Hampton v The State of Western Australia - [2019] WASC 334

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   HAMPTON -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 334
CORAM:   FIANNACA J
HEARD:   28 AUGUST & 4 SEPTEMBER 2019
DELIVERED          :   4 SEPTEMBER 2019
PUBLISHED           :   11 SEPTEMBER 2019
FILE NO/S:   MBA 26 of 2019
BETWEEN:   CHLOE JANE HAMPTON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail application - Bail refused - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused
Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Ms K Kumar
Respondent	:	Mr S Stocks

Solicitors:

Applicant	:	Porter Scudds Barristers Solicitors
Respondent	:	Director of Public Prosecutions (WA)

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

Dabag v The State of Western Australia [2005] WASC 140
EAGD v The State of Western Australia [2013] WASCA 81
Goldie v The Queen [2001] WASC 153
Hampton v The State of Western Australia [2019] WASC 129
Musarri v the Queen [2001] WASC 200
Oates v The Queen [2003] WASC 180
Pallister v The Queen [2001] WASC 295
Van Blitterwsyk v The Queen (unreported CCA Set of WA library no. 8132)

FIANNACA J:

Introduction

This is an application for bail in respect of nine charges that are currently in the Magistrates Court, but which will be committed to the District Court for trial. The application was filed on 16 August 2019 and was heard on 28 August 2019. I gave my decision refusing bail on 4 September 2019, at which I time I gave brief oral reasons, with written reasons to follow.
These are my reasons for refusing bail.

The application and its history

The applicant previously applied to this Court for bail on 4 April 2019, bail having been refused in the Magistrates Court on 2 April 2019. On 18 April 2019, Strk AJ refused the application: Hampton v The State of Western Australia [2019] WASC 129 (Hampton). As her Honour explained, the application was governed by cl 3A of sch 1 pt C of the Bail Act 1982 (WA) (Bail Act), which provides that where an application for bail (prior to conviction) relates to a serious offence that is alleged to have been committed while the applicant was on bail for another serious offence, the judicial officer considering the application shall refuse to grant bail unless the judicial officer is satisfied that:
1.there are exceptional reasons why the accused should not be kept in custody; and
2.bail may properly be granted having regard to the provisions of cl 1 and cl 3.
Clause 3A applies to the applicant because four of the offences with which she is charged, being offences concerned with prohibited drugs under s 6(1) of the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act), being charges AR 11154 ‑ 11157 of 2018, are serious offences, as defined in the Bail Act,[1] and are alleged to have been committed when the applicant was on bail for other serious offences, which were also offences concerned with prohibited drugs under s 6(1) of the Misuse of Drugs Act.
[1] Bail Act 1982 (WA) s 3(1) and sch 2.
The applicant argued before Strk AJ that there were exceptional reasons why she should not be kept in custody. The reasons were said to be constituted by a combination of factors, which related to her need to bond with her baby (Mila‑Sue), her need for treatment for mental health issues, and the likely delay in the charges getting to trial.[2]
[2] Hampton [53].
Her Honour was not satisfied that the factors relied on by the applicant amounted to exceptional reasons why the applicant should not be kept in custody. In some respects her Honour considered there was insufficient information before her to support the factors on which the applicant relied. Her Honour also concluded that, in all of the circumstances of the applicant's case, bail could not properly be granted having regard to the provisions of cl 1 and cl 3, as there was a real risk or possibility that the applicant may commit an offence if granted bail, and that there were no conditions which could reasonably be imposed which would sufficiently remove the possibility.[3] Her Honour said:[4]
Among other things, I have weighed in the balance on the one side, the desire of the appellant to be released so as to bond with Mila-Sue and to assist in the care of her two other children; and on the other side, the charges concerning offences allegedly committed by the appellant while on bail; the nature and seriousness of the alleged offences; and the strength of the evidence against the appellant.
[3] Hampton [82] – [86].
[4] Hampton [82] (NOTE: There are two paragraphs numbered 82 in the reasons. This refers to the second paragraph.)
The application before this court is brought under the Bail Act s 14(2). It invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by the Bail Act s 13 and sch 1 pt A. The court's jurisdiction to hear the application is subject to subsection (2a) of s 14, which provides:
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.
The applicant does not suggest that new facts have been discovered, but she submits that the court's jurisdiction may be invoked again because new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was exercised by Strk AJ.
The new circumstances are said to be the combination of the applicant's medical condition, as it has become apparent since the proceedings before Strk AJ, and her inability to participate in Family Court proceedings relating to her two older children.
The respondent submits that the applicant has not demonstrated a relevant change in circumstances. Before any change that is identified can affect the exercise of discretion to grant or refuse bail, it must reveal the existence of an exceptional reason, under cl 3A, that was not in existence at the time bail was refused by Strk AJ. In any event, if the discretion were to be exercised afresh, the applicant must still satisfy the court that there are exceptional reasons why she should not be kept in custody.
The applicant's argument is that her circumstances amount to exceptional reasons why she should not be kept in custody because she cannot receive the same level of treatment for her medical condition that she would receive in the community, and she will be disadvantaged in the Family Court proceedings by not being able to attend court.

Background

These reasons are to be read in conjunction with the reasons of Strk AJ in Hampton. In particular, I adopt her Honour's outline at [7] ‑ [20] of the facts alleged against the applicant in respect of the relevant charges, and of particular aspects of the evidence upon which the prosecution will rely. I also adopt her Honour's summary at [21] ‑ [38] of the applicant's bail history.
In summary, the charges to which the application relates involve alleged drug and firearms offences which arose out of two searches conducted under warrant of residential premises where the applicant was living, and interceptions under warrant of communications on her mobile telephone.
It is alleged that during the first search on 5 May 2018, police found a total of 22 g of methylamphetamine in a bedside drawer and in the applicant's handbag in the applicant's bedroom. The quantity that was in the bedside drawer was inside a pink notebook. Other items commonly regarded as indicia of drug dealing were also found during the search, being 'tick lists', a large quantity of empty clip seal bags, a large sum of money in cash, a firearm and digital scales (in the applicant's bedroom). The police also found text messages on the applicant's mobile telephone which appeared to refer to drug weights and prices. The applicant admitted to sending several of those messages. Apart from the places and circumstances in which the items were found, the State's case against the applicant includes a fingerprint found on a page of the pink notebook, which was matched to the applicant, and DNA from the container in the applicant's handbag, which matched the applicant's DNA profile.
On 6 September 2018, when the applicant was on bail for the offences arising from the search on 5 May 2018, police searched the premises where she was then living in Gosnells. They had been lawfully intercepting communications on the applicant's telephone service from 31 July 2018. Two charges of offering to sell or supply methylamphetamine, on 23 and 29 August 2019, arose from those intercepts. It is alleged that on 6 September 2018, police found 4.76 g of methylamphetamine in a plastic container in the applicant's handbag. They also found digital scales in the lounge room (in the drawer of a coffee table) and in the applicant's bedroom. There were also messages found on the applicant's mobile phone that were consistent with her offering to sell methylamphetamine to a woman, Ms Batson, who was present at the applicant's home during the search. The applicant admitted offering to sell the drug to Ms Batson, but denied actually doing so. However, Ms Batson was found to be in possession of two points (0.2 g) of methylamphetamine, the amount the applicant had offered to sell, and the applicant was found in possession of $100 in cash (in her handbag), which was the price for two points of the drug. The applicant was charged with selling that quantity of drug to Ms Batson.
It is sufficient to summarise the charges relevant to these proceedings to be two counts of possession of a prohibited drug (methylamphetamine) with intent to sell or supply (s 6(1)(a) Misuse of Drugs Act), three counts of offering to sell or supply a prohibited drug (s 6(1)(c) Misuse of Drugs Act), one count of unlawful possession of a firearm in circumstances of aggravation (s 19(1)(c) Firearms Act 1973 (WA)), and two counts of being in possession of property that was reasonably suspected to have been unlawfully obtained, being the cash found during the two searches, which is suspected to have been from the sale of prohibited drugs (s 417(1) Criminal Code (WA)). The applicant is also charged with a number of summary offences arising from the searches, including simple possession of prohibited drugs and possession of drug paraphernalia. Although bail has been refused in respect of those charges, the determination of bail in those matters is dependent on the outcome of this application.
The applicant is also charged with a breach of bail in relation to her failure to appear in the Armadale Magistrates Court on 13 July 2018. She was charged on 18 July 2018 when she presented to the Armadale Police Station after she became aware there was an outstanding warrant for her arrest. The circumstances, including the applicant's explanation, were referred to by Strk AJ in Hampton at [23] ‑ [25]. I say no more about that matter, because the applicant was subsequently granted bail again, and I do not consider that it has a bearing on the outcome of these proceedings.
After the applicant was charged with the offences arising from the search of 6 September 2018, she came within the provisions of cl 3A of sch 1 pt C of the Bail Act, having been charged with a serious offence alleged to have been committed while she was on bail for another serious offence. On 21 September 2018 she was granted bail in respect of those charges. Although I do not have any information about the reasons given by the magistrate who dealt with the applicant at that time, it follows from the grant of bail that his Honour was satisfied there were exceptional reasons why the applicant should not be kept in custody. The applicant was at an advanced stage of pregnancy at the time.
The applicant gave birth to Mila‑Sue on 19 January 2019.
The bail conditions imposed on 21 September 2018 included a requirement that the applicant comply with the lawful directions of a Community Corrections Officer (CCO), including directions for programmatic intervention to deal with her prohibited drug use, and for the provision of urine samples for urinalysis testing for non‑prescription drugs. It was a condition of bail that any detectable traces of such drugs would be deemed to be a breach of bail.
The applicant was compliant with the urinalysis testing and returned negative results on some of the occasions she was required to attend. There were occasions when she was not compliant. She provided an explanation to her counsel (in the proceedings before Strk AJ) that were to do with medical complications after she gave birth. Significantly, however, she returned a positive result on 1 March 2019. That constituted a breach of her bail. Further, on 5 March 2019, she was driving a vehicle in which police found a synthetic urine kit for females. Although no explanation is provided in the materials about the use of such a kit, it is plain from the context that it can provide a means of defeating a urinalysis test.
Although the applicant subsequently provided negative results on 7 and 11 March 2019, she was arrested on 18 March 2019 for breaching her bail as a result of the positive urinalysis result of 1 March 2019. When she appeared in the Magistrates Court on 19 March 2019, she was remanded in custody, and her subsequent application for bail in the Magistrates Court was ultimately refused on 2 April 2019.
Although transcript of the proceedings in the Magistrates Court is not before this court, the reasons for the refusal of bail by Magistrate Mahon were set out in the affidavit sworn 3 April 2019 of Mr Jeremy James Scudds, counsel for the applicant in the proceedings before Strk AJ. It appears from that affidavit that the applicant sought to argue that the positive urinalysis result was not due to deliberate ingestion of methylamphetamine, but as a result of either drinking a drink that had been spiked with the drug or engaging in intimate relations with a person who had ingested the drug. It appears his Honour rejected those explanations on the materials that had been put before him, and found that the applicant had breached her bail. Consequently, he was required to revoke her bail and consider whether fresh bail should be granted.[5] As the applicant continued to come within the provisions of cl 3A, she needed to establish exceptional reasons why she should not be kept in custody. The applicant relied on the need for her baby to bond with her and on the fact that she was suffering from post-natal depression. Magistrate Mahon concluded that, whether considered separately or together, those matters did not amount to exceptional reasons for the grant of bail.
[5] Bail Act 1982 s 55.
The applicant then applied for bail to this court by an application dated 3 April 2019. The exceptional reasons on which she relied were:[6]
(1)the need for the applicant's baby to be and bond with the applicant;
(2)the mental health of the applicant (that is, her post-natal depression), and her need for intensive health interventions; and
(3)the likely delay in bringing the applicant to trial.
[6] Hampton [53].
In relation to the first ground, Strk AJ concluded:[7]
On the information before me, I am not satisfied that the grant of bail will necessarily result in Mila-Sue spending more time with the applicant, nor am I satisfied that the objective cannot be achieved while the applicant remains in custody, through intervention of the Family Court. If additional information was to become available in relation to these matters, it may ground a basis for the application for bail to be considered again.
The second limb referred to by Ms Simms by which a securely attached relationship may be promoted is the support of maternal mental health services and an additional attachment based intervention, such as the Circle of Security Program and infant-mother psychotherapy.
On the information before me, I am not satisfied that such support would not be available to the applicant and Mila-Sue while in custody.
[7] Hampton [64] – [65].
The applicant did not present additional information in respect of those issues in these proceedings.
In relation to the second ground, the applicant had argued that she was not able to access adequate mental health treatment in custody. Strk AJ concluded:[8]
Given the lack of information as to the availability or otherwise of 'intensive medical interventions' in custody, I am not satisfied that this factor, alone or in combination with others, demonstrates an exceptional reason why the accused should not be kept in custody.
[8] Hampton [71].
Finally, on the issue of delay, her Honour noted that, at the time of the hearing before her Honour, the matter was listed for a Police Committal Mention on 16 April 2019, and a date had not been fixed for a disclosure/committal hearing, although the DPP had received the disclosure brief. Her Honour said:
I agree with the respondent's submission that it is simply too early to say that there is a likelihood or possibility of an extensive delay which would justify the grant of bail, alone or in combination with other factors. It may be that with the effluxion of time, this will change.
As I outlined at [6] above, her Honour was of the view, in any event, that bail could not properly be granted in all the circumstances.

Legislative provisions

The law applicable on an application of this kind is settled, and was not in dispute in the proceedings. Apart from the question that now arises as to whether there are changed circumstances or new facts, the relevant statutory provisions and legal principles were set out at [40] ‑ [52] of the reasons of Strk AJ in Hampton, and I respectfully adopt that outline for present purposes.
I would add that the question in respect of any circumstance relied upon by the applicant for the purposes of cl 3A is not whether the circumstance is an exceptional circumstance per se, but whether alone or in combination with other circumstances it amounts to an exceptional reason or reasons why the applicant should not be kept in custody.
There is no closed list of exceptional reasons.[9] As Strk AJ noted,[10] what might constitute exceptional reasons will depend on the facts in each particular case.
[9] Roberts v The State of Western Australia [2011] WASC [9] (Murray J).
[10] Referring to EAGD v The State of Western Australia [2013] WASCA 81 [8] (Mazza JA).
As for the need for the applicant to demonstrate a change in circumstances before the court's jurisdiction can be invoked again under s 14 of the Bail Act, what is required is a 'relevant change in relevant circumstances'.[11] I also accept the following propositions relied upon by the respondent, which emerge from previous cases and were not disputed on behalf of the applicant:
(1)In order to enliven the jurisdiction, any change should be of some weight and not as to matters of mere detail.[12]
(2)The matters said to be a change in circumstances must be matters that would have been likely, if known to the judge who refused bail, to alter the balance in favour of bail.[13]
[11] Goldie v The Queen [2001] WASC 153 [9] (RobertsSmith J).
[12] Oates v The Queen [2003] WASC 180 [3] (Wheeler J), citing Van Blitterwsyk v The Queen (unreported CCA Set of WA library no. 8132) and Pallister v The Queen [2001] WASC 295.
[13] Musarri v the Queen [2001] WASC 200 [12] (White AUJ); Dabag v The State of Western Australia [2005] WASC 140 [12] (Simmonds J).

Further, in my opinion, in the context of a case in which the applicant must demonstrate exceptional reasons why she should not be kept in custody, any change in circumstances or new facts relied on by the applicant must be capable of affecting the determination of that issue. If the jurisdiction is enlivened on that basis, the court must then determine whether such exceptional reasons have in fact been established, having regard to all of the circumstances of the case.

The evidence in the proceedings

The evidence filed by the applicant in these proceedings consists of an affidavit sworn by the applicant on 15 August 2019, and an affidavit sworn on 27 August 2019 by James Speck, the applicant's current partner and the father of her youngest child.
In her affidavit, the applicant describes the procedure she underwent to give birth to Mila‑Sue, and developments in her medical condition since then. In particular, she describes the medical treatment she has received at the Melaleuca Remand and Reintegration Facility (Melaleuca). She has attached the medical records she has obtained from Melaleuca in respect of her treatment. There is also a letter from her treating doctor at Melaleuca, Dr Shortt, who describes the medical problems for which the applicant is being treated and the nature of the treatment.[14]
[14] Affidavit of Chloe Jane Hampton sworn 15 August 2019, Annexure CJH2.
Attached to Mr Speck's affidavit is an email exchange between the applicant's counsel, Ms Kumar, and the Health Centre Manager – Correctional Services, Mr Harrington, in which Ms Kumar sought further information about the applicant's treatment and the conditions that had been diagnosed by Dr Shortt. There is also attached a brief email from Dr Shortt to Ms Kumar in which he states that 'the note already provided is as much as we can provide with respect to [the applicant's] court appearance'.[15]
[15] Affidavit of James Speck sworn 27 August 2019, Annexure JS2.
The applicant's affidavit also refers to proceedings in the Family Court of Western Australia in which her former partner is seeking full custody of the applicant's two older children. Attached to the affidavit are letters from the Independent Children's Lawyer in the proceedings, Mr Martin, who is employed by Legal Aid Western Australia. One of those letters informed the applicant that funding had been approved for 'a 6‑month hair follicle test'. It states that the timing of the test will depend on the applicant's 'estimated date of release'.[16] Although there is no expert evidence in the proceedings about a hair follicle test, it is apparent that it is a means of detecting the presence of a drug in a person's hair up to 6 months after the person has used a particular drug. The applicant's understanding, as she describes it in her affidavit, is that the test 'is designed to see whether someone has ingested methamphetamine or drugs in the last six months'.[17] That was not in dispute at the hearing of the application. Nor was it in dispute that the test involves the taking of a hair sample from the person to be tested, although the means by which that would be done in the applicant's case was not known. Further, the materials do not disclose the precise purpose of the test in the Family Court proceedings. The applicant suggests that it will relate to whether she was using drugs before she went into custody, and that the test will be of no evidentiary value in relation to her drug-taking, if any, prior to incarceration, if it is not done by 19 September 2019.[18]
[16] Affidavit of Chloe Jane Hampton sworn 15 August 2019, Annexure CJH3.
[17] Affidavit of Chloe Jane Hampton sworn 15 August 2019, [51].
[18] Affidavit of Chloe Jane Hampton sworn 15 August 2019, [51].
The respondent filed an affidavit affirmed by Detective First Class Constable Hitchcock, who is the investigating officer for the charges the subject of this application. Of significance, he made enquiries with Dr Shortt about the medical problems and treatment he referred to in the letter attached to the applicant's affidavit. Dr Shortt's response is attached as 'MH1'.
The application was heard on 23 August 2019. I reserved my decision until 4 September 2019. On 28 August 2019, the applicant sent a letter to the court in which she:
(1)describes her concerns about her medical issues and the reasons she believes that she will receive treatment in a more timely way if she is released from custody;
(2)describes her engagement with The Whitehaven Clinic for drug rehabilitation;
(3)expresses her belief that, if released, she will be 'a more supportive and present mother' for her three children, and will be able to begin to reunify with them under her father's supervision, while supporting her partner, who works full time;
(4)states her willingness to abide by any bail conditions, including home detention; and
(5)submits that, if released, she would be able to undergo the hair follicle test, which she has been asked to undergo for the Family Court proceedings, and would do so within a timeframe that would enable her to use the results to contest the breach of bail charge, which arose from the positive urinalysis test.
At the adjourned hearing of 4 September 2019, it became apparent that the applicant's counsel was not aware the letter had been sent to the court by the applicant. Counsel for the respondent was also unaware of the letter. Both counsel were given an opportunity to consider the contents. Counsel for the applicant submitted that I should receive the letter in evidence and rely on its contents. Counsel for the respondent objected to the use of the letter. He submitted that the court should not encourage 'an ongoing discourse between an applicant and the court directly' when the applicant is represented by counsel and has had an opportunity to put information before the court by way of affidavit. In the alternative, counsel for the respondent submitted that the letter did not advance the applicant's case beyond the evidence already before the court and the submissions that had been made by the applicant's counsel previously.
While I consider that there is force in the respondent's submission, and there is an additional risk that an applicant may do their case a disservice by forwarding information directly to the court, without consideration by their counsel, I concluded that, in the circumstances of this case, I should receive the letter and have regard to its contents. Section 22 of the Bail Act provides that a judicial officer considering any case for bail may receive and take into account such information as he thinks fit, whether or not the same would normally be admissible in a court of law. I have had regard to the fact that during the hearing on 23 August 2019 the applicant, to my observation, listened attentively to the submissions that were made and the questions I asked of her counsel about various aspects of those submissions. It seems to me that, in essence, the applicant has sought to elaborate on a number of those matters in her letter. While it would have been preferable for her to have given further instructions to her counsel, and to put any further information on affidavit, the information is relevant and I do not consider that the respondent has been put at any disadvantage if I have regard to the contents of the letter. Had there been such disadvantage, I would have given the respondent the opportunity to produce further evidence and make further submissions. The respondent did not seek such an opportunity.
However, the weight that I give to the contents of the letter will depend on whether the information amounts to statements of fact within the applicant's knowledge, rather than expressions of opinion, and whether it is information that should be supported by direct evidence from another person.
In any event, as will appear below, I am inclined to agree with the respondent's submission that the contents of the letter do not advance the applicant's case beyond the case that was presented at the hearing.
Finally, as the materials are part of the court's record in respect of the same matters, I have had regard to the contents of the affidavit of the applicant's former counsel, Mr J J Scudds, and the annexures to that affidavit, which informed the decision made by Strk AJ.

Matters relied on as changed circumstances

Developments in the applicant's medical condition and availability of treatment

The applicant states in her affidavit that Mila‑Sue was delivered by caesarean section at King Edward Memorial Hospital. It was a prolonged process because of scarring from giving birth to her first two children.
She states that, after the delivery, she haemorrhaged for several weeks. She was admitted to Armadale hospital and continued to haemorrhage for several days before the bleeding eventually subsided. Such haemorrhaging had not happened when she gave birth to her other children.
The applicant states that he haemorrhaging stopped after she was prescribed the contraceptive pill by her doctor. She says that she was meant to have a follow-up consultation with the gynaecology team at King Edward Memorial Hospital, but was not able to do so because of her incarceration on 19 March 2019. The applicant does not explain why she did not attend for such a consultation before then.
The applicant states that she has continued to have 'very lengthy and heavy menstrual periods at least every month with only one to 2 weeks break'.[19] She states that the duration of the periods and the heavy bleeding are not normal for her. She says she suffers extreme pain and cramping and passes a lot of large blood clots. She says she also suffers from nausea and light‑headedness during the periods.
[19] Affidavit of Chloe Jane Hampton sworn 15 August 2019 [15].
The applicant states that she did not mention the haemorrhaging to the nurse in the medical centre at Melaleuca when she first went into custody, because it had stopped. She says that during April 2019 she had a 'second long and heavy period not too long after the first one ended'.[20] It is not clear whether this was before or after the hearing on 12 April 2019 before Strk AJ. In any event, the applicant states that 28 May 2019 was the first time she was able to see the nurse about her 'excessive period which at [that] time was becoming very concerning'.[21] She received a referral to see the medical officer.
[20] Affidavit of Chloe Jane Hampton sworn 15 August 2019 [21].
[21] Affidavit of Chloe Jane Hampton sworn 15 August 2019 [24].
The applicant saw the medical officer on 14 June 2019, although she had seen a nurse about her pain and bleeding on 12 June 2019. The medical officer conducted a Pap smear and an internal examination, during which she said she could feel lesions. She also took blood samples to test for iron levels.[22] The applicant says that she was subsequently told the Pap smear was clear, but at the time of swearing the affidavit, she had not received results from the blood tests.
[22] Affidavit of Chloe Jane Hampton sworn 15 August 2019 [25] – [26].
The applicant goes on to describe in her affidavit a number of further appointments she has attended with medical practitioners at Melaleuca and the treatment and referrals they have provided. It is not necessary to set out the full details. The medical records from Melaleuca tend to support the history outlined by the applicant in her affidavit. In particular, they reveal that 28 May 2019 was the first time the applicant complained about heavy periods. The notes actually suggest that the applicant said she had been having heavy periods since the birth of her baby 17 weeks earlier. The applicant's condition is recorded as 'menorrhagia' (which is abnormally heavy bleeding at menstruation, which may or may not be associated with abnormally long periods[23]). The notes for 14 June 2019[24] record that the applicant's complaints that day were: 'menorrhagia and prolonged bleeding and dysmenorrhoea' (which is defined as 'painful or difficult menstruation'[25]).
[23] Concise Medical Dictionary (Oxford University Press, 1980). In the Macquarie Dictionary Sixth Edition it is defined as 'excessive menstrual discharge'.
[24] Affidavit of Chloe Jane Hampton sworn 15 August 2019, Annexure CJH1 at page 5.
[25] Concise Medical Dictionary (Oxford University Press, 1980).
In his letter of 13 August 2019 (which does not identify the addressee, but is addressed 'dear Sirs'), Dr Shortt refers to menorrhagia and dysmenorrhoea, as well as depression and anxiety, under the heading 'Active Problems'.
The applicant states she has been prescribed Tranexamic Acid for her periods. Dr Shortt confirms, as do the medical notes, that the applicant has been prescribed that medication. Although there is no information about the medication from a medical practitioner in the materials attached to the affidavits, information obtained by the respondent from a website maintained for the information of consumers by a subsidiary of the Pharmacy Guild of Australia confirms that one of the uses of the medication is to treat menorrhagia (or heavy periods).[26]
[26] The respondent referred to 'secure.healthlink.net.au', which now redirects to ' and, in turn, to '>
The applicant claims in her affidavit that when she was in the community, she was prescribed six tablets to be taken three times a day, whereas in Melaleuca she has been prescribed three tablets to be taken twice a day. However, there is no evidence from the applicant's treating doctor in the community about the dose prescribed to the applicant. Further, there is no expert evidence to suggest that the dose prescribed in prison is inadequate for its purpose. In any event, the applicant expresses concern about prolonged use of the medication.
The applicant has also been prescribed medication for her pain. She says that she received acupuncture from the medical officer on 11 July 2019, but it did not assist with her next period.
The applicant says that, prior to her incarceration, she was told by her doctor that if the bleeding continued over an extended period, she may require a hysteroscopy to investigate the cause of the bleeding. She says that she has asked for the procedure to be done at the medical centre at Melaleuca, but it does not have facilities to perform the procedure. That was confirmed by Mr Harrington in an email to Ms Kumar on 23 July 2019.
The applicant submits that without a hysteroscopy, the root cause of her bleeding will remain unknown.
She says she continues to have 'excessive and unhealthy' periods, and that on 13 August 2019, she received confirmation from the doctor at Melaleuca that 'in‑house treatments are not working'.[27]
[27] Affidavit of Chloe Jane Hampton sworn 15 August 2019 [25] – [26].
In his letter of 13 August 2019, Dr Shortt states:[28]
Chloe has tried a number of conservative treatments for dysfunctional bleeding with no success. This is exacerbating her physical and mental health. She is hoping to see a private gynaecologist on her release. I think this would greatly enhance her chances of getting effective treatment.
[28] Affidavit of Chloe Jane Hampton sworn 15 August 2019, Annexure CJH2.
After receiving Dr Shortt's letter, Ms Kumar, by an email letter sent 16 August 2019, sought clarification (from Dr Shortt, but through Mr Harrington) of a number of matters, being (i) the meaning of menorrhagia and dysmenorrhea, (ii) the possible causes of menorrhagia, (iii) the procedures that could assist to diagnose the underlying cause and (iv) the fact that the medical centre at Melaleuca does not have the facilities to carry out those procedures. In essence, as the respondent aptly described it, the applicant was, at least in some respects, asking for a medico‑legal report.
Dr Shortt subsequently responded directly to Ms Kumar on 20 August 2019 with the note referred to at [37] above, in effect that he could not provide any further information for the court appearance.
However, in response to an enquiry made by Detective Hitchcock, asking specific questions, Dr Shortt responded by email on 23 August 2019, stating that:
(1)the applicant's condition is not life-threatening;
(2)the prison system can provide adequate medical attention, including using external referrals when necessary;
(3)further treatment would be decided by a gynaecologist;
(4)the medications he had identified in his letter of 13 August 2019 (which include medications for other conditions in addition to the Tranexamic Acid) are all available to the applicant in prison if required.
Dr Shortt went on to clarify that he did not mean to suggest in his letter of 13 August 2019 that 'in-prison medical treatments, as provided and facilitated by the [Department of Justice], are in any way inadequate'.[29] He noted that even within the community public patients sometimes have to wait longer for treatment than patients in the private sector, 'which is of course not to suggest the Public Health Services are inadequate'.[30]
[29] Affidavit of Michael Peter Hitchcock affirmed 27 August 2019, Annexure MH1.
[30] Affidavit of Michael Peter Hitchcock affirmed 27 August 2019, Annexure MH1.
One of the investigative measures adopted by the medical practitioners at Melaleuca was to refer the applicant for an ultrasound. Although that had not occurred at the time the applicant swore her affidavit, counsel for the applicant informed the court after the hearing on 28 August 2019 that the ultrasound had taken place the previous day.
Nevertheless, the applicant's argument is that her health may be compromised if she is not able to obtain specialist attention within the community urgently. In her letter to the court, she refers to her mother's history of suffering similar symptoms, which she says resulted in a hysterectomy at a young age. She expresses the opinion that with early and prompt medical attention she can avoid that result. She notes that she has not been seen by a gynaecologist, despite having been told during the internal examination that she had lesions inside her vagina. She asserts that her GP would have 'more prompt treatment plans with urgent referrals taking 3 ‑ 4 days to execute and not 4 ‑ 5 months'. She notes that it took five months for her to have the ultrasound.
The applicant submits that the development in her medical condition, being the persistence of the heavy and lengthy periods and the clotting since the last bail application, and the fact that, in her view, it has become apparent that the medical resources within the remand centre are inadequate to deal effectively with her condition, constitute a relevant change in circumstances that enlivens this court's jurisdiction to consider bail afresh. Further, the applicant submits that, either alone or in combination with the issues in respect of the Family Court proceedings, the issues concerning her medical condition give rise to exceptional reasons why she should not be kept in custody.

Family Court proceedings

There are two issues that have arisen in respect of the family court proceedings that the applicant submits constitute a relevant change in circumstances. First, that since the last bail application there was a hearing in the Family Court on 2 July 2019 in which an attempt to contact the applicant at Melaleuca was unsuccessful, from which the applicant asks the court to infer that her ability to participate in the Family Court proceedings is impaired while she remains in custody, which places her at a disadvantage in those proceedings. Secondly, the applicant has been advised by the Independent Children's Lawyer that funding has been approved for a hair follicle test, but she is unable to participate in that test while she remains in custody.
The applicant submits that these issues are capable of affecting the determination of whether there are exceptional reasons why the applicant should not be kept in custody.

As I noted earlier, there is no evidence before the court as to what is involved, in terms of the applicant's participation, in a hair follicle test. If it involves the removal of a hair sample from the applicant, either by cutting or plucking, and the handling and packaging of the sample in a manner that will avoid contamination and maintain its integrity pending testing at a laboratory, the applicant has not produced any evidence from any official at Melaleuca or in the Department of Justice to support the proposition that it cannot be done under supervision while the applicant is in custody. At the time of deciding this application, I did not consider that the issue constituted a new fact or change in circumstances that would enliven the court's jurisdiction to consider bail afresh.
As for the applicant's capacity to participate in the Family Court proceedings, the respondent pointed to aspects of the correspondence from the Independent Children's Lawyer to the applicant and the Family Court that suggest the applicant has been less than diligent in her participation, and not because her participation is impaired by being in custody. In particular, the court can conclude from the fact that she has produced the letters from the Independent Children's Lawyer, that the applicant has received those letters. She was requested to provide information about the date of her arrest and her expected date of release, and the reasons she is in custody, together with any statements of material facts that relate to the charges she is facing.[31] The correspondence shows that the applicant had not responded, yet she clearly has the capacity to do so either in writing or by telephone. I note that the letter addressed to 'The Presiding Judge' sent by the applicant on 28 August 2019 was sent by email from Melaleuca.
[31] Affidavit of Chloe Jane Hampton sworn 15 August 2019, Annexure CJH3.
The respondent also pointed to the fact that the correspondence from the Independent Children's Lawyer does not give any indication that the applicant's position is prejudiced at this stage. The letter of 3 July 2019[32] informs the applicant that the case remains in the 'defended list', which means that 'a readiness hearing will be allocated'. It explains that a readiness hearing is a procedural hearing in which the court determines whether the applicant's case is ready for a trial, and that each party will be required to file court documents before the hearing. The author enclosed a copy of the 'guide to representing yourself in the Family Court of WA'. Finally, I note that the author also informed the applicant that, in discussions at court, the persons who have care of the two older children, including the applicant's parents, 'agreed that the current arrangements are working well for the children', but that the applicant's views are not known and the proceedings are unable to finalise in circumstances in which details of the applicant's incarceration and likely timing custody are also not known.[33]
[32] Affidavit of Chloe Jane Hampton sworn 15 August 2019, Annexure CJH5.
[33] Affidavit of Chloe Jane Hampton sworn 15 August 2019, Annexure CJH5.

Is there a change in circumstances?

The respondent submits that, on the evidence produced in these proceedings, the court could not be satisfied that there has been a relevant change in relevant circumstances that would enliven the court's jurisdiction to consider bail again. It submits that, according to the medical records, the applicant's medical condition has been long standing, from prior to when she went into custody, so it is not a new fact or changed circumstance, despite the fact that it was not raised in the last bail application. In any event, the real question is whether her condition can be properly treated or managed while she is in custody, and the evidence does not support the conclusion that circumstances have changed in that regard since the last bail application.
In relation to the Family Court proceedings, the respondent submits that the evidence does not support the proposition that the applicant's ability to participate in those proceedings has altered to her disadvantage since the last bail application.
I am satisfied, having regard to all of the materials, including the applicant's statements in her affidavit and the medical records from Melaleuca, that, when the applicant went into custody in March 2019, she believed that the haemorrhaging she had suffered after the delivery of her baby had stopped. Further, at the time of her last bail application, the issue of heavy and prolonged menstrual periods had not yet emerged as a persistent problem that may adversely affect her health. The persistence of the problem since the last bail application, and the diagnoses of menorrhagia and dysmenorrhoea, do constitute a change in her circumstances that is capable of affecting the question whether there are exceptional reasons why she should not be kept in custody. Therefore, I am satisfied that the court's jurisdiction to consider bail afresh under s 14 is enlivened.
Having arrived at that conclusion, it is strictly not necessary to consider the other limb of the applicant's argument in respect of changed circumstances. However, having regard to the contents of the correspondence from the Independent Children's Lawyer, I agree with the respondent's submission in relation to the proposition concerning the Family Court proceedings. The fact that the Family Court could not make contact with the applicant electronically on one occasion during a hearing does not support the conclusion that her ability to participate in the court proceedings has changed since the last bail application. There will no doubt be occasions where technical problems or other reasons concerning the availability of the communication facility or the person who is in remand will result in a failure to engage that person in a particular hearing. It appears that the appropriate course was taken on 2 July 2019 and the matter was adjourned.
Although the issue concerning the Family Court proceedings does not constitute a relevant change in circumstances, it is relevant to a consideration of whether there are exceptional reasons now why the applicant should not be kept in custody.

Are there exceptional reasons why the applicant should not be kept in custody?

There is no doubt that the applicant's medical condition, consisting of menorrhagia and dysmenorrhea, is debilitating in a manner that is exceptional, compared to a woman's usual experience during menstruation. Further, it may be accepted, without the need for expert evidence, that the presence of lesions is a phenomenon that is not normal in a healthy female reproductive system. The only evidence of the presence of lesions is the applicant's statement that the doctor who conducted the internal examination told her there were lesions, but I am prepared to assume that lesions were found.
However, the issue is not whether the applicant suffers a medical condition that is exceptional or unusual. The question is whether her condition and the issues she has raised about treatment amount to exceptional reasons why she should not be kept in custody. That directs attention to whether the medical professionals at Melaleuca, and within the prison system more generally, are able to provide the applicant with appropriate medical treatment and assistance to deal with her condition, whether internally or by referral to an external provider, and the impact on the applicant of not receiving appropriate treatment in a timely manner.
As the applicant bears the burden of establishing exceptional reasons, she bears the burden in the present context of satisfying the court that the treatment and assistance she is receiving for her medical condition at Melaleuca is not appropriate or adequate. The applicant has made assertions to that effect (at least in relation to adequacy), but there is no evidence to support the assertions. There is no evidence from a medical practitioner that the applicant's medical treatment in the community, whether in the public health system or the private sector, would be different from the treatment and assistance she has received in Melaleuca and will be able to receive as a result of the referrals she has been given for external examinations. Even if, as she asserts, the applicant would be able to see specialists or undergo a hysteroscopy within a shorter time-frame if she were not in custody, there is no evidence that the referrals she has received will not be acted upon within a reasonable timeframe having regard to her particular circumstances. That said, the court would expect the Department of Justice to be vigilant about ensuring that the applicant is provided with appropriate treatment in a timely way, consistent with the duty of care it owes the applicant.
The evidence I have outlined above tends to establish that the applicant has been given ample opportunity to identify her medical complaints, has been examined in an appropriate manner, has been given referrals for further examination or consultation as appropriate and has been prescribed appropriate medication. Dr Shortt has expressed the view that the applicant's condition is not life threatening. The applicant has not suggested her condition is life threatening. It would be relevant to the question of whether there are exceptional reasons why she should not be kept in custody if, because of a failure to receive adequate treatment or management of her condition, there was a substantial risk that she would suffer permanent damage to her health that is not life threatening. However, there is no medical evidence in the proceedings that such a risk exists at this time. As I noted earlier, Dr Shortt's opinion is that the prison system can provide adequate medical attention to the applicant, including using external referrals when necessary.
Having regard to all of the circumstances, as I have outlined them in these reasons, I am not satisfied that the applicant's health issues, as they have emerged more clearly since the last bail application and considered in the context of the treatment and assistance available to her in custody, amount to exceptional reasons why she should not be kept in custody.
Further, for reasons I have already stated, I am not satisfied that the applicant's incarceration prevents her from participating in a meaningful and adequate manner in the Family Court proceedings concerning her two older children. As for the hair follicle test, there is insufficient evidence to enable me to determine the significance of that test in the Family Court proceedings, and in any event I am not persuaded that the applicant is prevented from providing a hair sample while she remains in custody. I note that there is a positive urinalysis result for methylamphetamine that resulted in the applicant's bail being breached. As I have understood the applicant's position in respect of that result, as it emerges from the materials that were filed in the last bail application, the applicant has not disputed the integrity of the result, but has posited explanations for the result based on a possible unintentional ingestion of the drug by drinking a spiked drink or by engaging in a sexual act with someone who had used the drug. If that position is maintained, it is not readily apparent how the hair follicle test will affect her case. Nevertheless, if evidence becomes available to show that the test is essential to the applicant's case in the Family Court proceedings and that the applicant is prevented from providing a sample, that might constitute a new fact or change in circumstance that could justify a reconsideration of bail and the question of whether exceptional reasons exist. On the materials now before the court, however, I am not satisfied that the applicant has established an exceptional reason why she should not be kept in custody, based on that issue.
In considering each of the matters on which the applicant has relied, I have done so in the context that the applicant is likely to spend a significant period of time in custody on remand before the charges can proceed to trial. The question of delay was considered by Strk AJ, as outlined at [28] above. The applicant does not rely on delay in isolation to argue that there are exceptional reasons for the grant of bail. However, she does contend that the significance of the factors on which she has relied in these proceedings is exacerbated by the prospect that the applicant will be in custody for a lengthy period before trial. In my view, at this stage the possibility of a lengthy delay does not elevate the other factors either individually or in combination to a level that constitutes exceptional reasons why the applicant should not be kept in custody. As Strk AJ noted, that may change with the effluxion of time.
As I am not satisfied that any of the matters upon which the applicant relies either separately or in combination are sufficient to constitute exceptional reasons why she should not be kept in custody, the application must be dismissed.

Would a grant of bail otherwise be appropriate?

Having reached that conclusion, it is not necessary for me to decide whether bail would otherwise be appropriate. However, as the matter was argued, I would make the following observations.
The respondent does not contend that the applicant is a flight risk. However, there are obstacles to the conclusion that bail would be appropriate in this case. They were identified by Strk AJ in Hampton.[34] Her Honour was not satisfied that bail could properly be granted, having regard to the provisions of cl 1 and cl 3. Paramount among the reasons is the risk that the applicant would commit a drug dealing offence if she is not kept in custody. That risk is to be assessed on the basis of the charges brought against the applicant, which involve alleged drug dealing while on bail for similar offences, and the strength of the evidence against the applicant in respect of those charges.
[34] Hampton [77] – [86].
The applicant has said that she would comply with any conditions the court might impose if bail were granted, including a home detention condition. She has said, in effect, that her desire to care for her children, or at least to assist in such care, and to support her partner, provide an incentive for her to comply with bail and not to offend. She points to the fact that she has engaged with The Whitehaven Clinic as evidence of her commitment to those objectives. It was also submitted on her behalf that I might infer (although there is no evidence from the applicant about it) that the time the applicant has spent in custody (some six months) would act to deter the applicant from committing an offence and as a strong incentive for her to comply with bail conditions. However, as the respondent submitted, one would have thought the applicant had a very powerful incentive to comply with her bail obligations and not offend when she was at a relatively advanced stage of pregnancy in September 2018, yet, on her admission to the police, she offered to sell drugs to Ms Batson, and she is alleged to have been in possession of a quantity of methylamphetamine found in her handbag on 6 September 2018. Further, the applicant was remanded in custody from 6 September 2018 until 20 September 2018. On the respondent's case, given the positive urinalysis test on 1 March 2019, the period in custody was not a sufficient incentive at that time for the applicant to comply strictly with her bail conditions.
Of course, the magistrate who considered bail on 21 September 2018 was satisfied there were exceptional reasons at that stage why she should not be kept in custody, and was also satisfied a grant of bail was appropriate having regard to the factors in cl 1 and cl 3. However, the subsequent positive urinalysis result on 1 March 2019 indicated continued access to methylamphetamine by the applicant, and the fact that on 5 March 2019, she was driving a vehicle in which police found a synthetic urine kit for females gives cause for concern about her preparedness to comply with conditions. Those incidents happened when Mila‑Sue was more than one month old, and one would have expected the risk of losing access to her child to be a significant incentive for the applicant to comply strictly with her conditions. In addition, the applicant was aware that the consequence of non‑compliance could be a return to custody, as had occurred in September 2018.
The respondent submitted that no conditions could adequately reduce the risk that the applicant would commit a drug offence. As for home detention, the respondent noted that the applicant is alleged to have committed the September 2018 offences from her home. In essence, it is alleged she was drug dealing from home. The respondent submitted that, even if the applicant were residing with her father, as proposed, he could not be expected to supervise her at all times. A home detention condition would not necessarily address the risk of the applicant committing an offence.
While I consider that there is force in the respondent's arguments, the purpose of home detention is not only to reduce the risk of flight, but also to reduce the risk of the accused committing offences within the community and associating with persons who might also be involved in offending. Of course, even if confined to her residence, the applicant could communicate with such persons by the use of a telephone or electronic device. However, consideration could be given to conditions that would limit the use of such devices and allow for the police to gain access to information on them (at least in the case of electronic devices).
In the previous bail application, Strk AJ considered 'curfew and place of residence conditions',[35] but it does not appear that her Honour was asked to consider a home detention condition (bearing in mind that the threshold question was whether the applicant had established exceptional reasons why she should not be kept in custody).
[35] Hampton [86].
I am inclined to agree with the respondent's submission in the circumstances of this case that, if bail were being considered under cl 1 and cl 3, conditions that did not include home detention would not adequately reduce the risk of the applicant committing an offence. The respondent submitted that it would not be proper to grant home detention bail either, for reasons I have already mentioned. However, while it is not necessary for me to decide the issue, and while I would have significant reservations about the applicant's capacity to comply with bail conditions, for the reasons I have stated at [88] and [89] above, I could not exclude at this stage the appropriateness of home detention bail if a favourable bail assessment report were received. The occasion to obtain such a report does not arise.
Given my decision in respect of cl 3A, it is not necessary to consider further the factors in cl 1 and cl 3.

Order

Accordingly, the application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HF
Associate to the Honourable Justice Fiannaca
12 SEPTEMBER 2019