Hampton v The State of Western Australia
[2019] WASC 129
•18 APRIL 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HAMPTON -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 129
CORAM: ACTING JUSTICE STRK
HEARD: 12 APRIL 2019
DELIVERED : 18 APRIL 2019
FILE NO/S: MBA 26 of 2019
BETWEEN: CHLOE JANE HAMPTON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Nil
Legislation:
Bail Act 1982 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
| Applicant | : | Mr S Scudds |
| Respondent | : | Ms T Tan |
Solicitors:
| Applicant | : | Porter Scudds |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Broad v Haas [2002] WASC 155
EAGD v The State of Western Australia [2013] WASCA 81
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Outman v The Queen [2001] WASC 162
Phan v Western Australia Police [2014] WASC 232
Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303
Unchango v The Queen (Unreported, WASC, Library No 980346, 12 June 1998)
Western Australia v Sturgeon [2005] WASC 256
YSN v The State of Western Australia [2017] WASCA 155
ACTING JUSTICE STRK:
This is an application filed on 4 April 2019 for bail. The applicant has been charged with nine charges, being indictable charges and either‑way offences that have been subject of an application made pursuant to the Criminal Code s 5. I understand that she intends to plead not guilty in relation to the same.[1]
[1] The applicant's outline of written submissions filed on 4 April 2019, par 29 – 34.
Seven of the nine charges are alleged to arise out of or relate to two separate search warrants, being:
(a)a search warrant conducted at the applicant's residence in Byford on 5 May 2018; and
(b)a search warrant conducted at the applicant's then residence in Gosnells on 6 September 2018.
Two of the charges are alleged to arise out of a telephone intercept of the applicant's telephone service.
In support of the application for bail, the applicant relies on the outline of written submissions filed on her behalf on 4 April 2019; the affidavit of Jeremy James Scudds, solicitor for the applicant, sworn 3 April 2019 (Scudds affidavit); and the affidavit of the applicant sworn 9 April 2019, in which the applicant deposes that the information referring to her in the submissions and in the affidavit of Mr Scudds is true to the best of her information and belief.
The application for bail is opposed and the respondent relies on the outline of written submissions filed on 12 April 2019; the affidavit of Tracy Li Shen Tan, State Prosecutor, affirmed 10 April 2019; and the affidavit of Detective First Class Constable Michael Peter Hitchcock of Karratha Detectives, sworn 11 April 2019 (Hitchcock affidavit).
At the hearing of the application, counsel for the applicant objected to the admission of large parts of the Hitchcock affidavit.[2] In summary, the applicant complains that parts of the affidavit would not normally be admissible. In light of the Bail Act 1982 (WA) s 22, I indicated that I would not rule on admissibility, but to the extent that I weighed in the balance any of the information contained in the Hitchcock affidavit in determining this application, I would make the same clear in my reasons.[3]
[2] ts 21 - 22 (12 April 2019).
[3] ts 22 - 23 (12 April 2019).
Background
I now turn to describe the context in which the application for bail is pressed. The following information is principally sourced from the respondent's outline of written submissions. Save for the errors identified at the hearing on 12 April 2019 (which were conceded as being errors by the respondent, were corrected, and which corrections are reflected below), the applicant did not take issue with the following overview of the allegations made as against the applicant.[4]
Byford search warrant
[4] ts 4 - 5 (12 April 2019).
On 5 May 2018, the applicant was charged with a number of offences which included possession of a prohibited drug with intent to sell or supply (charge AR 5743 of 2018), offer to sell or supply a prohibited drug to another (charge AR 5744 of 2018), possession of a firearm with circumstances of aggravation (charge AR 5745 of 2018), possession of stolen or unlawfully obtained property (charge AR 5746 of 2018), and several other minor drug offences.
During a search of the master bedroom on 5 May 2018 at the applicant's residence in Byford, it is alleged that police located approximately 22 g of methylamphetamine (the subject of charge AR 5743 of 2018).[5] That 22 g is said to be cumulated from different quantities of methylamphetamine found:
(a)inside of a pink notebook located in the top drawer of the applicant's bedside drawer; and
(b)inside of the applicant's white handbag (and predominantly inside of a plastic container inside of the handbag), which was in the master bedroom.
[5] I am informed that the respondent is only able to provide an estimated total weight at this time as there appear to be a number of certificates of analysis outstanding.
It is alleged that police also relevantly located items in the master bedroom including:
(a)notes consistent with being 'tick lists' - inside of the pink notebook from the applicant's top bedside drawer and in the applicant's handbag;
(b)a large quantity of empty clip seal bags - inside of the pink notebook from the applicant's top bedside drawer and inside the top bedside drawer separately;
(c)$1,600 cash - inside of the pink notebook from the applicant's top bedside drawer;
(d)a handgun - found in a bag under the bed in the master bedroom, where the applicant admitted handling a hand gun of a similar appearance and indicated that her DNA and fingerprints may be on the firearm (that is the subject of charge AR 5745 of 2018);
(e)digital scales - in the applicant's top bedside drawer; and
(f)knuckle dusters - in the bag under the bed in the master bedroom and on the floor.
The applicant's Samsung mobile phone was also located during the search. The applicant provided the access code to police, who are said to have found conversations on it relating to the sale or supply of prohibited drugs including references to weights, quality and pricing (this is the subject of charge AR 5744 of 2018). There were also allegedly photos on the phone of handguns and text messages referring to guns.
The applicant admitted to sending several messages on that phone referencing drug weights and prices. The messages found on the applicant's phone included messages allegedly sent in the period from 3 February 2018 to 2 May 2018.
It is alleged that a fingerprint located on the fourth page of the pink notebook located in the top bedside drawer was identified as the applicant's fingerprint; that a fingerprint on the seventh page was unidentified, and all other fingerprints found on the notebook were deemed insufficient for analysis; and that a DNA swab taken from the container inside of the applicant's handbag was found to have a DNA profile on it matching that of the applicant.
Gosnells search warrant
On 31 July 2018, police started intercepting the applicant's telephone service.
On 6 September 2018 police executed a search warrant at the applicant's (then) home address in Gosnells. The applicant was arrested and later charged with a number of offences including possession of a prohibited drug with intent to sell or supply (charge AR 11154 of 2018), possession of stolen or unlawfully obtained property (charge AR 11158 of 2018), sale of a prohibited drug (charge AR 11155 of 2018), and two counts of offering to sell or supply a prohibited drug to another (charge AR 11156 ‑ 11157 of 2018).
The applicant was present during the search. Other persons were also found at the address, including a woman named Mariesha Batson.
During the search of the property, it is alleged that police located the applicant's black handbag in the lounge room; that documents and identification in the name of the applicant were located in the bag; and that a plastic container was also found inside the handbag which contained 4.76 g of methylamphetamine (this is the subject of charge AR 11154 of 2018).
It is alleged that police also relevantly located during the search:
(a)digital scales - inside a coffee table drawer in the lounge room and in the applicant's bedroom;
(b)numerous empty clip seal bags - in the dining room area; and
(c)$100 cash - inside of the applicant's black handbag, consistent with being the price of two points (this is the subject of charge AR 11158 of 2018).
It is alleged that the applicant's mobile phone was found on the coffee table in the lounge room; that a number of messages exchanged between the applicant and Ms Batson over Facebook that day indicated that Ms Batson wanted 'just a couple of points can I come over'; and that the applicant admitted to sending the messages and admitted that she had offered to supply the drug to Ms Batson, but denied having actually done so.
It is alleged that police found two points of methylamphetamine (0.2 g) when searching Ms Batson's phone case during the search warrant (this is the subject of charge AR 11155 of 2018).
Telephone intercept
As a result of the telephone intercept of the applicant's telephone service, it is also alleged that the applicant had offered to sell or supply methylamphetamine on two further occasions. They are as follows:
(a)on 23 August 2018 - in relation to 0.5 g of methylamphetamine (that is the subject of charge AR 11156 of 2018); and
(b)on 29 August 2018 - in relation to 1.75 g of methylamphetamine (that is the subject of charge AR 11157 of 2018).
Bail history
Following the arrest of the applicant on 5 May 2018 after execution of the Byford search warrant, the applicant was granted bail by police in relation to charges AR 5743 ‑ 5746 on the following terms, through to her first court appearance on 15 May 2018:
(a)$5,000 personal undertaking;
(b)the applicant was to reside at 16 Koonart Pass, Byford, and not to change address without notifying the court;
(c)the applicant was to report to Armadale Police every Monday, Wednesday and Friday; and
(d)the applicant was not to leave Western Australia or go within 100 m of any place of international departure.
On 15 May 2018, the applicant appeared in the Armadale Magistrates Court and bail was renewed on the same terms. Bail continued to be renewed on the same terms until 22 June 2018, when the applicant's residential address was amended to 42A Blanche Street, Gosnells, and the accused was remanded through to 13 July 2018.
On 13 July 2018, the applicant failed to appear in the Armadale Magistrates Court and an arrest warrant was issued. This is the subject of a breach of bail charge (that is, charge AR 9038 of 2018). The respondent says that the applicant subsequently told police that she had failed to appear because someone was 'hassling her in the Court', so she left.
In relation to charge AR 9038 of 2018, the position of the applicant is explained at par 30 of the applicant's written outline of submissions. The applicant admits that she failed to appear in the Armadale Magistrates Court, but says that she filled out documentation in relation to her appearance and provided that to the court registry. She also maintains that she left the court because someone was hassling her. The applicant says that the person was in fact her former housemate who sexually assaulted her on 26 May 2018 by spiking her drink and causing her to pass out.
On 18 July 2018, the applicant attended Armadale Police Station after becoming aware that she was the subject of an outstanding warrant. The applicant was searched and within a bag the applicant was carrying police located two black purses containing 0.45 g and 0.17 g of methylamphetamine respectively. That is the subject of a simple possession charge (charge AR 11623 of 2018).
When the applicant came before the Armadale Magistrates Court on 19 July 2018, bail was reinstated on the same terms and conditions as previously. On 13 August 2018, bail was again renewed.
On 6 September 2018, police executed the Gosnells search warrant and the applicant was charged with further offences. The applicant was rendered a Schedule 2 offender and the police refused bail. The applicant was remanded in custody.
On 21 September 2018, the applicant was granted bail in the Armadale Magistrates Court through to the next court date, notwithstanding her status as a Schedule 2 offender. The bail conditions imposed were as follows:
(a)$5,000 personal undertaking;
(b)$5,000 surety;
(c)the applicant was to reside at 36B Sussex Rd, Forrestfield;
(d)the applicant was to observe a 24 hour curfew unless in company with Terrence Moore or Sue Birks;
(e)the applicant was to comply with all lawful directions of a Community Corrections Officer, including programmatic intervention and the provision of urinalysis samples where any detectable traces of non‑prescription drugs was to be deemed a breach; and
(f)the applicant was to report to Forrestfield Police Station every Monday and Friday.
On 4 October 2018, the applicant attended for her intake with Community Corrections and provided a urinalysis sample which was negative. The applicant was required to continue to attend for urinalysis periodically as directed.
On 19 January 2019, the applicant gave birth to her third child.
On 1 March 2019, the applicant provided a positive urinalysis sample and as a result breached her bail.
On 5 March 2019, based on the notes contained in Annexure JJS‑8 attached to the affidavit of Jeremy James Scudds, police advised Community Corrections that the applicant had been stopped driving a car that contained a synthetic urine kit.
On 7 March and 11 March 2019, the applicant provided negative urinalysis samples.
On 18 March 2019, the applicant was arrested for breaching her bail as a result of the positive urinalysis sample given on 1 March 2019.
On 19 March 2019, the applicant appeared before the Armadale Magistrates Court. The applicant was remanded in custody. An application for bail was listed for hearing on 26 March 2019.
On 26 March 2019, the application for bail was adjourned to 2 April 2019 so as to allow additional materials to be provided.
On 2 April 2019, the bail application was refused by Magistrate Mahon and the applicant was remanded in custody.
On 4 April 2019, the present application for bail was lodged with the Supreme Court.
Urinalysis
I have had regard to Annexure JJS‑8 to the Scudds affidavit, which contains a summary of the applicant's attendance and results of urinalysis provided by Community Based Corrections. I have also had regard to the summary of that information provided by the respondent in table form at par 44 of the respondent's written outline of submissions.
Legislative framework
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. It is not an appeal from the learned magistrate's decision on 2 April 2019 refusing bail.
As the court's jurisdiction to grant bail arises by operation of the Bail Act s 13 and sch 1 pt A, it must be exercised subject to and in accordance with pt III of the Bail Act and the further provisions in pts B, C and D of sch 1.
This application is governed by cl 3A of sch 1 pt C of the Bail Act. That clause 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:
1.that there are exceptional reasons why the accused should not be kept in custody; and
2.that bail may properly be granted having regard to the provisions of cl 1 and cl 3.
'Serious offence' is defined in s 3 of the Bail Act to mean an offence against s 51(2a), and an offence described in sch 2. 'Exceptional reasons' is not defined.
As observed by Mazza JA in EAGD v The State of Western Australia,[6] the use of the word 'exceptional' in the context of cl 4A of sch 1 pt C of the Bail Act (Bail after conviction for accused awaiting disposal of appeal), '…denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend on the facts in each particular case.'
[6] EAGD v The State of Western Australia [2013] WASCA 81 [8] (Mazza JA). See also Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 [15] (Murray J), and [46], [48] (Steytler J).
The same may be said of the use of the word 'exceptional' in the context of cl 3A.
The applicant accepts that the usual onus, which lies with the prosecution to show that the applicant will not answer her bail, does not apply in the circumstances of this case. The applicant accepts that cl 3A of sch 1 pt C of the Bail Act applies, and that she must show 'exceptional reasons' before she can be granted bail.[7]
[7] Applicant's written outline of submissions, par 20.
Therefore, I must refuse to grant bail in respect of those offences unless I am satisfied there are exceptional reasons why the applicant should not be kept in custody pending her further appearance on the charges, and I am also satisfied that a grant of bail would be proper having regard to the provisions of cl 1 and cl 3 of sch 1 pt C.
The factors in cl 1 are in the form of questions which address, firstly, whether there are grounds to refuse bail, and secondly, whether there are any conditions that the court can impose which would remove the reasons for refusing bail.
In considering the category of questions at cl 1(a), the court must have regard to the factors set out in cl 3 of sch 1 pt C, which include (a) the nature and seriousness of the offence and the probable method of dealing with the applicant for it if she is convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to her; and (d) the strength of the evidence against her.
The question in cl 1(e), namely whether any conditions could be reasonably imposed that would sufficiently remove the risks that the applicant would commit an offence or endanger the safety or welfare of other persons, in essence requires the court to consider whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail.[8]
[8] Milenkovski v The State of Western Australia [40].
The circumstances which bring this application within the provisions of cl 3A will also be relevant to a number of the factors to be considered under cl 1 and cl 3.
The proper approach to the questions and considerations in cl 1 and cl 3 was explained in YSN v The State of Western Australia.[9] See also Milenkovski v The State of Western Australia.[10] The principles are well known and it is not necessary to set them out for the purposes of these reasons.
[9] YSN v The State of Western Australia [2017] WASCA 155 [15] ‑ [21].
[10] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25] and [39] ‑ [41] (McLure P).
Exceptional reasons
The applicant says that her exceptional reasons are related to the following combination of factors:
(a)the need for her baby (Mila-Sue) to be and bond with the applicant;
(b)the personal mental health of the applicant (that is, her post‑natal depression), and her need for intensive health interventions; and
(c)the delay in getting to trial.
For the reasons set out below, on the information presently available to me, I am not satisfied that any of the factors alone, or the factors combined, constitute exceptional reasons why the accused should not be kept in custody.
The need for the baby to be and bond with the applicant
The applicant relies on a report by clinical psychologist Christopher G Semmens dated 2 April 2019.[11] The opinion expressed is succinctly put and appropriate to repeat in full:
I refer to your request for a report and the supporting materials supplied including the reports of and (sic) Ms Hampton's medical practitioner. Ms Hampton gave birth to her third child Mila‑Sue on 19 January 2019. On 8 February 2019 she was diagnosed by her medical practitioner with Post Natal Depression, the symptoms of which had been present since the delivery of the child.
On 19 March 2019 Ms Hampton's bail was revoked. The effect of this is that the infant has been deprived of ongoing maternal contact and bonding with the mother. This puts the child at significant risk of a damaging disruption to the development of an early maternal attachment bond.
Professor Bessel van de Kolk, one of the most foremost authorities in traumatic stress, has said:
One of the most important discoveries in psychology, neuroscience and psychiatry has been that failure in establishing secure early attachment bonds leads to diminished capacity to regulate negative emotions. Half a century of attachment research has shown that people learn to regulate their emotional arousal largely as a function of the capacity to establish physical and rhythmical attunement with important figures in their early caretaking environment. Problems with affect regulation have pervasive effects on the development of mind and brain and lead to significant increases in the utilisation of medical, correctional, social, and mental health services. (2011).
The best interests of the community can be seen to be best served by having the infant child Mila‑Sue not being deprived of early maternal attachment. The continued disruption of the bonding process will have serious consequences for the child. Being deprived of early maternal attachment and bonding the infant will be put at risk of developing problematic affect regulation and of thus becoming a burden on the community by way of the preventable utilisation of community intervention services later in life.
[11] The report is annexed to the Scudd affidavit as 'JJS-9'.
The applicant also relies on the report dated 1 April 2019 from Ms Eileen Simms, Best Beginnings Officer, Department of Communities, Child Protection and Family Support Division.[12] Ms Simms expresses the opinion that 'Mila-Sue has the need and the right to experience a securely attached relationship with her mother Chloe'. Ms Simms further says that 'a securely attached relationship' can be achieved:
(a)through mother and daughter spending time together;
(b)along with the support of maternal mental health services and an additional attachment based intervention, such as the Circle of Security Program and infant-mother psychotherapy.
[12] The report is annexed to the Scudd affidavit as 'JJS-6'.
I accept that the need of the child to bond with her mother (that is, a risk of a damaging disruption to the development of an early maternal attachment bond), can ground an 'exceptional reason' for the purpose of cl 3A. It is a consideration which weighs heavily in the determination of whether an exceptional reason has been demonstrated in this case.
However, for the reasons expressed below, on the information presently before me the applicant has not demonstrated that it is an 'exceptional reason why the accused should not be kept in custody' (emphasis added).
Through mother and daughter spending time together
The first limb referred to by Ms Simms by which a securely attached relationship may be promoted is mother and daughter spending time together.
I understand that (at least as a matter of policy), it is common ground that given Mila-Sue's age, it is possible for Mila-Sue to currently reside with the applicant while the applicant is remanded in custody.[13]
[13] ts 28 (12 April 2019).
I understand that Mila‑Sue is presently in the care of her father, Mr Speck, and Mila-Sue's paternal grandmother. Mila‑Sue has on a few occasions visited the applicant whilst the applicant has been remanded in custody, but Mr Speck does not want Mila‑Sue to remain with the applicant whilst in custody because of the applicant's fragile mental state.[14]
[14] Applicant's outline of submissions par 18.
On the evidence before me, it is not clear as to whether the applicant would have custody of, or access to Mila-Sue if bail was secured and she was not kept in custody. The nature and extent of the applicant's parental rights is not clear.
Further, it is not clear as to whether the applicant might be able to secure custody of Mila‑Sue whilst the applicant is remanded in custody, through orders of the Family Court. In this regard, counsel for the applicant submits that on bail, the applicant would have more opportunity to assert herself and to secure access to Mila-Sue by agreement with Mr Speck, or through orders of the Family Court.
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 support of mental health services
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.
The mental health of the applicant
The applicant also refers to her mental health (her post‑natal depression), and her need for intensive health interventions to ground an exceptional reason in combination with the other factors.
I have had regard to the Scudd affidavit, in particular, to the:
(a)report dated 1 April 2019 from the applicant's general practitioner Doctor Taiwo, confirming that the applicant was diagnosed with post‑natal depression;[15]
(b)report dated 1 April 2019 from Ms Eileen Simms of Best Beginnings (referred to above); and
(c)the undated summary of events from Community Based Corrections.[16]
[15] Annexed to the Scudd affidavit as 'JJS-5'.
[16] Annexed to the Scudd affidavit as 'JJS-8'.
The respondent argues that the evidence before the court at present only indicates that as at 8 February 2019, the applicant was diagnosed with post-natal depression. The respondent notes that there is no evidence to indicate that the applicant continues to have post-natal depression, nor the extent to which she now suffers from that condition (if the diagnosis remains current).
The respondent further notes that there is no evidence that 'intensive medical interventions' remain necessary, and if so, that they are only available in a non‑custodial setting.
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.
Delay in getting to trial
It is common ground and I accept that a delay in bringing an accused to trial can be an exceptional reason, particularly in the overall circumstances of the accused, justifying a grant of bail.[17] However, I also accept the respondent's submission that whether delay will amount to an exceptional reason in a particular case will depend on all of the circumstances, including the length of the delay and the nature of the charges.[18]
[17] Applicant's outline of submissions par 23, referring by way of example to the overall approach of Templeman J in Unchango v The Queen (Unreported, WASC, Library No 980346, 12 June 1998). See also Broad v Haas [2002] WASC 155, citing with approval Outman v The Queen [2001] WASC 162 (Roberts‑Smith J); and also Western Australia v Sturgeon [2005] WASC 256 [50] – [56] (EM Heenan J).
[18] Respondent's written outline of submissions par 57, referring to Phan v Western Australia Police [2014] WASC 232.
The applicant refers to the workload of the Office of the Director of Public Prosecutions, which the applicant observes as having been substantial in recent months, showing no sign of reduction.[19] Counsel for the applicant suggests that it is not expected for the applicant to reach trial on the charges within the next 12 months.
[19] Applicant's written outline of submissions par 35.
As to the status of the charges against the applicant, as at the hearing of this application on 12 April 2019, I understood as follows. The charges had been listed for Police Committal Mention on 16 April 2019. The date for a disclosure/committal hearing had not been fixed, but the State Director of Public Prosecutions had received the disclosure brief.
While it cannot be said that a trial of the charges is imminent, on the information available to me, I am not satisfied that delay in getting to trial would alone ground an exceptional reason in this case. I accept the respondent's submission that the applicant was remanded in custody on 19 March 2019, and accordingly, as at the hearing of the bail application, will only have been in custody for 25 days.
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.
Would bail properly be granted having regard to the provisions of cl 1 and cl 3?
Having found that I am not satisfied that there are exceptional reasons why the accused should not be kept in custody, the application for bail must be refused. However, for completeness, I note that I would not otherwise have been satisfied that bail could properly be granted, having regard to the provisions of cl 1 and cl 3. Set out below is a very brief summary of my reasons for the same. (Given my finding in relation to 'exceptional reasons' I have not set out in full the matters weighed when having regard to the provisions of cl 1 and cl 3).
The respondent's position
The position of the respondent is summarised at par 65 of the respondent's written outline of submissions, that is, the respondent is concerned that the applicant may commit an offence if she is not kept in custody, and that there are no conditions which could reasonably be imposed which would sufficiently remove that possibility. The respondent opposes the grant of bail.
Risk
I have weighed in the balance that on 13 July 2018, the applicant failed to appear in Armadale Magistrates Court, which is the subject of breach of bail charge AR 9038 of 2018. I have also had regard to the applicant's explanation for the same, summarised at [24] above.
Further, the seriousness of the alleged offending and the likely outcome in the event that the applicant is convicted, namely a term of immediate imprisonment, would also prima facie raise some concern as to whether she would appear in answer to a bail undertaking.
However, it is not submitted by the respondent that the applicant is a flight risk. In light of the respondent's position, the applicant's history of attendance (save for on 13 July 2018), and the explanation proffered by the applicant, I put that to one side.
Commit another offence
The question that is live in this case is whether the applicant may commit an offence. Having given careful consideration to all the matters in cl 3(a), (b), (c) and (d) of pt C, on balance, I find that there is a real risk or possibility that the applicant may commit an offence if granted bail.
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.
Conditions
Under sch 1, pt C, cl 1(e), I must consider whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility that the applicant may commit an offence if granted bail.
I accept the respondent's submission that onerous conditions were placed on the applicant when she was granted bail previously, including a residential condition and a curfew. However, I note that some of the charges concern alleged activity by the applicant from her previous residences and at night.
The information provided as to the proposed living arrangements of the applicant if she were to secure bail are scant. Only a street address was provided. For example, it was not made clear as to whether the address provided by counsel for the applicant at the hearing was one where the applicant would live alone or in company.
As such, on the very scant information before me, I am not satisfied that standard curfew and place of residence conditions would sufficiently remove the possibility that the applicant may commit an offence if granted bail.
Conclusion
For the reasons set out above, the application for bail is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Associate to the Honourable Acting Justice Strk
18 APRIL 2019
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