Frigger v The State of Western Australia - [2024] WASCA 159

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 159
CORAM:   MAZZA JA
MITCHELL JA
HALL JA

HEARD:   12 DECEMBER 2024
DELIVERED          :   12 DECEMBER 2024
PUBLISHED           :   16 DECEMBER 2024
FILE NO/S:   CACR 128 of 2024
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
File Number            :   IND 1112 of 2019

Catchwords:

Criminal law - Bail - Bail after conviction pending sentence - Where trial judge refused to grant bail to the appellant pending sentence in circumstances where the appellant had previously absconded after being given bail following conviction - Whether manner in which the trial judge dealt with the matter gave rise to a reasonable apprehension of bias - Whether trial judge erred in not permitting the appellant to make submissions in support of the grant of bail - Whether bail should be granted by the appellate court in any re-exercise of the discretion to grant bail

Legislation:

Bail Act 1982 (WA), s 13, s 14, s 15A, s 15B, sch 1 pt A cl 2, sch 1 pt B cl 2, sch 1 pt B cl 4, sch 1 pt C cl 1, sch 1 pt C cl 4

Result:

Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	L M Fox SC

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Davis v Minister for Immigration [2023] HCA 10; (2023) 97 ALJR 214
Debono v The State of Western Australia [2018] WASCA 208
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Frigger v The State of Western Australia [2024] WASCA 100
House v The King (1936) 55 CLR 499
Jia v Minister for Immigration (1998) 84 FCR 87
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
KWLD v The State of Western Australia [2020] WASCA 94
Mercanti v The State of Western Australia [2005] WASCA 254
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 QR 271
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
Ogbonna v CTI Logistics Ltd [2021] WASCA 25
QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
SCT v Director of Public Prosecutions (Qld) [2017] QCA 131
Smart v The State of Western Australia [2019] WASCA 220
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
The State of Western Australia v Frigger [No 2] [2024] WADC 50
YSN v The State of Western Australia [2017] WASCA 155

REASONS OF THE COURT:

This appeal is against the refusal of bail to the appellant on the adjournment of her sentencing hearing to 31 January 2025. At the conclusion of the hearing of the appeal, we made orders refusing leave to appeal on ground 1, granting leave to appeal on ground 2 and dismissing this appeal. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.

Introduction

On 4 June 2024, the appellant was convicted after trial by jury of one count of knowingly making a statement under oath that was false in a material particular. That is an offence contrary to s 169(1) of the Criminal Code (WA).
The appellant had previously been convicted of that offence on 9 August 2021. On 26 November 2021, the appellant was sentenced to a term of 1 year 4 months' immediate imprisonment for the offence. She appealed against her conviction and, on 8 December 2021, was granted bail pending determination of that appeal. On 24 June 2022, the conviction was quashed on appeal and a retrial was ordered.
The appellant's most recent conviction of the offence on 4 June 2024 followed that retrial. After her conviction, the appellant was granted bail to appear in the District Court on 5 June 2024. In an apparent breach of her bail conditions, the appellant departed Australia on a flight to Singapore in the early hours of the morning of 5 June 2024. When she did not appear at the hearing on 5 June 2024, a warrant for her arrest was issued. The appellant was arrested on her return to Perth Airport on 23 July 2024. She was brought before the trial judge who refused to grant the appellant bail and remanded her in custody for sentencing on 29 November 2024. The sentencing date was set to accommodate the request by the appellant (who was represented by counsel at the hearing on 23 July 2024) for the court to obtain psychological and psychiatric reports.
On 23 July 2024, the appellant commenced an appeal against her most recent conviction of the offence to this court (CACR/76/2024). The court heard that appeal, at which the appellant was represented by counsel, on 7 November 2024. At the conclusion of the hearing, the court reserved judgment in the appeal against conviction. Judgment delivery in the conviction appeal has been delayed by subsequent applications by the appellant, who is now self-represented in that appeal, to reopen the appeal and amend her appellant's case. The State's written responses to those applications are due to be filed on 20 December 2024.
In CACR/76/2024, this court has considered and dismissed three applications by the appellant for bail pending determination of the conviction appeal. On 21 August 2024, the court heard and dismissed a bail application for written reasons which have been published: Frigger v The State of Western Australia[1] (previous bail reasons). The court dismissed a further application for bail pending determination of the conviction appeal at the conclusion of the hearing on 7 November 2024, for reasons to be published later. The appellant made a further application for bail pending the determination of the conviction appeal on 2 December 2024. On 3 December 2024, the court made an order dismissing that further bail application on the papers, for reasons to be published later. It is our intention to publish our reasons for dismissing the latter two bail applications when we publish our reasons for determining the conviction appeal.
[1] Frigger v The State of Western Australia [2024] WASCA 100.
At the sentencing hearing before the trial judge on 29 November 2024, the appellant asked the trial judge to recuse himself from her sentencing on grounds of actual and apprehended bias. The trial judge refused to recuse himself. At the sentencing hearing, a psychological report had been prepared but attempts to obtain a psychiatric report had been frustrated. The appellant sought, and was granted, a further adjournment of the sentencing hearing to provide a further opportunity for a psychiatric report to be obtained. The sentencing hearing was adjourned to 31 January 2025, and the appellant was remanded in custody at that time. The trial judge refused an oral application for bail made by the appellant at the hearing on 29 November 2024.
On 3 December 2024, the appellant instituted the current appeal against the trial judge's refusal to grant her bail for the hearing on 31 January 2025. The appellant filed her appellant's case with her appeal notice. On 4 December 2024, the court made orders programming the present appeal for an urgent hearing on 12 December 2024.

Procedural history

A more detailed account of the proceedings leading to the appellant's second conviction of the offence is set out in this court's previous bail reasons, with which these reasons should be read. The following account of the procedural history focuses on the events since the appellant's conviction, in part adopting the account given in the previous bail reasons.

Events of 4 - 5 June 2024

In the late afternoon of Tuesday, 4 June 2024, the jury returned a unanimous guilty verdict, and the appellant was convicted of the charged offence.
After the jury verdict, the trial judge indicated that he could sentence the appellant that Friday. The appellant said that she would prefer the following Monday, in part because:[2]
[I]t would give me an opportunity to arrange our affairs appropriately. So just a couple of extra days to - to do that.
I haven't never come to court or - or disobeyed the bail conditions etcetera. I don't believe I am any risk of escaping from - from Perth and, in those circumstances, I'd ask for just an extra couple of days to get our affairs in order for that - for that purpose.
[2] Trial ts 2407.
The trial judge indicated that his Honour proposed to sentence the appellant on Friday, 7 June 2024. His Honour said that he would grant the appellant bail until the sentencing hearing but was going to impose conditions which would include requiring the appellant to surrender all passports. However, the judge indicated:[3]
Now, I'm not going to make you surrender your passport tonight, because I don't want you in prison overnight just because you haven't surrendered your passport. So I'm going to adjourn the matter to … 10 o'clock tomorrow morning. You can expect at that time I'll make an order requiring you to surrender your passport, so you need to bring all your passports with you, any European ones and also your - any current Australian passport. And I'll also make orders in relation to approaching airports.
[3] Trial ts 2408.
The appellant was granted bail for an appearance at 10.00 am on 5 June 2024, on conditions that she provide a bail undertaking in the amount of $50,000; that her surety provide a surety undertaking in the amount of $50,000; that she reside at an address in Applecross; and that she remain at that address overnight and not leave save for an emergency.
The appellant boarded an airplane within 12 hours after giving the assurance that there was no risk of her escaping from Perth. In an apparent breach of the conditions of her bail undertaking, the appellant went to Perth Airport in the early hours of the morning of 5 June 2024 and departed Australia on a flight to Singapore at 3.35 am on 5 June 2024. The appellant did not appear at the hearing before the District Court on 5 June 2024. The trial judge issued a warrant for her arrest.

Institution of appeal against conviction

On 11 June 2024, a firm of solicitors sought to file a notice of acting for the appellant in the primary proceedings to 'request access to ecourts and proceedings of the matter, for the purpose of filing an appeal/leave to appeal application'. The trial judge held that the attempted filing and proposal to access documents while the appellant remained a fugitive from justice was an abuse of the process of the court. His Honour therefore directed the District Court registry not to accept any documents from or on behalf of the appellant for filing in the primary proceedings or to permit the appellant to have access to the court file. The trial judge published written reasons for giving those directions.[4]
[4] The State of Western Australia v Frigger [No 2] [2024] WADC 50.
On 25 June 2024, a firm of solicitors sent an email to the Court of Appeal office attaching a form of appeal notice signed by the firm on behalf of the appellant, seeking to appeal against her conviction of the offence against s 169(1) of the Code.
Also on 25 June 2024, the Court of Appeal office received a letter from the Office of the Director of Public Prosecutions objecting to the filing of the appeal notice on the basis that the notice was an abuse of process.
Having received this objection, the acting Court of Appeal registrar referred the following question to the court:
Should the appeal notice lodged by [the firm of solicitors] on behalf of [the appellant] dated 25 June 2024 be accepted for filing in light of the objection by the Director of Public Prosecutions (WA) that the attempt to file the appeal notice while [the appellant] is a fugitive constitutes an abuse of the process of the court?
The registrar's referred question was listed for hearing before this court on 23 July 2024. On the morning of the hearing, the court was advised that the appellant had returned to Australia and had been apprehended at Perth Airport by the Australian Federal Police. This court made an order that:
The appeal notice should be accepted for filing on 23 July 2024 on the basis that the filing of an appeal notice after [the appellant] has been apprehended pursuant to the bench warrant issued by the trial judge on 5 June 2024 is not an abuse of process of this court.

Appearance before trial judge on 23 July 2024

Also on 23 July 2024, the appellant was brought before the trial judge pursuant to the bench warrant. The appellant was represented by counsel at that hearing. The trial judge indicated that he could sentence the appellant in the following week. The appellant's counsel sought orders for the provision of psychiatric and psychological reports on the appellant. The appellant and her counsel were advised that this would delay sentencing until November 2024. After being given an opportunity to take instructions, the appellant's counsel indicated that the appellant wished to pursue obtaining the reports. The trial judge ordered the reports and remanded the appellant in custody until 29 November 2024 for sentencing.
The appellant applied to the District Court for bail pending sentence. The bail application dated 23 July 2024, and oral submissions advanced by counsel at the hearing that day, identified the following matters as relevant to the exercise of the bail discretion:
1.The appellant's deteriorating mental health since the initiation of legal proceedings and her physical health conditions. For that purpose, the appellant relied on a letter from Dr Robert Marano dated 7 October 2021.
2.The distress which the appellant suffered when she spent 14 days in Melaleuca prison between her first conviction of the offence and her release on bail pending the determination of her first appeal against conviction.
3.The appellant was not at high risk of reoffending and any form of immediate imprisonment would be disproportionate to the seriousness of the offending.
4.The appellant intended to appeal against her conviction and contended that, based on the previous 16-month sentence, she should not be kept in custody pending the determination of the appeal.
5.The appellant's decision to leave Australia was heavily influenced by her mental state and breakdown. The appellant was not brought back by authorities but returned of her own free will.
6.Home detention conditions with provision for electronic monitoring and a requirement to surrender her passport would adequately address any perceived flight risk.
The trial judge refused the appellant's application for bail pending sentence, giving the following short oral reasons for doing so:[5]
I'm going to refuse bail for this reason. Even if I accept that everything in Mr Marano's letter of 7 October is correct, it still doesn't justify in these particular situations, the grant of bail. The grant of bail following the conviction of someone for a serious offence is something that is granted very exceptionally. It was granted once. The bail condition was treated with contempt. [The appellant] fled the jurisdiction.
On that basis, I'm just simply not satisfied that it's an appropriate case to grant bail pending sentence.

Proceedings on 20 August 2024

[5] Trial ts 2434.

On 20 August 2024, the appellant appeared before the trial judge and was served with a prosecution notice and statement of material facts in relation to her alleged breach of bail on 5 June 2024. While the trial judge did not require the appellant to enter a plea at that time, the appellant indicated that she would not be pleading guilty to the breach of bail offence.[6] The prosecution of the breach of bail offence was adjourned to 4 September 2024 for mention.
[6] Trial ts 2447.
The appellant then made an oral application for bail in the breach of bail prosecution. She referred to the application for bail pending determination of the conviction appeal, which was listed for hearing in this court the following day, 21 August 2024. The appellant indicated that she was expecting to be granted bail at that hearing.[7] The application was dealt with in the following manner:[8]
[7] Trial ts 2448 - 2449.
[8] Trial ts 2449.
GETHING DCJ: Yes. So I think in - yes. No, so I think in terms of simplicity, I won't remand you in custody in relation this order.
ACCUSED: Okay.
GETHING DCJ: I will - thoughts, Ms [prosecutor]?
[PROSECUTOR]: I'm unsure, your Honour. Bail will be considered tomorrow by the Supreme Court. I can't assist, sorry.
GETHING DCJ: Okay. This is what I'm going to do. I'm - I'm going to do two things. I'm going to grant you bail in relation to this offence, … $50,000 personal bail, $50,000 surety.
ACCUSED: Mm hmm.
GETHING DCJ: And the surety is subject to approval by the court.

Bail application in this court on 21 August 2024

On 21 August 2024, this court heard and dismissed the appellant's application for bail pending determination of her conviction appeal. In the previous bail reasons, the court indicated that it was not satisfied that the matters raised by the appellant constituted exceptional reasons for the grant of bail pending determination of the appeal. The court also noted that, even if it had been satisfied that exceptional reasons existed, the risk that the appellant would fail to appear in court in accordance with her bail undertaking was sufficient in the circumstances of this case to justify the refusal of bail.

Proceedings for breach of bail from September to November 2024

At the directions hearing on 4 September 2024 before the trial judge, the appellant remained in custody. The prosecution for breach of bail was adjourned to 23 October 2024 to enable the prosecution brief to be served on the appellant, and to hear an anticipated application by the appellant for the trial judge to recuse himself on grounds of apprehended bias.
The Chief Judge presided over the hearing on 23 October 2024. At the commencement of the hearing, the Chief Judge explained that the trial judge would not be presiding over the matter. Her Honour explained that this would not be because of the recusal application, but because of the potential for members of the trial judge's personal staff to be witnesses in the breach of bail prosecution.[9]
[9] Trial ts 2466.
At a hearing before the Chief Judge on 23 October 2024, the appellant advised that the trial judge had granted bail on the breach of bail charge. Her Honour confirmed this to be the case on checking the transcript.[10] A surety was not approved by the court until 4 November 2024, when the surety (the appellant's daughter, Jessica Frigger) gave evidence in relation to her financial position. The Chief Judge granted bail on the following terms:[11]
So first of all, for the breach of bail matter that we're presently dealing with, you will have bail set, being a $50,000 personal undertaking and a $50,000 surety. And so that means that your daughter, [Jessica] Frigger, has been approved as surety. But in order to qualify, [Jessica] Frigger is required to place $50,000 in a long-term deposit of not less than three months and to provide confirmation that that has occurred to the Registry of the District Court. And that's to happen within seven days; Okay. The next conditions are that you are not to be released until your passport has been surrendered. And so that is the process of your husband providing the confirmation - an original confirmation to Melaleuca that your passport has been surrendered to the Registry of the District Court. You are not to apply for any further passport or travel documents; You're not to approach within one kilometre of any point of departure from Western Australia; And you're not to leave Western Australia; And you're not to change address without prior permission of the court.
[10] Trial ts 2471.
[11] Trial ts 2499 - 2500.

Subsequently, after various procedural issues were resolved, the trial of the breach of bail prosecution was listed for four days commencing 7 October 2025.[12]

Sentencing hearing on 29 November 2024

[12] Trial ts 2530.

At the sentencing hearing on 29 November 2024, the trial judge noted the appellant's application that he recuse himself for bias and invited the appellant to make submissions on that question.[13] The appellant's first response was:
I don't agree with what you have outlined, your Honour. I first want to explore with you the possibility of you making an order that I can be released today.
[13] Trial ts 2533.
There followed a lengthy exchange between the trial judge and the appellant to the following general effect. The trial judge indicated that the only way he could arrive at a situation where the appellant was released that day was if he decided to impose a sentence of suspended imprisonment. His Honour accepted the appellant's submission that another way in which the appellant might effectively be released that day was if she was sentenced to a term of immediate imprisonment which was less than the time she had already served in custody on remand.[14] The trial judge indicated that these options were 'part and parcel of the sentencing process' and 'to get to them, I need to consider them in the context of the entirety of the sentencing process'. The trial judge declined an invitation by the appellant to 'give me an indication of how you're feeling at the moment'.[15]
[14] Trial ts 2534 - 2536.
[15] Trial ts 2536.
Before making submissions on the recusal application, the appellant indicated that the psychiatrist cancelled her appointment on 22 November 2024. The appellant said that she wanted to rely on the report to respond to the State's submissions that her failure to appear on 5 June 2024 was an aggravating factor. The trial judge indicated that he did not propose to take into account the appellant's failure to appear for the purposes of sentencing for the current offence in circumstances where she had pleaded not guilty to the breach of bail charge. The appellant then said that she wanted to rely on the report for the purposes of a plea in mitigation.[16] There followed a lengthy exchange between the appellant and the trial judge as to whether a psychiatric report was necessary in light of the psychologist's report which had been obtained and the absence of anything to indicate that the appellant was suffering from a psychiatric issue at the time of committing the charged offence.[17]
[16] Trial ts 2537 - 2538.
[17] Trial ts 2538 - 2541.
The appellant then asked the trial judge, 'Are you going to make an order that I be released today?'. The trial judge indicated that he was not going to foreshadow the sentence, which could only be reached at the end of the sentencing process after hearing from the parties.[18]
[18] Trial ts 2541 - 2542.
The appellant then made oral submissions in support of her application that the trial judge recuse himself from her sentencing. In broad terms, the appellant alleged that the trial judge had conspired with the State to ensure that the appellant was imprisoned to prevent her from prosecuting her claim for malicious prosecution against the State. She alleged that the trial judge took on the prosecutor's role in the trial by suggesting to the State what its case as to falsity in a 'material particular' should be. She alleged that the trial judge prejudged that she needed to be in prison and prejudged the no-case submission, which should not have been dismissed. The appellant submitted that, when she voluntarily returned to Perth, the trial judge put her into custody to prevent her from running her appeal. The appellant asserted that the trial judge decided that the appellant's case was so strong with the evidence she led that he needed to do something more to ensure a guilty verdict was given. She said that the trial judge then decided to undermine the evidence of her witnesses by constantly interrupting her examination and dismissing her closing address to the jury. The appellant said that the trial judge prejudged the sentence when he remanded her in custody and was so angry when the appellant did not appear on 5 June 2024 that he took it as a personal affront. The fact that the trial judge sought submissions from the State as to whether the court was constrained by the sentence imposed after the first trial was also an indication that the trial judge had decided that her sentence should be increased.[19]
[19] Trial ts 2542 - 2549.
The trial judge then dismissed the appellant's recusal application. After stating the relevant general principles in orthodox terms, his Honour placed the concerns expressed by the appellant into four categories:[20]
1.The trial judge's conduct of the trial: His Honour found that none of the appellant's complaints came close to establishing reasonable apprehension of bias, even if it were ultimately determined by this court that the trial judge made some legal error. The trial judge also held that there was no basis to contend that, by reason of having presided over the trial, he had an actual bias against the appellant which would prevent him from bringing an impartial mind to her sentencing.
2.The allegation that the breach of bail had been prejudged and was a factor in the sentencing process: The trial judge said that he would treat the issue of breach of bail as entirely irrelevant to the sentencing process, so there could be no bias in relation to that issue.
3.The ruling as to why the appellant's lawyer would not be allowed to file a notice of acting and access the court file while she was a fugitive from justice: The trial judge noted that he had published written reasons for making that decision and nothing in his approach to that question gave rise to a reasonable apprehension of bias.
4.The trial judge had prejudged the sentencing process: In effect, the trial judge said that his invitation to the State to make submissions about the application of the principle of restraint, which was a relevant sentencing principle he was required to apply, did not give rise to a reasonable apprehension of bias. As to the timing of the sentencing process, his Honour allowed the request for an adjournment to obtain a psychological and psychiatric report and was satisfied that, subject to hearing from the appellant in relation to the psychiatrist's report, procedural fairness had been afforded. His Honour was not satisfied that the matters raised by the appellant in relation to the sentencing process came close to establishing any reasonable apprehension of bias.
[20] Trial ts 2552 - 2556.
After the trial judge made his ruling in relation to the recusal application, the following exchange occurred:[21]
Now, that leaves us essentially … with two options today, and let me sketch out those. Option number 1 is that I can proceed with the sentencing this morning on the basis of the material that I've got, including the psychologist's report. Option number 2 is that I can grant a further adjournment to get a psychiatric report.
I'm not sure how long that will take, but it may well take - it's not a matter of weeks in terms of the availability of psychiatrists, so I can adjourn the matter. And that I think is the open question. If I adjourn the matter, I'll continue to have you remanded in custody. The ---
ACCUSED: So you're not - you're not going to hear an application for bail today from me?
GETHING DCJ: No.
ACCUSED: So I want the second option. I want a further adjournment until the psychiatric report is available and provided to me.
[21] Trial ts 2556.
The trial judge explained that he was getting inconsistent information in relation to the psychiatrist's report, and the psychiatrist's office had advised that the appellant failed to attend the appointment. The appellant indicated that she had been 'double-booked' with an appointment with a Justice of the Peace to swear an affidavit, and also referred to the psychiatrist having 'tried to force me to sign a disclaimer where he was going to interview the entire world in respect of me'.[22] The appellant said:[23]
So I do want the psychiatrist's report, whether it's from that psychiatrist or another psychiatrist, and - and I request a further adjournment. And if you're refusing - you have officially said you are refusing my application for bail.
GETHING DCJ: Yes.
ACCUSED: So that I - I'm able to appeal that - that - that refusal as well. I intend to appeal your decision to refuse my bail application.
[22] Trial ts 2556 - 2557.
[23] Trial ts 2557.
After further exchanges and hearing from the prosecutor, the trial judge came to the view that it was appropriate to give the appellant a further opportunity to have a psychiatric assessment.[24] After the trial judge indicated that he was going to adjourn sentencing to 31 January 2025, the following exchange occurred:[25]
ACCUSED: So, your Honour ---
GETHING DCJ: Yes.
ACCUSED: --- in order for me to be able to appeal your refusal for bail today ---
GETHING DCJ: Yes.
ACCUSED: --- I need an - an order. Can you send me an order so that I can - I - I have an actual order, or you just - is it just the transcript?
GETHING DCJ: Well, it's the transcript. I'm happy to make it very plain that you've applied for bail. There's nothing that's changed in relation to the circumstances when I originally denied you bail. You're in the middle of the sentencing process, and in terms of the District Court's perspective, there's nothing in any of the submissions that you've made that comes close to justifying bail on these circumstances.
[24] Trial ts 2561.
[25] Trial ts 2562 - 2563.
The sentencing hearing was ultimately adjourned to 31 January 2025 and the appellant was remanded in custody until that time.

Statutory context

Under s 5(2) of the Bail Act, subject to presently immaterial exceptions:
An accused who is in custody awaiting any appearance in court for an offence, other than an initial appearance, is entitled … to have his case for bail for that appearance considered under and in accordance with this Act.
Subject to presently immaterial exceptions, s 7(1) of the Bail Act relevantly provides:
Upon and following an accused's initial appearance in court for an offence every judicial officer who may thereafter order his detention or continued detention in custody before conviction for the offence is under a duty … to consider the accused's case for bail, whether or not an application for bail is made by the accused or on his behalf. (emphasis added)
Section 7D of the Bail Act relevantly provides:
(1)Notwithstanding section 7(1), after -
(a)the duty described in that subsection has been discharged once in relation to an accused's case for bail; …
it is sufficient on any subsequent consideration of bail in the same case for a judicial officer… to make inquiry of the accused in terms of subsection (2).
(2)The inquiry to be so made is -
(a)whether any new fact has been discovered or new circumstance has arisen, or whether the circumstances have changed, since bail was previously granted or refused; and
(b)whether the accused considers that the accused failed to adequately present the accused's case for bail on a previous occasion.
(3)Unless the judicial officer is satisfied that there is any reason of the kind mentioned in subsection (2) for not doing so, the judicial officer may adopt the decision previously made in the case, but with power to make such variations of the terms and conditions of bail as the judicial officer thinks fit.
Under s 13(1) of the Bail Act:
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.
Schedule 1 pt A cl 2 of the Bail Act empowers a judicial officer who in court orders an adjournment of proceedings for an offence to grant bail for the adjournment.
Section 14(1) of the Bail Act deals with the power of a judge (relevantly here a District Court judge) to exercise powers in relation to bail that are conferred on another judicial officer (a term defined to include a District Court judge). Under s 14(2a):
After the jurisdiction under subsection (1) has been invoked once by an accused in relation to an offence or group of offences for which he is required to appear, it may not be further invoked by that accused in relation to that offence or group of offences unless the accused satisfies a judge that -
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or
(b)he failed to adequately present his case for bail on that occasion.
Under sch 1 pt B cl 2 of the Bail Act:
Except where clause 4 applies, the power to grant, refuse or dispense with bail for an appearance by an accused ceases to be vested in any judicial officer (including a judge of the Supreme Court) after he, or another judicial officer whose jurisdiction is co-extensive with his, has granted, refused or dispensed with bail for that appearance.
Schedule 1 pt B cl 4 of the Bail Act relevantly provides:
Notwithstanding clause 2, where an accused has been refused bail for an appearance or has been granted bail therefor on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is co-extensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefor if the accused makes application and satisfies him that -
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance; or
(b)he failed to adequately present his case for bail on the previous occasion when it was considered[.]
Schedule 1 pt C cl 1 of the Bail Act relevantly provides that, subject to presently immaterial exceptions:
[T]he grant or refusal of bail to an accused … who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial 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;
…
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
…
(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) …; or
…
(iii)remove the grounds for opposition referred to in paragraph (c)[.]
The nature of the evaluative exercise required by sch 1 pt C cl 1 of the Bail Act was described by this court in YSN v The State of Western Australia,[26] in the following terms:
It is clear that a judicial officer or authorised officer hearing a bail application is not required to be satisfied that no relevant risk would exist if bail was to be granted. Rather, the judicial officer or authorised officer must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period.
In this context, reference to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced. The 'sufficiency' referred to must relate to the grant or refusal of bail with which the judicial officer or authorised officer assessing sufficiency is concerned. In that context, the possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer or authorised officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
Answering the questions posed by cl 1 and exercising the discretion to grant or refuse bail are obviously inter-related, particularly in relation to the assessment of whether conditions will 'sufficiently remove the possibility of' the accused engaging in relevant conduct. However, the two stages of the process remain, and answers to the relevant questions against the interests of an accused person will not justify the refusal of bail in all cases. For example, refusal of bail will not be justified by every possibility, which cannot be significantly reduced by conditions, that an offender may commit an offence if not kept in custody. The apprehended offence may be trivial or the accused may not constitute a risk to community safety of a nature or to an extent which justifies the refusal of bail.
[26] YSN v The State of Western Australia [2017] WASCA 155 [19] - [21].
Under sch 1 pt C cl 4(1) of the Bail Act, subject to presently immaterial exceptions:
[T]he grant or refusal of bail to an accused … who is in custody waiting to be sentenced or otherwise dealt with for an offence of which the accused has been convicted shall be at the discretion of the judicial officer in whom jurisdiction is vested, and that discretion must be exercised having regard to all of the following -
(a)the fact that the accused has been convicted of the offence;
(b)the probable method of dealing with the accused for that offence and for any pending offence;
(c)the questions set out in clause 1;
(d)any other considerations that the judicial officer considers relevant.
Under s 15A(2)(b) of the Bail Act, an accused may appeal to this court against a bail decision of a judge of the District Court. Section 15A(1) defines a bail decision to include a decision to grant or refuse bail. Leave to appeal is required under s 15A(3) of the Bail Act and s 27(2), s 27(3) and s 27(4) of the Criminal Appeals Act 2004 (WA) are applied with necessary modifications by s 15A(4) of the Bail Act.
Section 15B(1) of the Bail Act gives this court jurisdiction to hear and determine an appeal under s 15A of that Act. Section 15B also relevantly provides:
(2)The Court of Appeal shall determine an appeal on the material and evidence that was before the judge whose decision is the subject of the appeal.
(3)Any decision of the Court of Appeal in relation to bail shall be made in accordance with the relevant provisions of sections 13A and 17 and Schedule 1.
It is established that any appeal under s 15A and s 15B of the Bail Act is an appeal against a discretionary decision, to which the well‑known principles in House v The King[27] apply.[28]
[27] House v The King (1936) 55 CLR 499, 504 - 505.
[28] See Smart v The State of Western Australia [2019] WASCA 220 [28] and cases there cited.

The appeal to this court

The appellant now appeals to this court against the trial judge's refusal to grant her bail for the adjourned sentencing hearing on 31 January 2025, on the following two grounds:
1. The learned judge erred in law by failing to recuse himself from hearing the application for bail:
(a) The Appellant's submissions unequivocally established that the learned judge prejudged the sentence which he intended to impose, without hearing the party's submissions on sentence;
(b) The learned judge dismissed the Appellant's application for bail without hearing the application.
2. The learned judge erred in law by failing to hear the Appellant's submissions for bail before he refused bail.
In support of ground 1, the appellant relevantly says:
2. The refusal to grant bail without hearing submissions established beyond reasonable doubt that the learned judge had prejudged and decided the application before the hearing, and in those circumstances, a fair-minded [lay] observer would reasonably apprehend that the learned judge was incapable of bringing an impartial mind to the bail application.
3. The refusal to grant bail, after 5 months in custody, and before sentencing, established that a fair-minded law [sic] observer would reasonably apprehend that the learned judge had prejudged the sentence he would impose would be greater than time already served notwithstanding the learned [judge] conceded:
(a) A possible sentence could be time served
(b) A possible prison sentence could be fully suspended
4. The refusal to grant bail prior to sentencing established conclusively the learned judge erroneously and unfairly prejudged both the sentence he would impose without hearing and that the Appellant was not eligible for bail prior to sentencing.
In support of ground 2, the appellant says that the trial judge assumed, without hearing, that the appellant's bail application did not rely on s 14(2a)(b) of the Bail Act, that the appellant failed to adequately present her case for bail on the first application on 23 July 2024. The appellant says that the grant of bail in the breach of bail prosecution by the Chief Judge shows that the appellant 'is no longer considered a flight risk' and constitutes a change in circumstances. The appellant also says that sentencing has not occurred and the trial judge conceded that the appellant may not have to be kept in custody if the sentence is time served or fully suspended.
The appellant's submissions in support of ground 2 conclude:
14. In circumstances where the learned judge conceded it is possible the Appellant has already fully served her sentence or any such sentence may be fully suspended it is highly probable the Appellant's continued incarceration constitutes false imprisonment.
15. In further demonstration the learned judge refusing to give the Appellant a fair trial the learned judge attempted to complete sentencing without the court ordered psychiatric assessment and report, telling the Appellant there no was evidence the Appellant suffered from mental issues when the alleged offending occurred, and demanded the Appellant explain to the judge how the psychiatric assessment would be relevant to sentencing.
16. Further, the learned judge refused to request correction services to assess the circumstances for bail with home detention in further proof of pre-judgment. In further breach of statutory duty, the learned judge failed to provide the Appellant with bail record forms on 21 July 2024 and 29 November 2024.
In her orders wanted, the appellant seeks orders from this court granting leave to appeal, allowing the appeal and granting the appellant bail to appear at the adjourned sentencing hearing. It is implicit in these orders wanted that the appellant asks this court, if it finds either or both grounds to be established, to re-exercise the discretion to grant or refuse bail for itself. While this could only be done on the factual material before the trial judge, it does not appear that the appellant seeks to adduce any additional evidence in the appeal which is relevant to the exercise of the bail discretion.

Ground 1: apprehended bias

We will deal firstly with ground 1, which asserts reasonable apprehension of bias. It is generally appropriate for an appellate court to deal with allegations of bias by a primary judge before dealing with other substantive issues in the appeal. This is because actual or apprehended bias strikes at the validity of the hearing and its outcome.[29] For the following reasons, there is no merit in ground 1 and leave to appeal should be refused on that ground.
[29] See Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [2] - [3] (Gummow ACJ), [117] (Kirby & Crennan JJ); Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10].
While ground 1 is cast in terms of an error by the trial judge, we have addressed the question of apprehended bias by reference to our own assessment of the circumstances. The question for this court, applying the correctness standard, is whether, in this court's view, those circumstances give rise to a reasonable apprehension of bias.
Particular (a) of ground 1 refers to prejudgment of the sentence to be imposed rather than prejudgment of the question of whether bail ought to have been granted or refused. However, the State's written submissions accept that, if the trial judge had upheld the appellant's recusal application, then it would have been inappropriate for his Honour to have dealt with the bail application.
We will therefore treat particular (a) of ground 1 as alleging that the order refusing bail was affected by a reasonable apprehension of bias due to the trial judge's alleged prejudgment of the sentence which his Honour intended to impose.

General principles

Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what it is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.[30] The test is objective and the fair‑minded lay observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[31] However, the observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.[32]
[30] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]; QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419 [37] - [38], [67], [162], [194], [225].
[31] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].
[32] Ebner [8]; CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].
One circumstance in which a reasonable apprehension of bias may arise concerns prejudgment: that a fair-minded lay observer might reasonably apprehend that the judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. However, reasonable apprehension of bias does not arise merely because the judge may express, or be inferred to hold, a provisional or tentative view. As the plurality said in Johnson:[33]
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
[33] Johnson [13].
In Minister for Immigration v Jia Legeng (Jia HC), Hayne J (Gleeson CJ and Gummow J agreeing) observed:[34]
Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[34] Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [185] (Gleeson CJ & Gummow J agreeing at [100]).
An inquiry about actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done.[35] As French J noted in Jia v Minister for Immigration and Multicultural Affairs:[36]
The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. The fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias.
[35] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427[33].
[36] Jia v Minister for Immigration (1998) 84 FCR 87, 106, a judgment approved by members of the High Court in Jia HC [72], [82].
That is, as Kirby J noted in Jia HC,[37] an allegation of actual bias is subject to a 'stringent standard of proof' and will only be upheld 'where the accusations are distinctly made and clearly proved' and, as in the case of allegations of reasonable apprehension of bias,[38] where it is 'firmly established'.
[37] Jia HC [127].
[38] See R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 553 - 554.
As this court noted in KWLD v The State of Western Australia,[39] and in Ogbonna v CTI Logistics Ltd,[40] the question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision was made. Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.[41]
[39] KWLD v The State of Western Australia [2020] WASCA 94 [104].
[40] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [26] - [27].
[41] Nicholls [33], [67] - [68].
There will be cases where comments made by a judge in the course of his or her reasons for decision give rise to a reasonable apprehension of partiality in the process which led to the decision. The decision of the Queensland Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd provides an example of such a case.[42] However, there is a difference between apprehending bias in the decision-making process from statements in a court's reasons which might suggest partiality, on the one hand, and apprehending bias merely from the outcome of the decision-making process. The mere fact that a reviewing court does not agree with the reasoning of the decision‑maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual or apprehended bias.[43]

Disposition

[42] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2019] QCA 184; [2019] 2 QR 271 [77] ‑ [102]. While this decision was overturned on appeal, the High Court did not doubt the Queensland Court of Appeal's reasoning as to apprehended bias: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33. It is unnecessary to address the question of whether Sofronoff P was correct, at [103], to regard the fact that the member determined some issues in favour of a party as relevant in that case.

[43] Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [99] (Kirby J). While Kirby J's observations were made in relation to the review of administrative decisions, they apply equally to allegations of actual bias by a judge.

There is a considerable irony in the first particular advanced by the appellant under ground 1. At the hearing on 29 November 2024, the appellant exhorted the trial judge to indicate the sentence which he intended to impose on her prior to hearing submissions from the parties. The trial judge appropriately indicated, in effect, that he could not reach a final view as to the appropriate sentencing disposition until the court had heard submissions from the prosecution and the appellant's plea in mitigation. The trial judge properly declined the appellant's invitation to express any provisional or preliminary view which his Honour might have held before hearing from the parties. Now, the appellant complains that the trial judge prejudged the sentence which he intended to impose, without hearing the parties' submissions on sentence.
Particular (a) to ground 1 is without merit. Nothing which the trial judge did or said at the hearing on 29 November 2024 or in the preceding hearings referred to above could possibly lead a fair-minded lay observer to apprehend that the trial judge might have formed any concluded view as to the appropriate sentencing disposition in this case. To the contrary, the terms in which the trial judge declined the appellant's invitation to state a provisional view as to the appropriate sentence before hearing from the parties was an indication that his Honour maintained an open mind as to the appropriate sentence.
Nor does the refusal of bail pending sentence indicate any concluded view as to the appropriate sentence. As noted above, one of the matters a judge is required to have regard to in deciding whether to grant bail after conviction and prior to sentence is the probable method of dealing with the accused for that offence. The trial judge did not, either on 23 July 2024 or 29 November 2024, expressly state a conclusion as to the probable method of dealing with the appellant for the offence. It may be implicit in the exchange referred to at [31] above that the trial judge had reached at least a tentative view that a sentence of imprisonment was the only appropriate sentence for the offence. However, that exchange also indicated that the question of the length of that sentence, and whether the sentence should be suspended, conditionally suspended or immediately served, were open questions which could only be answered in the context of the entirety of the sentencing process.
The appellant's submissions in effect invite this court to infer, from the fact of the refusal of bail pending sentence on 31 January 2025, having regard to the terms of sch 1 pt C cl 4(1) of the Bail Act, that the trial judge thought that the probable method of dealing with the offence was a sentence of immediate imprisonment which would not, having been backdated to take account of time spent in custody, have expired by that time. However, even if that conclusion were to be reached it would not establish any reasonable apprehension of bias. The statutory provisions would be self-defeating if they required a judge adjourning a matter for sentencing to form a view as to the probable method of dealing with the offence when considering bail but precluded the judge from sentencing the offender because he or she had formed a view of the probable outcome.
The provisions of the Bail Act do not have that effect because there is a significant difference between forming a provisional view at the bail stage as to the probable method of dealing with the offence and reaching a concluded view at the sentencing hearing as to the sentence which is actually commensurate with the seriousness of the offence. In some cases, such as where an offender is convicted of murder or a very serious drug trafficking offence, the nature of the offence may make it obvious that a significant sentence of immediate imprisonment is the only appropriate type of sentence. No reasonable apprehension of bias could arise from a judge's recognition of the inevitable outcome. Even where there may be a question as to whether a sentence of immediate imprisonment is the only appropriate type of sentence, a judge's recognition at the bail stage that a sentence of immediate imprisonment is a probable method of dealing with the offence will not ordinarily give rise to a reasonable apprehension of bias. That is because a fair‑minded lay observer could not reasonably apprehend that the expression of a provisional view as to the probable sentencing outcome, which the statute requires the judge to form, means that the judge might not approach the determination of the actual sentence to be imposed with a mind open to persuasion.
The appellant's submission about the exchanges in relation to an adjournment to provide a further opportunity to obtain a psychiatric report are without merit. The trial judge was simply exploring with the appellant why his Honour should exercise his discretion to further adjourn the appellant's sentencing. For reasons explained below, that adjournment should not have been granted. But the fact the adjournment was granted by the trial judge is inconsistent with the appellant's submission that a reasonable apprehension of bias arose because the trial judge 'attempted to complete sentencing without the court ordered psychiatric assessment and report'. Rather, it tends to demonstrate that the trial judge had a mind open to persuasion and was prepared to depart from a provisional view which his Honour had previously expressed.
We note that, in her oral submissions in reply, the appellant appeared to retreat from the position advanced in ground 1 that the trial judge had prejudged the sentence which he intended to impose. The appellant said that the trial judge rather prejudged the outcome of the bail application. However, that was not the contention made by ground 1(a) or the submissions advanced in support of that ground.
For these reasons, there is no proper basis for the appellant's contention that there was a reasonable apprehension that the trial judge may have prejudged the sentence which he intended to impose without hearing from the parties. Nor is there any proper evidentiary foundation for the appellant's contention that his Honour held an actual bias against her.
The second particular to ground 1 is fundamentally concerned with the outcome of the bail application and the method by which that outcome was reached. For the reasons explained above, reasonable apprehension of bias is not assessed from the perspective of the outcome of the exercise of the judicial discretion. Further, even if the trial judge erred in not hearing from the appellant on the question of bail, that legal error would not give rise to a reasonable apprehension of bias. If any such legal error arose in the present case, it could be corrected under the auspices of ground 2. If, on the other hand, the Bail Act authorised the trial judge to determine the question of bail in the manner which his Honour adopted, then no reasonable apprehension of bias could arise from the trial judge adopting that authorised approach. The question of the adequacy of the hearing of the bail application is therefore appropriately dealt with in considering ground 2, to which we will shortly turn.

Before doing so, we note that the grounds of apprehended bias advanced in this court are considerably narrower than those advanced before the trial judge. To some extent, the appellant appeared to adopt the submissions she advanced to the trial judge in her oral submissions before this court. We have considered the appellant's submissions made before the trial judge and are satisfied that they are without merit. To the extent that the submissions summarised at [34] above make serious allegations of personal impropriety against the trial judge they are without any evidential foundation. To the extent that the submissions seek to establish an apprehension of bias from the outcome of the exercise of judicial discretion, they are contrary to the principles referred to at [66] - [69] above. The matters otherwise raised by the appellant before the trial judge were not capable of giving rise to a reasonable apprehension of bias or establishing actual bias.

Ground 2: failure to hear bail application

It is convenient to begin consideration of ground 2 by addressing the duty of a judge adjourning a matter for sentence to consider the question of bail.

Statutory power and duty to consider bail

The appellant's reference to s 14 of the Bail Act is inapposite in the present case. Section 14(1) relevantly empowers a judge to exercise a power to grant bail (which under s 3(2)(a) includes a power to refuse bail) which is conferred on another judicial officer. As illustrated by Debono v The State of Western Australia,[44] this jurisdiction may be exercised where a District Court judge considers whether to grant bail for an appearance where another judge had previously refused bail for the appearance. However, in the present case the power to grant bail was vested in the trial judge as the judge who was ordering an adjournment of the proceedings. The jurisdiction conferred by s 14(1) of the Bail Act, and the limits in s 14(2a) on invoking that jurisdiction after it has been exercised once, at least arguably did not apply.
[44] Debono v The State of Western Australia [2018] WASCA 208 [5].
Section 7(1) of the Bail Act imposes a duty of a judge to consider bail before ordering detention in custody. Section 7D provides for the manner in which that duty may be performed in a case where the duty imposed by s 7(1) has been 'discharged once in relation to an accused's case for bail'. However, the duty in s 7 only applies where a court is considering ordering the detention of an accused in custody before conviction of an offence. Section 7(1) does not impose a duty to consider bail where an accused who has been convicted of an offence is to be remanded in custody. The duty in s 7(1), and the provision in s 7D as to how that duty might be performed, did not apply when the trial judge adjourned the appellant's sentencing hearing to 31 January 2025.
Under sch 1 pt B cl 2 of the Bail Act, except where cl 4 applies, a judge's power to grant bail 'for an appearance' ceases after he or she has granted or refused bail for that appearance. However, it is arguable that the reference to 'an appearance' is to a particular date and time at which the person is required to attend court, rather than a hearing or series of hearings conducted at different dates for a single purpose (such as sentencing). If that is a correct construction of the provision, in the present case a judge had not, prior to 29 November 2024, considered whether to grant or refuse bail for the appellant's appearance on 31 January 2025. Therefore, if that construction of the provision is accepted, the restriction in granting bail imposed by sch 1 pt B cl 2 of the Bail Act, and the relaxation of that restriction in cl 4, did not apply in the present case.
It appears from the above discussion that it is at least arguable that:
1.The trial judge had power to grant bail to the appellant for the appearance on 31 January 2025 under sch 1 pt A cl 2 of the Bail Act.
2.The Bail Act did not impose an express statutory duty on the trial judge to consider bail before remanding the appellant in custody to 31 January 2025.
3.The Bail Act did not expressly constrain the power to grant bail for the appearance on 31 January 2025 by reference to the existence of the discovery of new facts, a material change in circumstances or inadequate presentation of the appellant's case at an earlier hearing.
It is at least arguable that the exercise of the power to grant or refuse bail to the appellant for the hearing on 31 January 2025 was rather regulated by sch 1 pt C cl 4(1) of the Bail Act. Under that provision, the grant or refusal of bail was in the discretion of the trial judge and had to be exercised having regard to all of the matters referred to in cl 4(a) - (d).
However, if the above construction were accepted as correct, it would be implicit in the terms in which the discretion in cl 4(1) is conferred - including the requirement to have regard to a list of matters in considering how the discretion should be exercised - and the context of s 5(2) of the Bail Act, that the discretion is not at large. Rather, it is implicit that conferral of the statutory discretion implies a duty to consider an application for the exercise of that discretion after a person is convicted. Ordinarily, the existence of the discretion implies the existence of a duty to determine any application that is made for the exercise of the discretion.[45] The provisions and structure of the Bail Act tend to confirm the application of that ordinary approach to statutory construction to the present case.
[45] Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1, 18; Davis v Minister for Immigration [2023] HCA 10; (2023) 97 ALJR 214 [92], [199].
However, even in the absence of specific provision such as s 14(2a) or sch 1 pt B cl 4 of the Bail Act, provisions for the grant of bail should not be construed as entitling an offender to pepper a court with repeated bail applications in the absence of any material change in circumstances.[46] Once the discretion under sch 1 pt C cl 4(1) of the Bail Act has been exercised, the court is not required to hear and consider further bail applications by an offender who has not demonstrated any material change in circumstances.
[46] See the approach taken in SCT v Director of Public Prosecutions (Qld) [2017] QCA 131 [3] and cases there cited.
Therefore, even if there was no express statutory requirement for the appellant to demonstrate a material change in circumstances before the trial judge is required to consider a second application for bail under sch 1 pt C cl 4(1), such a requirement would be implicit in the terms of that provision.
It is unnecessary in this case for the court to make any final determination of the source of the requirement to demonstrate a material change in circumstances before a court is required to consider a second or subsequent bail application. Both parties accepted that the requirement existed in this case, and neither party was in a position at the hearing to address detailed submissions on the issues of statutory construction noted above. We considered it to be in the interests of justice to determine the appeal promptly, rather than delay the matter to receive further written submissions on a question that would not affect the outcome of the appeal.
In the above discussion we should not be taken to have overlooked the appellant's submission that another circumstance in which the trial judge might have been required to consider the bail application made on 29 November 2024 was that she failed to adequately present her case for bail on 23 July 2024. While the appellant contended that this was a basis on which she could make a further bail application, she did not identify any respect in which her case for bail was not adequately presented by counsel appearing for her on 23 July 2024. Nor is there any proper basis in the materials for finding that the appellant's case for bail was not adequately presented on 23 July 2024.

Exercise of the power in this case

In the present case, the discretion under sch 1 pt C cl 4(1) of the Bail Act, to grant or refuse bail following conviction and pending sentencing, was exercised on 23 July 2024. The discretion having been exercised once, the appellant was not entitled to make repeated bail applications without demonstrating any material change in circumstances. As indicated in the passage quoted at [38] above, the trial judge refused to deal with the appellant's application for bail in circumstances where there was no indication of any material change in circumstances. For the reasons explained above, the Bail Act authorised his Honour to take that approach.
Reference to a material change in circumstances in the context of a refusal of bail is to matters that would have been likely, if known to the judge who previously refused bail, to alter the balance in favour of the grant of bail.[47]
[47] Mercanti v The State of Western Australia [2005] WASCA 254 [28].
The only change in circumstances advanced in the appellant's written submissions before this court was the grant of bail in the breach of bail prosecution. The appellant says that this grant of bail demonstrated that she was no longer a flight risk. We cannot accept that submission in light of the way in which bail was granted in the breach of bail prosecution described at [24] above.
It appears that the trial judge decided to grant bail in the breach of bail prosecution 'in terms of simplicity' so that the breach of bail would not impede the appellant's release from custody in the event that this court decided to grant bail pending determination of the conviction appeal. The later grant of bail by the Chief Judge implemented the decision of the trial judge once contemplated conditions were satisfied. However, the grant of bail in the breach of bail prosecution is not an indication of an assessment that, in the present matter, there is no unacceptable risk that the appellant may fail to appear at the sentencing hearing if she is not kept in custody.
In any event, there are significant differences between the circumstances of the breach of bail prosecution and the current charge. The appellant has been convicted of the current charge but has not been convicted of the breach of bail charge. The maximum term of imprisonment for an offence against s 51 of the Bail Act is 3 years, as compared to the 7-year maximum penalty provided for in s 169(1) of the Criminal Code. The trial of the breach of bail charge is not listed to commence until 7 October 2025. In these circumstances, a conclusion that bail should be granted on the breach of bail charge says nothing about whether bail should be granted pending sentence in the current matter. The grant of bail in the breach of bail proceedings does not constitute a material change which would have been likely to have altered the balance in relation to any purported grant of bail on 23 July 2024 for the sentencing hearing.
In oral submissions before this court, the appellant also contended that her submissions as to the prospects of success of her appeal against conviction constituted a material change in circumstances. There is no merit to that submission. As the trial judge correctly recognised, whether bail should be granted pending determination of an appeal is a question for this court, under sch 1 pt C cl 4A of the Bail Act. It would not be appropriate for a sentencing judge to approach his or her task of sentencing an offender or dealing with an application for bail pending sentence on the assumption that the conviction is unsound. The trial judge was correct not to accept the appellant's invitation to controvert the appellant's conviction following the jury's verdict in determining any question of bail. Any submissions by the appellant as to her prospects of success in the conviction appeal were irrelevant to the exercise of the sentencing judge's discretion to grant or refuse bail pending sentence and so are incapable of constituting a material change in circumstances.
The appellant's oral submissions before this court also contended that the decision to refuse bail on 23 July 2024 proceeded on the assumption that the appellant would plead guilty to a charge of breaching her bail conditions when she departed Australia on 5 June 2024. She says that the fact that she had pleaded not guilty to the charge constituted a material change in circumstances. However, there is nothing in the record of the hearing that indicated that the court proceeded on that assumption, at a time when the appellant had not yet been charged with breaching her bail conditions.
We note that the appellant also relied on the fact that the trial judge indicated that he would not take account of the appellant's failure to appear on 5 June 2024 in sentencing the appellant. The appellant contended that the trial judge therefore could not take account of that fact in determining whether to grant the appellant bail pending sentence. She contended, in effect, that the fact that account could not be taken of her failure to appear was a material change in circumstances. We do not accept that submission. The fact that a matter will not be taken into account in determining the sentence to be imposed is not to say that the fact cannot be taken into account in determining whether the appellant is a flight risk. The latter proposition does not follow from the former.
The appellant also contended that her submissions to the effect that the trial judge might not have to impose a sentence as severe as that imposed by the judge in her first trial constituted a material change in circumstances. However, the possibility of a different sentence being imposed existed at the hearing on 23 July 2024 and was raised in the submissions noted at [21.4] above. That prospect does not constitute a material change in circumstances.
For these reasons, the trial judge correctly understood that he was not obliged on 29 November 2024 to again consider the question of bail pending sentence after conviction when there was no suggestion of any material change in circumstances. While we would grant leave to appeal on ground 2, the ground is not established.

Re-exercise of the discretion

Even if, contrary to the above views, either or both grounds of appeal were established, we would not grant bail on the re-exercise of the discretion by this court.
As to the first of the relevant considerations identified in sch 1 pt C cl 4(1) of the Bail Act, the appellant has been convicted of the offence against s 169(1) of the Criminal Code. This removed the weight to be given to the presumption of innocence in the exercise of the discretion to grant or refuse bail, which is referred to in the passage of YSN quoted at [49] above.
The circumstances of the alleged offence are described in the previous bail reasons. In our assessment, in all of the circumstances of this case, the probable method of dealing with the appellant for the offence against s 169(1) would be a sentence of immediate imprisonment of a length that would exceed the time the appellant would have served on remand when the sentencing hearing resumes on 31 January 2025.
In making this assessment which is required by sch 1 pt C cl 4(1)(b) of the Bail Act, we emphasise that we are not indicating what the actual sentence to be imposed should be. That can only be determined once the trial judge has found the relevant facts of the offending and the personal circumstances of the appellant and has considered submissions as to penalty made by both the appellant and the State. We do not have the benefit of those findings or submissions at this stage. In the previous paragraph we have done no more than express our assessment, on the currently available material, of the probable method of dealing with the appellant for the offence. Nothing in our observations in the previous paragraph should be taken to constrain the trial judge's exercise of his Honour's sentencing discretion.
As to the questions set out in sch 1 pt C cl 1 of the Bail Act, our views reflect those indicated in this court's previous bail reasons. In our view, on the current state of the evidence, the appellant's conduct in absconding in the circumstances prevailing on 5 June 2024 demonstrates that there is an unacceptable risk that, if the appellant is not kept in custody, she will fail to appear in court in accordance with her bail undertaking. In our view, any conditions which might reasonably be imposed on any grant of bail would not sufficiently remove the possibility that the appellant may fail to appear in court in accordance with her bail undertaking. The risk that the appellant will fail to appear in court in accordance with her bail undertaking is sufficient in the circumstances of this case to justify the refusal of bail.
As to the other relevant considerations referred to in sch 1 pt C cl 4(1)(d) of the Bail Act, we note that it has taken an undesirably long time to sentence the appellant after her conviction on 4 June 2024. The adjournment of the sentencing of the appellant to 31 January 2025 was contrary to s 16(2) of the Sentencing Act 1995 (WA), which provides that the sentencing of an offender must not be adjourned for more than six months after the offender is convicted. However, under s 16(3) of that Act, the failure to comply with s 16(2) does not prevent the appellant from being sentenced more than six months after she has been convicted.
In assessing the time taken to sentence the appellant, it is relevant to take account of the fact that the delay was contributed to by the appellant fleeing the jurisdiction from 5 June 2024 to 23 July 2024. It is also relevant to note that the subsequent adjournments have been granted because the trial judge has acceded to the appellant's request for psychological and psychiatric reports and then acceded to the appellant's request for a further opportunity for psychiatric assessment. That request for a further opportunity was made in a context where, on the appellant's own explanation noted at [37] above, the reason for her not seeing the psychiatrist was that she prioritised the swearing of an affidavit and was reluctant to sign a disclaimer. Particularly in circumstances where there was nothing to suggest that the appellant has suffered from a psychiatric illness at any relevant time, the appellant's application on 29 November 2024 for further adjournment of the sentencing hearing ought to have been refused. However, while the grant or refusal of an adjournment was the responsibility of the trial judge, the appellant's conduct has been a significant contributor to the delay in her sentencing.
We digress to note that a sentencing judge is not required to order a psychological and/or psychiatric report whenever such a report is requested by an offender. Psychiatrists and psychologists who prepare such reports are a limited resource which is in heavy demand. Consequently, the time required to obtain psychological and/or psychiatric reports tends to significantly delay sentencing proceedings, as the present case illustrates. Generally, such reports should only be ordered where there is a reasonable basis for apprehending that the report will shed light on a matter relevant to the exercise of the sentencing discretion in a way that a plea in mitigation could not. In particular, psychiatric reports should generally not be ordered in the absence of any proper basis for thinking that the offender might be suffering from a psychiatric condition which will be relevant to sentencing.
Having regard to all of the above matters, if we had been re‑exercising the discretion to grant or refuse bail for the appearance on 31 January 2025 we would have refused bail. This provides an additional reason why the appeal should be dismissed.

Orders

For the above reasons, at the conclusion of the hearing of the appeal we made the following orders:
1.Leave to appeal is refused on ground 1.
2.Leave to appeal is granted on ground 2.
3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Honourable Justice Mitchell
16 DECEMBER 2024