Buck v The State of Western Australia
[2017] WASCA 8
•17 JANUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BUCK -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 8
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 31 AUGUST 2016
DELIVERED : 31 AUGUST 2016
PUBLISHED : 17 JANUARY 2017
FILE NO/S: CACR 126 of 2016
BETWEEN: NEIL RONALD BUCK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND ALB 48 of 2015
Catchwords:
Criminal law - Bail - Appeal against refusal to grant bail - Whether the primary judge erred by failing to determine whether bail should be granted in the manner required by sch 1 pt C cl 1 of the Bail Act 1982 (WA) - Whether the primary judge's decision to remand the appellant in custody was unreasonable or plainly unjust
Legislation:
Bail Act 1982 (WA), s 4, s 13(1), pt A of sch 1, cl 1 and cl 3 of pt C of sch 1, cl 2(1) of pt D of sch 1
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 5, s 14, s 19(1)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 7(1)(a)
Result:
Leave to appeal granted
Appeal allowed
Order of the primary judge remanding the appellant in custody set aside
Appellant released on bail subject to conditions
Category: B
Representation:
Counsel:
Appellant: Mr P R Urquhart
Respondent: Mr L M Fox
Solicitors:
Appellant: Philip Urquhart Barrister
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
BUSS P & MAZZA JA: The appellant is charged on indictment with two counts.
Count 1 alleges that on 29 January 2015, at Denmark, the appellant and Shane Ronald Buck had in their possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act). Count 2 alleges that on the same day and at the same place as in count 1, the appellant cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the MD Act.
The appellant has pleaded not guilty to both counts. He was arrested on 29 January 2015 and was on bail between that date and 5 August 2016.
The appellant was examined by two psychiatrists for the purpose of determining whether he was mentally fit to stand trial. The psychiatrists prepared reports.
One of them, Dr Daniel de Klerk, a consultant forensic psychiatrist, was of the opinion that:
(a)the appellant suffers from treatment resistant schizoaffective disorder, complicated by cannabis use, poor insight and periodic non‑adherence to medication;
(b)when interviewed by the police on 29 January 2015, the appellant continued to hold delusional beliefs, but was emotionally and behaviourally well‑regulated; and
(c)the court may find that the appellant is not mentally fit to stand trial.
The other, Dr Murray Chapman, a consultant psychiatrist, expressed views similar to those of Dr de Klerk.
On 5 August 2016, the matter came before Birmingham DCJ in the District Court at Albany for the purpose of determining whether the appellant was mentally fit to stand trial.
Notwithstanding the opinions expressed by Dr de Klerk and Dr Chapman, and notwithstanding the decision of the State not to oppose defence counsel's contention that the appellant was mentally unfit to stand trial and that the indictment should therefore be quashed, the primary judge adjourned the hearing to 8 November 2016 to enable a further psychiatric report to be prepared.
Section 14 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) empowered his Honour to 'grant the accused bail, or remand the accused in custody, or make a hospital order under section 5'. The making of a 'hospital order' under s 5 was not appropriate because such an order must not be made unless the order expires on a date that is 'not more than 7 days after the date on which the order was made at which time the accused is to be brought before the court stated in the order': s 5(3).
The Bail Act 1982 (WA) applied to the power to grant bail conferred by s 14 of the Criminal Law (Mentally Impaired Accused) Act. See s 4 of the Bail Act.
The primary judge, instead of renewing the appellant's bail, remanded the appellant in custody to 8 November 2016. It is that order which is challenged by the appellant in this appeal.
The primary judge's reasons
The primary judge's decision to refuse to release the appellant on bail was interweaved with his Honour's ruling on the fitness to stand trial issue. After stating his reasons concerning the fitness to stand trial issue, his Honour said:
At this stage, on the material before me, it is apparent that [the appellant] would not be fit to stand trial if he was to go to trial tomorrow. But I'm not satisfied that he would not become mentally fit to stand trial in six months if [he] was to be compliant with his medical regime and treatment regime and also not‑ ‑ ‑
[THE APPELLANT]: I am compliant with my medicine.
BIRMINGHAM DCJ: ‑ ‑ ‑ using cannabis. In the circumstances what I propose to do is remand [the appellant] for a psychiatric assessment and I propose to remand him into custody such that there will be measured regulated compliance with medical treatment and an absence of the involvement of any illicit drug including cannabis such that the caveats that have been identified by Dr Chapman and Dr de Klerk can be eliminated so that I would then be in a position to make a final decision as to whether or not he should be remanded in custody pursuant to section 19, subsection (4) or released without charge and quash the indictment (ts: 5 August 2016).
His Honour's decision was based on his view that remanding the appellant in custody was necessary to ensure that, prior to the adjourned hearing date on 8 November 2016, the appellant was:
(a)compliant with his medication; and
(b)not consuming cannabis.
Those factors were relevant in assessing whether the appellant was likely to become fit to stand trial within six months after the hearing on 5 August 2016. However, it did not necessarily follow that those factors were a proper basis for refusing bail.
The primary judge did not invite submissions from either defence counsel or counsel for the State as to whether the appellant should be released on bail to the adjourned hearing date on 8 November 2016. His Honour made the decision to remand the appellant in custody without hearing from the parties.
In any event, there is nothing in his Honour's reasons for decision or in his debate with counsel before the delivery of his reasons which indicates that his Honour considered whether a residential condition or a weekly urine analysis condition or both could prevent the appellant from consuming cannabis while on bail.
The amendment of the primary judge's remand order
On 31 August 2016, this court was informed that, after he made the original remand order on 5 August 2016, the primary judge amended the date of the adjourned hearing from 8 to 9 November 2016 and, also, amended the remand order so that the appellant was remanded in custody to 9 (instead of 8) November 2016.
The grounds of appeal
The appellant relies on two grounds of appeal.
Ground 1 alleges that the primary judge erred in law by failing to approach the determination of the matter of bail in the manner required by sch 1 pt C, cl 1 of the Bail Act.
Ground 2 alleges that his Honour erred in law and fact by remanding the appellant in custody in circumstances where it was unreasonable or plainly unjust to do so.
The orders made by this court on 31 August 2016
On 31 August 2016, this court made the following orders:
1.Leave to appeal granted on grounds 1 and 2.
2.Appeal allowed.
3.The order of the primary judge made on 5 August 2016 that the appellant be remanded in custody until 9 November 2016 is set aside.
4.The appellant is released on bail on the following conditions:
(a)The appellant shall enter into a personal bail undertaking in the sum of $5,000 to appear in the District Court at Perth by video link from the District Court at Albany on 9 November 2016 at 9.00 am.
(b)There shall be a surety in the sum of $5,000, such surety to be approved by the person who is for the time being in charge of Albany Regional Prison, a deputy registrar of the District Court, a justice of the peace, or an associate of a judge of the Supreme or District Court.
(c)The appellant shall reside at 2048 South Coast Highway, Denmark.
(d)The appellant is to undergo weekly urinalysis testing as directed by his community corrections officer, Corinne Schorer.
(e)The appellant is to report to his community corrections officer within 24 hours of being released from Albany Regional Prison.
5.The appellant is to appear in answer to his bail in the District Court at Perth via video link from the District Court at Albany on 9 November 2016 at 9.00 am.
We said, after making those orders, that we would publish reasons for judgment later. These are our reasons.
The State's concession
Counsel for the State conceded that the grounds of appeal had been made out, leave to appeal should be granted and the appeal should be allowed. The concession was properly made.
The merits of ground 1
Section 13(1) of the Bail Act provides:
Jurisdiction to grant bail for any appearance described in the first column of Part A of Schedule 1 is vested in the judicial officer or authorised officer specified in the second column of that Part opposite thereto and shall be exercised subject to and in accordance with this Part and the further provisions in Parts B, C and D of Schedule 1.
In the present case, the primary judge had jurisdiction, pursuant to s 14 of the Criminal Law (Mentally Impaired Accused) Act read with s 13(1) and pt A of sch 1 of the Bail Act, to grant bail to the appellant.
By cl 1 of pt C of sch 1, relevantly:
[T]he grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant -
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused 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;
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
By cl 3 of pt C of sch 1:
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant -
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The effect of cl 1 of pt C of sch 1 is that the grant or refusal of bail was in the discretion of the primary judge. His Honour was bound to exercise the discretion having regard to the questions in pars (a) ‑ (g) of cl 1, as well as to any others which his Honour considered relevant. The questions in pars (a) ‑ (g) were non‑exclusive mandatory relevant questions which his Honour was bound to consider and answer. See Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25], [37] (McLure P, Pullin JA agreeing & Hall J substantially agreeing).
In Milenkovski, McLure P said:
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.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail [39] ‑ [41]. (original emphasis)
In the present case, as to the questions in cl 1 of pt C of sch 1:
(a)cl 1(a)(i) was insignificant because the appellant had previously appeared in court, in accordance with his bail undertaking, on all occasions after he was charged;
(b)cl 1(a)(iii) was insignificant because there was no suggestion that if the appellant was not kept in custody he may endanger the safety, welfare or property of any person;
(c)cl 1(a)(iv) was insignificant because there was no suggestion that if the appellant was not kept in custody he may interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(d)cl 1(b) was insignificant because there was no suggestion that the appellant needed to be held in custody for his own protection;
(e)cl 1(c) was irrelevant because the prosecutor did not put forward any grounds for opposing the grant of bail;
(f)cl 1(d) was irrelevant because there were no grounds for believing that, if the appellant was not kept in custody, the proper conduct of the trial may be prejudiced;
(g)cl 1(f) was irrelevant because the charged offences were not alleged to have been committed 'in respect of a child'; and
(h)cl 1(g) was insignificant because it was not suggested that the alleged circumstances of the charged offences amounted to 'wrongdoing of such a serious nature as to make a grant of bail inappropriate'.
So, the only questions in cl 1 of pt C of sch 1 that were of potential significance to the exercise of the primary judge's discretion to grant or refuse bail were:
(a)whether, if the appellant was not kept in custody, he may commit an offence: cl 1(a)(ii); and
(b)whether there was any condition which could reasonably be imposed under pt D of sch 1 which would 'sufficiently remove the possibility' referred to in cl 1(a)(ii): cl 1(e)(i).
The question in cl 1(a)(ii) had to be addressed having regard to the matters specified in cl 3 of pt C of sch 1.
It is not apparent from his reasons for decision that his Honour considered the mandatory relevant questions I have identified.
The primary judge was obliged, in the circumstances, to consider whether the imposition of a residential condition and a condition that the appellant undergo weekly urine analysis could reasonably have been imposed and would have sufficiently removed the possibility that the appellant would continue to offend (relevantly, by possessing and consuming cannabis) while he was on bail.
We are satisfied that if his Honour had considered the mandatory relevant questions in cl 1(a)(ii) and cl 1(e)(i), in the applicable statutory and factual context, the only conclusion reasonably open in the circumstances was that the imposition of a residential condition and a condition that the appellant undergo weekly urine analysis could reasonably have been imposed and would have sufficiently removed the possibility that the appellant would continue to offend (relevantly, by possessing and consuming cannabis) while he was on bail.
Both of those conditions were able to be imposed under cl 2(1) of pt D of sch 1.
In our opinion, the primary judge erred in law by failing to approach the determination of the matter of bail in the manner required by sch 1 pt C, cl 1 of the Bail Act.
Ground 1 is made out.
The merits of ground 2
Counsel for the appellant submitted that there were four circumstances which required the conclusion that the primary judge's decision to refuse to release the appellant on bail was unreasonable or plainly unjust, namely:
(a)the respondent did not advance any ground for opposing bail;
(b)the nature of the appellant's mental illness;
(c)the psychiatric reports supported the conclusion that the appellant was mentally unfit to stand trial; and
(d)bail conditions could reasonably have been imposed which would have allayed his Honour's concern that the appellant may consume cannabis.
The first circumstance is correct. The respondent did not advance any ground for opposing bail.
As to the second and third circumstances, the appellant's mental illness and the views expressed in the psychiatric reports to the effect that the appellant was mentally unfit to stand trial were, in the present case, irrelevant in assessing the mandatory relevant questions in cl 1 of pt C of sch 1.
The fourth circumstance was relevant as to whether bail should be granted or refused. It is apparent, on the material before his Honour, that the imposition of a residential condition and a condition that the appellant undergo weekly urine analysis could reasonably have been imposed and would have sufficiently removed the possibility that the appellant would continue to offend (relevantly, by possessing and consuming cannabis) while he was released on bail. See cl 1(e)(i) read with cl 1(a)(ii) of pt C of sch 1. His Honour's reasons do not reveal that any consideration was given to the contrary propositions, namely that those conditions could not
reasonably have been imposed or would not sufficiently remove the possibility of the appellant possessing and consuming cannabis while on bail.
The primary judge's decision to refuse to release the appellant on bail was unreasonable or plainly unjust.
Ground 2 is made out.
Conclusion
Grounds 1 and 2 having been made out, on 31 August 2016 this court, relevantly, granted leave to appeal, allowed the appeal, set aside the primary judge's order that the appellant be remanded in custody, re‑exercised the discretion to grant bail, and released the appellant on bail subject to conditions.
MITCHELL JA: These are my reasons for joining in the orders made by this court on 31 August 2016, allowing the appeal and ordering the appellant's release on bail.
Ground 1: failure to address mandatory relevant question
The joint reasons correctly identify the critical questions which the primary judge was required to answer in considering whether to grant the appellant bail. Could a residential condition, and a condition that the appellant undergo weekly urine analysis, reasonably be imposed? If so, do those conditions sufficiently remove the possibility that the appellant will continue to offend (relevantly, by possessing and consuming cannabis) while on bail? In the circumstances of this case, cl 1(a)(ii) and cl 1(e)(i) of pt C of sch 1 to the Bail Act made those mandatory relevant questions for the primary judge to consider and answer in granting or refusing bail. The other questions identified in cl 1 were either not relevant or did not provide any substantial ground for refusing bail.
There is nothing in the primary judge's reasons to suggest that he addressed these mandatory relevant questions, or to explain why they should be answered in the negative. Nor do the primary judge's reasons explain why bail should be refused in the face of affirmative answers to those questions. The failure to address the above mandatory relevant questions involved a failure to deal with the appellant's bail in the manner required by cl 1 of pt C of sch 1 to the Bail Act. Ground of appeal 1, which asserts that error, is made out.
That error of principle having been established, it was appropriate for this court (which had the relevant material) to re‑exercise the discretion.
The appropriate exercise of the discretion in the circumstances was to grant bail with a residential condition and a condition that the appellant undergo weekly urine analysis. Those were reasonable conditions in the circumstances. In my view, they sufficiently removed the possibility that the appellant would continue to offend (relevantly, by possessing and consuming cannabis) while on bail. Once the concern about offending was addressed by those conditions, I saw no other reason to refuse bail.
Ground 2: inferred error
Express error having been established, I find it unnecessary to determine whether an error of principle should be inferred on the basis that the decision to refuse bail was unreasonable or plainly unjust. I would not determine ground of appeal 2, which invites the court to infer error on that basis.
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