DAVIES v The State of Western Australia
[2013] WASC 165
•3 MAY 2013
DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 165
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 165 | |
| 03/05/2013 | |||
| Case No: | MBA:4/2013 | 6, 18 & 27 MARCH & 8 APRIL 2013 | |
| Coram: | CORBOY J | 8/04/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | JASON LESLIE DAVIES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for bail No new principles |
Legislation: | Bail Act 1982 (WA), s 14, sch 1 |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DAVIES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 165 CORAM : CORBOY J HEARD : 6, 18 & 27 MARCH & 8 APRIL 2013 DELIVERED : 8 APRIL 2013 PUBLISHED : 3 MAY 2013 FILE NO/S : MBA 4 of 2013 BETWEEN : JASON LESLIE DAVIES
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for bail - No new principles
Legislation:
Bail Act 1982 (WA), s 14, sch 1
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr H C Quail
Respondent : Ms E L O'Donnell
Respondent : Mr J M Healy
Solicitors:
Applicant : Manera David Lawyers
Respondent : Director of Public Prosecutions (WA)
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; 42 WAR 99
- CORBOY J:
(These reasons were delivered orally and have been edited from the transcript)
1 This is an application that the applicant be released on bail on such terms and conditions as the court considers appropriate. The application is made pursuant to s 14(1)(a) of the Bail Act 1982 (WA). It is supported by affidavits made by the applicant on 26 March 2013 and 5 April 2013 and by David Charles Manera on 13 February 2013. Mr Manera is the applicant's solicitor.
2 The applicant is charged on two prosecution notices alleging that on 3 July 2012, he supplied a prohibited drug, MDMA, contrary to s 6(1)(c) of the Misuse of Drugs Act and that on 17 August 2012, he used a carriage service to make to a second person a threat to cause serious harm to that person, with the intent for the second person to fear that the threat would be carried out, contrary to s 474.15(2) of the Criminal Code Act 1995 (Cth).
3 The State and the Commonwealth oppose the application for bail. I have decided for the reasons that follow that bail should be granted on the following terms and conditions, subject to the approval of the applicant's mother as his surety: that there be a personal undertaking of $15,000; that the applicant's mother enter into a surety for $100,000; that the applicant reside at his mother's residence and that he remain present at that residence between 8 pm and 6 am daily; that the applicant report to the nearest police station to be nominated daily; that the applicant surrender his passport; that the applicant not go within 200 m of any point of departure and that he not contact Hayati Gok, Dion Clifford Mellican and Alexander Maxwell Rogers by any means whatsoever.
4 The facts alleged in the statement of material facts for the State charge are that, between 28 June and 3 July 2002, the applicant arranged for a person to be supplied with a trafficable amount of MDMA tablets. The applicant allegedly requested another person, who I will refer to as 'the associate', to deliver the tablets to the person to whom they were to be supplied. The associate subsequently arranged for a third person to actually deliver the tablets. The tablets were delivered to the intended recipient at a hotel carpark on 3 July 2012. Police observed what occurred at the carpark and arrested the person to whom the tablets had been supplied. Approximately 940 MDMA tablets were seized. Analysis indicated that the tablets weighed approximately 246 g with a purity of 10 to 16%.
5 The facts alleged in the statement of material facts for the Commonwealth charge are that the applicant had known the associate for about 20 years. The applicant loaned the associate about $78,000 approximately three years ago. On 17 August 2012, the applicant used a telecommunication service and contacted the associate on his mobile service after he had become aware that the associate had applied for a violence restraining order protecting him from the applicant. The applicant left a message on the associate's voicemail. It is alleged that the message stated:
What's this restraining order, you fucking fag? You owe me $78,000 for drugs, you fucking cockhead. I'm going to object to it. If I've got to go to court, I will tell you you owe me 78 grand for drugs. You owe me coin for drugs. I'm going to come over. You better think about it over the weekend, cunt. If I get arrested, I'm still coming for you, cunt. You better have my 78 grand.
6 It is further alleged that at about 7.26 pm on the same day the applicant either left a message or stated over a telecommunication service to the associate:
You have crossed the line Hayati, what's this dogged to the cops, a good friend of ours got pinched 6 weeks ago, if I find out you are a rat as well and you ratted on him and me, listen you have got the weekend to come up with that coin because I am coming and if I have to go down I am fucking pulling you into a grave before I go anywhere cunt and if we end up in jail together all the better this is not going to stop me you fucking piece of shit with your restraining order, this is not a domestic mate, you owe for work, you are going to pay for it, man up cunt you have got the weekend to sort your shit out and I am going to be there.
7 The applicant arrived in Perth from Melbourne on a Qantas flight on 22 August 2012 and was arrested and the charges were laid. The Commonwealth charge, as I understand it, was laid by State police. The Office of the Western Australian Director of Public Prosecutions had the conduct of both charges until recently. The applicant was remanded to the Stirling Gardens Magistrates Court on the understanding that the charges would be prosecuted on an indictment filed in this court. However, the State DPP has referred the Commonwealth charge to the Office of the Commonwealth Director of Public Prosecutions for prosecution in the course of the bail application.
8 The Commonwealth Director appeared at the last two of a series of hearings in the bail application to oppose the application. Counsel for the Commonwealth DPP advised that the director's office was currently reviewing the charge that had been laid, including whether it should proceed on indictment. As I understand it, what is being considered currently by the Commonwealth Director is whether the charge or charges should be reformulated so as to allege an offence under s 474.17(1) of the Criminal Code Act (Cth).
9 The evidence against the applicant on both charges comprises telephone intercepts. The third person who was allegedly enlisted by the associate to actually deliver the tablets has provided a statement to the prosecution in relation to the State charge, but that statement does not implicate the applicant. The statement does, however, allege that the associate provided a third person with an envelope which contained the tablets that were delivered to the intended recipient at the hotel carpark.
10 The telephone-intercept evidence that forms the basis of the State charge against the applicant includes a call allegedly made by the applicant to the associate on 2 July 2012. The applicant is alleged to have stated in that call, 'That bit of work – can that get taken to the same place tomorrow at 9 am, all of them?' According to the State's submissions in the application, the associate then asked a question about payment and the applicant replied, 'No, that's already sorted out.' The associate asked if the delivery should be by him or someone else and the applicant replied, 'Ah, someone else if you could,' and it is then alleged that the tablets were supplied the following morning.
11 The substance of the telephone-intercept evidence that forms the basis of the Commonwealth charge has already been noted.
12 A person convicted of an offence under s 6(1)(c) of the Misuse of Drugs Act is liable to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 25 years or both. The amount of the MDMA allegedly supplied by the applicant is very large. It was accepted for the purposes of the application that the applicant would be most likely sentenced to a term of imprisonment of 4 to 5 years if he was convicted of the offence alleged. The penalty for an offence under s 474.15(2) of the Commonwealth Criminal Code is imprisonment for 7 years.
13 The application for bail was initially made on the basis that the applicant wished to return to Melbourne to live with his wife and so that he could continue to operate a business. The State opposed the application, primarily on the ground that the seriousness of the charges was such that bail was inappropriate. It was said that the incentive to abscond was very powerful.
14 The State also referred to the following matters in its submission: the applicant presented as a serious flight risk since he lived in Melbourne and there was a 'high likelihood' of the applicant committing an offence or endangering the safety of another person or interfering with witnesses or otherwise obstructing the course of justice. That submission was based on the content of the telephone calls the subject of the Commonwealth charge and other telephone calls allegedly made by the applicant to the associate.
15 The applicant substantially amended the terms and conditions on which he proposed that he be granted bail at a subsequent hearing of the application. The applicant stated in an affidavit made on 26 March 2013 that he was prepared to remain in Western Australia if he was granted bail and that he would reside with his mother. He indicated that his mother was willing to act as a surety and that she could provide a surety in a substantial amount. He was prepared to surrender his passport and to comply with the usual reporting and other protective conditions. The applicant submitted that he had addressed the state's primary concern that he was a flight risk or somebody who had an incentive to abscond by offering to comply with this condition.
16 The Commonwealth opposed bail on the grounds that the nature of the Commonwealth charge was such that the applicant might endanger the safety of the associate or otherwise obstruct the course of justice. It also relied on the seriousness of the State charge.
17 The applicant is aged 40 years. He was born in Perth but was living in Melbourne at the time of his arrest. He has been married since 1999. The applicant moved to Melbourne with his wife in 2011. The move was made so that the applicant's wife could further her career. In a letter that she has written to the court, the applicant's wife states that the period since the applicant's arrest and detention in custody have been 'very traumatic physically, emotionally and financially'.
18 An issue was raised early in the hearing of the bail application about the status of the company that operated the applicant's business. According to records maintained by the Australian Securities and Investments Commission, the company concerned had been deregistered. The applicant advised that the company had been deregistered as the result of the failure to pay a small statutory fee.
19 However, at the last hearing of the application it was accepted by the applicant that he was not in a position to now continue to operate his business and that he did now propose to operate that business if bail was granted.
20 The jurisdiction to grant bail is to be exercised subject to and in accordance with pt 3 of the Bail Act and pt A, B and C of sch 1 to the Act: see s 13 (1). Part C of sch 1 prescribes the manner in which the jurisdiction is to be exercised. The judicial officer is required to consider the questions stated in pars (a) to (g) of cl 1 and any other questions that he or she considers to be relevant.
21 The principles to be applied in determining an application for bail are well known and were identified by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99; 42 WAR 99. In summary:
(a) The Bail Act was intended to contain a comprehensive code on the subject of bail.
(b) The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may be properly granted having regard to the provisions of cl 1 and cl 3 of pt C sch 1 to the Act.
(c) Clause 1 of pt C contains no express statutory presumption for or against the grant of bail. Rather, the judicial officer is required to exercise the discretion having regard to the questions in pars (a) to (g) and to any other question that the decision-maker considers relevant; that is, the correct approach to the exercise of the discretion is sourced in and guided by the matters referred to in pars (a) to (g) of sch 1.
(d) The court is required to consider and answer the mandatory questions before commencing the balancing process inherent in the exercise of the discretionary power to grant bail. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion.
(e) All of the mandatory questions with the exception of par (e) are directed to whether there are positive grounds for refusing bail. The matters in par (e) go to the question of whether it is possible to neutralise wholly or sufficiently positive grounds for refusing 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.
(f) The Act does not place a legal onus on any party to the application. However, the structure of cl 1 is such that bail will be granted if there is no material before the court providing a proper foundation for refusing bail. Consequently it will often be for the State to furnish the material required to provide a proper foundation for refusing bail. The word 'may' in pars (a) and (d) of cl 1A means the possibility of the event occurring. So, for example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility that he would fail to appear in court in compliance with his bail undertaking.
(g) It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused for it upon conviction are sufficient to enable the court to conclude that the accused may fail to appear in court in compliance with his or her bail undertaking and the existence and extent of that possibility may, having regard to the answers to all the other mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach for or against bail is inconsistent with the approach required under the Bail Act.
22 The questions raised by the State and the Commonwealth in the application were those posed in pars (a) and (e) of clause 1. The State's written submissions adopted the language of par (g), but linked the seriousness of the charges to the risk of the applicant absconding: see par (a)(i) of cl 1. Accordingly, I do not consider that either the State or the Commonwealth raised the question posed in par (g). However, I would add that I do not consider that the charges are so serious in nature as to make the grant of bail, by itself, inappropriate whether considered separately or together.
23 I accept that the prosecution case on the State charge would appear to be strong having regard to what the applicant is alleged to have said in the relevant telephone conversation on 2 July 2012. However, the risk of the applicant not appearing in court if he was granted bail must be also be assessed by reference to his personal circumstances, his age, his marital status and circumstances and his lack of a recent criminal record.
24 Taking those matters into account, I consider that there are conditions that could be imposed on the grant of bail that would sufficiently remove the risk of the applicant absconding and remove the grounds of opposition based on par (a)(i). I have particularly had regard to the provision of a substantial surety, the residential requirement that will be imposed on the grant of bail and the reporting conditions.
25 It was submitted by both the State and the Commonwealth that the applicant may, if not kept in custody, 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. That application was primarily based upon the nature of the Commonwealth charge and the other telephone calls that were referred to in the State's submissions. It was said that the threats allegedly made by the applicant in the other telephone calls were in keeping with the tone of the two calls that are the subject of the Commonwealth charge.
26 It is clear that in relation to all of the telephone calls, including the two calls the subject of the Commonwealth charge, the person alleged to be the applicant was endeavouring to coerce the person alleged to be the associate to pay money that was said to be owing. The tone of the calls is a desperate need to be paid the money allegedly owing. However, the calls were made over a six-week period without the applicant taking any step to actually harm the associate. I accept that the applicant was in Melbourne at the time and the associate was in Perth. However, it does seem that there is a repetition of phone calls in which to adopt the language of s 274.17, the applicant was endeavouring in aggressive terms to put pressure on the associate to pay the money that was alleged. It is, however, only the calls that were made on 17 August 2012 that are alleged to contain a threat to seriously harm the associate.
27 As I indicated in discussions with counsel for the Commonwealth, the actual content of the two telephone calls the subject of the Commonwealth charge is ambiguous. On one view the calls could be taken as a threat to harm the associate by revealing that the associate owed money for drugs, particularly in the context of the violence restraining order that had been obtained by the associate against the applicant. On that view of the telephone calls, the threats contained in the calls were not to physically harm the associate but rather, to cause him harm by revealing a drug-related debt to the court or to other authorities with the result that, as is put in the second call, both the applicant and the associate could end up in gaol together. That is not to diminish the seriousness of what is alleged against the applicant but it does indicate that the two telephone calls which are the subject of the Commonwealth charges do not necessarily contain a serious threat to physically harm the associate. I accept that the applicant has been in detention since his arrest in August of 2012 and therefore that may be an explanation for why there has been no attempt to contact the associate since the telephone calls on 17 August but some time has passed since those telephone calls.
28 I have concluded in all of the circumstances that the risk that the applicant may do any one of the things referred to in par 1(a)(ii) to (iv) of cl 1 of pt C can be sufficiently obviated or removed by imposing conditions on a grant of bail.
29 I assume that steps will be taken to inform the associate and others of the fact that bail has been granted and that they will be advised as to what steps they should take in the event that there is any attempt by the applicant to contact them and I assume that the applicant well understands and has had explained to him by his advisers the consequences if he was to breach any of the terms and conditions of his bail and in particular, if he was to breach any of the protective conditions that are to be imposed.
30 Accordingly, in relation to the matters raised by the State and the Commonwealth in respect of pars 1(a)(ii) to (iv), I am satisfied that bail conditions that I intend to impose will satisfactorily remove the possibility of those matters occurring. I have also taken into account the applicant's antecedents, in particular that he has only a criminal record for offences committed in 1993 and those offences did not involve any violence. He has no record of any offences of violence.
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