Bonow v Harris
[2008] WASC 2
•7 January 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BONOW -v- HARRIS [2008] WASC 2
CORAM: HASLUCK J
HEARD: 7 JANUARY 2008
DELIVERED : 7 JANUARY 2008
FILE NO/S: SJA 1102 of 2007
BETWEEN: ROCKY DONALD BONOW
Appellant
AND
STEVEN NOEL HARRIS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT COCOS (KEELING) ISLANDS
Coram :MAGISTRATE R B LAWRENCE
File No :CI 26 of 2007, CI 27 of 2007, CI 28 of 2007, CI 29 of 2007, CI 30 of 2007, CI 31 of 2007, CI 33 of 2007, CI 34 of 2007, CI 35 of 2007
Catchwords:
Criminal law and procedure - Bail - Application for bail pending leave to appeal - Appeal concerning conviction in Magistrates Court on Cocos Islands - Appellant with serious medical condition - Appellant to reside in Perth pending appeal - Application for bail allowed pending determination of appeal
Legislation:
Bail Act 1982 (WA), s 14
Cocos (Keeling) Islands Act 1955 (Cth), s 8A, s 13, s 15AAB
Criminal Appeals Act 2004 (WA), pt 2 cl 5, s 14(2)
Criminal Procedure Rules, r 25
Result:
Bail allowed
Category: B
Representation:
Counsel:
Appellant: Mr A J Robson
Respondent: Ms L J Atkins
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Nil
HASLUCK J:
Introduction
The appellant, Rocky Donald Bonow, has applied for bail pending the disposal of an appeal to a single judge. The appellant was convicted of various offences before the Magistrates Court on the Cocos Islands on 5 December 2007.
I must begin by noting that by s 15AAB and related provisions of the Cocos (Keeling) Islands Act 1955 (Cth), such as s 8A and s 13, the courts and court officers of Western Australia have jurisdiction to deal with matters of this kind, including any subsequent appeal in and in relation to the Territory, as if the Territory were part of Western Australia.
Counsel before me on both sides accept that the Bail Act 1982 (WA) in this state governs the present application.
The application
It appears from the application form dated 27 December 2007 that the application comes before me pursuant to s 14 of the Bail Act. An order is sought that bail be set on certain terms and conditions the details of which I will come to later.
I note in passing that by s 14 of the Act the jurisdiction may be invoked, notwithstanding that bail has been previously granted or refused. On the other hand, if a previous application came before a judge it cannot be reviewed unless the facts or circumstances have changed.
Rule 25 of the Criminal Procedure Rules requires that the application be supported by an affidavit unless the Court otherwise orders. In this case, the application is supported principally by the affidavit of the appellant himself sworn 27 December 2007. It is supported also by submissions made at the hearing and by a minute of proposed orders.
It appears from the appellant's affidavit that, having been held in custody in the Cocos Islands police station, the appellant was removed to the Western Australian prison system. Since 18 December 2007 he has been in custody at Wooroloo Prison Farm. If released on bail, it is said in the minute of proposed orders that he intends to reside with his mother Hannah Bonow at unit 2, 115 Hancock Street, Doubleview.
Section 22 of the Bail Act allows a judicial officer to proceed and take into account such information as he thinks fit. In the course of the hearing I have received information related to the papers before me and bearing upon the application.
Background
It appears from the prosecution notices exhibited to the appellant's affidavit that the appellant was charged with various offences under the Criminal Code (WA), Weapons Act 1999 (WA), Customs Act 1901 (Cth) and Australian Passports Act 2005 (Cth). On 5 December 2007 he pleaded guilty in the Cocos Islands Magistrates Court to nine charges. He was fined and the amounts are shown in the warrant of commitment and notices of convictions.
Put shortly, the appellant was fined a total of $7,250 and ordered to pay costs of $3,183. He was given no time to pay the fines and costs. He was ordered to serve a maximum period of 6 months' imprisonment for non‑payment of the fines for charges 26 to 30 and 33 of 2007. There were also other orders regarding forfeiture of property and return of property.
The appellant said that he was unable to pay the fines and costs and thus, after being held briefly in custody in the Cocos Islands police station, he was removed to the Western Australian prison system, as mentioned earlier. The appellant refers to his belief that he has good grounds for appeal against the imposition of fines and the large quantum of the fines and costs.
He believes also that he has good grounds of appeal against the order that he be imprisoned until payment of the fines and costs. He has ordered the transcript of the proceedings before the Magistrate, but this will take time to arrange.
The appellant says further that he was convicted of nine offences but four of those offences related to the taking of property which occurred under extenuating circumstances. He took and received property which came from another boat at the Cocos Islands, under a mistaken belief that the property was abandoned.
The appellant has now filed a notice of appeal dated 28 December 2007. The draft grounds of appeal are lengthy. However, essentially they refer to matters of the kind mentioned a moment ago and contend that not only was the total quantum of fines manifestly excessive, having regard to the appellant's circumstances, but the order for imprisonment until the fines were paid was made in error, having regard to the circumstances of the appellant.
In essence, the appellant applies for bail pending appeal upon the grounds that the nature of the appeal and the circumstances of the appellant justify a grant of bail.
Statutory provisions and principles
Section 13 of the Bail Act provides that the jurisdiction to grant bail should be exercised subject to and in accordance with the related provisions and factors set out in pt C of sch 1 of the Act. Clause 1 and cl 3 of pt C cover applications for bail before conviction. The questions to be considered include whether the defendant may fail to appear at the hearing, the danger to the welfare of others or interference with witnesses.
In addressing these questions, the judicial officer shall have regard to the nature and seriousness of the offences, the probable method of dealing with the defendant if he is convicted, the antecedents and previous convictions of the defendant, the history of any previous grants of bail to him and the strength of the evidence against him. The judicial officer is also obliged to take into account the prosecutor's position and whether the circumstances of the offence are of such a serious nature that the grant of bail would be appropriate.
By cl 4, in deciding whether or not to grant bail to an appellant who is in custody awaiting the disposal of an appeal, the judicial officer must be satisfied that there are exceptional reasons why the appellant should not be kept in custody and shall grant bail only if he is satisfied that he may properly do so, having regard to the provisions of cl 1 and cl 3.
However, more importantly for present purposes, cl 5 provides that the requirement of exceptional reasons in cl 4 does not apply to an appeal to a single judge under pt 2 of the Criminal Appeals Act 2004 (WA). In such a case, the appellant is deemed to be awaiting an appearance in court before conviction for an offence. I will proceed accordingly and apply cl 5.
I note in passing that, by s 14(2) of the Criminal Appeals Act, an appeal to a single judge may be dismissed if it is thought that no substantial miscarriage of justice has actually occurred, notwithstanding that the point raised in the appeal might be decided in favour of the appellant.
The present case
The personal circumstances of the appellant are described in the supporting affidavit. It is said that the appellant presently has no travel documents, including his passport, as a consequence of bail conditions previously imposed and therefore does not have the capacity to depart this country or enter another country.
It is said further that he is suffering from two serious medical conditions and requires regular and consistent treatment. As I indicated earlier, it is put to the court that if he is released on bail he intends to reside with his mother Hannah Bonow at unit 2, 115 Hancock Street, Doubleview.
I pause here to say that the proposed terms of bail are that he be released on bail pending the determination of the appeal on the following terms: that he enters into a personal undertaking in the sum of $2,000 and provides a surety in the sum of $1,000; that he resides at unit 2, 115 Hancock Street in Doubleview, WA; he does not apply for any passport; he does not attend within one kilometre of any point of international or interstate departure.
The position of the Commonwealth, as described to me by counsel, is that the application for bail is not opposed. As I understand it, it is not opposed upon the basis that if bail is to be granted, it would be granted on the terms I have just described.
Conclusion
Against this background, as I come to the question finally of whether bail should be allowed, I am conscious I must give weight to the appellant's antecedents and his medical situation. I am inclined to give considerable weight to the fact that the application for bail is not opposed.
In the end, I am of the view that the proposed conditions will be sufficient to ensure the appellant's residence within this state at a suitable address prior to the appeal being dealt with. Further, I am persuaded that there is sufficient merit in the grounds of appeal the subject of the notice to justify a grant of bail.
Accordingly, against the background I have described, I have come to the conclusion that the application for bail should be allowed upon the basis that the appellant be released on bail pending the determination of his appeal on the following terms:
(i)He enters into a personal undertaking in the sum of $2,000 and provides a surety in the sum of $1,000;
(ii)he resides at unit 2, 115 Hancock Street in Doubleview, WA;
(iii)he does not apply for any passport;
(iv)he does not attend within one kilometre of any point of international or interstate departure.
0
4