Blum v Director of Public Prosecutions for Western Australia
[2023] WASCA 40
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BLUM -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASCA 40
CORAM: HALL JA
HEARD: 3 & 27 FEBRUARY 2023
DELIVERED : 28 FEBRUARY 2023
PUBLISHED : 1 MARCH 2023
FILE NO/S: CACR 1 of 2023
BETWEEN: STEVEN JAMES BLUM
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: LUNDBERG J
File Number : SJA 1065 of 2022
Catchwords:
Criminal law - Bail pending determination of appeal - Appeal under pt 2 Criminal Appeals Act 2004 (WA) - Exceptional reasons not required - Whether bail otherwise appropriate
Legislation:
Criminal Appeals Act 2004 (WA)
Bail Act 1982 (WA), sch 1 pt C cl 1, cl 4A, cl 5
Result:
Bail refused
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr R P Arndt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
YSN v The State of Western Australia [2017] WASCA 155
HALL JA:
This matter was delivered extemporaneously. It has been edited from the transcript of proceedings.
This is an application for bail pending the determination of an appeal.
Background
On 28 March 2022, the appellant was convicted after a trial in the Magistrates Court of one count of unlawfully doing an act as a result of which the life, health or safety of a person was endangered, contrary to s 304(1)(b) of the Criminal Code (WA), one count of reckless driving, contrary to s 60(1A)(b) of the Road Traffic Act 1974 (WA), and one count of failing to stop after being involved in an incident where property was damaged, contrary to s 56(4) of the Road Traffic Act. He was acquitted of a fourth charge of failing to report an accident to police, contrary to s 56(4) of the Road Traffic Act.
The prosecution case was that in the early hours of the morning of 11 June 2021, the appellant drove his Ford Falcon vehicle in an aggressive and reckless manner. It was alleged that he pulled up behind another vehicle that was stopped at a traffic light and began sounding his horn and flashing his lights. When the traffic lights changed the appellant began tailgating the other car, accelerating and decelerating and continuing to use his lights on high beam and the car horn over the next kilometre. The appellant then pulled alongside the other car before slowing and moving back behind. He then accelerated his car to ram the other vehicle from behind, causing the other vehicle to jolt forward and affecting the ability of the driver to control the vehicle. The driver of the vehicle feared for his safety and sought to take evasive action by driving into a slip lane. The appellant then used his car to ram the other car again, causing the driver to brake heavily. The impact projected the other car forward 30 m, hitting a roadworks sign, clipping another signpost and forcing it off the side of the road. Despite damage to the car, the other driver was then able to drive from the scene and report the incident to the police. It was alleged that the appellant then stopped his vehicle, removed his personal property and walked away. He did not report the incident to the police. When interviewed, the appellant admitted that he had driven the car to a place near to where it was found, but denied any involvement in the offences.
At trial, the appellant's defence was that an acquaintance, now deceased, had borrowed his car and had been driving it at the relevant time. The appellant claimed that he was not present or in any way involved in the incident. The magistrate considered this defence and found it to be implausible. The only other significant issue was whether the identity of the appellant as the driver was proven to the required standard, given that the other driver was unable to identify the driver of the Ford Falcon. Having regard to the whole of the evidence, including that the appellant was the registered owner of the Falcon and was later found near the scene in possession of the car keys, the magistrate concluded that he was the driver.
On 26 July 2022, the appellant was sentenced to 15 months' imprisonment on the first count. The magistrate imposed no additional penalty on the second count, other than disqualifying the appellant from holding or obtaining a driver's licence for six months. A fine of $750 was imposed on the third count.
The appellant appealed against both his conviction and sentence to a single judge. Numerous issues were raised by the appellant, including that the convictions were unreasonable or unsupported by the evidence and that the magistrate had made errors of law. Those appeals were heard and dismissed by Lundberg J on 22 December 2022. Detailed reasons for that decision were published on 23 December 2022.
By an appeal notice filed on 3 January 2023, the appellant has applied for leave to appeal against the decision of Lundberg J. The notice of appeal indicates that the appeal is against both conviction and sentence. The grounds stated in the original notice were very general in terms and did not comply with the Supreme Court (Court of Appeal Rules 2005 (WA).
On 11 January 2023, the appellant filed an application for bail pending the determination of the appeal. Buss P made orders in respect of this application requiring the appellant to file and serve submissions and a minute setting out his proposed grounds of appeal by 4.00 pm on 23 January 2023. On 20 January 2023, the appellant filed an amended appeal notice with replacement draft grounds of appeal. Those grounds are:
1.The sentence was manifestly excessive (section 60 first offence).
2.His Honour erred in refusing leave to appeal as it against the Sentencing Act 1995 (WA) to be sentenced to an immediate term of imprisonment in conjunction with a fine (albeit for separate offences).
3.His Honour erred in dismissing the appeal as the verdict in the lower court is unreasonable or cannot be supported having regard to the evidence, a number of defences were not disproven.
The meaning of those grounds is unclear. In oral submissions, the appellant said that the issue raised by the first ground is whether it was open to the magistrate to impose a driver's licence disqualification. The issue raised by the second ground is whether it was open to impose a fine and immediate imprisonment for different offences dealt with at the same time. The issue raised by the third ground is principally whether the alibi defence, that is the contention that another person was driving the car at the relevant time, was disproven by the prosecution. The appellant accepted that the grounds needed to be clarified and particularised. He also confirmed that legal aid had been granted for an opinion as to the merits of his appeal and that if that opinion was favourable, he expected that his lawyer would assist him with the grounds. I should note that I gave the appellant the opportunity to defer the bail application until such time as he may be represented, but he did not wish to do that.
On 3 February 2023, the hearing of the application for bail was part‑heard before me. The matter was adjourned to give the appellant the opportunity to file affidavits in support of matters he raised at the hearing. The appellant subsequently filed affidavits from himself, sworn on 13 February 2023 and from his mother, Maureen Joy Blum, sworn on 23 February 2023. The resumed hearing occurred yesterday, 27 February 2023. At the conclusion of that hearing, I reserved my decision until this morning.
Relevant Law
This is an appeal under pt 2 div 3 of the Criminal Appeals Act 2004 (WA). That is, it is an appeal to the Court of Appeal from the decision of a single judge on an appeal from the Magistrates Court. The law relating to bail pending such an appeal differs from that where the appeal is from a conviction or sentence imposed by a superior court under pt 3 of the Criminal Appeals Act.
In respect of pt 3 appeals, bail can only be granted if the court is satisfied that there are exceptional reasons for doing so and it would otherwise be proper to grant bail having regard to the considerations in sch 1 pt C of the Bail Act 1982 (WA). The 'exceptional reasons' requirement is imposed by cl 4A of sch 1 pt C.
In respect of pt 2 appeals, cl 5 of sch 1 pt C of the Bail Act provides that cl 4A does not apply to the bail of a person awaiting the disposal of proceedings under pt 2 of the Criminal Appeals Act and that such a person is deemed for the purposes of pt C of the schedule to be awaiting an appearance in court before conviction for an offence. That exception applies both to the first appeal to a single judge and any subsequent appeal to this court, as both are appeals under pt 2.
The effect of cl 5 is that there is no requirement for the court to be satisfied that exceptional reasons exist before granting bail in respect of a pt 2 appeal. Furthermore, cl 5 places an applicant for bail pending an appeal under pt 2 of the Criminal Appeals Act in the same position as a person who has been charged but not yet convicted. That is, bail is to be considered having regard to the considerations set out in cl 1 and cl 3 of sch 1 pt C of the Bail Act, which refer to accused persons who are in custody awaiting an appearance in court before conviction for an offence.
Clause 1 of pt C provides that the grant or refusal of bail is in the discretion of the presiding judicial officer, but that the discretion is to be exercised having regard to the questions posed by pars (a) ‑ (g) of that clause, as well as any other considerations that the judge considers relevant.
The questions in cl 1 and cl 3 of pt C focus on whether there are grounds for refusing bail. This is the means by which the legislature has acknowledged the presumption that an accused person is innocent until proven guilty. There is no legal onus on any party to a bail application. However unless there is material which establishes proper grounds for refusing bail under these clauses, it should be granted. In practical terms, therefore, it usually falls on the State to provide any such material.[1]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
The exercise of the discretion in a case like the present involves two stages. First, answering the questions in cl 1. Second, exercising the discretion having regard to the answers to those questions. The ultimate issue, in the ordinary case, is whether the answers to those question, and any other questions the judicial officer considers relevant, provide proper grounds for refusing bail in order to secure the integrity of the criminal justice process and to protect the community.[2]
[2] YSN v The State of Western Australia [2017] WASCA 155 [16].
The questions in cl 1 are generally concerned with whether a particular circumstance 'may' occur. The use of the word 'may' indicates that the focus is on whether there is a risk that the applicant might engage in the conduct referred to if not kept in custody. The risk or possibility must be actual or real, not merely theoretical or hypothetical.[3]
[3] YSN [17].
In the present case, the State accepts that a risk of failing to attend court does not arise. However, it is contended that there is a risk of offending. Accordingly, the relevant questions are:
1.Is there a risk that the appellant will commit an offence if not kept in custody? (cl 1 (a)(ii))
2.Is there a risk that the appellant will endanger the health, safety, welfare or property of any person? (cl 1 (a)(iii))
3.Has the prosecutor put forward grounds for opposing bail? (cl 1(c))
4.Whether there is any condition that could reasonably be imposed which would sufficiently remove the grounds for opposition by the prosecutor. (cl 1(e))
In considering whether any risk can be sufficiently removed, the judicial officer must assess the nature and extent of the risk and consider whether it provides a proper ground for refusing bail. It is not required that there be no risk. Further, the reference to 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the applicant engaging in the conduct is sufficiently reduced. A risk will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That is, the risk that would remain after the imposition of any reasonable conditions must be such as would warrant the detention of a person who has not been convicted and is presumed to be innocent (or, at least, is to be treated as not being convicted by cl 5).[4]
[4] YSN [19] - [21].
Past Performance on Bail
One of the matters referred to at the bail application was the appellant's past performance on bail pending the single judge appeal. It is necessary to set out that history.
The appellant filed the notice of appeal for the single judge appeal on 17 August 2022. On 31 August 2022 he filed an application for bail pending that appeal. On 8 September 2022 McGrath J granted bail on the following conditions: an undertaking in the sum of $3,000 with a similar surety; to reside at the home of his parents; to attend urinalysis testing as directed by Community Corrections or police and any positive test to illicit substances to be a breach of bail; and not to drive or operate a vehicle.
On 13 October 2022 the appellant attended for urinalysis and tested positive for cannabis. He was arrested and brought before the court on 24 October 2022 to show cause why bail should not be revoked. At that hearing the appellant accepted that he may have engaged in 'risky behaviour' but said that he did not think that cannabis use would show up on the test. The State accepted that other tests had been negative and suggested that additional conditions of bail may be an appropriate response. Tottle J was satisfied that the appellant had breached his bail but acknowledged that the appellant had been frank in that regard. His Honour revoked the original bail and granted new bail on the existing conditions with the addition of a requirement to report once a week to police. His Honour told the appellant that he was fortunate not to be remanded in custody and that any further breach of the same nature would have that effect.
On 28 October 2022, the appellant is alleged to have driven a motor vehicle at high speed on the Southwest Highway. Police determined that the car was registered to the appellant, a disqualified driver. A police chase at speeds of up to 140 km per hour was unsuccessful in causing the car to stop. Sometime later the car was found parked with the doors locked. The appellant was located in the back of a truck, approximately 200 m away. When arrested and required to provide the name of the driver of his vehicle, the appellant told police that it was a mate but that he could not remember the man's name. The appellant was charged with driving whilst suspended and failing to provide information identifying the driver of the vehicle. An application was also brought to revoke the bail based on this incident.
The revocation application was heard by Lundberg J on 30 November 2022. His Honour concluded that he was satisfied for the purposes of the Bail Act that the appellant had breached a condition of his bail (albeit that the appellant has not yet been convicted of any offences arising from the 28 October 2022 incident). His Honour also noted that the circumstances of the breach bore a degree of similarity with the offences that are the subject of the appeal. His Honour revoked bail and remanded the appellant in custody. In doing so he noted that the appeal was listed to be heard in three weeks and this relatively short period was a matter that he took into account. His Honour was not satisfied that there were any conditions that could be reasonably imposed that would remove the possibility that the appellant would commit an offence or endanger the safety, welfare or property of others if released on bail. The appellant has remained in custody since that time.
State's Submissions
In the present case, the State accepts that the court does not have to be satisfied that there are exceptional reasons for granting bail. However, the State submits that bail should not be granted because the proposed grounds of appeal are without merit and there is a risk of offending that cannot be adequately removed by the imposition of conditions. In particular, the State relies on the appellant's past performance on bail.
The Appellant's Submissions
The appellant submits that there are conditions that could be imposed that would reduce any risk of offending to an acceptable level. He proposes bail on similar conditions to those that previously applied, with the addition of a condition that he surrender the key to his car to the police.
In support of his application the appellant has filed the two affidavits that I referred to earlier. In his own affidavit he states that he is the owner of a Ford Falcon sedan which is currently situated at the home of his parents, his proposed residence if released on bail. He states that there is only one key to the car and that he is willing to surrender that key to the police for the duration of the appeal. His mother also deposes that there is only one key to the appellant's car and that, whilst his parents have a car, he would not be permitted to drive it given that he has no current licence.
The appellant submits that there is a significant risk that by the time his appeal is heard and determined he will have served at least the non‑parole component of his sentence. He also says that, given that he is presently self‑represented, he faces difficulty in preparing his case whilst in prison. He says that if granted bail he would have an incentive not to drive given that to do so would be a breach of his bail.
Merits of the Application
The bail conditions that applied when the appellant was formerly on bail were not effective in ensuring compliance. This is evident from the two proven breaches of bail. The breach by returning a positive test for cannabis is of comparatively minor importance. However, the breach by driving a car in an apparently dangerous manner is another matter. The risk of offending of this nature is not merely a matter of non‑compliance with a disqualification from driving: it raises a concern regarding the safety of other road users. I appreciate that the allegations in respect of that breach are not accepted by the appellant, but they were found proven by Lundberg J for the purposes of bail.
In considering the risk that the appellant would offend if released on bail, it is relevant to consider whether that risk can be sufficiently removed by the imposition of conditions. It can be inferred that the conditions previously imposed were not effective. The proposal to add an additional condition requiring the surrender of the car key to the police offers only doubtful additional security. The effectiveness of this condition is undermined by the fact that it is necessary to rely on the appellant and his mother as to the fact that there is only one key to the car. Furthermore, despite what his mother says, there must be a risk that the appellant would prevail on his elderly parents to allow him to use their car. There must also be a possibility that he could obtain the use of the car of another person. In some circumstances those risks might be thought to be contained by the knowledge on the part of the person that they are disqualified from driving and that to drive would be breach of bail. Assumptions in that regard cannot, however, be made given the appellants history. I am not convinced that the assurances of the appellant can be relied on.
I am not satisfied that there are conditions that could be imposed that would sufficiently remove the risk of offending. Furthermore, the likely nature of any such offending weighs heavily against a grant of bail.
The relatively short length of the sentence is a relevant consideration. I accept that there is a significant possibility that the non‑parole component of that sentence may be completely served before the appeal is heard and determined if the appellant is not released on bail. That result may mean that there would be little practical benefit to be gained if the appeal was successful. Often the need to ensure that delay does not render an appeal pointless will be a powerful reason for granting bail. However, that assumes that the appeal has some reasonable possibility of succeeding.
Whilst it is not my role at this stage to make any final assessment of the merits of the grounds, they have obvious flaws. Even with the benefit of the appellant's oral submissions I was unable to discern any merit in those grounds at this stage. In these circumstances the issue of delay and the shortness of the sentence is reduced in significance. In saying that I accept that if the grounds change or are clarified such that it becomes apparent that they raise arguable issues, there may be grounds for making a fresh application for bail on the basis of a change of circumstances.
The application for bail is refused.
I have considered whether to make an urgent appeal order. I have decided that it would be inappropriate to do so at this stage given that the appellant is awaiting legal advice and there is some possibility that his grounds may be changed or refined. I do not preclude an application for an urgent appeal order being made in the future.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
1 MARCH 2023
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