Santos v The State of Western Australia

[2012] WASCA 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 144

CORAM:   MAZZA JA

HEARD:   25 JULY 2012

DELIVERED          :   25 JULY 2012

PUBLISHED           :  30 JULY 2012

FILE NO/S:   CACR 24 of 2012

BETWEEN:   JAMIESON ANDREW SANTOS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STEVENSON DCJ

File No  :IND 1616 of 2008

Catchwords:

Criminal procedure - Bail pending appeal against conviction - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A, pt C, sch 1
Evidence Act 1906 (WA), s 31A

Result:

Application dismissed

Category:    D

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):

Santos v The State of Western Australia (2011) WASCA 216

Shrivastava v The State of Western Australia [2010] WASCA 96

The State of Western Australia v Micalizzi [2010] WASCA 147

MAZZA JA: 

(These reasons were delivered extemporaneously and have been edited from the transcript.)

1. The appellant, Mr Santos, has filed two applications relating to his appeal against conviction. The first application is an application for bail pending appeal pursuant to cl 4A of pt C of sch 1 to the Bail Act 1982 (WA). The second application seeks an order for the appointment of an examiner or special commissioner and to compel a witness or witnesses to attend at the hearing of the appeal to give evidence.

2. I will first deal with the application for bail pending appeal.  Before doing so, I will say a little about the general background to the case. 

3. The appellant and his co‑offender, Joseph Frank Micalizzi, were convicted after a trial before Judge Stevenson and a jury in the District Court on 9 December 2011 with two counts of possession of a prohibited drug with intent to sell or supply it to another.

4. On 2 February 2012, each was sentenced to a total effective sentence of 15 years' imprisonment with eligibility for parole.  In very broad terms, the facts are as follows. 

5. The appellant piloted a light aircraft from Bankstown in New South Wales to Jandakot Airport in Perth.  His only passenger was Mr Micalizzi.  Shortly after touching down, the aircraft was intercepted and searched by police.  In a black bag in the rear cargo area of the aircraft police discovered approximately 9 kilograms of ecstasy and approximately 22 kilograms of methylamphetamine. 

6. The appellant was found in possession of almost $9,000 in cash.  He was at the time an undischarged bankrupt.  He was also found to be in possession of two mobile phones which were not subscribed in his name or at addresses associated with him.  The appellant told the police that his passenger was on a joy flight from New South Wales to Western Australia and, although Mr Micalizzi had offered to pay for the cost of the fuel for the journey, no money had yet been paid for this purpose.  The appellant also told the police that he did not know the name of his passenger, that the black bag was not his and that he did not know if the passenger had any bags when he came aboard the plane. 

7. There was no forensic evidence to link either the appellant or Mr Micalizzi with the bag that contained the drugs.  

8. Mr Micalizzi's phone records reveal that during the flight from Bankstown to Jandakot, he had been in contact with two people known as Oz and Bowa.  The telephone contact between Mr Micalizzi and Oz and Bowa was prolific right up until his arrest.  SMS exchanges revealed that Mr Micalizzi was to meet both Oz and Bowa in Perth upon his arrival at Jandakot Airport on 5 March 2008.

9. At the trial, propensity evidence, which comprised in part evidence of two prior drug offences, involving cannabis, committed by the appellant in 2004 and 2008 was adduced pursuant to s 31A of the Evidence Act 1906 (WA).

10. The purpose of this evidence, combined with other evidence of what the State said was the appellant's 'high flying lifestyle' (ts 1012), was to demonstrate that the appellant was engaged in the business of drug dealing.

11. At trial the State's primary case was that the appellant and Mr Micalizzi jointly possessed the drugs found in the aircraft and that they were transporting them from Sydney to Perth as part of a larger drug enterprise. 

12. The appellant's case was that he innocently flew the aircraft without any knowledge of the drugs that were on board.  The appellant himself did not give evidence at the trial, but he adduced evidence to the effect that his lifestyle was funded by legitimate means.

13. The case had a somewhat chequered history in the District Court.  The trial was listed to begin on 9 November 2009, but was adjourned.  A new trial date of 12 November 2009 was set.  That trial was also adjourned.  A third trial date to commence on 6 April 2010, was then set, but, on 1 April 2010, the State applied for a further adjournment and Mr Micalizzi made an application for separate trials.  That application was granted.  However, the State appealed against that decision and the appeal was successful.  On 10 June 2010, this court set aside the order for separate trials:  The State of Western Australia v Micalizzi [2010] WASCA 147.

14. Eventually, the trial was scheduled to commence on 2 May 2011.  The appellant made an application for a separate trial, but this was refused.  The appellant sought to appeal this decision.  That appeal was dismissed on 6 May 2011, because it had not been brought within time:  Santos v The State of Western Australia (2011) WASCA 216. The trial, which had been listed for 2 May 2011, did not proceed. The trial was then set down to commence on 23 November 2011. That trial proceeded to conviction.

15. The reasons for the long delay in the resolution of the proceedings in the District Court are varied.  There was a delay in the appellant being in a position to come to Western Australia for his trial due to charges that were pending against him in New South Wales.  As I understand it, those charges were not disposed of until about 15 November 2010.  The trial listed to take place in May 2011, was ultimately adjourned because of late prosecution disclosure. 

16. Clause 4A of pt C of sch 1 of the Bail Act provides that this court shall only grant bail after conviction where there are exceptional reasons why the appellant should not be kept in custody. If exceptional reasons are demonstrated, the court must then consider whether bail may be properly granted, having regard to the provisions of cls 1 and 3 of sch 1. These clauses set out what might be described as the ordinary principles applicable to a grant of bail. Thus, the existence of exceptional reasons is a necessary, but not sufficient precondition for bail being granted.

17. The appellant primarily relies upon the strength of his grounds of appeal to establish exceptional reasons.  He also relies on his claimed inability to properly prepare for his appeal while in custody and on the length of time he says that he has been in custody since his arrival in Western Australia.

18. As I pointed out in Shrivastava v The State of Western Australia [2010] WASCA 96, previously decided cases have used a number of formulations as to the merits of an appeal which may constitute exceptional reasons. I consider that for the appellant to demonstrate exceptional reasons he needs to show, without detailed argument, that his appeal has strong arguable grounds.

19. The task of assessing the strength of the grounds of appeal must, at this early stage of the proceedings, be tentative.  This is not the place for full argument as to the merits of the appeal, nor is it appropriate that I undertake a detailed examination of the grounds.  Nothing I say should be taken as a prejudgment of the ultimate outcome of the appeal. 

20. The appellant, who is acting in person, has 16 grounds of appeal.  Those grounds are supported by 26 pages of detailed written submissions.  The question of leave to appeal has not yet been determined.

21. I have considered the appellant's grounds of appeal and his written submissions in support of them.   I have also considered his careful oral submissions this morning and have considered the respondent's written and oral submissions.  At this point, it is not appropriate for me to say more than I am not satisfied that any of the grounds of appeal are strongly arguable.

22. This view is sufficient to dispose of the application for bail pending appeal.  However, I will deal briefly with the other matters raised by the appellant.  For the purposes of the argument I accept that being in custody presents the appellant with some difficulty in the preparation for his appeal.  However, as the experience of this court shows, appellants in custody are able to prepare and to effectively present to the court their appeals.

23. As to delay, the appeal will be heard in the usual course.  This court gives priority to criminal appeals.  The delay in this case is not an exceptional reason for granting bail pending appeal.  For all these reasons the appellant's application for bail pending appeal must be and is dismissed.

24. I now turn to the appellant's application for an examiner or special commissioner to be appointed and for a witness or witnesses to attend at the hearing of this appeal.  It is premature for me to make the orders sought by the appellant at this stage when leave to appeal has not been given.  I will adjourn this application sine die on the basis that the appellant has liberty to relist it after the question of leave has been decided, on giving the respondent 14 days' notice in writing.