Brown v The State of Western Australia

[2014] WASC 110

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BROWN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 110

CORAM:   SIMMONDS J

HEARD:   10 MARCH 2014

DELIVERED          :   10 MARCH 2014

FILE NO/S:   MBA 7 of 2014

BETWEEN:   DANIEL MERVIN BROWN

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application for bail - The two requirements in Bail Act 1982 (WA) sch 1 pt C cl 3A

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 3A

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant:     Ms S M De Maio

Respondent:     Mr D L S Davidson

Solicitors:

Applicant:     S M De Maio

Respondent:     Director of Public Prosecutions (WA)

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

EAGD v The State of Western Australian [2013] WASCA 81

Hedgeland v The State of Western Australia [2011] WASC 181

Milenkovski v The State of Western Australia [2011] WASCA 99

SIMMONDS J: 

(This judgment was delivered extemporaneously on 10 March 2014 and has been edited from the transcript).

1. This is an appropriate case for the grant of bail, it seems to me, even although, of course, I must be satisfied in the terms of Bail Act1982 (WA) sch 1, pt C, cl 3A with its two requirements. Those two requirements are emphasised, both of them needing to be satisfied, in the principal decision guiding judicial and other officers considering bail of Milenkovski v The State of Western Australia [2011] WASCA 99 [36] ‑ [37].

2. The first of those two requirements, that I be satisfied this is a case where bail may properly be granted, having regard to cl 1 and cl 3 of sch 1, pt C, takes me to that part of Milenkovski probably better understood than any other, in respect of which I have myself attempted to indicate the lessons I draw, in Hedgeland v The State of Western Australia [2011] WASC 181 [16], read with [15]. Suffice it to say that the only basis upon which, as I understood it, there is one of the possibilities referred to in cl 1A - none of the other subparagraphs except for (c) and (e) being relevant here - is the possibility - and I stress possibility - that the applicant would commit an offence.

3. However, the grounds for opposition - if that is the correct way of describing it - from par (c) direct me to par (e).  The state has indicated that it does not oppose the grant of bail, provided that the conditions described in a communication to the court, copied to counsel for the applicant, are imposed.  At the hearing before me those conditions were explored, at least as to some of them.  However, it is important that I list them with the modifications made at the hearing before me.

4. The first proposed condition is that there be a personal undertaking of $5,000; secondly, that there be a surety in the amount of $5000; thirdly, that there be protective bail conditions that the applicant not contact, directly or indirectly, Mr Sakoro - who is, as I understand it, the complainant in respect of the kidnapping and attempted armed robbery charges - or approach or be within 100 metres of Mr Sakoro, including his workplace or place of residence; fourthly, that the applicant not attend upon any licensed premises, including for this purpose the premises of BWS Midland or Liquorland Swan View or any other premises which sell alcohol for immediate consumption or to take away; fifthly, to report to the officer‑in‑charge at Midland Police Station every Monday, Wednesday and Friday at a time that is set by that officer; sixthly, to submit to random alcohol testing as required; seventhly, to reside at the nominated address in Swan View, which is the residence of his mother, amounting to a requirement he reside with his mother there; and eighthly, and finally, to comply with all lawful directions by his treating doctor - which I understood to be a reference to his general practitioner, either present or any future such person - and his treating psychiatrist - and again, I had described to me who that person was - as well as any substitute for that person in due course.

5. Those are the conditions, as I understand them, that have been put forward by both the state and the applicant, if not initially in identical terms, now in fully coincident terms with the amendment made at the hearing today.  In the language of Milenkovski, it seems to me that I should take from what I was told today about the progress that Mr Brown, the applicant, has made, the regime he has already subjected himself to while in custody, and the support he has received, against the backdrop of his history with his mother, that those eight conditions neutralise wholly or sufficiently the positive ground for refusing bail to which I earlier referred as a possibility.

6. The answer, then, that I have arrived at with respect to the first of the requirements from cl 3A, in terms of the language of cl 3A(1)(d), I am satisfied bail may properly be granted, having regard to the provisions of cl 1 and cl 3. 

7. I note in passing that there is no question of the relevance here of cl 3B. 

8. I turn then to the other requirement from cl 3A(1)(c), exceptional reasons why the accused should not be kept in custody.

9. It seems to me that there are no individual exceptional reasons that can be described in the language which I consider most helpful in approaching that paragraph, language which I have drawn from the remarks of his Honour Mazza JA of the Court of Appeal in EAGD v The State of Western Australian [2013] WASCA 81 [8]. However, it seems to me, as was put to me by counsel for the applicant, that a combination of matters may make out exceptional reasons, even if individually none of them would be sufficient on its own for the purpose.

10. The combination in this case is the likely future history of the charges, or at least some of them, arising out of negotiations with respect to some of them, and as well, the quite possible delay in the dealing with the charges, having regard to the need for committal to take place so as to permit the forensic evidence to be ordered and then obtained; and matters having to do with the prospect for the disposition of these matters, including the one which supplies the basis for cl 3A, the breach of violence restraining order alleged to have occurred on 3 September 2013.

11. That combination of circumstances, in my view, makes out exceptional reasons sufficient to enable me to be satisfied in terms of that requirement.  That being so, I then would grant the application for bail on the conditions that I have described.  It is most important, of course, that the applicant be fully familiar with those conditions, and not simply the ones that most directly apply to him, namely his own personal undertaking; and that he be fully appreciative of the importance of full compliance.

12. Indeed, the importance of full compliance lies not simply in its being the terms of the bail, but also in advancing the cause of his own treatment to permit him to attend to those matters of a family character which are obviously of importance to him, as well as, I would expect, those matters of an employment character in respect of which I received information handed up at the hearing today.