Hussein v The State of Western Australia
[2014] WASC 426
•13 NOVEMBER 2014
HUSSEIN -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 426
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 426 | |
| 13/11/2014 | |||
| Case No: | MBA:38/2014 | 22 OCTOBER 2014 | |
| Coram: | MITCHELL J | 22/10/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Bail granted | ||
| B | |||
| PDF Version |
| Parties: | THAER YASSER HUSSEIN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail Turns on own facts |
Legislation: | Bail Act 1982 (WA), s 13, s 14, cl 2 of pt A of sch 1, cl 1 of pt C of sch 1, cl 3A of pt C of sch 1, cl 3B of pt C of sch 1 |
Case References: | EAGD v Western Australia [2013] WASCA 81 Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 13, s 14, cl 2 of pt A of sch 1, cl 1 of pt C of sch 1, cl 3A of pt C of sch 1, cl 3B of pt C of sch 1
Result:
Bail granted
Category: B
Representation:
Counsel:
Applicant : Ms M Cheshire
Respondent : Mr A M Dungey
Solicitors:
Applicant : Cheshire Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
EAGD v Western Australia [2013] WASCA 81
Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99
- MITCHELL J:
(This judgment was delivered extemporaneously on 22 October 2014 and has been edited from the transcript.)
1 This is an application for the grant of bail for the applicant's appearance before the Magistrates Court on 7 November 2014. The applicant has been charged with two counts of common assault, one count of criminal damage to property and one count of a breach of a restraining order, that being a violence restraining order.
Evidence
2 The application for bail is supported by the affidavit of Ms Maria-Elena Cheshire sworn 3 October 2014, a certified copy of the criminal record of the applicant, a statement of a person who I shall refer to as John, a copy of the violence restraining order issued on 16 May 2014, and a certified copy of relevant prosecution notices.
Jurisdiction to grant bail
3 The jurisdiction sought to be invoked is that provided for by s 14(1)(a) of the Bail Act 1982 (WA), read with s 13(1) of that Act and cl 2 of pt A of sch 1 to the Act. Clause 2 conferred jurisdiction on the magistrate granting an adjournment of proceedings for an offence, not being a committal, to grant bail for an appearance in the Magistrates Court after that adjournment. Section 14(1)(a) of the Bail Act provides that a judge of this court may, in accordance with that Act, exercise the power to grant bail which is conferred upon any other judicial officer. Section 14(2) relevantly contemplates that this jurisdiction may be invoked by application made by the defendant, and whether or not any other judicial officer has previously refused bail.
Facts
4 On 18 November 2013 the applicant was charged with two counts of aggravated indecent assault, contrary to s 324 of the Criminal Code (WA), and three counts of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code. Both kinds of alleged offence are serious offences for the purposes of the Bail Act, being specified in sch 2 to that Act.
5 In very general terms, the applicant is alleged to have committed these offences against a lady in whose house he was boarding. The allegation is that a number of separate incidents occurred over the period between 14 September 2013 and 28 October 2013. For the purposes of this bail application it is unnecessary to describe those alleged sexual offences in any greater detail. The nature of the sexual offences alleged is such that the applicant could anticipate receiving an immediate custodial sentence if convicted.
6 On 4 December 2014 the applicant was granted bail in relation to the charges for the alleged sexual offences, subject to conditions for a personal undertaking and surety. Bail granted for the alleged sexual offences was also granted subject to protective bail conditions that the applicant not contact the complainant or approach within 200 m of her. There has been no suggestion that the applicant has failed to comply with the bail conditions in relation to the charges for the alleged sexual offences. I am advised that bail for the charges of sexual offences has not been revoked.
7 On 31 August 2014 the applicant was charged with two counts of common assault, contrary to s 313(1)(b) of the Criminal Code, one count of criminal damage to property, contrary to s 444(1)(b) of the Criminal Code, and one charge of breach of a violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA). The latter offence is also a 'serious offence' for the purposes of the Bail Act. It is convenient if I refer to these charges as the Magistrates Court charges.
8 The allegations which form the basis of the Magistrates Court charges are as follows.
9 It is alleged that on 19 April 2014 the applicant and another were waiting in a driveway at the address of a person who I shall refer to as John. The applicant also used to reside at that address, and there was an ongoing dispute between the applicant and John in relation to the ownership of some property which had been left at the address. As John arrived and got out of his vehicle, the applicant and other person confronted John about the property and both began to punch John, with clenched fists, to the head. John tried to go to his unit to escape the attack. The applicant and the other person continued to punch John for a few more minutes, before leaving the area.
10 On 20 May 2014 the applicant was served with a violence restraining order, with John being the protected person. The conditions of the order provided that the applicant must not approach or remain within 100 m of John or any property (including vehicles) of, or under the control of, John.
11 At about 9.00 am on 24 August 2014 the applicant approached an associate of John, who I shall refer to as Ali, at the Belmont Forum markets. The applicant asked Ali where John was. Ali replied that he was unsure and that there were a lot of people at the markets. The applicant became angry and began a verbal argument during which the applicant spat at Ali, hitting him in the middle of the face. The applicant then walked forward with clenched fists and indicated that he was going to hit Ali. Ali walked away and the applicant followed shouting abuse for a time.
12 At about 10.15 am on the same day, the applicant was standing next to John's vehicle, which was parked in Wright Street, Belmont. John returned to the vehicle in the company of another and saw the applicant. John shouted at the applicant to stop whatever he was doing. At the time John was approximately 40 m away. The applicant looked at John and then smacked the right-hand mirror of the vehicle causing it to snap off and resulting in approximately $100 worth of damage. The applicant then ran to his own vehicle and drove away. The incident involving the car mirror is the subject of both the criminal damage and breach of violence restraining order offences.
13 These are, of course, merely allegations which have not yet been tested at trial. The allegations are denied by the applicant. I have not received any material which enables me to make any assessment of either the strength of the prosecution or the strength of any defence.
14 The applicant was arrested in relation to the Magistrates Court charges on 31 August 2014. He was held in custody overnight and appeared before a magistrate on 1 September 2014. The matter was adjourned to 8 September 2014 and the applicant was remanded in custody. On 8 September 2014 the applicant applied for bail, which was refused by a magistrate. The application for bail was made to this court on 3 October 2014.
Relevant considerations
15 Subject to certain exceptions, cl 1 of pt C of sch 1 to the Bail Act provides that the grant or refusal of bail to the applicant is in my discretion. Clause 1 requires that this discretion be exercised having regard to questions posed by pars (a) - (g) of that clause. The matters specified in those paragraphs are non-exclusive, mandatory, relevant considerations: Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] - [25], [37]. The discretion is also to be exercised having regard to other questions which are considered to be relevant.
16 However, one of the exceptions to which cl 1 is subject is cl 3A of pt C of sch 1. Clause 3A(1) applies here as the applicant is in custody for a serious offence (namely the breach of a violence restraining order offence) and that serious offence is alleged to have been committed while the applicant was on bail for another serious offence (namely the sexual offences).
17 In those circumstances, cl 3A(1) requires that I refuse to grant bail for the breach of a violence restraining order offence unless:
(a) I am satisfied that there are exceptional reasons why the applicant ought not be kept in custody and, if cl 3B applies, I am so satisfied only after complying with that clause; and
(b) I am satisfied that bail may be granted having regard to the provisions of cl 1 and cl 3.
18 As Mazza JA has noted in the context of cl 4A of pt C of sch 1, the use of the word 'exceptional' 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 upon the facts of each particular case: see EAGD v Western Australia [2013] WASCA 81 [8].
19 The requirement for satisfaction about exceptional reasons only applies in relation to the charge of breach of the violence restraining order. It does not condition the grant of bail for the other Magistrates Court charges, which do not allege serious offences.
20 That does not mean that the other charges are not relevant to my consideration of whether exceptional reasons exist. The fact that other charges have been laid may be relevant to the question of whether there are exceptional reasons why the applicant should not be kept in custody on the charge of breaching the violence restraining order.
Preconditions to finding exceptional reasons
21 Clause 3B(1) of pt C of sch 1 to the Bail Act provides that cl 3B applies if it appears to me that all or any of the acts alleged to constitute the relevant serious offence (here the breach of violence restraining order) would, if proved in the appropriate proceedings, amount to a breach of a protective condition or order. Clause 3B(6)(b) relevantly defines a 'protective condition or order' to include a violence restraining order. I am satisfied that the acts alleged to constitute the serious offence of breaching the violence restraining order would, if proved in the appropriate proceedings, amount to a breach of a protective condition or order. Therefore, cl 3B applies.
22 Before making a decision that there are relevant exceptional reasons, I am required to make the inquiries referred to in cl 3B(2). Having made those inquiries, it is clear that there has already been an alleged breach of the protective condition or order that has not been proved in proceedings. The allegation of that breach is the prosecution notice for the breach of violence restraining order offence. Being aware of that alleged offence, cl 3B(3) requires that I give John, as the person for whose protection the violence restraining order was made, a reasonable opportunity to give evidence by affidavit on matters relating to the violence restraining order.
23 When the bail application first came before me on 13 October 2014 I ordered that, by close of business on 15 October 2014, the respondent notify John of his opportunity to give evidence by affidavit on matters relating to the violence restraining order against the applicant. I also ordered that any such affidavit be filed and served on the applicant by 4.00 pm on Tuesday, 21 October 2014. The matter was then adjourned until today, so as to afford to John that opportunity to file an affidavit.
24 I am advised by the prosecutor that, on 13 October 2014, police wrote to John informing him of his right to file a statement or affidavit in these proceedings and indicated that it would still be open to him to rely on the statement earlier provided to police. The prosecutor informs me that John telephoned the prosecutor and indicated that the concerns expressed in the statement which he had given to police, which is now an exhibit in these proceedings, were maintained, but that he was content to rely upon that statement.
25 In making a decision about whether I am satisfied that there are exceptional reasons why the applicant should not be kept in custody on the violence restraining order, I am required by cl 3B(4)(a) to give due weight to any such evidence given by John, any adverse effect the grant of bail would have on John and any difficulty that John might have in proving any future breach of the violence restraining order.
26 Clause 3B(4)(b) requires that I consider whether it would be appropriate to refuse bail and make a hospital order under s 5 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). In the absence of any evidence or other material to suggest that the applicant has a mental illness, it is clearly not appropriate to make a hospital order. I note that the requirements of cl 3B(4)(c) are not applicable in the present case.
27 I am also required by cl 3B(4)(d) to consider whether any alleged breach of the violence restraining order that has occurred shows that the purpose of the violence restraining order has not been achieved and the applicant should be kept in custody.
Exceptional reasons
28 I am satisfied that there are exceptional reasons why the applicant should not be kept in custody, by reason of the combination of a number of factors.
29 First, the second serious offence is at the lower end of the scale for its kind of offence. It did not involve any threat of violence directed against the protected person. The only harm actually caused was relatively minor damage to a motor vehicle. This is the first alleged breach of the violence restraining order.
30 Secondly, the allegations resulting in the Magistrates Court charges are not so serious as to mandate the imposition of a custodial term to be immediately served were the applicant to be convicted of those offences.
31 Thirdly, the evidence before me is that the Magistrates Court charges may not be heard until 2015. The consequence will be that, if bail is not granted and the applicant exercises his right to maintain his plea of not guilty to those charges, he is likely to serve longer on remand than the non-parole period of any custodial sentence which might be imposed.
32 Fourthly, the applicant has now spent since 31 August 2014 in custody following his arrest on the Magistrates Court charges, by reason of the allegation of breach of the violence restraining order. The consequences of breaching that order, or protective bail conditions, must now have been brought home to him, even assuming that he has breached that order as alleged. Of course, consistently with the presumption of innocence, I cannot assume that he has breached the violence restraining order.
33 Fifthly, the applicant speaks Arabic and very little English. He required an interpreter to understand these proceedings. I infer that detention in the Western Australian correctional system would be more burdensome for a person who does not speak English.
34 Sixthly, the evidence is that the applicant has complied with the bail conditions imposed in relation to the charges for the sexual offences. This indicates that he is capable of complying with bail conditions, including protective bail conditions.
35 In reaching that conclusion, I am cognisant of the fact that there is a conviction in 2007 for breach of a violence restraining order in respect of which the applicant was fined $400, but I do not consider that that single previous conviction for breaching a violence restraining order indicates that the applicant is incapable of complying with those conditions.
36 Considered individually, the above matters may not of themselves constitute an exceptional reason why the applicant should not be kept in custody. However, when considered in combination, they do enable the present case to be relevantly described as exceptional.
37 In reaching that conclusion, I have had regard to the statement of John and considered whether the alleged breach of the violence restraining order that has occurred shows that the purpose of the violence restraining order has not been achieved and the applicant should be kept in custody. Having regard to the nature of the alleged breach of that order, I am not satisfied that the applicant must be kept in custody for the purpose of that order to be achieved. I am satisfied that the nature and circumstances of the alleged breach are not such as to demand that the applicant be kept in custody.
38 It was accepted by the prosecution that, once I found exceptional reasons to exist in relation to the violence restraining order offence, there was no basis, having regard to the considerations in cl 1 and cl 3 of pt C of sch 1, to refuse the applicant bail. Having considered the matters referred to in cl 1, I have concluded on balance that bail should be granted on conditions and, in my view, the risk that the applicant may commit any further offences may be mitigated by the imposition of conditions on bail and is outweighed by the considerations I have identified as constituting exceptional reasons why the applicant should not be kept in custody.
39 I grant bail on the applicant's personal undertaking of $10,000 with a $10,000 surety, subject to conditions that the applicant reside at a specified address and that there be a protective bail condition that the applicant not contact John or Ali, not approach within 500 m of their places of residence or work and not approach or remain within 100 m of them or property which they own or which is under their control.
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