Commonwealth Director of Public Prosecutions v McLellan
[2001] WASC 366
•26 OCTOBER 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS -v- McLELLAN [2001] WASC 366
CORAM: HASLUCK J
HEARD: 23 OCTOBER 2001
DELIVERED : 26 OCTOBER 2001
FILE NO/S: MC 58 of 2001
MATTER :Bail Act 1982 (As Amended), s 14
and
Perth Court of Petty Sessions Charge Numbers 42638 to 42642 of 2001
BETWEEN: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND
MICHAEL SHANE McLELLAN
Respondent
Catchwords:
Bail Act - Application to revoke bail previously granted - Serious offences - No exceptional circumstances demonstrated - Bail revoked
Legislation:
Bail Act 1982, Pt C, Sch 1, s 13, s 14, s 22
Customs Act 1901, s 233B(1)(ca), s 235
Firearms Act 1973, s 19
Misuse of Drugs Act 1981 (WA), s 6(1), s 34
Result:
Application allowed
Category: B
Representation:
Counsel:
Applicant: Mr R Lombardi
Respondent: Mr D Sheales
Solicitors:
Applicant: Commonwealth Director of Public Prosecutions
Respondent: Amidzic & Co
Case(s) referred to in judgment(s):
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
R v Watson (1947) 24 WN (NSW) 100
Saka v The Queen [2001] WASC 92
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Beljajev & Anor v Director of Public Prosecutions (Victoria) & Anor, unreported; SCt of Vic; 8 August 1991
Gillis v Gawned & Anor (1992) 8 WAR 211
Markovina v The Queen, unreported; SCt of WA; Library No 930413; 30 July 1993
Pinkstone v The Queen [2000] WASC 199
Teece v The Queen, unreported; SCt of WA; Library No 930013; 6 January 1993
HASLUCK J: This is an application to revoke or vary bail previously granted to the respondent, Michael Shane McLellan, pending the hearing of various charges under the Customs Act1901, the Misuse of Drugs Act 1981 (WA) and the Firearms Act 1973.
The application comes before me pursuant to s 14 of the Bail Act 1982 which provides that a Judge of the Supreme Court may exercise the power to grant bail which is conferred upon any other judicial officer and to revoke or vary any bail previously granted.
The DPP relies upon an affidavit of Andrew Charles Riches sworn 16 October 2001.
The respondent relies upon an affidavit sworn by his solicitor, Vesna Amidzic, on 22 October 2001. He relies also upon the affidavits of John McLellan and Chrisafina McLellan sworn 9 October 2001.
Section 22 of the Bail Act allows a judicial officer to receive and take into account such information as he thinks fit, whether or not the same would be normally admissible in a court of law. It was on this basis that I received further information at the hearing.
More particularly, I received information as to the likely time before trial in the event of the respondent being remanded in custody. I noted also that the date given as 5 November 2001 in par 3 and par 5 of the affidavit of Andrew Riches should be corrected to 5 October 2001.
The charges
The respondent was arrested on 6 October 2001 after a search of his premises at 31 Joiner Street, Melville in the metropolitan area of Perth.
He came before the Court of Petty Sessions at Perth on 6 October 2001.
He was charged with the following offences:
1.Attempted possession of a prohibited import, namely, a quantity of "MDMA" or Ecstasy, contrary to s 233B(1)(ca) of the Customs Act 1901 (Cth).
2.Possession of "MDMA" or Ecstasy with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (two counts).
3.Aggravated possession of an unlicensed firearm, contrary to s 19(1)(c) of the Firearms Act 1973 (WA).
4.Possession of unlicensed ammunition, contrary to s 19(1)(c) of the Firearms Act 1973 (WA).
I pause to observe that there was a difference of opinion between the parties as to whether there was a further charge under the Firearms Act but nothing appears to turn on this for present purposes.
Section 233B(1)(ca) provides that any person who without reasonable excuse attempts to obtain possession of any prohibited imports shall be guilty of an offence. By s 235, where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity that is not less than a commercial quantity, the penalty is a fine not exceeding $750,000 or imprisonment for life or for such period as the Court thinks appropriate.
Section 6(1) of the Misuse of Drugs Act provides that a person who with intent to sell or supply it to another has in his possession a prohibited drug commits an indictable offence. By s 34 of the Act, a person convicted of such an offence is liable to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 25 years or both.
By s 19 of the Firearms Act the penalty for licensing offences of the kind charged is imprisonment for 18 months or a fine of $6,000.
The maximum penalty prescribed for the offences under the Customs Act and Misuse of Drugs Act indicate that the offences are extremely serious.
The plea
I understand that the respondent pleaded not guilty to the various charges.
It seems that he has been informed by counsel that he has an arguable case in his defence. In that respect I refer to par 40 of the affidavit of Vesna Amidzic in which she says that her instructions admit of a strongly arguable defence.
At the hearing on 8 October 2001 the respondent was allowed bail on the following terms and conditions:
1.The respondent to enter into a personal bail undertaking in the sum of $500,000.
2.There be a surety in the sum of $200,000.
3.The respondent report to Fremantle Police Station once a week on a Friday between the hours of 9 am and 4 pm.
4.There be a surrender of any passport within 36 hours and the respondent is not to apply for a passport.
It appears from the affidavit of Vesna Amidzic that the application for bail before the Court of Petty Sessions was opposed by the Crown.
The respondent's brother entered into the surety undertaking. The respondent was released to bail from Canning Vale Remand Centre at Hakea Prison on 11 October 2001.
I understand that the respondent has been unable to locate his expired passport. It is said he holds no other passports.
Nature of the case
Broadly described, the allegations underlying the relevant charges are that the respondent travelled from Perth to the east coast of Australia under an assumed name and was instrumental in arranging for a toolbox containing a considerable quantity of Ecstasy tablets to be conveyed to a warehouse area of TNT Express in Kewdale, Western Australia.
The toolbox was examined by the Australian Customs Service and found to contain nine packages of tablets, impressed with an "omega" symbol. The total weight of the narcotics was 10,913.2 grams, being approximately 22 times the commercial quantity applicable to this narcotic under the Customs Act.
The Australian Federal Police forensic team prepared a substituted delivery package which was delivered to and accepted by the respondent at 31 Joiner Street, Melville upon his acknowledgment that he was "Mr Johnston", being the purported consignee of the box.
Shortly afterwards the respondent was seen to drive to another address at which destination he was arrested and searched by AFP investigators. He was found to have a money belt around his waist under his shirt which contained a Berretta handgun and ammunition and 19 "omega" brand MDMA tablets.
The premises at 31 Joiner Street, Melville were searched and as a consequence of this search and other enquiries, there are said to be various travel documents linking the respondent to the toolbox. The respondent is alleged to have said that he flew to Queensland a couple of weeks prior to these events and was there on 14 September 2001. He is alleged to have said also that a female friend hired a vehicle on his behalf which he drove to New South Wales and that he eventually returned to Perth.
There is evidence that the toolbox, the subject of the relevant consignment, was handed to TNT, Mascot office, New South Wales by a male person on 29 September 2001. Forensic reports suggest that wrapping materials used in the toolbox can be linked to scraps left in a hire vehicle at Sydney airport on 29 September 2001 and to scraps found in a garbage bin at 31 Joiner Street, Melville during the course of the search.
The prosecution case is that on 29 September 2001 the respondent drove a hired campervan to TNT Couriers, Ansett Air Freight terminal, Mascot, and handed over the toolbox, the subject of the later delivery to him at 31 Joiner Street, Melville.
The DPP now seeks to revoke or vary bail principally on the grounds that the respondent is considered to be a flight risk and may not appear in response to his bail undertaking.
Subsequent events
It appears from the affidavit of Vesna Amidzic that since bail was granted she has experienced no difficulty in making contact with her client. He has continued to reside with his sister Christine at 31 Joiner Street, Melville.
It seems that the respondent has complied with all conditions of his bail and has remained resident at the same address, notwithstanding that his current conditions of bail do not require him to reside at a particular residence. He has read the affidavit of Federal Agent Riches and is aware of the evidence upon which the prosecution relies.
Overview
In dealing with an application for bail the Court is called upon to balance the interests of the accused and the public interest in the trial proceedings.
A Court must weigh up the presumption of innocence of an accused person against the need to ensure that the accused will be present at the hearing of the charges and that the integrity of the trial process is preserved.
The balancing of these competing considerations is never easy.
Bail Act
Section 13 of the Bail Act provides that the jurisdiction to grant bail shall be exercised subject to and in accordance with related provisions and the 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 criteria are well known and I will not repeat them in full.
By cl 1(a), the questions to be considered include whether the defendant may fail to appear, commit an offence, endanger the welfare of others or interfere 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 account of the prosecutor's position and whether the circumstances of the offence are of such a serious nature that a grant of bail would be inappropriate.
Different considerations apply in regard to bail after conviction (save for convictions under the Justices Act 1902) or where a serious offence is allegedly committed while a defendant is on bail for another serious offence.
Decided cases
The decided cases show that common law principles may be considered in conjunction with the principles reflected in the Bail Act.
Prima facie, an accused person should be allowed his liberty pursuant to the presumption of innocence and in order to prepare his case, provided there is a reasonable likelihood he will appear at the hearing of the charge. Saka v The Queen [2001] WASC 92.
The three main tests of the probability of the accused appearing can be summarised as the nature of the crime charged, the probability of a conviction and the severity of the punishment which may be imposed. Lim v Gregson [1989] WAR 1 at 16.
The onus is usually on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it. R v Watson (1947) 24 WN (NSW) 100.
It seems, however, that under the Bail Act all matters referred to in cl 1 of Pt C to the Schedule are to be taken into account before the Court exercises its discretion. WCVB v The Queen (1989) 1 WAR 279.
In cases of murder or otherwise in cases where the charges fall into the "extremely serious" class, the applicant must show exceptional circumstances to justify bail because the gravity of the crime is thought to increase the risk of a failure to appear. WCVB v The Queen (supra); Jemielita v The Queen (1994) 12 WAR 362.
The application of these principles can be illustrated by reference to another recently decided case in this Court.
In that case the applicant was charged with supplying cocaine and conspiracy to possess cocaine. He was granted bail initially in the Perth Court of Petty Sessions but the bail was subsequently revoked after an application later in the day to the Supreme Court. The Judge approved the rule that in the case of a serious charge the applicant bears the onus of demonstrating that there are exceptional circumstances which justify the grant of bail.
He went on to hold that charges under the Misuse of Drugs Act with a maximum statutory penalty of 25 years' imprisonment or a fine of $100,000 or both for the substantive offence and half that penalty for an attempt should be characterised as extremely serious.
He held further that where the strength of the prosecution case was such as to give rise to a real prospect of conviction, such a prospect could be viewed as a powerful incentive to abscond. He took account of the fact that the applicant had made use of false identities and had comparatively few residential links to the State.
Having identified a risk that the applicant might abscond if granted bail, the learned Judge could envisage no conditions, no matter how strict, short of remanding the applicant in custody, which would reduce the risk to any acceptable level.
The various factors before the court outweighed the prospect that by the time the applicant came to trial he would have spent something like two years in custody. Hence, the application for bail in that case was refused.
Central issue
It appears from this review of the Bail Act and related legal principles that I am obliged to give consideration to all the factors mentioned in Pt C of Sch 1 of the Bail Act. If the charges in question be characterised as extremely serious, the respondent bears the onus of demonstrating that there are exceptional circumstances which will justify the grant of bail.
In my view, the charges should be characterised as extremely serious. It follows that the respondent must identify exceptional circumstances in order to obtain bail. Likewise, if the respondent is unable to identify any such circumstances, that becomes a basis for the revocation of the bail previously obtained.
I digress briefly to note that at the hearing before me counsel for the respondent suggested that the power to revoke bail was in the nature of a power allowed to the Court in respect of an appeal with the result that some error on the part of the Court below had to be identified before the power could be exercised.
I am not persuaded that this is the correct approach. The power contained in s 14 of the Bail Act concerning revocation clearly contemplates that revocation or variation is permissible simply because further information has come to light, or because the issues raised by the application for bail have been more fully argued. Further, and in any event, the decided cases do not support the respondent's view of the matter.
It follows from earlier discussion that I must now take account of the various considerations prescribed by the Bail Act and make a determination as to whether exceptional circumstances have been demonstrated by the respondent.
Personal circumstances
The respondent is 36 years of age and until recently has been employed as a diver at Broome.
He has been living at 5 Piggott Way, Broome but is now residing with his sister at 31 Joiner Street, Melville.
The respondent is unmarried and has no dependent children. He is said to share a close relationship with his parents and siblings and the children of his eldest sister.
During the periods he has resided at Broome, he has either been employed as a diver or operated the "Broome Go‑Karts" racetrack business which he and his family established approximately five years ago.
Whilst at Broome, he generally resides with his brother at 5 Piggott Way.
He has owned vacant land at Broome since about 1987 and has plans to develop that land with a view to ultimately establishing a home at Broome.
The property at 31 Joiner Street, Melville is owned by his parents who currently reside at the home of his sister Christine at Broome.
The family home at Melville was retained by his parents, notwithstanding their move to Broome, so as to provide his mother with a Perth base to stay at when she travelled to Perth for regular and ongoing cancer treatment and examinations.
It is said that with the exception of a small number of acquaintances, all of his financial, family, employment and personal ties are confined to the State of Western Australia. He denies any suggestion of drug dealing on his part at 5 Piggott Way, Broome or at any other address. He disputes the prosecution case, including the location and finding of particular items of evidence and property.
The affidavits of his parents, John and Chrisafina McLellan, confirm these details. The parents confirm that they are prepared to enter into surety undertakings pledging their Melville home to satisfy the requirements of any bail conditions that might be imposed.
There is no objection to bail conditions designed to secure an appearance to answer the charges in court or to report to the police.
The evidentiary materials include character references favourable to the respondent and an offer of employment.
Antecedents
The evidentiary materials show that the respondent has a number of prior convictions, including a conviction in 1984 for breaking and entering, a conviction in 1993 of breaching bail terms for which he was fined $150, and various driving offences.
Respondent's case
In summary, then, the respondent submits that there are factors in his employment, financial and family situation which justify a grant of bail, with the result that the bail previously granted should continue to apply.
He has described his background and says further that although he has some prior convictions they do not reflect a significant record of wrongdoing or suggest that he is not likely to comply with bail conditions.
He points to factors which are likely to ensure his attendance at the hearing, including his compliance since bail was granted.
He appears to accept that special orders are required to ensure his appearance and has indicated by counsel that he will comply with the same.
The respondent places reliance upon the prima facie position at common law that bail should be allowed to an accused person pursuant to the presumption of innocence and so that he can prepare his defence.
Prosecutor's position
It follows from the provisions of the Bail Act that consideration must be given to whether the prosecutor has put forward grounds for opposing the grant of bail.
I have already noted that the Crown opposed the grant of bail at the hearing before the Court of Petty Sessions.
The Crown now seeks to revoke the grant of bail previously made, and contends that a variation of the conditions would not be sufficient to ensure the respondent's appearance.
The Crown contends that the charges in question are extremely serious and that the respondent has failed to discharge the onus upon him of demonstrating that there are exceptional circumstances justifying a grant of bail.
He is not married and has no dependent children. He claims to have an arguable defence but has not put up any materials that refute the Crown case. The substantial quantity and value of the drugs the subject of the charges weigh against any demonstration of exceptional circumstances. No clear evidence or estimate has been provided as to what length of time is likely to be involved in the charges being brought to trial.
The DPP submits that there are reasons why there is a risk of a failure to appear, being a risk described in the affidavit of Andrew Riches as a flight risk.
These reasons are set out in the relevant affidavit in this way:
"41.1McLELLAN is charged with a series of serious offences. The applicant believes there is a very substantial case against McLELLAN and that he realises that the case is strong.
41.2The applicant suspects that McLELLAN has access to a substantial funding due to the possible importation, and his possession, of a large sum of 'omega' brand MDMA tablets prior to the detection of the toolbox mentioned in paragraphs above,
41.3McLELLAN knows that AFP suspect him to have been in possession of a substantial further amount of MDMA, and that he may face further charges,
41.4McLELLAN knows that his assets are being frozen and are likely to be seized upon conviction, he therefore has little to lose by fleeing,
41.5McLELLAN has associates in other states of Australia and in northern regions of Australia, many of whom are in isolated areas or adjacent to the coastline,
41.6McLELLAN has associations within the boating industry, thereby having the associations and infrastructure to provide passage out of Australia,
41.7McLELLAN has internationally transferable work experience as a diver and crewmember, so could obtain good employment overseas,
41.8It is believed that McLELLAN has a number of aliases and assumed identities including JOHNSTON and BENNETT, and has travelled under assumed identities previously. AFP investigators are unable to eliminate the possibility that McLELLAN will not attempt to depart Australia under a false identity."
Strength of the Crown case
It follows from earlier discussion that the Crown is in a position to place circumstantial evidence before the Court that will establish a link between the movements of the respondent on the eastern seaboard and the arrival in Perth of the toolbox allegedly containing the MDMA tablets in question.
Evidence will be available from Crown witnesses concerning testing of the tablets and the delivery of a substituted package to premises occupied by the applicant, being the address specified on the consignment note. Evidence is available that he received the same upon the basis that he was Mr Johnston, being the name mentioned on the consignment note.
He was subsequently apprehended with tablets of the same kind as those contained in the toolbox and carrying a firearm. Documentary evidence including the scraps of wrapping paper are available to make out a connection between the contents of the toolbox containing the tablets and a vehicle allegedly driven by the applicant.
To the limited extent that it is necessary for me to form an opinion as to the strength of the Crown case, it seems to me that it has reasonable prospects of success.
Time before trial
If bail is not allowed to the respondent, with the result that he is remanded in custody until trial, the respondent's solicitor says there will be a period of at least 12 onths before the matter is brought to trial.
A judicial officer must obviously be conscious that a lengthy period of detention prior to trial for a person who has not been convicted of any offence can give rise to an injustice. It is incumbent on the State to provide the resources necessary to minimise the risk of such an injustice in respect of a person who is at law presumed innocent of the charge.
In the circumstances of the present case, however, I consider that in the context of extremely serious charges the burden lies upon the respondent to indicate the nature of the potential injustice in the course of pointing to exceptional circumstances justifying the grant of bail.
Counsel for the respondent referred to the possibility of an inordinate delay but the information in regard to that aspect of the matter is imprecise. Accordingly, in the context of extremely serious charges, and having regard to the other factors that must be considered, I do not consider there is sufficient material before me to justify a continuance of bail upon this ground.
Other matters
In a case of this kind where the respondent may possibly, on the Crown's case, have had dealings and associations with other parties, the Court is usually required to consider whether a release on bail is likely to have any adverse effect upon the integrity of the trial process and the evidence to be given by other witnesses.
At the hearing before me counsel for the respective parties were not inclined to give any particular emphasis to this aspect of the matter. Accordingly, I was not encouraged to explore this aspect of the matter in any detail.
It is important to recognise, however, that, if convicted, the respondent would undoubtedly face a substantial term of imprisonment which would not have been completely served by a time of trial.
The fact that the time spent in custody may be taking into account in an ultimate sentence carries little weight. The danger is an unexpressed assumption of conviction. If the respondent is, in due course, acquitted, then he will have spent a lengthy period in custody without any redress.
Nonetheless, I am conscious that some weight should be given to the probable method of dealing with the respondent.
Conclusion
These are extremely serious charges. The decided cases show that the respondent is obliged to demonstrate exceptional circumstances in order to justify a grant of bail. I am not persuaded that the respondent has discharged the onus upon him in that regard. Further, and in any event, the strength of the Crown case is such that bail should not be allowed.
The decided cases also show that the main tests of probability of the accused appearing at his trial are the nature of the crime charged, the probability of conviction and the severity of the punishment to be imposed.
In the present case, a consideration of these factors and the matters referred to in the affidavit of Andrew Riches, including the use of false names, suggests that there is a real risk that the respondent will not appear. I have already noted that the Crown case against the respondent appears to be strong and a custodial sentence is almost inevitable if he is convicted.
The matters the respondent puts up in support of the application for bail including the supposed length of time to trial, the presence of an adequate surety, his family links in this State and the availability of bail conditions to secure his appearance at Court, to my mind, do not constitute exceptional circumstances sufficient to outweigh the opposing factors I have mentioned which weigh against a continuance of the grant of bail.
Accordingly, I consider that the grant of bail previously made should be revoked. I will exercise the power allowed to the Supreme Court pursuant to s 14 of the Bail Act accordingly. I will hear from the parties as to whether any further orders or directions are required.
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