Ryan v The State of Western Australia
[2011] WASCA 1
•06/01/2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RYAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 1
CORAM: BUSS JA
HEARD: 24 DECEMBER 2010
DELIVERED : 24 DECEMBER 2010
PUBLISHED : 6 JANUARY 2011
FILE NO/S: CACR 233 of 2010
BETWEEN: KAREN ANN RYAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND KAR 20 of 2008
Catchwords:
Criminal law - Appeal by offender against conviction - Additional evidence - Application by offender for bail - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A J Maughan
Respondent: No appearance
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
BUSS JA: On 8 April 2010, the appellant and her co‑accused, Todd Dale Marshall, were both convicted after a trial in the District Court before Stevenson DCJ and a jury on two counts in an indictment which alleged that on 31 March 2008, at Forrestfield, the appellant and Mr Marshall had in their possession prohibited drugs, being MDMA and methylamphetamine, with intent to sell or supply to another.
The appellant and Mr Marshall were separately represented at the trial. The appellant did not give evidence or call any witnesses. Mr Marshall did not give evidence but his counsel called one witness. The defence of each of the appellant and Mr Marshall was that the drugs in question were not in his or her possession.
On 4 June 2010, the appellant was sentenced to 3 years' immediate imprisonment on count 1 in the indictment and 3 years and 6 months' immediate imprisonment on count 2. The sentences were ordered to be served concurrently. The total effective sentence was therefore 3 years and 6 months' imprisonment. The sentences were back‑dated to commence on 8 April 2010, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.
Mr Marshall was also sentenced to terms of immediate imprisonment.
The appellant has made application for:
(1)an extension of time to appeal against conviction;
(2)leave to appeal against conviction;
(3)leave to adduce additional evidence in the appeal; and
(4)bail pending the hearing of the appeal, alternatively, an expedited appeal order.
The last date for appealing against conviction was 25 June 2010. The appellant's appeal notice was not filed until 21 December 2010.
The applications for an extension of time to appeal, leave to adduce additional evidence and for bail pending the hearing of the appeal, alternatively for an expedited appeal order, are supported by affidavits of Abigail Sian Rogers sworn 21 December 2010.
The additional evidence in question, which is alleged to be fresh as distinct from new evidence, comprises a statement made by Mr Marshall to the appellant's lawyer in Bunbury prison in late November 2010 to the effect that the appellant was not involved in the offending for which she and Mr Marshall were convicted. In particular, Mr Marshall now asserts that the relevant drugs were in his sole possession. It appears that the appellant and Mr Marshall were living together when the offences were committed but between that time and the time of sentencing they separated.
In my opinion, the applications for an extension of time to appeal, leave to appeal and leave to adduce additional evidence in the appeal should be referred to the hearing of the appeal.
As to the application for bail, the appellant has not demonstrated that there are exceptional reasons why she should not be kept in custody pending the disposal of the appeal proceedings. In particular, the apparent merits of the application for leave to appeal, as revealed in the material before me, are insufficient to justify an order for bail. There is no affidavit from the appellant in support of the assertion that the additional evidence is fresh. Further, the evidence which Mr Marshall now gives, to the effect that the drugs in question were in his sole possession, is analogous to the evidence of a recanting witness, in that his defence at the trial was that he did not have possession of the drugs at all.
As to the alternative application for an urgent appeal order, I am not satisfied that the apparent merits of the application for leave to appeal, as revealed in the material before me, are sufficient to justify the making of an urgent appeal order. I note, in this regard, that the appeal notice was not filed until 21 December 2010 but that it is likely the appeal will be listed for hearing in March or April 2011.
The orders I make are:
(1)the applications for an extension of time to appeal, leave to appeal and leave to adduce additional evidence in the appeal are referred to the hearing of the appeal;
(2)the application for bail pending the hearing of the appeal is dismissed, and the alternative application for an expedited appeal order is also dismissed.
0
0
1