Andela v The State of Western Australia
[2011] WASC 332
•2 DECEMBER 2011
ANDELA -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 332
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 332 | |
| Case No: | MCS:17/2011 | 28 NOVEMBER 2011 | |
| Coram: | McKECHNIE J | 2/12/11 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | AARON JOSEPH ANDELA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Procedure Bail application to vary conditions Risk of flight No new principles |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Procedure - Bail application to vary conditions - Risk of flight - No new principles
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr M L Tudori
Respondent : Mr B B Sertorio
Solicitors:
Applicant : Michael Tudori
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: The applicant, Mr Andela, seeks variation of his bail conditions to travel to Melbourne on business in December 2011. I am not persuaded that the bail conditions should be varied and I dismiss the application.
Background
2 The applicant is charged with two counts of possession of significant quantities of prohibited drugs with intent to sell or supply. A committal mention date is not until January 2012.
3 The offences alleged occurred on 25 July 2004. In 2005, the applicant travelled to Europe. He was not then charged with any offence. While in Croatia he met his current partner and now has a one-year-old child.
4 He travelled extensively during the next four years and returned to Australia with his partner and daughter in late November 2010.
5 He was arrested and refused bail by a magistrate. An application to this court resulted in an order by consent in the following terms:
1. Personal undertaking in the sum of $500,000 and similar surety in the sum of $500,000, to be approved by a Justice of the Peace;
2. Surrender his passport to the court;
3. Is not to approach within 100 metres of any point of international departure;
4. Is to report daily to the officer-in-charge of the Joondalup Police Station;
5. Is not to contact, directly or indirectly, any prosecution witness(es).
The present application
6 The applicant applies for bail to be varied to allow for travel to Melbourne for four nights.
7 The purposes for travel are business and to visit his counsel.
The evidence
8 The application is supported by affidavit of the solicitor acting for the applicant, rather than by direct evidence from the applicant or another person. Instead, the affidavit annexes two letters from Eunice Fereiro. She is a director of Fereiro Nominees Pty Ltd that trades as Wash n Shop
(Page 4)
- WA in Westfield, Whitfords City, and the applicant's mother. The first letter was attached to an earlier affidavit of the solicitor sworn on 27 September 2011 when a bail variation was sought for travel in September or October. In this letter the applicant is described as Operational Manager and the reason for his travelling was to 'attend upcoming meetings with the company's franchisor at the head office in Melbourne in relation to the variation deed for current lease agreement. In addition conduct meetings with Lease Wise to negotiate terms for the new outlet in the Joondalup shopping complex':
I feel the need to deputize this negotiation process to Aaron Andela to insure our commitment to expansion. As operational manager he will act on my behalf and under instructions for the meetings within September and October of 2011.
The new Proposed sites are being build for Aaron Andela and require his input hence his presence is required to attend in person. In addition I am his mother and of 65 years of age and do not want the stress that comes with dealing with corporates. I will be here in Perth finalising the sale of a ground transport business that I have purchased and will require my signatures for banking purposes. My other son is the day to day operational manager and works 6 days a week and can not leave.
The dates are open ended and they await his arrival pendings approval of the court.
- A number of comments can be made about this.
10 Firstly, the description of the applicant and of the other son each as operational manager is not explained on oath. Secondly, the sale of the ground transport business does not specify a date at which Ms Fereiro must be in Perth. No date for the Melbourne meeting has been fixed though an itinerary has been prepared.
11 Thirdly, the reason for Ms Fereiro not travelling is her reluctance, not her inability to do so.
12 The application is also supported by one Mikel Haib on a letterhead of Wash n Shop. Mr Haib's status within the company is not given. Wash n Shop is the franchisor.
(Page 5)
13 He says:
As agreed we will need to hold lengthy meetings as to finalise these matters which should take a few days, due to meeting with all the parties concerned within the shopping centres leasing agents. As you are aware the lease agreements are held by Wash n Shop head office here in Melbourne hence why the necessity for you to be present.
Further more the new proposed site for Joondalup WA requires finalisation.
14 A further reason advanced by the applicant is the need to meet with his counsel, Mr Shirrefs SC, whose chambers are in Melbourne to go through the vary extensive prosecution brief. Mr Shirrefs is available to meet with the applicant in Melbourne in December, but is not expected to come to Western Australia until some time next year and it is uncertain when.
15 As to this reason, the applicant has chosen to brief counsel in another State at a time when his travel is restricted.
16 A consequence is that he must arrange for consultations with counsel within Western Australia. This is not a valid reason to vary his bail.
17 To return to the principal reason for travel, which is business, I have to say that the supporting material is thin and vague. It consists of nothing more than the assertions, not on oath, of his mother and the letter from the franchisor which simply asserts that 'we will need to hold lengthy meetings'.
18 No explanation is advanced as to why alternatives may be unsuitable. These days commercial meetings are often held remotely by Skype, video-conference or web-streaming. Documents are routinely transmitted by email for consideration.
19 The applicant is prepared to abide by amended conditions designed to reduce any possibility of risk to bail, including reporting to police before he leaves, reporting to Melbourne West Police Station, which is a 24 hour station as directed, residing solely in a nominated hotel and, if necessary, is prepared to pay the cost of the investigating officer to accompany him. I am unsure of the practicability or even possibility of the latter. The Commissioner of Police may have other ideas about the deployment of his resources.
(Page 6)
20 The application is opposed by the DPP who points out that the charges are very serious and will result in an immediate term of imprisonment in the event of conviction.
21 The DPP asserts that the evidence against the applicant is strong. I cannot form any assessment of the strength of the prosecution case because I have no material to do so.
22 The DPP points to the flight risk and submits that the daily reporting to police in Melbourne does not provide sufficient security to ensure the applicant's return to Western Australia.
Conclusion
23 The bail variation should be refused. My principal reason for doing so is that, on the material before me, I am quite unpersuaded of the business necessity (as opposed to desire) for the applicant to travel to Melbourne. It would appear there is another operational manager of the business who presumably could travel while the applicant, also an operational manager, conducts the day-to-day operations here. There is no impediment to Ms Fereiro travelling to Melbourne to conclude the business.
24 A risk of flight is generic when there is a strong case and the risk of imprisonment. It is a factor to be weighed but without specific evidence of the possibility of flight, is unlikely of itself to be decisive in many cases.
25 In the present case, the applicant apparently has access to considerable sums of money and has lived and travelled extensively overseas. As against that, he has both his immediate family and his wife and child in Western Australia and is apparently settled in business. The risk of flight is no more than the generic risk in every case and is low.
26 If the applicant is in Western Australia the risk of flight is well managed by the current bail conditions.
27 If he travels to Melbourne, even for a short time, the management of that risk diminishes significantly. Reporting would be delegated to a different police force and response times in the event of non-report are less certain. Domestic and international departures are housed within the one building in Melbourne Airport and although the applicant may be able to comply with the 100 metre prohibition, in Melbourne considerable resources would have to be deployed to ensure the risk is diminished. I
(Page 7)
- make this comment notwithstanding that there is a passport surrender condition in effect.
Conclusion
28 There is no persuasive case for varying the conditions. The application is dismissed.
0
0
1