RIZEQ -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 165

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 165
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:225/2013	Heard:	21 MAY 2015
Coram:	McLURE P CHANEY J	Delivered:	24/08/15
No of pages:	3	Judgment Part:	1 of 1
Result:	Applications dismissed
Category:	B
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Parties:	JOHN RIZEQ THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application to review decision refusing bail pending conviction appeal Application to reinstate abandoned grounds Turns on own facts
Legislation:	Misuse of Drugs Act 1981 (WA)
Case References:	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 [No 2] [2015] WASCA 165 CORAM : McLURE P

CHANEY J

HEARD : 21 MAY 2015 DELIVERED : 24 AUGUST 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 - Application to review decision refusing bail pending conviction appeal - Application to reinstate abandoned grounds - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms A C Longden

Solicitors:

Appellant : In person

Respondent : Director of Public Prosecutions (WA)

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

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

1 JUDGMENT OF THE COURT: There are two applications before the court. The first is, in substance, an application to review the decision of Mazza JA in November 2014 refusing bail pending the determination of the appellant's conviction appeal: Rizeq v The State of Western Australia [2015] WASCA 81. The second application is for leave to 'reinstate any abandoned grounds' in the conviction appeal. The applications were filed after the hearing of the conviction appeal on 20 February 2015. Both applications should be dismissed.

2 Mazza JA's decision refusing bail was delivered on 27 November 2014. A review application must be filed within five working days after the date of the decision. The review application was filed on 24 April 2015.

3 The bail application was based solely on the alleged strength of ground 6 of the conviction appeal which is to the effect that the appellant should have been tried under federal law not the Misuse of Drugs Act 1981 (WA) because of inconsistencies between the two. Mazza JA refused bail stating:

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 [17].

4 Mazza JA's assessment of the merits of ground 6 is correct for the reasons given in the determination of this appeal published contemporaneously with these reasons. An extension of time to review the decision should be refused and the application dismissed.

5 The other application, filed on 18 May 2015, should also be dismissed. The appellant, by his counsel, filed a formal notice dated 3 March 2015 abandoning grounds 3 and 5 of the appeal. On 12 May 2015 the appellant filed a notice of acting in person. It is clear the appellant's counsel acted after making an assessment that ground 3 and 5 were devoid of merit. There is nothing in the material that undermines the correctness of that assessment. There is no proper basis on which the appellant can now resile from the abandonment of grounds 3 and 5.

6 Both applications must be dismissed.

Rizeq, the appellant, sought to review the State of Western Australia's decision to refuse bail pending appeal of a conviction. The application was made to the Supreme Court of Western Australia, which was asked to consider whether the decision was legally sound and whether it was appropriate to reinstate abandoned grounds of appeal. The appellant argued that the decision to refuse bail was flawed and sought a review of this decision. Additionally, he sought to reinstate grounds of appeal that had previously been abandoned.

The central legal issues revolved around the discretionary power of the court to review the decision to refuse bail, and the procedural fairness in allowing the reinstatement of abandoned grounds of appeal. The court needed to assess whether the decision to deny bail was lawful and whether it was appropriate to allow the appellant to revisit grounds that had already been abandoned.

The court held that the decision to refuse bail was sound and within the proper exercise of judicial discretion. It found that the appellant had not demonstrated that the decision was flawed to the extent that it warranted a review. Regarding the reinstatement of abandoned grounds, the court held that it was not appropriate to allow such reinstatement. The court concluded that allowing the appellant to revisit abandoned grounds would be contrary to principles of procedural fairness and finality in judicial proceedings. Consequently, both applications were dismissed.

Rizeq v The State of Western Australia [No 2]

RIZEQ -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 165

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established