Anderson v The State of Western Australia
[2014] WASC 355
•26 SEPTEMBER 2014
ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 355
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 355 | |
| 26/09/2014 | |||
| Case No: | MBA:35/2014 | 9 SEPTEMBER 2014 | |
| Coram: | EM HEENAN J | 9/09/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail refused | ||
| B | |||
| PDF Version |
| Parties: | CAMERON LOUIS ANDERSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Bail Exceptional circumstances to be established before bail granted Turns on its own facts |
Legislation: | Bail Act 1982 (WA) Criminal Code (WA) Sentencing Administration Act 2003 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail - Exceptional circumstances to be established before bail granted - Turns on its own facts
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Sentencing Administration Act 2003 (WA)
Result:
Application for bail refused
Category: B
Representation:
Counsel:
Applicant : Mr S O'Sullivan
Respondent : Mr F Cain
Solicitors:
Applicant : Ian Farquhar & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
1 EM HEENAN J: This is an application for bail by Cameron Louis Anderson, who is charged with three offences pending before the Magistrates Court. Those three charges have been listed for trial on 15 December 2014, having been adjourned to that date, from a trial originally listed for 30 June 2014. The reason for the adjournment was the counsel engaged was not available to appear at the trial on 30 June because of a sudden and unexpected commitment in another court.
2 The three charges are, first, a charge of aggravated assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code (WA), which is alleged to have occurred on 2 March 2014. The second is a charge of criminal damage or destruction of property, contrary to s 444(1)(b) of the Criminal Code, again alleged to have occurred on 2 March 2014. The third is a charge of breach of protective bail conditions contrary to s 51(2)(a) of the Bail Act1982 (WA), which is also alleged to have occurred on 2 March 2014, the terms of bail being imposed on 21 February 2014.
3 All the three offences are alleged to have occurred on the same day and involve, in different degrees, an argument between the accused and his de facto partner and mother of his child, resulting in her being pushed, falling and apparently losing consciousness, and damage to her station wagon when the accused is alleged to have tried to prevent her from driving away using secateurs to bang on the window and smashing it. The third offence is a breach of bail conditions by communicating with or being in proximity with the lady concerned, contrary to the terms of bail.
4 All this involves an ongoing dispute over access to, or the terms of the lady's treatment of, their son when, so the accused contends, she was involved with or affected by deleterious drugs or other substances.
5 The accused is on bail for a series of other offences; two aggravated burglaries and three breaches of violence restraining orders. Those two aggravated burglary charges, which were pending at the time of these alleged offences, have since been downgraded to charges of trespass and the three breaches of the violence restraining orders continue. Those offences were alleged to have occurred on or about 28 October 2013 and the accused had been granted bail on those charges pending trial. He was on bail for those charges when the present alleged offences were committed.
6 They are significant in this way. Being alleged to have committed an offence, while on bail for a charge of aggravated burglary, put the accused into a situation where, by reason the provisions of the Bail Act, exceptional circumstances would need to be demonstrated before bail could be granted on charges for subsequent offences. The downgrading of those earlier charges from aggravated burglary to trespass means that requirement no longer applies, or would not have applied, although he was subject to a charge of aggravated burglary with all its consequences when it is alleged the current offences charged were committed.
7 It is unnecessary to enter into any determination of whether the downgrading of the charges means that the provisions of the Bail Act requiring exceptional circumstances to be shown, are no longer applicable or are, in any way, ameliorated because it remains the case that the charge of committing these offences, including a breach of a protective bail condition, means that exceptional circumstances have to be established, in any event, before he would eligible for the grant of bail.
8 Bail was refused when the accused came before the magistrate in the Fremantle court, Hogan M, on 29 July 2014. He applied for a review of that condition and for bail pursuant to the provisions of the Bail Act. He came before Hall J in this court on 3 September and again on 5 September. That application could not proceed to determination on either of those dates because, under the provisions of the Bail Act, it was necessary for the person affected by the offences, namely the lady concerned, to have an opportunity to give evidence should she wish to do so on the bail application.
9 Accordingly, the application was adjourned in order to allow the complainant to provide evidence and an affidavit by her, sworn 8 September, has since been filed. That affidavit annexes a copy of an earlier affidavit used in relation to an earlier bail application and, in short, expresses a fear for the complainant's safety and for the safety of her son. It refers to a history of volatility and vindictiveness by the applicant and the first affidavit refers to alleged assaults by him which were not reported to the police and of other threats.
10 Between the commission of the first set of alleged offences, the four still pending, and the alleged commission of these three offences, the accused was also charged with driving while disqualified or suspended and without authority, an offence alleged to have been committed on 27 January 2014 and dealt with in the Magistrates Court at Fremantle on 9 April 2014. For that offence, he was disqualified from driving for a further 12 months and imprisoned for seven months. It was the first time that he was ever sent to prison and he comes before this court as a sentenced prisoner still serving that sentence.
11 I am informed that if that sentence runs its full term, he would be eligible for release from that sentence on 27 November 2014, only a few weeks before this forthcoming trial. But, again, he would not then be restored to liberty unless he is granted bail on these charges. He submits that, in the ordinary course of events, he would in all probability have been released on parole by now under the provisions of the Sentence Administration Act2003 (WA) in relation to the conviction for driving whilst suspended and that on 24 July 2014, he was notified by the Prisoner's Review Board that he had been denied release on short term parole for that offence because he was not eligible for release, being required to be held in custody on these present charges.
12 His submission is that if he were to be granted bail on these charges, the reason precluding release on parole under the present sentence would disappear but there is no certainty that he would then be, at last, on parole. He points, however, to an explanation given by his counsel, which is unverified by any evidence before the court, that he has the prospect of employment by an old friend or acquaintance for a position on oil rigs, which would involve four weeks on and one week back, and that while back in Perth he would be prepared to live in a relative's home in Hamilton Hill and would conform to any requirements about non-contact with the complainant.
13 The difficulty about that, as I have said, is that over a relatively short period there are nine previous offences resulting in convictions for either breach of violence restraining orders or breach of protective bail conditions, all relating to relationship with this lady. Her evidence, which he says is untruthful, is that she is in fear, and that she has given inconsistent statements to the police. I am not in a position to evaluate that.
14 I think I must approach this on the basis that there is a long history of breach of restrictive bail conditions and/or violence restraining orders; that the lady the subject of the protective conditions, who is the complainant in the present circumstances, says on oath that she remains in fear for herself and for her child; and that, in these circumstances, despite his denials and his offer of employment, no exceptional circumstances have been demonstrated. In the circumstances, the application for bail will be refused.
15 I realise that there is a fair measure of hardship associated in remaining in prison until December on a charge awaiting trial in the Magistrates Court. Unfortunately, I have no control over the lists in that court but I would have thought and hoped that, in the particular circumstances, an application for an expedited trial, based on the facts as I have recounted them, should attract sympathetic consideration by those in charge of the lists and, if there were any feasible prospect of arranging an earlier trial, that that might succeed. That matter, however, is out of my hands.
0
0
3