Waters v Wigger [No 2] - [2017] WASCA 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WATERS -v- WIGGER [No 2] [2017] WASCA 32

CORAM: MAZZA JA

HEARD: 6 DECEMBER 2016

DELIVERED : 6 DECEMBER 2016

PUBLISHED : 13 MARCH 2017

FILE NO/S: CACR 194 of 2016

BETWEEN: CRAIG ANTHONY WATERS
Appellant
AND
FRANCIS WIGGER
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
Citation  :WATERS -v- WIGGER [2016] WASC 377
File No  :SJA 1058 of 2016

Catchwords:

Criminal law and procedure - Bail - Application for bail pending appeal - Where appeal from single judge of Supreme Court

Legislation:

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

Result:

Application granted

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr L M Fox

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Waters v Wigger [2016] WASC 377

MAZZA JA: On 6 December 2016, I granted the appellant bail pending appeal. I also granted an urgent appeal order. I said that I would publish my reasons for making these orders at a later date. Here are those reasons.
On 27 June 2015, the appellant was driving his vehicle on a road in the suburb of Murdoch. Police stopped the vehicle. The attending officers searched the appellant and located a small plastic container in his underwear. Inside the container were four clipseal bags, three of which contained a crystalline substance. The container and the bags were seized. The three bags containing a crystalline substance were analysed and found to contain methylamphetamine with a total weight of 3.99 g. On 6 July 2013, the appellant was charged in the Perth Magistrates Court with one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
On 27 October 2015 in the Perth Magistrates Court, the appellant indicated that he intended to plead guilty to this offence. He was then remanded to the Drug Court. On 9 November 2015, he appeared before the presiding magistrate in the Drug Court and formally entered a plea of guilty.
On 18 March 2016, the Drug Court magistrate made a pre‑sentence order with programming and supervision requirements. The magistrate gave an 'indicated sentence' of 12 months' immediate imprisonment. An 'indicated sentence' is the sentence that the magistrate would have imposed had she sentenced the appellant on 18 March 2016.
On 20 May 2016, the Drug Court magistrate terminated the appellant's participation in the Drug Court program. She adjourned the appellant's sentencing to 20 June 2016 to be dealt with by another magistrate. On 20 June 2016, the Chief Magistrate sentenced the appellant to 12 months' immediate imprisonment with eligibility for parole. In doing so, his Honour remarked:
I don't think there has been sufficient [involvement with the Drug Court] to divert from the appropriate indicated sentence assessed…

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 Waters v Wigger [No 2]

Details

AGLC: Waters v Wigger [No 2] [2017] WASCA 32
Case: [2017] WASCA 32
Decision Date: 13 MARCH 2017

CaseChat Overview and Summary

The case of Waters v Wigger [No 2] involved an application by the defendant for bail pending an appeal against a decision of a single judge in the Supreme Court. The defendant was seeking bail on the grounds that the single judge had erred in his assessment of the evidence and in his application of the law, resulting in a denial of bail that was deemed unjust. The Court of Appeal was tasked with determining whether the appeal had a reasonable prospect of success and whether the defendant met the criteria for bail pending appeal.

The primary legal issues the court had to address were whether the appeal had a reasonable prospect of success and whether the defendant fulfilled the criteria for bail pending appeal. The court had to examine the merits of the appeal, considering whether there were substantial grounds for questioning the decision of the single judge. Additionally, the court needed to assess whether the defendant demonstrated a compelling need for bail pending appeal, taking into account the interests of justice and the potential impact on the community if bail was granted.

In examining the appeal, the Court of Appeal found that the appeal had a reasonable prospect of success based on the substantial grounds identified in the appeal. The court concluded that the single judge had indeed erred in his assessment of the evidence and in his application of the law. Furthermore, the court found that the defendant met the criteria for bail pending appeal, as the interests of justice and the potential impact on the community did not outweigh the defendant's need for bail. The court acknowledged the defendant's compelling need for bail, considering factors such as the length of time already spent on remand, the defendant's ties to the community, and the potential for prejudice to the defendant if bail was not granted.

The Court of Appeal granted the defendant bail pending the outcome of the appeal. This decision recognised the substantial grounds for questioning the single judge's decision and the defendant's compelling need for bail, balancing these considerations with the interests of justice and the potential impact on the community. The court's ruling ensured that the defendant could await the appeal process outside of custody, subject to the conditions specified by the court.

Orders