Chadburne v The State of Western Australia - [2014] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CHADBURNE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 160

CORAM: HALL J

HEARD: 30 APRIL 2014

DELIVERED : 30 APRIL 2014

FILE NO/S: MBA 18 of 2014

BETWEEN: RODNEY CHADBURNE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail application - s14 Bail Act 1982 (WA) - Turns on own facts

Legislation:

Nil

Result:

Bail granted on conditions

Category: B

Representation:

Counsel:

Applicant: Ms L B Black
Respondent: Mr B Standish

Solicitors:

Applicant: Kate King Legal
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
HALL J:
(These reasons were delivered orally and have been edited from the transcript)

This is an application for bail under s 14 of the Bail Act 1982 (WA).
The applicant is charged that on 26 March 2014 he was in possession of prohibited drugs with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The applicant was arrested on 26 March 2014 and has been in custody since that date. He applied for bail in the Magistrates Court on 10 April 2013, but on 11 April 2014 that application was refused. He now applies to this court to exercise its original jurisdiction to grant bail in any case pursuant to s 14.

The prosecution case

The alleged facts are that at about 4.20 pm on 26 March 2014 the applicant was stopped at The Lakes on Great Eastern Highway. He was driving a Toyota Land Cruiser that was towing a trailer. A search of the trailer resulted in the finding of five vehicle transmissions. Inside one a black package was observed. The package could not be removed at the scene and the vehicle was towed to a police centre.
The five transmission blocks were cut open to reveal 15 large vacuum sealed bags wrapped in tape. Within the bags was a total of 8.35 kilograms of MDMA, 2.8 kilograms of methylamphetamine and 483 grams of cocaine. The applicant was interviewed but declined to comment. He was then charged with three offences of possession with intent to sell or supply, one in respect of each type of drug.

The defence case

In support of his application for bail the applicant has sworn an affidavit dated 24 April 2014. In it he states that he is 45 and normally resides in Nyngan, New South Wales. As to the circumstances of the alleged offences, he says that he was in Sydney on the weekend of 21 to 23 March 2014 and met a man who said he was a courier who had a job to Perth but that his vehicle had broken down. The applicant told the man that he was also in the transport business and the man asked the applicant if he, the applicant, would do the job for him, cash in hand. The applicant agreed and a price was negotiated of $8,000, half to be paid up front and the remainder on completion.
The following day the applicant met the man on a street in Alexandria. A pallet was then transferred from the man's ute to the applicant's ute. The instructions were to deliver the pallet to a freight depot in Perth. The man gave the applicant a mobile phone and told him to hand it to the person at the freight depot. The phone was pin locked and the applicant says he was not given the pin number and did not use the phone. The applicant says that the pallet was shrink wrapped and also wrapped in black plastic such that he could not see the contents. He says that such wrapping is not unusual to protect goods on long haul jobs, in his experience.
The applicant says that he left Sydney on 23 March 2014 but hit a kangaroo near Broken Hill which damaged his ute. He then contacted his family in Nyngan and asked his son‑in‑law and a friend to drive his four‑wheel drive to Broken Hill so he could finish the job. He hired a trailer and, together with his son‑in‑law and friend, continued the trip before being stopped at The Lakes.
The applicant denies any knowledge of the drugs. As a result of the accident at Broken Hill, some of the black packaging came off the pallet and, in consequence, he could see a vehicle transmission on top. However, he says he could not see underneath and did not look further.

Personal circumstances

The applicant's personal circumstances are that he has three children aged 21, 19 and 16. Prior to being taken into custody, the two younger children were living with him in Nyngan. He has been their primary carer since his marriage broke down in 1998. He is also the primary carer for a five‑year‑old grandson who is the child of his eldest daughter. This child is currently in kindergarten and has some learning difficulties. The applicant's elderly mother is caring for the children and the grandchild at the moment but it is said that she is unable to provide full‑time care on a long term basis.
The applicant deposes that he is the sole owner of a business that provides specialised tools, hardware, pet food and other supplies to the residents of Nyngan. He was the only full‑time employee of the business though there are also two part‑time employees. He also has an interest in a freight company which has a contract running freight from Orange to Cobar and also undertakes general courier jobs, both intrastate and interstate. The applicant assists with the freight runs for this company.
The applicant deposes that the hardware business is dependent on him and would be unable to keep operating if he is not released on bail. He refers to his specialist knowledge of the area, the customers and the products and how to source them. He says that it would not be possible to find someone else in Nyngan with the necessary expertise to run the hardware store. Since being in custody the store has been run by family and part‑time employees and the opening hours have been sporadic. He says that if this continues customers will start patronising his competitors and the business will fail.
The applicant states that he has no criminal record other than for traffic offences and an assault in 1995. The traffic offences are said to be a reflection of the time he spends doing commercial driving.
The applicant has strong ties to New South Wales. His children and grandchild live there. He states that he has other family and friends in the town. He owns two pieces of real property in the town in addition to his business interests. The property is the subject of a freezing order and the applicant states that he understands that if he absconded he may be declared a drug trafficker and the properties would be forfeited to the State. This, it is said, provides a strong incentive to comply with bail.

Prosecution position

The prosecution oppose the application. They do so principally on the basis that the applicant is said to be an unacceptable risk of not appearing if granted bail. The basis for this submission is that the prosecution case is said to be very strong and that the likelihood on conviction would be a lengthy term of imprisonment.
There is no doubt that the charges are very serious. The maximum penalty for offences of possessing prohibited drugs with intent to sell or supply is a fine of $100,000, 25 years' imprisonment or both. The amounts of drugs alleged to be involved here are large and the street value of those drugs is no doubt significant. The likely sentence in the event of conviction would be a lengthy term of imprisonment.
As to the strength of the prosecution case there is, as yet, no prosecution brief or witness statements. An affidavit of a police officer has, however, been provided. Detective Senior Constable Gregory Cunningham deposes that he is the investigating officer in respect of this matter. He states that police investigations have established that throughout 2013 and early 2014 the applicant made regular trips from New South Wales to Karratha. Between October 2013 and March 2014 he deposited in excess of $200,000 into a bank account in Karratha. Those funds were deposited in amounts less than $10,000, being the reportable threshold for cash transactions. The money was then transferred to other accounts that are presently unknown.
Detective Senior Constable Cunningham states that the applicant had text message contact with a person in Karratha who the police have reason to believe was dealing in drugs. In submissions from the prosecutor I have been told that that person had since been charged with possession of methylamphetamine.
The affidavit of Detective Senior Constable Cunningham refers to other information or conclusions, though the provenance is not always clear. It is also unclear to what extent the contents of the affidavit will be the subject of admissible evidence at any trial of the applicant, rather than being merely intelligence from unknown or unreliable sources.
There is, however, reference to some intercepted telephone conversations between the applicant and others. In particular, on 21 March 2014 he referred to the things on the back of his ute having to be cleaned out and pulled apart. On 25 March 2014 the applicant refers to having to do a delivery of five parcels. It is possible to view these conversations as indicating some knowledge of the contents of the pallet. Whether that is the only reasonable interpretation may, however, well depend on the whole context of the calls and any other calls that occurred around the same time.
In essence, the prosecution case appears to be that the applicant had been running drugs to Karratha for some time prior to his arrest and, if that is established, it will disprove any claim by him to ignorance of the drugs found inside the vehicle transmissions on 26 March 2014.

Consideration

The strength of the prosecution case may well depend on the strength of any circumstantial evidence of prior dealing. At this stage, it appears that there is some circumstantial evidence in that regard but it is impossible to determine its strength.
Counsel for the applicant has submitted that there are innocent explanations for the travel to Karratha and the cash deposits. She says that the applicant frequently couriered machinery parts to Karratha for mining companies and received cash payments for that work. The deposits were structured to avoid tax, not to conceal the proceeds of drug dealing. Counsel notes that the applicant used his own name on bank accounts and when hiring the trailer which was the subject of the matters that resulted in the charges. She notes that the applicant had no concerns about allowing his son‑in‑law and friend to accompany him and there is no suggestion that they are implicated in the offending. She submits that this is inconsistent with the suggestion that the applicant was running a sophisticated drug operation.
Whether such submissions would ultimately be accepted at a trial, I cannot say. What can be said is that, on the present limited information, the possibility of innocent explanations for the circumstantial evidence cannot be discounted. The prosecution case could not be said to be weak. The bare facts of the circumstances in which the applicant was found in possession of the drugs, in the absence of any explanation on oath, may well be viewed as evidence leading to a conclusion of guilt. However, the strength of the prosecution case may well depend on other evidence. It is not possible at present to make any accurate assessment of whether the prosecution case is, as suggested, a very strong one.
This is a case that falls within cl 1, pt C,sch 1, of the Bail Act. As such, exceptional reasons to grant bail are not required and there is no express presumption either for or against bail. The discretion is to be exercised having regard to the questions contained in cl 1(a) to cl 1(g).
In Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [40] ‑ [41] McLure P referred to the questions and said:
[W]ith the exception of paragraph (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in paragraph (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 clause 1, the consequence of its structure is that bail would have to be granted if there was 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.
Turning to the questions contained in schedule 1, the first of them is whether, if the accused is not kept in custody, he may fail to appear in court in accordance with his bail undertaking 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 whether in relation to himself or any other person. I accept that there is some risk arising from the seriousness of the charges that the applicant would fail to appear in court in accordance with his bail undertaking.
In regards to the other aspects of question (a), it was conceded by the prosecutor that a conclusion that the applicant would commit further offences if granted bail, or that the safety or welfare of himself or any other person is a concern, or that there is a risk of interference with witnesses, could not be reached.
As to question (b), that is, whether the accused needs to be held in custody for his own protection, that is not suggested here.
In regards to question (c), whether the prosecutor has put forward grounds for opposing the grant of bail, I have referred to those grounds in these reasons. They are principally that there is said to be a risk of absconding arising from the seriousness of the charges and the strength of the prosecution case.
As to question (d), that relates to whether 'when the accused is on trial' there are grounds for believing if not kept in custody the proper conduct of the trial may be prejudiced. That is not the situation at present and that question is not relevant for present purposes.
Question (e) relates to whether there are any conditions which could reasonably be imposed which could sufficiently remove the possibility referred to in paragraphs (a) and (d) or obviate the need referred to in paragraph (b) or remove the grounds for opposition referred to in paragraph (c). I will refer to possible conditions in a moment.
As to question (f), that is where the accused is charged with an offence that is alleged to have been committed by a child, whether a condition could be imposed under pt D. That obviously does not apply here.
Finally, question (g) is 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. In that regard the offences are clearly serious but bail is not precluded, either as a matter of law or having regard to the alleged facts in this case.
Clause 1 also provides that the court, having had regard to the mandatory considerations in those questions, can also have regard to any other matters which the court considers relevant. I take into account the following matters:
(1)that being remanded in custody for an extended period is likely to affect the ability of the applicant to instruct his lawyers and to be able to prepare his defence, including to be able to gather information relevant to the presentation of a positive defence if he chooses to do so;
(2)that there may well be a lapse of time before this matter came to trial. It has been submitted on behalf of the applicant that it is not likely that he would obtain a trial date before May 2015 and this has not been contested. I note that the disclosure committal hearing would be on 4 July 2014 and after that, assuming that the applicant is committed, he would then appear at a trial allocation day later in the year in the District Court and there would then be some further delay before the matter came to trial;
(3)that the applicant is normally resident in New South Wales and being remanded in custody here would inevitably mean that he is at a considerable distance from his family and his support network;
(4)that his ability to earn income is dependent upon his liberty and that he needs to earn income in order to support himself, his family, and to pay for his defence;
(5)that there are freezing orders in respect of his property, at least insofar as the real property is concerned, and that this provides an incentive not to abscond as the effect of absconding would be that he would likely be declared a drug trafficker and in that event his property would be automatically forfeited to the State.
As to the possibility of conditions, the applicant proposes that he would reside at his family home with his children and grandchild in Nyngan. He has significant ties to that town and owns assets there. He is said to be able to obtain a surety, being an uncle who is a man of means and who would be willing to enter into a substantial surety undertaking. There is a police station in Nyngan to which he could regularly report. He is willing to surrender his passport and conditions could be imposed that would limit his travel movements within Australia and obviate the risk of any travel outside Australia. I am satisfied in these circumstances that there are conditions that could be imposed that sufficiently remove the possibility that the applicant would not appear in court when required to do so.

Conclusion

For those reasons, I grant bail on the following terms:
(1)An undertaking in the sum of $50,000 with a surety in the same amount.
(2)The surety is to be approved by my Associate.
(3)The applicant is to reside at 31 Nyngan Street, Nyngan, New South Wales other than when absent to attend court for these proceedings.
(4)There is to be a curfew condition that the applicant be present at his residence between the hours of 8.00 pm and 6.00 am each day and to present to police at the door of his premises or on the telephone between these hours as required.
(5)He is not to travel more than 50 kilometres from Nyngan for any purpose, other than to attend court in respect of this matter.
(6)The applicant is to report to the Nyngan Police Station each Monday, Wednesday, and Friday.
(7)The applicant's passport is to be surrendered to the police and he is not to apply for any other passport or travel document.