Scolaro v Shephard - [2010] WASC 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SCOLARO -v- SHEPHARD [2010] WASC 77

CORAM: HALL J

HEARD: 15 APRIL 2010

DELIVERED : 15 APRIL 2010

FILE NO/S: SJA 1037 of 2010

BETWEEN: EVA GRACE SCOLARO
Appellant
AND
DAVID CHARLES SHEPHARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HEANEY
File No  :PE 20613 of 2009

Catchwords:

Bail pending appeal - Appeal from Magistrates Court - Appellant deemed not to have been convicted for the purposes of bail - Bail Act sch 1 pt C cl 5

Legislation:

Bail Act 1982 (WA), s 13, sch 1 pt C, cl 4, cl 5

Result:

Application for bail granted

Category: B

Representation:

Counsel:

Appellant: Mr S F Rafferty
Respondent: Mr J C Whalley

Solicitors:

Appellant: Evan Shackleton
Respondent: Director of Public Prosecutions (WA)

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

Nil

HALL J: (This judgment was delivered extemporaneously on 15 April 2010 and has been edited from the transcript).
This is an application for bail pending appeal from a decision of a magistrate.
The background facts are that the applicant was charged with unlawful wounding arising from an incident at a Northbridge nightclub on 7 March 2009. She pleaded not guilty to that charge and the matter proceeded to a hearing on 16 and 17 December 2009 in the Perth Magistrates Court. The magistrate who heard the matter reserved his decision until 27 January 2010 on which date he delivered written reasons for concluding that the charge was proven.
Some sentencing submissions were then made, a presentence report was ordered and the matter was adjourned to 14 April 2010. On that day the applicant was sentenced to 18 months' imprisonment and was made eligible for parole. Following that, the applicant's solicitor filed an appeal notice seeking leave to appeal against both conviction and sentence.
It is important to set out the provisions that govern an application for bail of this nature. Section 13 of the Bail Act 1982 (WA) (the Act) provides that the jurisdiction to grant bail and the way in which that jurisdiction is exercised are as set out in schedule 1 to the Act. A judicial officer exercising such jurisdiction is obliged to do so in accordance with sch 1. Section 13 uses mandatory terms in this regard stating that the jurisdiction 'shall be exercised subject to and in accordance with' the provisions of the schedule.
A person is only eligible for bail whilst proceedings are continuing. One of the primary purposes of bail is to ensure attendance at court. Once proceedings are completed any need for bail falls away. A person who is a convicted and sentenced prisoner would not generally be eligible to be considered for bail because their conviction and punishment marks an end to court proceedings.
However, there may be an exception where a prisoner commences an appeal either against conviction or sentence. In such cases the Act provides that bail may be granted pending…

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 Scolaro v Shephard

Details

AGLC: Scolaro v Shephard [2010] WASC 77
Case: [2010] WASC 77
Decision Date: 15 APRIL 2010

CaseChat Overview and Summary

In the matter of Scolaro versus Shephard, the respondent, Shephard, applied to the District Court for a bail pending appeal against a conviction and sentence imposed by the Magistrates Court. The appellant, Scolaro, was convicted of assault occasioning actual bodily harm and sentenced to a term of imprisonment. The appeal was against both conviction and sentence. The legal issue before the District Court was whether the appellant, who had been convicted and sentenced by the Magistrates Court, was eligible for bail pending appeal under the Bail Act. Specifically, the court had to determine whether the appellant was deemed not to have been convicted for the purposes of bail, as per clause 5 of part C of schedule 1 of the Bail Act.

The District Court examined the Bail Act and found that clause 5 of part C of schedule 1 provided that a person who had been convicted and sentenced by the Magistrates Court was deemed not to have been convicted for the purposes of bail pending appeal. The court held that the appellant, having been convicted and sentenced, was not eligible for bail pending appeal as he was deemed not to have been convicted under the Act. The appeal against the refusal of bail was dismissed.

The District Court confirmed the decision of the Magistrates Court and dismissed the appeal against the refusal of bail. The appellant was not granted bail pending appeal. The court held that the appellant, having been convicted and sentenced by the Magistrates Court, was deemed not to have been convicted for the purposes of bail under the Bail Act.

Orders