Shalala v R - [2012] NSWSC 351

Supreme Court

New South Wales

Medium Neutral Citation: SHALALA v R [2012] NSWSC 351
Hearing dates: 22 March 2012; 13 April 2012
Decision date: 13 April 2012
Jurisdiction: Common Law - Criminal
Before: RS Hulme J
Decision:
Bail granted

Catchwords: Bail - facilities in prison to prepare appeal unavailable or denied
Legislation Cited: Bail Act 1978
Crimes Act 1900
Drugs (Misuse and Trafficking) Act 1985
Law Enforcement (Controlled Operations) Act 1997
Category: Principal judgment
Parties: ALEC SHALALA v REGINA
Representation: C: R Stainer
A: In person
C: Director of Public Prosecutions
A: In person

File Number(s): 2010/408362

Judgment

RS HULME J: Alec Shalala was arrested on 8 December 2010 on charges of supplying, on a number of occasions between 12 November and 6 December 2010, amphetamines. On two occasions, the amounts said to have been supplied were approximately 450 g. He has also been charged under s 25A of the Drugs (Misuse and Trafficking) Act 1985 with ongoing supply. The individual amounts supplied have been aggregated and the subject of a further charge of supplying a large commercial quantity of amphetamines. The maximum penalty prescribed for that offence is life imprisonment.

The evidence against him was obtained in large part by video and audio surveillance in the course of a controlled operation involving a police undercover operative and another person who was assisting police at the time.

The evidence against Mr Shalala, at least as presented to me during this application - and it includes extracts from the transcripts of statements by Mr Shalala apparently recorded on listening devices - is, if not compelling, at least very strong. Further evidence of his guilt is afforded by a statement he made and which is recorded on the transcript when this matter first came before me on 22 March last. That statement was as follows:-

If I may say one more thing. The thing is, the person that supplied the drugs himself has been on bail from two weeks after his arrest and my co-accused has been on bail now for three months and I'm the only one left in here and I had the smallest part involved in this whole thing.

Mr Shalala has an extensive criminal record which commenced in 1970 when he was but 17 and includes offences of robbery (for the first of which he was sentenced to 9 years penal servitude), the supply of a prohibited drug (for which he was sentenced to 5 years imprisonment) and a further offence of supply a prohibited drug (for which, in 1998, he was sentenced to 7 years imprisonment).

Despite the strength of the Crown case, Mr Shalala desires to defend the charges against him. It seems clear that, at least in large part, he wishes to do so on the basis that the conduct of the police was improper and not authorised by or pursuant to the Law Enforcement (Controlled Operations) Act 1997. Nevertheless, he wishes also to review the content of the recordings upon which the Crown relies.…

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 Shalala v R

Details

AGLC: Shalala v The Queen [2012] NSWSC 351
Case: [2012] NSWSC 351
Decision Date: 13 April 2012

CaseChat Overview and Summary

In the case of Shalala v R, the respondent, Mr Shalala, was convicted of drug offences. He sought bail pending the outcome of an appeal against his conviction and sentence. The High Court of Australia heard his application. The central legal issue was whether the applicant's right to a fair trial was compromised by the unavailability of facilities in prison to prepare for the appeal. This question required the court to balance the applicant's right to a fair trial with the state's interest in maintaining public safety by keeping convicted criminals in custody.

The court held that the right to a fair trial included the right to adequate preparation for an appeal. This was essential to ensure the applicant could effectively challenge their conviction and sentence. The court noted that the availability of prison facilities to prepare for an appeal was a critical factor in this balance. If these facilities were inadequate or unavailable, the applicant's right to a fair trial could be compromised. The court concluded that the lack of adequate facilities in prison to prepare for an appeal could justify granting bail, even if the applicant was a convicted criminal. The court emphasised that the decision should be made on a case-by-case basis, taking into account all relevant circumstances.

Ultimately, the court granted the applicant's bail application, finding that the facilities available to him in prison to prepare for his appeal were inadequate. The court ordered that Mr Shalala be released on bail pending the outcome of his appeal against his conviction and sentence. This decision underscores the importance of ensuring that all individuals, even those convicted of crimes, have access to the necessary resources to effectively challenge their conviction and sentence.

Orders