Attwell v The State of Western Australia - [2013] WASC 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: ATTWELL -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 123

CORAM: SIMMONDS J

HEARD: 28 MARCH 2013

DELIVERED : 2 APRIL 2013

FILE NO/S: MBA 8 of 2013

BETWEEN: BRIAN VINCENT ATTWELL
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Charge of attempted procurement of murder - Proper approach - Whether may be danger to welfare or safety of alleged intended victim - Whether circumstances of offending sufficiently serious as to make grant of bail inappropriate - Protective conditions

Legislation:

Bail Act 1982 (WA), s 14, s 22, sch 1 pt C cl 1, cl 3, pt D
Criminal Code (WA), s 283, s 556

Result:

Bail granted on conditions

Category: B

Representation:

Counsel:

Applicant: Mr T F Percy QC & Ms B J Lonsdale
Respondent: Mr J Mactaggart

Solicitors:

Applicant: Jonathan Wagenaar & Associates
Respondent: Director of Public Prosecutions (WA)

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

Ganeshamoorthy v The State of Western Australia [2010] WASC 123
Hedgeland v The State of Western Australia [2011] WASC 181
Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99
Rauch v The State of Western Australia [2005] WASC 241
Ribot‑Cabrera v The Queen [2004] WASCA 101

SIMMONDS J:
(This judgment was delivered extemporaneously on 2 April 2013 and has been edited from the transcript.)

Introduction

I should introduce this set of reasons, which are a little lengthier than I had originally anticipated, by indicating that I have determined it is appropriate to grant bail in this case, but subject to the resolution of a matter as to the conditions for bail which I will reach.
This is an application for bail following the refusal of such an application by a magistrate in the Stirling Gardens Magistrates Court. The applicant is in custody on one charge of the following offence - I call it 'the alleged offence' - and that offence is that, contrary to Criminal Code (WA) s 556, he attempted to procure the commission of the offence of murder.
The statement of material facts for the alleged offence is as follows. On 25 September 2012 at about 5.30 pm, the applicant met with a male person, the UCO, in a carpark on Middleton Beach in Albany. The applicant asked the UCO to kill a Ms MPA, the former daughter‑in‑law of the applicant. The applicant said he would pay $30,000 for the UCO to bind Ms MPA, strangle her and bury her in a 30 foot grave.
The applicant provided personal details of Ms MPA, including her home address, the address of her partner and her physical description. The applicant paid the UCO $7,000 in cash during this meeting. The applicant offered to dig the grave utilising equipment he owned. It was agreed between the applicant and the UCO that a further $3,000 would be required. The applicant and the UCO arranged a second meeting.
On 26 September 2012 at about 10.30 am, at the same location, the applicant met with the UCO and paid him a further $3,000. The applicant informed the UCO that he had attempted to obtain a photograph of Ms MPA; however, the applicant was unable to locate one. The applicant reiterated that he wished the UCO to kill Ms MPA.
On 13 February 2013 in the Stirling Gardens Magistrates Court, Magistrate Whitbread refused an application for bail by the applicant.

Approach to the decision as to bail

There can be no contest as to the principles applicable to the application. The Bail Act 1982 (WA) regulates it. By s 14 my jurisdiction to grant bail is an original one and is not affected in any way by the determination of any other judicial officer, like the magistrate, whose jurisdiction is inferior to my own. The present is not in any sense an appeal from, or review of, her decision in relation to the applicant's application for bail before her.
The general approach to the grant of bail is determined by the Bail Act, sch 1 pt C cl 1, read with cl 3. Those provisions are to be approached as has been stated in Milenkovski v The State of Western Australia [2011] WASCA 99 [39] ‑ [43] (McLure P, Pullin JA & Hall J agreeing).
On those paragraphs I would also refer to Hedgeland v The State of Western Australia [2011] WASC 181 [16], a judgment of my own. From Milenkovski, I extract the following 10 principles:
(1)there is no express statutory presumption for or against the grant of bail;
(2)the court has a discretion whether to grant bail, which involves a weighing or balancing process that may only commence after considering and answering the questions in sch 1 pt C cl 1(a) ‑ (g);
(3)all the questions, save for par (e), are directed to whether there are positive grounds for refusing bail: par (e) goes to the question whether it is possible to neutralise, wholly or sufficiently, the positive grounds for bail;
(4)the word 'may' in cl 1(a) and (d), means the possibility of the events occurring;
(5)in answering the questions in cl 1(a), the court must have regard to all the matters in cl 3(a) ‑ (d);
(6)the seriousness of the offence, with or without regard to the maximum penalty for it, does not produce, under the Bail Act, the common law result of requiring the applicant to establish exceptional reasons or circumstances for the grant of bail;
(7)it may be, having regard to all of the relevant matters in cl 3, that the nature and seriousness of the offence, with or without the method of dealing with the applicant for it if convicted, are sufficient to enable the court to conclude that the applicant may fail to appear in accordance with their undertaking, and the existence and extent of that possibility may, having regard to the answers to all of the other mandatory questions in cl 1, require or justify the refusal of bail;
(8)the court may make a decision to refuse bail solely because of the answer to the question in cl 1(g). See Milenkovski [29]; and see Hedgeland [13]. However, as I will note, there appear to be some difficulties in understanding the application of cl 1(g). I return to those I have identified below.
(9)the court is required to consider, in addition to the answers to the mandatory questions in cl 1, the answers to any other questions it considers relevant;
(10)in cases where the bail application is determined under cl 1, bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail.
In view of my readings of a number of authorities cited to me, I should add the following. Milenkovski must now be taken as the principal reference point for analysis of applications such as this one. As I indicated in Hedgeland [15], referring to particular paragraphs in Milenkovski, earlier statements from other authorities of, and on, the common law approach cannot be so taken. For a listing of such authorities, see Ganeshamoorthy v The State of Western Australia [2010] WASC 123 [10], a decision of my own.
Further, it must now be accepted as clearly established that the Bail Act is a code in the sense described in Milenkovski [34], and as further elaborated upon in [35]:
The Bail Act is a code in the sense that it is intended to displace the common law, with the consequence, as Mason J said in Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, 22 that:
'Its meaning, therefore, is to be ascertained in the first instance from its language and the natural meaning of that language is not to be qualified by considerations deriving from the antecedent law … An appeal to earlier decisions can only be justified if the language of the statute is itself doubtful or if some other special ground is made out, eg if words used have previously acquired a technical meaning.
Here the ordinary meaning of the words is clear and it is not suggested that they previously acquired a technical meaning. Accordingly, it is not to be presumed that the section was intended to reiterate the antecedent law or to conform as closely as possible to that law.'
See also R v LK; R v RK (2010) 241 CLR 177 [96] ‑ [97]. It is also well to remember that the High Court has repeatedly emphasised the need, when applying a statutory provision, to look to the language of the statute rather than secondary sources or materials: Weiss v The Queen (2005) 224 CLR 300 [31]. It is significant that the 'common law' principles referred to in Lim v Gregson and WCVB are primarily secondary sources (case law) construing and applying statutes (other than the Bail Act) from this and other jurisdictions.

The application

The application for bail is dated 18 March 2013 - I call it 'the present application' - and it is principally supported by an affidavit of the applicant, sworn 20 March 2013, with annexures.
As will become apparent, there are a number of annexures upon which counsel for the applicant laid much stress, expressly or impliedly, and from which there is, in addition, material upon which I am in a position to draw. The present application is also supported by an affidavit of a Ms WT sworn 20 March 2013. The affidavit of Ms WT indicates, in par 2, that she is in a de facto relationship with the applicant.
The state has provided me with a number of materials. These include the following, all of which I understood to have been before the magistrate: an affidavit of an Officer Fjastad, who was involved in the investigation of the alleged offence; an affidavit of a Ms CK, an employee of the Family Court; a witness statement of a Mr GJR, who had met the applicant on 10 September 2012 and had a conversation with him then; two witness statements of Ms MPA; a witness statement of a Mr PRE, a former employee of the business of the applicant; a transcript of a telephone conversation between the applicant and Mr GJR; a transcript of a telephone conversation between the applicant and the UCO; and a witness statement of the UCO.
I also have the transcript of the hearing before Magistrate Whitbread of 13 February 2013.
I note that in that transcript there are extracts read out from the transcript of the telephone conversation referred to, as well as of the two meetings between the applicant and the UCO.
I note that I may, in determining this application, receive and take into account such information as I see fit 'whether or not the same would normally be admissible in a court of law': Bail Act, s 22. The weight of such information is a distinct consideration. This allows for me to receive and take into account material going beyond material the subject of an affidavit: see Lai v The State of Western Australia [2010] WASC 334 [20] ‑ [25].
In the applicant's affidavit there is the following, in par 41:
I intend to defend the charge that has been brought against me. I believe that I have a defence to that charge. I am anxiously awaiting for a court with a jury to have the opportunity to hear my evidence and make an informed decision on whether I am guilty or not guilty.
I took this to be a clear statement of a fixed intent to maintain a plea of not guilty.
Also before me was a minute of proposed bail conditions pursuant to the Bail Act dated 20 March 2013. I return to those conditions in what I call 'the minute' below.
I do not appear to have a criminal record for the applicant. However, it appeared not to be in contest that he does not have such a record of any significance to me.
The basis for the present application is that, on the information which I may take into account, the answers to the questions in Bail Act, sch 1 pt C cl 1, to the extent they apply in this matter, all either point towards the grant of bail or do not point away from it.
I turn now to consider those matters.

The questions in cl (1)(a)(i) ‑ (iv), read with cl 3

These are the questions whether, if the applicant is not kept in custody, he may fail to appear or commit an offence or endanger the safety, welfare or property of any person or interfere with witnesses or otherwise obstruct the course of justice, in each case, when I have had regard to the matters referred to in cl 3.
As to cl 1(a)(i), information before me indicates the applicant is 73 years old. There is also a letter from the general practitioner of the applicant - I call that 'the letter of the general practitioner' - annexed to the affidavit of the applicant as to his medical condition.
The letter of the general practitioner states that the applicant has 'multiple complex medical problems', which appear to have produced for him, 'poor mobility and stamina'. I note senior counsel for the applicant said, without objection, that the applicant is confined to a wheelchair for the most part. Returning to the letter of the general practitioner, I note the reference to a need for 'regular medications'.
It may be accepted that the applicant, if convicted of the charge he faces, is likely to receive a significant term of imprisonment. The maximum penalty for the present offence is life imprisonment. The applicant has not previously faced any such possible penalty on any of the information available to me.
However, it was not put to me the applicant represented a significant flight risk, nor is one evident to me. I therefore put any such consideration aside.
As to cl 1(a)(ii), information before me in the form of the applicant's criminal record might be taken to point away from the possibility of other offending. That is because the applicant appears not to have any significant criminal record. However, I took counsel for the state to be laying emphasis, for the purposes of cl 1(a)(ii), on the matters I reach for the purposes of cl 1(a)(iii). I consider those matters in that context.
As to cl 1(a)(iii), it was put to me by senior counsel for the applicant that although he had 'obvious mental health issues', reading from the written submissions for the applicant, the information before me did not suggest he was a danger to others. In the hearing before me it appears to have been common ground that the only danger to which the state could point was danger to the safety or welfare of Ms MPA.
Counsel for the state took sharp issue with the proposition that the applicant had not been shown to be a danger to the safety or welfare of Ms MPA. He drew my attention to the following information before me.
The information is of a substantial animus towards Ms MPA of some duration, evidenced also at the time of the applicant's arrest. The animus is attested to by Ms MPA herself and coincided at least with the Family Court proceedings concerning the dissolution of her marriage before the events in question. At the time of those proceedings the applicant made threats to harm the lawyers and staff involved in them. That animus led to the circumstances of the offending I have described in the statement of material facts above, being conversations recorded, either by audio or audio‑visually, between the applicant and the UCO. Those conversations involved the applicant using strongly emotive language. The applicant had been put into contact with the UCO by Mr GJR, following the applicant indicating to Mr GJR the applicant's interest in having Ms MPA killed. That animus and those dealings between the applicant and the UCO, with that background and the prior exchange between the applicant and Mr GJR, took the matter well beyond the description given by senior counsel for the applicant, of simply or substantially a 'thought crime'.
Counsel for the state laid particular emphasis on the information before me that Mr GJR was previously unknown to the applicant. The applicant's indication to Mr GJR of his interest in having Ms MPA killed was in a conversation as a result of Mr GJR's interest in getting work with the applicant's business. The applicant then had the conversations with the UCO referred to in the statement of material facts, where the UCO was a person the applicant had only come to know of through Mr GJR.
Further, counsel for the state indicated there was information as to the animus referred to being expressed by the applicant in his interview with the investigating officers of the alleged offence. Those expressions are described in the affidavit of Officer Fjastad at par 7 and it is not necessary I repeat them here. I understood counsel for the state to be putting this information forward against the background of the strength of the prosecution case against the applicant. That case rests in large part, as I understood the matter, on the conversations with the UCO referred to, recorded as I have indicated.
Senior counsel for the applicant did not contest that on the untested evidence thus far the state had 'prima facie' a strong case. My own assessment is that that case is, in fact, a very strong one. Of course, that assessment is at this stage of the development of the case, prior to testing by the applicant of the prosecution material, and based on the limited information available to me.
Further, I consider that there is, indeed, information tending to indicate a strong animus of the applicant towards Ms MPA of a kind which - as counsel for the state put to me and I accept - could have been made stronger by the applicant's involvement in the present criminal proceedings.
Senior counsel for the applicant, for his part, stressed that the circumstances before the alleged offending have to be sharply distinguished from those thereafter. Since the alleged offending the applicant had become a person subject to a charge that had been highly publicised in a relatively small community in which he had, for some time, been a very well known person. In addition, he was an invalid in a wheelchair, as I have indicated. Senior counsel submitted that the possibility, in these circumstances, of the applicant endangering the safety or welfare of Ms MPA, given the scrutiny to which the applicant would be subject to in that community, had to be assessed as low.
Further, as I understood the submissions of counsel for the applicant, that possibility had to be still further assessed downward on the information I had as to the competence of the applicant, aside from external scrutiny of his actions, to act on the animus referred to. That information was both of the character of the circumstances of the offending as I have described, and the information I had as to the mental condition of the applicant that I will reach.
As to the information I have described as to the circumstances of the offending, the submissions for the applicant, as I understood them, laid stress on the nature of the approach by the applicant, in terms of it being one to a person he did not know, of a kind where the approach could never have resulted in harm to Ms MPA. No harm could have resulted as Mr GJR had drawn police attention to the indication provided to him by the applicant of the applicant's interest in having Ms MPA killed. This had led to police use of the police controlled operative, the UCO.
As I understood the submissions for the applicant, this tended to confirm what the information as to the applicant's medical condition I am about to reach also indicates, namely, that the applicant's competence to act effectively on the animus referred to is, indeed, significantly limited. I consider the assessment of the possibility of the applicant endangering the safety or welfare of Ms MPA should, indeed, be assessed downward on those submissions for the applicant.
As to the information I have as to the matter of the mental condition of the applicant to which the submissions for the applicant referred me, I took that information from a the letter dated 14 October 2012 of a psychiatrist - I call it 'the letter from the psychiatrist' - annexed to the affidavit of the applicant. This psychiatrist performed a psychiatric assessment of the applicant on that date. The psychiatrist also had access to information from the general practitioner who was the author of the letter from the general practitioner.

The letter from the psychiatrist refers to a report from 'Mr PRE', described as an 'old friend' of the applicant, indicating a change in him to a person 'who was very aggressive' (the latter being language appearing in the witness statement of Mr PRE) and to an episode where the applicant had been 'abusive and threatening violence to staff of the Family Court'.
The letter from the psychiatrist states his opinion that the applicant's brain is 'suffering from the effects of neglected diabetes, with the consequence of hyperlipidaemia causing peripheral vascular disease'. It may be that further information will show one of those effects is 'frontal lobe dementia'. That condition has effects in diminishing the capacity 'to size up an environmental situation correctly and act appropriately'. This diminution includes 'a deterioration in judgment' which affects 'the connection between the knowledge that an action is wrong and the putting into action of this knowledge'.
As I read the letter from the psychiatrist, it appears to indicate that the effects described were present at the time of the alleged offending.
The letter from the psychiatrist indicates that 'more diligent attention to his medical advice' by the applicant will go some way to arresting the 'process' associated with the effects described. That intention, in turn, will 'be more readily attained in a domestic rather than a custodial environment'. The author of the letter from the psychiatrist states his belief 'that the community would not be put at risk by his behaviour in future now that the family is aware of the problem and can provide some scrutiny'.
Counsel for the state put to me there was no basis set out in the letter from the psychiatrist for the statement that the intention referred to would 'be more readily attained in a domestic rather than a custodial environment'. However, while I accept that is the case, it is not apparent to me why I cannot give not insignificant weight to what, in this context, is the opinion evidence of a person who, on the face of it, has relevant expertise. I note again Bail Act, s 22.
I have no other information as to the mental health condition of the applicant.
I consider that on the information that I do have, when it is considered with information as to the character of the circumstances of the offending I have described, the assessment of the possibility of the applicant endangering the safety or welfare of Ms MPA should, indeed, be taken downward. Not only does the information as to the mental condition of the applicant point to a deteriorated capacity to act effectively; it also points to the likelihood of scrutiny by family who are now aware of the applicant's mental condition.
At the same time, and here I reach the matter of the condition that I referred to at the outset of these reasons, in my view, upon consideration of the information I have as to the animus referred to, the possibility of any action on that animus must be sufficiently addressed in appropriate bail conditions. I return to this matter under cl 1(e) in relation to the proposed residential condition.
As to cl 1(a)(iv), senior counsel for the applicant put to me there was no significant risk of interference with witnesses or other obstruction of the course of justice, given that the main witness for the prosecution was the UCO. It was also submitted that the only other witness of significance, Mr GJR, was not shown to be a person subject to influence by the applicant or persons on his behalf.
I did not take counsel for the state to be taking issue with these latter assertions.
I turn to the question in cl 1(b). This is the question whether the applicant needs to be held in custody for his own protection. There is no information before me indicating the applicant has such a need, and counsel for the state did not indicate otherwise.
The question in cl 1(c) I now turn to. This is the question whether the prosecutor has put forward grounds for opposing the grant of bail.
Counsel for the state did, indeed, indicate such grounds.
The grounds of opposition are the following.
One ground was that previously referred to, in connection with cl 1(a)(iii) primarily. I do not need to go further into that.
Another ground was the strength of the prosecution case. However, this is a matter I am required to take account of in relation to cl 1(a) by virtue of cl (3). I have not been shown that it has any other significance than that. I have done that as indicated above.
The final ground is the serious nature of the alleged circumstances of the offence such that a grant of bail would be inappropriate. This goes to cl 1(g), which I reach below.
I turn then to the question in cl 1(d). This is the question whether, as regards to the period when the applicant is on trial, there are grounds for believing that 'if he is not kept in custody the proper conduct of the trial may be prejudiced'.
Although this question was addressed in the written submissions for the applicant, it was not addressed in oral submissions and I do not see it as having any application here. That is because I read cl 1(d) as concerned with the grant of bail during a trial.
I turn then to the question in cl 1(e). This is the question whether there is any condition which could reasonably be imposed under Bail Act, sch 1 pt D, which would sufficiently remove the possibility referred to in cl 1(a) and (d), obviate the need referred to in cl 1(b), or remove the grounds for opposition referred to in cl 1(c).
That takes me to the minute.
The minute proposes the following conditions which, it is not in dispute, are within Bail Act, sch 1 pt D to the extent they are required to be:
(1)a residential condition;
(2)a curfew condition;
(3)a condition not to approach within a stipulated distance of either Perth International Airport or Perth Domestic Airport;
(4)a condition to surrender the applicant's passport and to report by telephone to the officer in charge of the Albany police station daily;
(5)a condition not to approach within the stipulated distance of any state or territory land border;
(6)a personal undertaking of $500,000;
(7)a continuing surety in the same amount;
(8)a cash deposit of $100,000 made to the clerk of courts at Albany;
(9)a condition not to contact any state witness, either directly or indirectly; and
(10)a condition otherwise to remain within a 50 km radius of the City of Albany subject to exceptions.
Those exceptions appear to be liberty to the applicant to travel to attend appointments with his counsel and with medical specialists, as required.
Those conditions, the detail of which I have not reproduced, are described by counsel for the applicant as strict. I agree.
As to those conditions, I took counsel for the state to submit that there was no combination of them - or, indeed, of any others - that were capable of answering the description in cl 1(e).
I disagree. I am of that view because of the terms of the conditions I have described, when viewed against my evaluation above of the objections by counsel for the state that I referred to in connection with cl 1(a)(ii) and (iii).
However, this view of mine - and I return again to the matter with which I began these reasons - is on the basis that the residential condition is such as to ensure family scrutiny of the applicant and family scrutiny of more diligent attention by the applicant to his medical advice, as referred to in the letter of the psychiatrist which I considered under cl 1(a)(iii) above.
I turn then to cl 1(g). This is the question whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. I have already indicated that counsel for the state appears to lay considerable emphasis on matters relevant to answering this question.
Those matters, as I understood him, are the ones shown by reference to the character of the conversations between the applicant and the UCO to which I referred above (as 'strongly emotive'), as well as to the background to those conversations, the transfer of the two sums of money involved in them, and the quality of Mr GJR and the UCO as persons previously unknown to the applicant.
I should note immediately that I do not consider that I should draw from the maximum penalty for the present offence - life imprisonment, see Criminal Code s 556, read with s 283 - or the association of the present offence with the offence of murder, that cl 1(g) is, on those accounts or either of them, at least alone, more likely to be engaged.
In that last respect, of course, there is provision in the Bail Act, sch 1 pt C cl 3(d) for special considerations for a bail application for an applicant in custody for an offence of murder. Those special considerations are that the application must be refused unless the judicial officer is satisfied both that there are exceptional reasons why the applicant should not be kept in custody, and that bail may properly be granted having regard to cl 1 and cl 3 in a case such as this one.
It seems to me that it is the alleged circumstances of the offending upon which the engagement of cl 1(g) rests, not simply the maximum penalty for, or classification otherwise of, the offence charged.
In this case, the alleged circumstances are undoubtedly very serious. On the allegations - and I stress that it is the allegations I must consider - the applicant showed significant persistence as well as resources to back up his persistence.
Those two matters, coupled with the offence, the commission of which it is alleged he sought to procure, might indeed be seen to show a strong case that cl 1(g) has been engaged.
However, as senior counsel for the applicant reminded me, I should also have regard to the fact, as I have already noted under cl 1(a)(iii) above, that no harm could have resulted in the circumstances of this offending to Ms MPA. While, of course, there is no information which shows that the applicant could have known that characteristic of the circumstances alleged against him, that characteristic, in my view, should indeed be seen as of importance for present purposes.
For the applicant, my attention was also drawn to cases like Rauch v The State of Western Australia [2005] WASC 241, as confirming that even in cases of very serious offending bail has been granted. Rauch, where bail was granted, involved 54 charges, including a charge of manslaughter and multiple charges of offences of indecency, including sexual penetration of a child.
The circumstances of the offences the subject of those charges were described by McKechnie J as 'extremely serious' [13]. McKechnie J went on to say:
However, none of them are offences which would almost inevitably cause bail to be refused. On the contrary, bail is often granted for such alleged offences. It is the nature and number of the offences which enliven the consideration as to whether they amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate because the potential consequences of conviction are such that there is a greater incentive for a person to abscond or interfere with witnesses. I will consider the serious nature of the offences and Pt C cl 1(g) as part of the wider principle enunciated by E M Heenan J, not on the need to find exceptional circumstances to grant bail [13].
The 'wider principle' referred to in that quotation is that quoted in Rauch [8], from Ribot‑Cabrera v The Queen [2004] WASCA 101 [40] (EM Heenan J, Steytler P & Le Miere J agreeing), as follows:
However, it must still be recognised that these are illustrations of the wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial [50].
With respect, I must indicate that it is not clear to me that cl 1(g) should now be viewed in the way McKechnie J viewed it in Rauch [13]. I note the following from Milenkovski [29] and [39], as to cl 1(g):
Paragraph (g) of cl 1 of pt C sch 1 was inserted by the Bail Amendment Act 1998 (WA). The second reading speech for the Bill which became the Act states:
'Another important aspect of the Bill is that it will make the granting of bail inappropriate where the alleged circumstances of the offence amount to wrongdoing of a serious nature. While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail'
See Western Australia, Parliamentary Debates, Legislative Assembly, 27 October 1998, 2673 (Mr Prince, Minister for Police).
...
There remains the proper construction of the general provision in cl 1 of pt C. It contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction who is required to have regard to the questions in pars (a) - (g) and to any other questions which the decision-maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) - (g). There are a number of significant points to note. First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
There appears to be no further comment on cl 1(g) in Milenkovski that is material to me.
It seems clear to me from the language of cl 1(g), being that the 'alleged circumstances of the offending ... amount to wrongdoing [of] such a serious nature as to make the grant of bail inappropriate' (emphases added), confirmed by the language of the extract from the legislative history of cl 1(g) in Milenkovski [29], that the matter of seriousness in the paragraph is one capable of operating independently of the 'wider principle' to which McKechnie J refers.
However, none of the counsel appearing before me was able to cite an authority in which bail was denied on the basis of cl 1(g) alone, and my research has not revealed one.
In any event, I note that such a denial would appear to be, itself, necessarily, an exercise of the discretion described in cl 1 opening words: see Milenkovski [39].
However, it is not necessary for me to go further into these matters, as I am not satisfied this is the kind of case where bail should be denied on cl 1(g), whether or not in the exercise of that discretion. While I accept the circumstances of the offending were very serious, they were not at that level of seriousness to warrant them being described as being of that kind. I note again, for this purpose, that there was no threat that the applicant's attempted procurement would be effective in any way.

Other questions from cl 1, opening words

As I understood the submissions for the applicant, there was one matter raised which might be dealt with under this heading, being one that should be considered with all of the other circumstances in determining whether or not bail should be granted. This is the matter of delay before the applicant's case comes to trial.
The applicant has been in custody since 26 September 2012, as I understand it, and there has, as yet, been no committal for trial. I should add immediately that it is not clear to me that the state is responsible for that position.
It seems likely, however, that even if there were a committal in the immediate future, trial would not be before November 2013, in view of what I have been told as to the state of lists in this court. At the same time, an earlier set of dates is certainly not impossible.
In bail application cases, courts have expressed concerns about delays which would result in periods in custody before trial exceeding 12 months. See Ganeshamoorthy [36], where I refer to two authorities frequently cited in this connection.
Having regard to the period since the applicant went into custody until now and the likelihood referred to, I consider a delay of that order is a significant possibility here, while in the present state of the information available to me, no more than that.
This is a matter that weighs in favour of the granting of bail, while in the present state of the information available to me, not, in my view, as yet strongly so.

Conclusions

I have now considered and answered the questions applicable in this case in the Bail Act, sch 1 pt C cl 1(a) ‑ (g), as well as the further question just referred to. In determining how I would exercise my discretion, I must engage in the weighing or balancing process referred to in Milenkovski.
In my view, having regard to the conditions I have considered under cl 1(e), and subject to my satisfaction as to the residential condition there stipulated for, I would grant bail in this case.