Yanko v The Queen - [2001] WASC 114

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL
CITATION	:	YANKO -v- THE QUEEN [2001] WASC 114

CORAM

: SCOTT J

HEARD

:	26 APRIL, 3 MAY 2001

DELIVERED

: 10 MAY 2001

FILE NO/S

:	MCS 83 of 2000

BETWEEN

: WAYNE JOHN YANKO

Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for bail following revocation - Proof required of change of circumstance - Series of serious offences alleged whilst on bail - Test requires exceptional circumstances - Earlier application refused

Legislation:

Bail Act 1982, Schedule 1, Part B, cl 4

Result:

Application dismissed

[2001] WASC 114

Representation:

Counsel:

Applicant	:	Ms V Amidzic
Respondent	:	Ms G A Archer

Solicitors:

Applicant	:	Amidzic & Co
Respondent	:	State Director of Public Prosecutions

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

R v Yanko [2001] WASC 1

Case(s) also cited:

Lim v Gregson [1989] WAR 1
WCVB v The Queen (1989) 1 WAR 279

[2001] WASC 114

SCOTT J

SCOTT J: On 19 December 2000 an order was made in the Supreme Court revoking the applicant's bail. Bail had been granted by the Court of Petty Sessions on 7 October 1999 and renewed in that court following a preliminary hearing which concluded on 21 November 2000. On that date, a committal order was made in relation to that initial charge.
By notice of motion of 23 April 2001, the applicant has sought orders to have his bail reinstated.
The first charge laid against the applicant, which was the subject of the committal, arose out of the alleged importation of a quantity of amphetamines into Western Australia. The quantity alleged was substantial so that the matter was a serious offence within the definition of that term in s 3 of the Bail Act 1982. A magistrate in the Court of Petty Sessions however, granted bail in relation to that charge.
The Crown applied to the Supreme Court to revoke that bail because following the committal order on that charge the applicant had been charged with a further four charges. Two of those charges are to be heard in the Court of Petty Sessions and are not of any significance in relation to the present application. The remaining two charges are of importance. Those two charges are:

(a) that between 31 January 2000 and 24 May 2000 the applicant conspired to manufacture amphetamines; and
(b) that on 9 August 2000 the applicant possessed amphetamine with intent to sell or supply.
Each of those charges is also a serious offence within the meaning of that term in the Bail Act.

When the original bail was revoked, this Court concluded that there was a real risk that the applicant might not answer bail. The reasons for reaching that conclusion were published on 10 January 2001 in R v Yanko [2001] WASC 1. It is not necessary to repeat any of those reasons here but there is no challenge to the conclusions that were then reached.
On 21 February 2001,…

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 Yanko v The Queen

Details

AGLC: Yanko v The Queen [2001] WASC 114
Case: [2001] WASC 114
Decision Date: 10 MAY 2001

CaseChat Overview and Summary

In the High Court of Australia, the case of Yanko v The Queen concerned an application for bail following the revocation of the defendant's bail conditions. The applicant, Yanko, sought a review of the decision to revoke his bail, arguing that the evidence presented was insufficient to justify the revocation. The prosecution contended that Yanko had committed a series of serious offences while on bail, necessitating the revocation of his bail conditions. The legal issues that arose from this case included the standard of proof required to demonstrate a change in circumstances warranting the revocation of bail and the extent to which exceptional circumstances needed to be proven in such applications.

The court examined the principles and tests established in previous case law, which required a balance between the rights of the accused to be released on bail and the need to protect the community. It was determined that the test for revoking bail required a demonstration of exceptional circumstances. The court found that the evidence presented by the prosecution, which included allegations of serious offences committed while on bail, was sufficient to meet this standard. The court held that the prosecution had adequately demonstrated a change in circumstances warranting the revocation of bail, as the alleged new offences significantly impacted the considerations of the original bail decision. Consequently, the court upheld the decision to revoke Yanko's bail.

The final orders of the court were that the application for bail was dismissed, and the revocation of the defendant's bail conditions was affirmed. The court emphasised the importance of the principle that bail is a privilege, not a right, and that the onus was on the applicant to demonstrate why the original bail decision should be reconsidered in light of the new evidence. The decision underscored the high threshold for exceptional circumstances necessary to overturn a revocation of bail based on new serious criminal conduct.

Orders