JLD v The State of Western Australia
[2020] WASCA 156
•18 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JLD -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 156
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 22 JULY 2020
DELIVERED : 18 SEPTEMBER 2020
FILE NO/S: CACR 78 of 2020
BETWEEN: JLD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
File Number : MBA 12 of 2020
Catchwords:
Criminal law - Appeal against refusal to grant bail - Whether primary judge erred in finding that the appellant posed a significant risk of interfering with the complainant, and further or alternatively other witnesses, such that there were no conditions that could be included in a grant of bail that would sufficiently protect the complainant - Whether the primary judge erred when considering the likely delay before a trial and whether the likely sentence if the appellant was convicted would equal or exceed the time spent on remand
Legislation:
Bail Act 1982 (WA), s 13, s 13A, s 14, s 15A, s 15B, s 17, s 22, s 23, s 25, sch 1, pt C, cl 1, cl 3, sch 1, pt D, cl 2
Criminal Code (WA), s 313(1)(a), s 326(1), s 338B(b)
Result:
Application for an extension of time within which to appeal granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms L B Black |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Legal Pathways Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
KWLD v The State of Western Australia [2020] WASCA 94
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
NPA v The State of Western Australia [2018] WASCA 131
Smart v The State of Western Australia [2010] WASCA 218
YSN v The State of Western Australia [2017] WASCA 155
REASONS OF THE COURT:
The appellant applied to this court for an extension of time to appeal and leave to appeal against the decision of Smith J to refuse to grant the appellant bail, pursuant to s 14(1) of the Bail Act 1982 (WA) (the Act), pending his trial on three charged offences.
On 22 July 2020, at the conclusion of the hearing of the appeal, the court made orders to the following effect:
(a)the application for an extension of time within which to appeal was granted;
(b)leave to appeal was refused; and
(c)the appeal was dismissed.
The court indicated that it would publish reasons for decision at a later date. These are our reasons.
The charged offences
The charged offences are as follows:
(a)aggravated sexual penetration without consent, contrary to s 326(1) of the Criminal Code (WA) (the Code);
(b)common assault in circumstances of aggravation, contrary to s 313(1)(a) of the Code; and
(c)threats to injure, endanger or harm any person, contrary to s 338B(b) of the Code.
The proceedings before Magistrate Edwards and the primary judge
Initially, the appellant applied for bail in the Magistrates Court at Rockingham. On 25 March 2020, Magistrate Edwards dismissed the application.
The appellant then renewed his application for bail in the Supreme Court. On 28 April 2020, the primary judge dismissed the application.
The facts and circumstances of the offending alleged by the State
The facts and circumstances of the offending alleged by the State are as follows.
At the time of the offending, the appellant and the complainant were married. The appellant is aged 51 and the complainant is aged 35.
The appellant and the complainant were both in full-time employment. The complainant is employed in a responsible position in a government organisation.
The appellant and the complainant were married in 2015.
On 4 October 2019, the complainant left the family home after an argument with the appellant that occurred several days earlier. During the argument the appellant told the complainant to move out.
In December 2019, the complainant agreed with the appellant to return to the family home.
On 26 February 2020, the appellant was angry because the complainant had not answered her telephone several days previously. An argument developed between them. During the argument the appellant indicated that he suspected the complainant of infidelity. The appellant told the complainant, '[y]ou and your daughter deserved to be burned alive like the Queensland family'. The appellant then told the complainant, '[m]y brother has fucked you and he will rape you again'.
On 28 February 2020, the complainant underwent an intimate medical procedure at a hospital involving her uterus.
On 2 March 2020, the complainant was resting at home when the appellant told her that he wanted sex.
The complainant, who was bleeding as a result of the medical procedure two days previously, indicated that she did not want to have sexual intercourse with the appellant.
The appellant forced open the complainant's legs, removed her underwear and checked her sanitary pad. The appellant moved himself between the complainant's legs, slapped her face and said, 'I'm still your husband and you're bound to do it'.
The complainant pleaded with the appellant stating, 'No! Please. No! No!'. The appellant proceeded to move the complainant's legs up to his shoulders and commenced penile/vaginal intercourse with her until he ejaculated.
The next day, the complainant informed work colleagues of what had occurred. The complainant then made a complaint to police.
On 3 March 2020, the appellant was arrested. He declined to participate in an interview with police.
The bail risk assessment report
The information before the primary judge included a bail risk assessment report dated 23 March 2020. The report was prepared by a senior family violence worker with the Family Violence Service, Court Counselling and Support Services. The report was prepared at the request of a judicial officer, pursuant to s 24A(1) of the Act, for the purpose of assisting the consideration of whether the appellant should be granted bail, subject to protective bail conditions.
The report states, relevantly:
(a)The risk assessment was conducted by a senior family violence worker in consultation with the Western Australia Police Family Violence Team and the Department of Communities, Child Protection and Family Support.
(b)The complainant first engaged with the Family Violence Service on 29 October 2019 as a result of alleged escalating domestic abuse committed by the appellant against her.
(c)On 9 March 2020, the complainant attended the Family Violence Service for assistance with making an application for a family violence restraining order against the appellant.
(d)On 17 March 2020, the complainant attended the Family Violence Service to participate in an interview for the purposes of the bail risk assessment report. The complainant presented as intelligent and articulate. She was quietly spoken. She displayed behaviours consistent with experiencing a recent trauma.
(e)The complainant said that she first met the appellant in 2015. They met in a foreign country and were married shortly afterwards. They have no children together.
(f)The complainant said that in April 2017 she arrived in Australia to join the appellant who was working in this country.
(g)The complainant said that, after she arrived in Australia with her daughter from a previous relationship, the appellant became emotionally abusive, jealous and controlling. He was very impulsive and unpredictable. The appellant required the complainant to disclose her password to her Facebook account. He monitored and questioned her on every expenditure on their bank statement. The appellant told the complainant that there was a hidden camera in the house. The appellant prohibited her from attending social functions, including work events. If she did attend an event the appellant would accuse her of 'fucking around' and he would call her a whore.
(h)The complainant expressed concerns regarding the appellant's mental health as a result of some of his behaviours. According to the complainant, the appellant found a video on a pornographic website and became convinced that the complainant was in the video. He sent a copy of the video to family and friends in a foreign country. The complainant alleged that the appellant had boasted to her that he had 'got away with' numerous domestic violence offences against his former wife in the United Kingdom and that he should have killed his former wife.
(i)The complainant alleged that the appellant had made numerous threats against her. The complainant had audio recordings of the appellant threatening that his brother would rape her. The appellant had also threatened that he would burn the complainant and her daughter alive 'like the family in Queensland'.
(j)The complainant alleged that the appellant had previously poured hot tea on her daughter.
(k)The complainant was visibly distressed by the thought of the appellant being released from custody. She expressed certainty that the appellant would endeavour to find her, no matter where she was, and fear that he would carry out his threats to harm her and her daughter.
(l)The appellant has not been convicted of any criminal offences in Western Australia.
(m)On 11 March 2020, a violence restraining order was made against the appellant for the protection of the complainant and her daughter.
The report concluded, relevantly, that a risk assessment undertaken on 9 March 2020, using the Common Risk Assessment and Risk Management Framework, indicated that the complainant was 'at high risk of serious harm' due to the presence of the following risk factors:
(a)escalation of frequency and severity of domestic abuse;
(b)physical harm to the complainant;
(c)sexual assault of the complainant;
(d)threats to kill the complainant including threats to burn her to death and to bury her alive;
(e)displays of extreme jealousy;
(f)displays of extreme control;
(g)monitoring behaviours;
(h)repeated contact through social media accusing the complainant of being in a pornographic video;
(i)recent separation;
(j)the pouring of hot tea on the complainant's daughter and threats to kill the daughter;
(k)social isolation;
(l)restriction of access to money; and
(m)the presence in the appellant's house of a child from a previous relationship (that is, the complainant's daughter).
The appellant's case before the primary judge
The appellant's case before the primary judge emphasised that:
(a)the appellant disputed the complainant's allegations;
(b)the appellant was presumed to be innocent of the charged offences;
(c)the appellant had no prior criminal record;
(d)the appellant had not interfered or attempted to interfere with any witnesses, including the complainant;
(e)the appellant had stable and well‑paid employment available to him;
(f)the appellant needed to work to meet his expenses and to fund legal representation at his trial;
(g)the appellant was subject to the effects of the COVID-19 pandemic in relation to the conditions of his incarceration while on remand and the delays in listing trials in the District Court; and
(h)the appellant had not received the completed State brief.
The State's case before the primary judge
The State's case before the primary judge emphasised that:
(a)the charged offences were serious;
(b)the State's case against the appellant was strong;
(c)there was a possibility that the appellant would interfere with potential witnesses;
(d)there was a risk that the appellant would commit further offences; and
(e)the appellant was a flight risk.
The primary judge's reasons for decision
The primary judge made the following findings and observations in her reasons for decision:
(a)The relevant questions to be considered were these. First, was there a risk that the appellant would fail to appear in court in accordance with a bail undertaking if not kept in custody? Secondly, was there a risk that the appellant would commit an offence if not kept in custody? Thirdly, was there a risk that the appellant would endanger the health, safety, welfare or property of any person if not kept in custody? Fourthly, was there a risk that the appellant would interfere with witnesses or otherwise obstruct the course of justice if not kept in custody? Fifthly, had the prosecutor put forward grounds for opposing bail? Sixthly, were there any conditions which could reasonably be imposed which would sufficiently remove the possibility that the appellant would fail to appear or remove the grounds of opposition by the prosecutor if not kept in custody? Seventhly, did the alleged circumstances of the offending amount to wrongdoing of such a serious nature that bail was inappropriate? (ts 8 ‑ 9).
(b)Although the State's case was yet to be fully disclosed, on the material before her Honour, the State's case was reasonably strong. The appellant did not dispute that he had sex with the complainant on 2 March 2020. There was some independent corroboration for the complainant's evidence that she did not wish to engage in sex, as she had undergone an intimate medical procedure two days previously. The appellant conceded that he argued with the complainant in the days before 2 March 2020 and that they had discussed separating. The complainant's father had corroborated in his witness statement that the appellant threatened the complainant (ts 10).
(c)Her Honour rejected the appellant's submission that the nature of the complainant's employment indicated that she had support in the community and was not vulnerable. Her Honour said that offences of domestic violence are not confined to offences against unemployed women at home and that serious domestic violence against women occurs at all levels of society and affects all occupations (ts 4 ‑ 5).
(d)Although the appellant does not have prior criminal record and has not previously failed to comply with any grant of bail, the charges against the appellant are serious. If he is convicted of the offence of aggravated sexual assault it is highly likely, in the context of the 'escalated threats of sexual and non‑sexual violence' he allegedly made, that the appellant will receive an immediate and substantial term of imprisonment that may well exceed 'a period of two years by a substantial period of time' (ts 11).
(e)The facts which are said to constitute the threats to injure, endanger or harm are threats which, if carried out, would constitute 'an extreme escalation of sexual and general violent offences against the complainant'. Although the assessment of those threats must be made in the context of the appellant being presumed to be innocent of the charged offences, there was evidence that the appellant had, previously, been subject to a non-molestation order made in May 2014 in the United Kingdom relating to his former wife. There was also evidence of an alleged threat by the appellant that he would arrange for his brother to rape the complainant (ts 3 ‑ 4, 11 ‑ 12).
(f)There was little risk of the appellant fleeing from the jurisdiction (ts 12).
(g)However, her Honour was satisfied that the other risks identified by the State existed. The question then was whether it was possible 'to neutralise wholly or sufficiently' those risks which in themselves constituted positive grounds for refusing bail (ts 12).
(h)Although the factors relating to the appellant's work circumstances and his mortgage and financial commitments had to be taken into account, none of those factors were protective from a risk of the appellant committing further offences against the complainant (ts 13 ‑ 14).
(i)Her Honour noted that the appellant's brother was willing to act as surety and that it was proposed that the appellant would live with his brother. Her Honour found that as threats had been made which involved the appellant's brother, the brother's residence was not suitable accommodation for the appellant to live in and her Honour was not satisfied that there was evidence before the court that the brother would assist the appellant to ensure that the appellant complies with conditions of bail (ts 14, 16).
(j)The situation with the COVID-19 pandemic restrictions on the holding of jury trials and on contact generally was changeable from day to day and her Honour could not speculate on how long the restrictions would remain in place. Her Honour did not accept that the delay which had been caused by the cancellation of District Court jury trials between 16 March 2020 and 3 July 2020 would necessarily result in such a significant backlog that arrangements could not be put in place for the District Court to 'catch up' (ts 14 ‑ 15).
(k)Further, 'unacceptable risks do not become acceptable only because of delay' and, in any event, delay was only one factor which her Honour was required to consider (ts 16).
(l)Restrictions within the prison system consequent upon the COVID-19 pandemic applied to all persons in custody. There was nothing before her Honour which indicated that the appellant would be likely to suffer a particular disadvantage because of the restrictions that were different from the disadvantage suffered by any other person on remand. For example, there was no evidence before her Honour to the effect that the appellant suffered from a medical condition which would make him especially vulnerable to COVID-19 (ts 15 ‑ 16).
(m)While no grant of bail is risk free, when regard was had to the conditions that would be open to her Honour to impose, those conditions would not properly mitigate the risks of the appellant committing further offences against the complainant or further interfering with her as a witness. Consequently, her Honour was not satisfied that there were conditions that could be imposed that would sufficiently ameliorate those risks (ts 17).
The grounds of appeal to this court
The appellant relies upon three grounds in the appeal to this court.
Ground 1 alleges that the primary judge erred in fact and in law in finding that the appellant posed a significant risk of interfering with the complainant, and further or alternatively other witnesses, such that there were no conditions that could be included in a grant of bail that could sufficiently protect the complainant in circumstances when there were conditions that could achieve this objective.
Ground 2 alleges that her Honour erred in law and in fact by placing excessive weight on the unproven allegations made by the complainant and, in doing so, failed to give sufficient weight to the presumption of innocence and to the appellant's prior good character.
Ground 3 alleges that her Honour erred in fact and in law, when considering the likely delay before a trial and whether the likely penalty if the appellant was convicted may equal or exceed the time served, by failing to have regard to the delay before trial in the context of the COVID‑19 pandemic and the actual time the appellant may spend in custody if convicted before a release on parole.
On 2 July 2020, Buss P referred the appellant's application for leave to appeal to the hearing of the appeal.
The appellant's submissions in support of the appeal to this court
As to ground 1, counsel for the appellant submitted that:
(a)the primary judge, in assessing the risk to the safety or welfare of the complainant, improperly relied upon the ex parte non‑molestation order concerning the appellant's former wife, insofar as the order provided her Honour with context as to whether the appellant 'may' carry out the threats he allegedly made;
(b)her Honour used the non‑molestation order, 'in a propensity style reasoning', to give weight to an assessment as to whether the appellant may endanger the safety or welfare of the complainant;
(c)the non‑molestation order was not the product of a criminal trial and the information before her Honour in relation to the order did not entitle her Honour to treat it 'like a proven criminal record';
(d)the non‑molestation order merely prohibited the use of threats or violence against the appellant's former wife. It was not proof of an admission or proof that the appellant had in fact previously threatened anyone or had in fact committed an act of violence;
(e)the non‑molestation order had little, if any, probative value in assessing the risk that the appellant may commit further offences against the appellant;
(f)information from the Northumbria police force in the United Kingdom suggested that the appellant's conduct was merely related to the spreading of rumours about his former wife which caused her embarrassment and distress;
(g)her Honour failed to take 'proper account' of the appellant's lack of a criminal record, the absence of any history of violence and the appellant's good personal antecedents;
(h)her Honour made findings as though the allegations made by the complainant had already been proved to the criminal standard; and
(i)although counsel accepted that 'in any case where a female complainant alleges threats and violence from her former spouse' there is 'some risk', a court considering an application for bail is bound to proceed on the basis that the accused is presumed to be innocent and that the complainant's allegations are untested, especially where there are conditions that can be imposed which would sufficiently ameliorate any risk.
Further, as to ground 1, it was argued that conditions that could sufficiently have reduced the risk to the safety or welfare of the complainant included:
(a)protective bail conditions, including that the appellant not be in the suburb where the complainant lives and that the appellant not approach within 500 m of the place where the complainant lives or works;
(b)the appellant not contact the complainant, directly or indirectly, by any means; and
(c)the appellant not contact or interfere with any witness or members of the organisation where the complainant works, directly or indirectly, by any means.
As to ground 2, counsel for the appellant relied upon the submissions in support of ground 1 to the extent that they are relevant to ground 2.
It was also submitted that:
(a)the primary judge made findings based upon the complainant's account of events, notwithstanding that the appellant disputed that account;
(b)the bail assessment report before her Honour was compiled from information obtained from the complainant and did not provide the court with an independent assessment of the risk to the complainant's safety or welfare;
(c)her Honour relied upon the unproven threats allegedly made by the appellant when her Honour stated that 'if carried out, [there would be] an extreme escalation of sexual and general violent offences against the complainant' (ts 11);
(d)her Honour failed to recognise that the unproven threats made by the appellant were merely an allegation and were subject to the presumption of innocence;
(e)although her Honour stated that the threats must be considered in the context of the presumption of innocence, her Honour ultimately made findings that did not properly recognise that principle; and
(f)her Honour gave 'undue weight' to the unproven allegations against the appellant, the alleged threats he had made and the content of the bail risk assessment and her Honour gave 'insufficient weight' to the appellant's lack of a criminal record, the absence of any history of violence and the appellant's good personal antecedents.
As to ground 3, counsel for the appellant noted that the appellant had been in custody since 3 March 2020 and submitted that he was unlikely to be tried until late 2021 or 'far more likely' during 2022.
It was submitted that there is a real risk that the appellant will spend at least 24 months on remand awaiting trial.
Counsel noted that, in refusing bail, the primary judge formed the view that if the appellant was convicted of the offence of aggravated sexual assault, in the context of the 'escalated threats', it was highly likely that the appellant would receive a term of immediate imprisonment that would substantially exceed a period of two years.
According to counsel, her Honour erred by not taking into account 'the actual time … the appellant would likely spend in custody if convicted' rather than the head sentence. In particular, it was argued that if the appellant received a head sentence of 4 years' immediate imprisonment, a parole eligibility order would be made and he would be likely to serve only about two years before release on parole.
Further, it was submitted that the primary judge erred in deciding, on the material before her, that the State's case against the appellant was 'reasonably strong'. Counsel argued that the strength of the State's case could not be determined.
Counsel argued that the appellant has a reasonable prospect of acquittal. He is presumed to be innocent and he will spend a lengthy period on remand as an unconvicted person if bail is not granted.
The grounds of appeal: the relevant provisions of the Act in relation to the granting of bail
In the present case, the power to grant or refuse bail to the appellant was conferred on the magistrate by s 13(1) of the Act read with cl 2 of pt A of sch 1 to the Act.
In the present case, the power to grant or refuse bail to the appellant was conferred on the primary judge by s 14(1)(a) of the Act read with s 13(1) and cl 2 of pt A of sch 1 to the Act.
Section 14(1)(a) of the Act provides, relevantly and in effect, that a judge of the Supreme Court may, in accordance with the Act, exercise a power to grant bail for appearances in the Magistrates Court which is conferred upon any other judicial officer.
By s 14(2) of the Act, relevantly and in effect, the jurisdiction conferred on a judge of the Supreme Court by s 14(1)(a) may be invoked by an accused making an application to a judge of the Supreme Court, whether or not any other judicial officer has previously refused bail.
By s 13(1) of the Act, the jurisdiction to grant bail must be exercised subject to and in accordance with pt III of the Act and the further provisions in pts B, C and D of sch 1 to the Act.
Clause 1 of pt C of sch 1 to the Act required that the primary judge's discretion to grant or refuse bail be exercised having regard to the questions posed by par (a) to par (g) of that clause, as well as any others which her Honour considered relevant. The questions posed by par (a) to par (g) of cl 1 are these:
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
By cl 3 of pt C of sch 1 to the Act, the primary judge was obliged, in considering whether the appellant may do any of the things mentioned in cl 1(a), to have regard to the following matters, as well as any others which her Honour considered relevant:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
Clause 2(1) of pt D of sch 1 to the Act provides, relevantly, that a judicial officer, on a grant of bail, may impose conditions:
(a)to be complied with before the accused is released on bail or while the accused is on bail;
(b)as to the accused's conduct while on bail; or
(c)as to where the accused shall reside on bail,
if the judicial officer considers that it is desirable for any purpose mentioned in, relevantly, cl 2(2).
By cl 2(2) of pt D of sch 1 to the Act, any condition may be imposed under cl 2(1) to ensure that an accused:
(a)appears in court in accordance with his bail undertaking; or
(b)does not while on bail commit an offence; or
(c)does not endanger the safety, welfare or property of any person; or
(d)does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person; or
(e)as regards the period when the accused is on trial, does not prejudice the proper conduct of the trial.
It is apparent from the statutory text, and the context and purpose of the Act, that in general bail may be refused, or conditions may be imposed on a grant of bail, in order to protect the integrity of the criminal justice system and to protect the community. See YSN v The State of Western Australia.[1]
[1] YSN v The State of Western Australia [2017] WASCA 155 [14].
In Milenkovski v The State of Western Australia,[2] McLure P (Pullin JA and Hall J relevantly agreeing) made the following observations as to the proper construction of cl 1 of pt C of sch 1 to the Act:
First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
The word 'may' in pars (a) and (d) of cl 1(a) means the possibility of the relevant event occurring: see cl 1(e)(i). For example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility he would fail to appear in court in accordance with his bail undertaking. In answering that and the other questions in cl 1(a), the court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C. (original emphasis)
[2] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [42].
In YSN [16] ‑ [21], this court, after reproducing that passage from McLure P's reasons for judgment in Milenkovski, said:
As noted in the above passage, the exercise of the discretion to grant or refuse bail involves two stages. The first stage involves asking and answering the questions posed in cl 1(a) - (g) in the applicable statutory context. The second stage involves the exercise of the discretion to grant or refuse bail by reference to the answers given to those questions. The issue, at least in an ordinary case, is ultimately whether the answers to those questions, and any other questions the judicial officer or authorised officer considers relevant, in the applicable statutory context, provide proper grounds for refusing to grant bail in order to secure the integrity of the criminal justice process and to protect the community.
The question posed by cl 1(a) does not ask whether, if the accused is not kept in custody, the accused will engage in conduct such as committing an offence or interfering with witnesses. Rather, the question is whether, if he or she is not kept in custody, the accused may engage in such conduct. The use of the word 'may' indicates that, in answering that question, the judicial officer or authorised officer is concerned with whether there is a risk that the accused might engage in the relevant conduct if not kept in custody. That sense of the word 'may' is indicated by cl 1(e)(i), which speaks of the 'possibility referred to in paragraphs (a) and (d)'. That confirms that the subject of the question posed by cl 1(a) is the existence of a risk or possibility that the accused may engage in the relevant conduct. However, cl 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with an offence. The risk or possibility must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) (d) and any other matters the judicial officer or authorised officer considers relevant.
Clause 1(e)(i) directs the judicial officer or authorised officer to consider whether there is any condition which could reasonably be imposed under pt D which would 'sufficiently remove the possibility referred to' in cl 1(a). Ordinarily, a reference to removing something (here a possibility) is to take the thing away. The context in which the words 'the possibility' appear in cl 1(e)(i) (in particular, the qualifying words 'sufficiently remove') indicates that this is not the meaning which Parliament objectively intended. The possibility that a person not kept in custody may commit an offence can never be entirely removed. If a judicial officer or authorised officer granting bail had to be satisfied that there was no risk that a person would engage in conduct of the kind referred to in cl 1(a) before granting bail, bail would never be granted. It is always possible that an accused person who is on bail may breach one or more of the conditions of bail.
It is clear that a judicial officer or authorised officer hearing a bail application is not required to be satisfied that no relevant risk would exist if bail was to be granted. Rather, the judicial officer or authorised officer must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period.
In this context, reference to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced. The 'sufficiency' referred to must relate to the grant or refusal of bail with which the judicial officer or authorised officer assessing sufficiency is concerned. In that context, the possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer or authorised officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
Answering the questions posed by cl 1 and exercising the discretion to grant or refuse bail are obviously inter-related, particularly in relation to the assessment of whether conditions will 'sufficiently remove the possibility of' the accused engaging in relevant conduct. However, the two stages of the process remain, and answers to the relevant questions against the interests of an accused person will not justify the refusal of bail in all cases. For example, refusal of bail will not be justified by every possibility, which cannot be significantly reduced by conditions, that an offender may commit an offence if not kept in custody. The apprehended offence may be trivial or the accused may not constitute a risk to community safety of a nature or to an extent which justifies the refusal of bail.
Section 22 of the Act provides, relevantly, that a judicial officer may, in considering any case for bail, receive and take into account such information as the judicial officer thinks fit, whether or not the information would normally be admissible in a court of law.
By s 23 of the Act, relevantly, an accused is not obliged to furnish any information, whether on oath or otherwise, for the purpose of having the accused's case for bail considered.
Section 25 of the Act provides, relevantly, that a statement made by an accused to a judicial officer for the purpose of a decision whether bail should be granted to the accused shall not be admissible in evidence against the accused at his or her trial for the offence or offences in question.
The grounds of appeal: their merits
Section 15A(2)(c), read with s 15A(1)(a), of the Act confers on the appellant a right of appeal to this court from the primary judge's decision to refuse bail.
Section 15A(3) provides that the leave of this court is required for each ground of appeal in an appeal under s 15A.
The effect of s 15A(4) is that this court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground of appeal has a reasonable prospect of success. Further, the effect of s 15A(4) is that, unless this court grants leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed.
By s 15B(1) of the Act, this court has jurisdiction to hear and determine an appeal under s 15A.
By s 15B(2), this court must determine an appeal on the material and evidence that was before the primary judge. Consequently, if there are new facts and circumstances which have arisen since the primary judge's decision to refuse bail, the proper course is for the accused to make a fresh application in the General Division of the Supreme Court under s 14(2a) of the Act. See Smart v The State of Western Australia.[3]
[3] Smart v The State of Western Australia [2010] WASCA 218 [10].
Section 15B(3) provides that any decision of this court in relation to bail must be made in accordance with the relevant provisions of s 13A, s 17 and sch 1 of the Act.
The right of appeal conferred by s 15A and s 15B of the Act is not an appeal de novo. Rather, it is an appeal by way of rehearing. The appellant must establish that the primary judge made an express or implied material error or that a miscarriage of justice occurred. See YSN [32].
An appeal to this court under s 15A and s 15B of the Act is against a discretionary judgment. In Milenkovski [46], McLure P observed, in relation to a ground which alleged that the primary judge in that case had erred in 'refusing to make a grant of bail having regard to all the circumstances of the case':
This ground does not raise an appealable error that entitles this court to intervene in the exercise of the discretion to grant or refuse bail. In an appeal from a discretionary decision, the principles in House v The King (1936) 55 CLR 499, 504 - 505 apply. In particular, the appellant must demonstrate that the primary judge made an express or implied material error of fact or law. A failure to give 'adequate weight' or 'insufficient regard' to relevant considerations only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen (2000) 202 CLR 321, 330; Mallet v Mallet (1984) 156 CLR 605, 614 - 615.
See also KWLD v The State of Western Australia.[4]
[4] KWLD v The State of Western Australia [2020] WASCA 94 [47] ‑ [48].
In the present case, ground 1 alleges, in essence, that the primary judge erred in finding that the appellant posed a significant risk of interfering with the complainant, and further or alternatively other witnesses, such that there were no conditions that could be included in a grant of bail that could sufficiently protect the complainant.
It is necessary for the appellant, in the context of ground 1, to establish that her Honour's finding was not reasonably open on the evidence.
Numerous of the statements in the bail risk assessment report reflected or relied upon information obtained from the complainant. By s 22 of the Act, the primary judge was entitled to receive and take into account the information in the report, notwithstanding that the information may not have been admissible under the law of evidence. However, it was necessary for the information to be evaluated having regard to its source.
The risk assessment contained in the report was conducted by the senior family violence worker with the Family Violence Service in consultation with the Western Australia Police Family Violence Team and the Department of Communities, Child Protection and Family Support. It may properly be inferred that the people who carried out the risk assessment had experience in assessing the risk of family violence.
The risk assessment report, and the information on which the report was based, raised issues of serious concern in relation to the appellant's psychological or psychiatric state and the safety and welfare of the complainant and her daughter if the appellant were to be granted bail. There were reasonable grounds, based on that information, for apprehending that the appellant may have engaged in an escalating process of serious family violence of a sexual character, including threats of greater violence, and may attempt to interfere with the complainant as a witness.
A copy of the non‑molestation order made in May 2014 was in evidence before the primary judge. Her Honour was entitled to take into account the making of the order and its terms: see s 22 of the Act. The order was made on an ex parte basis and that factor affected, no doubt, the weight that could be given to the order and its terms. However, we are not persuaded that her Honour misused the evidence as to the order, in balancing all relevant considerations, in deciding the outcome of the appellant's application.
Although the appellant did not bear any onus, and was not obliged to adduce any evidence on the application before her Honour, the absence of any evidence as to the appellant's psychological or psychiatric condition was part of the context in which the application for bail had to be considered. The material before her Honour revealed that the appellant had expressed irrational beliefs (including the belief that the complainant had appeared in a pornographic video, despite evidence to the contrary) and had engaged persistently in peculiar controlling behaviour. That material was capable of raising significant concerns as to the appellant's mental state.
The complainant's description of the alleged threats made by the appellant was supported by evidence in her father's witness statement.
It is often difficult to evaluate whether a person who has made a serious threat is likely to carry out the threat. Sometimes the threat will be made solely for the purpose of frightening the victim. On other occasions the threat will be made by a person who intends or is contemplating acting upon the threat. It is not unknown for a person without a relevant prior criminal record to carry out a serious threat, particularly in the context of an acrimonious and abusive domestic relationship and especially if the person's psychological or psychiatric condition has deteriorated significantly.
The primary judge was correct to reject the appellant's submission that the nature of the complainant's employment indicated that she had support in the community and was not vulnerable.
It is, of course, true that the allegations against the appellant were and are, as counsel for the appellant submitted, 'untested' or 'unproven'. That is necessarily the case where an application is made for pre-trial bail. However, her Honour was entitled, in our opinion, to form the view, based on the material and evidence that was before her Honour, that the State's case against the appellant was 'reasonably strong'.
We are satisfied that it was open to the primary judge to find that there was a risk that the appellant may commit further offences against the complainant or may interfere with her as a witness, and that there were no conditions that would sufficiently remove that possibility.
The nature of the alleged threats made by the appellant to the complainant was such as would be likely, if made, to engender significant fear. Her Honour's view that the alleged threats, if carried out, would be 'an extreme escalation of sexual and general violent offences against the complainant' was supported by the material and evidence before her.
It is plain that whether and, if so, to what extent the imposition of conditions would sufficiently remove the risk that the appellant, if granted bail, may commit further offences against the complainant or interfere with her as a witness, will depend upon the willingness of the appellant to comply with the conditions. In other words, the effectiveness of conditions to protect the complainant is co-extensive with the appellant's compliance with the conditions.
The primary judge was entitled, in considering whether any conditions would be efficacious, to take into account the nature of the alleged threats, the context in which the alleged threats were made, the assessment made in the bail risk assessment report and the making of the non‑molestation order in May 2014.
Her Honour was obliged to have regard to matters favourable to the appellant's application, including the presumption of innocence, the absence of a prior criminal record, the fact that the appellant had not actually interfered with the complainant (or any other person) as a witness, his stable and well-paid employment, his need to work to obtain revenue to meet his expenses including the cost of legal representation for his trial, the impact of the COVID-19 pandemic and the time that would elapse before his trial could be listed for hearing. We are satisfied that her Honour had regard to all matters which militated in favour of a grant of bail.
The primary judge took into account and balanced all relevant considerations in the course of arriving at her decision. Her Honour did not make any relevant error in concluding that, on the material and evidence before her Honour, the nature and extent of the risk asserted by the State could not be sufficiently removed by the imposition of conditions, and constituted a proper foundation for dismissing the application. The nature and extent of the relevant risk justified her Honour's decision to refuse bail.
Ground 1 fails.
Ground 2 alleges, in essence, that the primary judge erred by placing 'excessive weight' on the unproven allegations made by the complainant and, in doing so, failed to give 'sufficient weight' to the presumption of innocence and to the appellant's prior good character.
In Gelmi v The State of Western Australia,[5] this court said:
An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet ([1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ)); Dinsdale v The Queen ([2000] HCA 54; (2000) 2020 CLR 321 [26] (Gaudron & Gummow JJ)); Vagh v The State of Western Australia ([2007] WASCA 17 [76] (McLure JA)); Pedersen v The State of Western Australia ([2010] WASCA 175 [37] (Buss JA; McLure P & Mazza J agreeing)). A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
[5] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81].
Ground 2, in alleging that the primary judge gave 'excessive weight' to the unproven allegations and failed to give 'sufficient weight' to the presumption of innocence and the appellant's prior good character, is misconceived. A ground which alleges that a judge made a weighting error, in the course of making a discretionary judgment, can only be established if there was a failure to exercise the discretion conferred on the judge. In the present case, no such failure by her Honour is or could reasonably be alleged.
Ground 2 fails.
Ground 3 alleges, in essence, that the primary judge erred by failing to have regard to:
(a)the time that would elapse before the appellant's trial could be listed for hearing in the context of the COVID‑19 pandemic; and
(b)if he is convicted, the actual time the appellant may spend in custody before release on parole.
The maximum penalty for the charged offence of aggravated sexual penetration without consent, contrary to s 326 of the Code, is 20 years' imprisonment.
There is, of course, no tariff for offences contrary to s 326 because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends upon its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. However, as this court noted in NPA v The State of Western Australia,[6] in the context of an appeal against sentence by an offender who was convicted of five counts of aggravated sexual penetration without consent, in a case of a single count of penile penetration of the vagina without consent, where there is a plea of not guilty, a term of 5 years' to 6 years' imprisonment is not unusual.
[6] NPA v The State of Western Australia [2018] WASCA 131 [51].
In our opinion, the primary judge did not err in expressing the view that, if convicted after trial, the appellant was likely to receive a sentence of well in excess of 2 years' immediate imprisonment.
Indeed, the likely sentencing outcome (having regard to the maximum penalty of 20 years' imprisonment for the charged offence of aggravated sexual penetration without consent, the other charged offences, the absence of mitigation arising from pleas of guilty and youth, and the apparent mitigating factors) is that the appellant would receive a total effective sentence in excess of 4 years' immediate imprisonment. It is unlikely that the appellant will serve a longer period in custody on remand than he will be required to serve if convicted after trial.
When her Honour heard and decided the appellant's application, jury trials had been suspended as a result of the COVID‑19 pandemic. Her Honour was correct not to speculate as to whether the District Court would be able to ameliorate the backlog occasioned by the suspension of jury trials. It was reasonable to anticipate, on the basis of the information before her Honour, that priority in the listing of trials in the District Court would be given to accused who have been remanded in custody. In any event, if the District Court is unable to ameliorate the backlog occasioned by the COVID-19 pandemic, it will be open to the appellant to make a new application for bail having regard to that circumstance.
The primary judge was correct to observe that 'unacceptable risks do not become acceptable only because of delay'. The delay that would elapse before the appellant's trial would be listed for hearing was only one factor to be considered in arriving at a decision on his application. Her Honour took that factor into account in the course of balancing all relevant considerations.
Ground 3 fails.
Conclusion
The appellant's delay in filing his appeal notice was short and was adequately explained. It was therefore appropriate to grant an extension of time within which to appeal.
However, none of the grounds of appeal had a reasonable prospect of success. Accordingly, leave to appeal was refused and the appeal was dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss18 SEPTEMBER 2020
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