Criminal law and procedure - Bail - Application for bail pending hearing of appeal - Exceptional circumstances - Prospects of success - Applicable test - Appeal must be most likely to succeed

Legislation:

Bail Act 1982 (WA), Sch 1, Pt A, cl 4(d) and Sch 1, Pt C, cl 4

Criminal Code (WA), s 702

Result:

Bail refused

Category: A

Representation:

Counsel:

Applicant: Mr M J McCusker QC & Mr R A Mazza
Respondent: Mr P J Urquhart

Solicitors:

Applicant: Mazza & Mazza
Respondent: State Director of Public Prosecutions

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

Bond v The Queen, unreported; SCt of WA; Library 920322 12 June 1992
Caratti v The Queen [1999] WASCA 91
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Crampton v The Queen (2000) 206 CLR 161
Dawe v The Queen [2001] WASCA 306
Dinsdale v The Queen (2000) 202 CLR 321
Doggett v The Queen (2001) 75 ALJR 1290
Hart (1932) 23 Cr App Rep 202
Hickey v The Queen [2002] WASCA 221
Longman (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Madden v The Queen, unreported; CCA SCt of WA Library 930292, 20 May 1993
Marotta v The Queen (1999) 73 ALJR 265
MFA v The Queen [2002] 193 ALR 184
Qui Duc Nguyen (2001) 118 A Crim R 533
R v BWT (2002) 54 NSWLR 241
R v Smith, unreported; CCA SCt of NSW; 18 May 1993
R v Walser (1994) 73 A Crim R 154
Robinson v The Queen (1991) 65 ALJR 519
Southgate [1960] NSWR 477
W (1994) 73 A Crim R 532
Waters (1990) 9 Petty SR 4016

Case(s) also cited:

Browne v Dunn (1893) 6 R 67
Christophers v The Queen (2000) 23 WAR 106
Garrett v Nicholson (1999) 21 WAR 226
Mraz v The Queen (1955) 93 CLR 493
Mullally v The Queen [2000] WASCA 26
R v Kane (2001) 3 VR 542

ROBERTS-SMITH J: This is an application for bail pending appeal to the Court of Criminal Appeal against both conviction and sentence. It accordingly falls as an exercise of the jurisdiction of the Court of Criminal Appeal by a single Judge under Sch 1 Pt A cl 4(d) of the Bail Act 1982 (WA) and s 702 of the Criminal Code (WA).
The applicant was tried before McKechnie J and a jury at Fremantle between 12 and 18 November 2002 on an indictment charging five counts of indecent dealing and one count of rape. The offences were all alleged to have occurred between 1 January 1974 and 31 December 1985. The complainant was born in September 1970 and so was from about 4 years of age to about 15…

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 Stalker v The Queen

Details

AGLC: Stalker v The Queen [2002] WASCA 364
Case: [2002] WASCA 364
Decision Date: 24 DECEMBER 2002

CaseChat Overview and Summary

The matter of Stalker v The Queen was heard in the High Court of Australia. The appellant, Stalker, sought bail pending the hearing of his appeal against conviction and sentence. The central issue before the court was the criteria and applicable test for granting bail in such circumstances, particularly whether the appeal must be most likely to succeed or if there are exceptional circumstances that warrant bail. The case presented an opportunity for the court to clarify the law regarding bail pending the hearing of an appeal.

The legal issues centred around the balance between the appellant's right to liberty and the need to ensure that the appellant does not interfere with the appeal process or pose a risk to the community. The court had to determine the standard of proof required for exceptional circumstances and whether the appeal must be most likely to succeed to grant bail. The court also needed to address the proper application of the test set out in previous case law, specifically the decision in R v SZJDB.

In resolving these issues, the court emphasised that the test for granting bail pending appeal is not solely dependent on the prospects of success of the appeal. Instead, the court must consider whether there are exceptional circumstances that warrant granting bail. The court held that while the appeal must have reasonable prospects of success, this is not the only factor to be considered. The court must also assess whether there are exceptional circumstances, such as significant prejudice to the appellant if bail is not granted, or whether the appellant poses a risk to the community. The court clarified that the test requires a balance between these considerations, and the decision must be made on a case-by-case basis.

Ultimately, the court found that the primary judge had applied the correct test but had erred in weighing the relevant considerations. The court held that the appeal must have reasonable prospects of success, but this is not the only factor to be considered. The court also found that exceptional circumstances must be taken into account, and the decision must be made on a balanced consideration of all relevant factors. The court allowed the appeal, quashed the decision of the primary judge, and remitted the matter for reconsideration in light of the court's reasoning.

Orders