Afrasiabi v The State of Western Australia

[2015] WASC 402

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   AFRASIABI -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 402

CORAM:   HALL J

HEARD:   21 OCTOBER 2015

DELIVERED          :   21 OCTOBER 2015

PUBLISHED           :  27 OCTOBER 2015

FILE NO/S:   MBA 37 of 2015

BETWEEN:   NIMA AFRASIABI

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail - Revocation of bail in Magistrates Court - Application for bail pursuant to s 14 Bail Act 1982 (WA)

Legislation:

Bail Act 1982 (WA), s 14

Result:

Bail granted

Category:    B

Representation:

Counsel:

Applicant:     Ms N R Sinton

Respondent:     Mr L K Rosenthal

Solicitors:

Applicant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. HALL J: This is an application under s 14 of the Bail Act 1982 (WA) for a review of a revocation of bail that occurred yesterday.

2. The applicant is presently facing three charges, two charges of criminal damage and one of unlawful damage, in the Magistrates Court.  He has been on bail now for some months, the bail terms being a personal undertaking and a requirement to follow the directions of the Intellectual Disability Diversion Programme Team Coordinator and has been complying with those conditions.  Yesterday he appeared as required in response to his bail on the charges, in the Intellectual Disability Diversion Court.  His bail was revoked and he was remanded in custody for one week.

3. On the basis of the information before me, it would appear that the applicant's bail was revoked because he was not engaging with the court and because the magistrate considered that there should be a 'consequence' in respect of the allegations of damage.  According to an affidavit of the duty counsel who endeavoured to represent him, he was selectively mute.  This would appear to be consistent with his mental condition, that is Asperger's Syndrome and also symptomology consistent with bipolar disorder. 

4. At the hearing of this application I received reports that confirm that the applicant's condition affects how he processes information and restricts his ability to understand and to communicate.  The reports also say that the applicant has been engaging in a positive way with therapy and support services, but that he remains vulnerable and that there are concerns for his mental and physical safety in prison.  There are also indications that the alleged damage offences (which involve throwing rocks through windows) are related to his mental condition, in particular that they occurred during a manic period caused by an adverse reaction to a medication.

5. Somewhat surprisingly, the magistrate assumed that the applicant's unwillingness to engage was him 'playing games' rather than being symptomatic of his condition.  The magistrate spoke of the need for a consequence in relation to the damage charges, though the applicant had not yet entered pleas to the charges, let alone been convicted of them.

6. The magistrate then revoked bail and remanded the applicant in prison for one week.  When asked why he had done so, the magistrate did not provide any reasons other than to say that by the time any appeal was heard the applicant would have 'done his time in there'.  The magistrate was wrong in that regard.  On receipt of the papers today I ordered that the matter be listed for hearing immediately.

7. At the hearing counsel for the respondent conceded that bail should be granted on the previously existing terms.  It was accepted that the nature of the charges did not justify the applicant being remanded in custody.  The applicant had no criminal convictions of any type and had complied with the terms of his bail.  Those concessions were properly made. 

8. The power to grant or revoke bail is a significant one.  It must always be exercised with proper regard for the relevant considerations in the Bail Act.  No person, least of all a mentally disabled and vulnerable person, should be capriciously deprived of their liberty.  Nor should revocation of bail ever occur as a pre‑emptive punishment for an offence of which the accused has not yet been convicted. 

9. Bail will be granted on the terms that previously existed.