurisdiction to deal with the appellant, that does not change the essential nature of the offences as being State offences.
In oral argument, the appellant placed particular reliance upon s 68(2) of the Judiciary Act. That subsection is concerned with a State court's jurisdiction to deal with offences against the laws of the Commonwealth: see Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119 [19]. It is true, as the appellant points out, that the subsection is subject to s 80 of the Australian Constitution, but, as with s 80, the subsection does not apply to offences against the laws of a State.
As to the appellant's argument pursuant to s 109 of the Australian Constitution, the appellant alleges that there is an inconsistency between s 6(1)(a) of the Misuse of Drugs Act and s 302.4 of the Criminal Code (Cth), by reason of the mode of trial, in that the offence under the Misuse of Drugs Act may be subject to a majority verdict pursuant to s 114(2) of the Criminal Procedure Act, while the offence under the Criminal Code is subject to a unanimous verdict pursuant to s 80 of the Australian Constitution. It is sufficient for me to observe at this point that a similar argument was put and rejected by a majority of the judges in Momcilovic.
Because ground 6 is not, in my view, strongly arguable, or one which is most likely to succeed, exceptional reasons for a grant of bail have not been demonstrated. Accordingly, the application must be dismissed, and I so order.