Milenkovski v WA

(2011) 42 WAR 99; [2011] WASCA 99

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Bail
3. › Interpretation of bail legislation
4. › Whether Bail Act 1982 (WA) is a comprehensive code displacing common law
5. › Whether scope for exceptional circumstances test beyond statutory provisions
6. › Whether presumption for or against bail under cl 1 of pt C of sch 1
7. › Nature of decision-maker's task under cl 1
8. › Bail Act 1982 (WA), s 13, s 66(1), sch 1 pt C cls 1, 2, 3, 3A, 3C, 4A
1. Appeal
2. › Appeal from discretionary decision
3. › Bail refusal
4. › Whether primary judge made express or implied material error of fact or law
5. › Whether failure to give adequate weight to relevant considerations amounts to failure to exercise discretion
6. › House v The King principles

Quick Take

The Bail Act 1982 (WA) is a comprehensive code and there is no scope for an exceptional circumstances test for bail beyond those situations specified in cls 3A, 3C and 4A. The general bail provision in cl 1 of pt C of sch 1 contains no presumption for or against bail. The common law approach requiring exceptional circumstances for serious offences, as applied in Jemielita and Ribot-Cabrera, is inconsistent with the statutory scheme. The seriousness of the offence remains relevant as a mandatory consideration under cl 3(a) but does not trigger a separate exceptional circumstances threshold.