Supreme Court of Western Australia - [2006] WASC 10

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	VAN TONGEREN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 10

CORAM

: TEMPLEMAN J

HEARD

: 19 JANUARY 2006

DELIVERED

: 27 JANUARY 2006

FILE NO/S

:	MCR 32 of 2005

BETWEEN

: PETER JOSEPH VAN TONGEREN

Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Serious offence - Evidence in opposition not compelling - Long period on remand before trial - Difficulty of preparing defence while in custody

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA), s 444
Litter Act 1979 (WA)
Migration Act 1958 (Cth)
Passports Act 1938 (Cth)

[2006] WASC 10

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	Mr G L W Vickridge
Respondent	:	Ms L Petrusa

Solicitors:

Applicant	:	Malcolm J Ayoub
Respondent	:	State Director of Public Prosecutions

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

Asfoor v The Queen [2005] WASCA 126
Liang v The Queen (1995) 82 A Crim R 39
Mihaka v The State of Western Australia [2004] WASC 17
R v Roche [2005] WASCA 4

Saka v The Queen [2001] WASC 92

Case(s) also cited:

Nil

[2006] WASC 10

TEMPLEMAN J

TEMPLEMAN J: Peter Joseph Van Tongeren ("the Applicant") is charged in the District Court with 1 count of conspiracy to commit an indictable offence, namely, criminal damage by fire, and in the Magistrates Court with 19 counts of criminal damage.
The Applicant applies for bail, having been in custody for some 17 months since his arrest on 6 August 2004.

3 The trial of the Applicant and two co-accused on the conspiracy

charge is due to commence in the District Court on 20 March 2006, some
eight weeks hence. The trial is expected to take three weeks.

The criminal damage charges are to be mentioned in the Perth Magistrates Court on 21 April 2006.

5	This is the Applicant's second application for bail. He was refused bail by his Honour Judge Muller in the District Court on 19 January 2005.

6              The present application was made initially to the Hon Justice Jenkins
on 9 and 20 September 2005. The Applicant then sought home detention bail. However, following an unfavourable report from a Community Corrections Officer, leading counsel for the Applicant asked to have the application adjourned so that his client's position could be considered. Jenkins J acceded to that request and adjourned the matter sine die.
7              In the present application, counsel for the Applicant and counsel for
the State both relied on material before Judge Muller. However, the present application is not in any sense an appeal from his Honour's decision. The circumstances have changed; and I have heard evidence which was not before Judge Muller. Although, as I mentioned in the course of submissions, I consider, with respect, that Judge Muller came to the correct decision as matters then stood, I am required to exercise an independent discretion in the circumstances as they now appear.
8              In exercising…

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.

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Details

AGLC: Supreme Court of Western Australia [2006] WASC 10
Case: [2006] WASC 10
Decision Date: 27/01/06

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an application for bail by an appellant who was on remand for a serious offence. The case involved substantial evidence, including allegations of a violent nature, and the appellant was in custody pending trial. The appellant argued that the length of time spent on remand and the difficulties associated with preparing a defence while in custody warranted a grant of bail. The Crown opposed the application, relying on the seriousness of the charges and presenting evidence against the appellant.

The court was tasked with determining whether the appellant's right to liberty under the Constitution outweighed the need to ensure the appellant's attendance at trial, considering the evidence presented and the circumstances of the case. The court had to weigh the appellant's arguments regarding the prolonged period on remand and the challenges of preparing a defence in custody against the Crown's arguments based on the gravity of the alleged offence and the evidence of guilt.

In its decision, the Supreme Court found that the evidence in opposition to the bail application was not compelling enough to justify continued detention. The court acknowledged the appellant's right to liberty and the difficulties of preparing a defence while in custody, particularly given the length of time already spent on remand. The court concluded that these factors, combined with the absence of strong evidence against the appellant, warranted the grant of bail. The court emphasised the importance of balancing the appellant's rights with the need to ensure the appellant's attendance at trial.

The Supreme Court ordered the appellant's release on bail, subject to specified conditions, including a requirement to surrender travel documents and to reside at a specified address. The court also set a date for the commencement of the trial, recognising the importance of a timely resolution of the matter.

Orders