Jneid v The State of Western Australia
[2014] WASC 414
•6 NOVEMBER 2014
JNEID -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 414
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 414 | |
| 06/11/2014 | |||
| Case No: | MBA:20/2014 | 22 OCTOBER 2014 | |
| Coram: | MITCHELL J | 22/10/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | ZIAD JNEID THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail variation Change of circumstances |
Legislation: | Bail Act 1982 (WA), s 14(1)(b) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail variation - Change of circumstances
Legislation:
Bail Act 1982 (WA), s 14(1)(b)
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant : Mr T F Percy QC
Respondent : Mr A M Dungey
Solicitors:
Applicant : Nigams Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
- MITCHELL J:
(This judgment was delivered extemporaneously on 22 October 2014 and has been edited from the transcript.)
1 The applicant has been charged with a number of offences involving the supply, and conspiracy to sell or supply, a significant quantity of methylamphetamine, contrary to the Misuse of Drugs Act 1981 (WA) (Principal Drug Offences). He was charged with those offences on 26 April 2014. He has also been charged with other offences, the details of which are not presently relevant.
Procedural history
2 On 16 May 2014 the applicant was granted bail by Hall J in relation to the Principal Drug Offences, on conditions which included a requirement to report to the officer in charge of the Cannington Police Station on Mondays, Wednesdays and Fridays. I am informed that the Cannington Police Station is a 24 hour police station located some 10 minutes' drive away from the applicant's residence. The bail granted by Hall J was for an appearance at the Perth Magistrates Court at 9.00 am on 24 July 2014. The applicant subsequently obtained grants of bail in relation to other charges which he was facing from the Magistrates Court. As I understand the position, bail in relation to those other offences was not subject to a reporting condition.
3 On 10 July 2014 the applicant applied to vary his bail conditions for the Principal Drug Offences by deleting the reporting requirement. At that time he deposed that he was struggling to cope with the reporting condition due to the need to manage his wife's serious health issues as well as a number of other matters. He had deposed that the reporting condition was making his life extremely difficult and was taking his time away from attending to work, family, legal and accounting matters.
4 On 10 July 2014 Le Miere J refused the application to the reporting condition. He did so for essentially two reasons. The first was that there was no relevant change of circumstances. His Honour noted that the applicant was aware at the time that he proposed the bail conditions, and at the time the bail conditions were imposed, of the business, work, family, legal and accounting matters. He was aware of the extent of those commitments and aware of the burden that would be placed upon him of having to report to Cannington Police Station three times a week as he proposed before bail was granted by Hall J.
5 Secondly, Le Miere J indicated that the evidence did not satisfy him that the reporting condition was unreasonable or oppressive. He noted that the evidence in support of the application was expressed at a high level of generality, and went no further than saying that it was difficult to cope with the condition which was making the life of the applicant extremely difficult. Le Miere J noted that the applicant had deposed that he had strictly complied with the conditions, and there was no evidence that it had had any adverse effect on his work, family, legal or accounting commitments in the sense that he had to any significant degree been unable to attend to those matters.
6 Subsequently, a magistrate granted the applicant bail for the appearance for the Principal Drug Offences and other matters at the Magistrates Court on 7 November 2014. The conditions imposed at that time for the Principal Drug Offences included a reporting condition in the same terms as that imposed by Hall J in respect of bail for the appearance on 24 July 2014.
The present application
7 The applicant now applies to vary the bail conditions to amend the reporting condition to report to the officer in charge of the Cannington Police Station. The amendment proposed is to reduce the reporting requirement from three times a week to one day a week.
8 This application is made under s 14(1)(b) of the Bail Act 1982 (WA) and it is accepted by the applicant that, the jurisdiction having been invoked once before Hall J, it may not be further invoked unless I am satisfied that new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked: see s 14(2a)(a) of the Bail Act. The applicant submits that circumstances have changed since the jurisdiction under s 14(1) was invoked before Hall J in May 2014 by reference to a deterioration in his wife's medical condition, the fact that he has received a number of freezing notices relating to his property and the fact that the Principal Drug Offences are not expected to be tried until approximately this time next year, which was longer than originally anticipated.
9 The additional evidentiary material on which the applicant relies in support of his most recent application is an affidavit which he swore on 17 October 2014, other affidavits referred to in par 3 of the applicant's affidavit of 17 October 2014 and an affidavit of his wife sworn on 17 October 2014.
10 The applicant's latest affidavit annexes the transcript of proceedings before Le Miere J, a report of Dr Goh Powell (a general practitioner) dated 10 October 2014 and a series of freezing notices issued under the Criminal Property Confiscation Act 2000 (WA).
11 The applicant deposes that his wife's ability to undertake household tasks and care for their five children has greatly diminished. He also says that since being served with the freezing notice, he has had to seek regular advice from his solicitors, counsel and accountants. He says:
[A]s a result of my change in circumstances described above, that is, primarily my wife's continuing declining health, I am finding it very difficult to cope with the condition that requires me to check-in to Cannington Police Station three times per week.
12 The affidavit of the applicant's wife deposes that her neurological degenerative condition has significantly declined. She describes the increasing pain and weakness which she has been experiencing.
13 While I accept that the symptoms experienced by the applicant's wife have been of increasing severity, I am not satisfied on all of the material that this represents a significant change to the applicant's circumstances. The dependence of the applicant's wife on the applicant for assistance in dealing with her medical condition and running the household were deposed to in affidavits filed in May 2014 in support of the original bail application. Material annexed to those affidavits included a report of Dr Leong dated 13 May 2014 which noted at that time that:
As a result of her medical condition and therapy, [the applicant's wife] has significant functional problems and requires assistance in activities of daily living. As a baseline, she often requires assistance in even moderately physically demanding [or manual] tasks because of her bilateral hand weakness and pain. She has difficulty managing repetitive manual activities. Over the last six months there have also been significant periods of time during which she has been restricted to bed [from the complications of therapy].
[The applicant] has provided a great deal of assistance to [the applicant's wife]. He has been required to drive her to and from medical appointments (including the two weekly day hospitalisation).
[The applicant's wife] has also had difficulty managing her usual domestic demands and caring for her five children [aged 6 to 14 years] on her own. The applicant has undertaken many of the domestic chores, including getting the children ready for school and transporting them to school every morning. He has frequently been required to take over chauffeuring duty to get the children to various extracurricular activities when [the applicant's wife] has been unwell or attending therapy. He has assisted with preparing meals when she has been unwell.
14 In her affidavit of 12 May 2014 the applicant's wife deposed that the applicant was responsible for managing the household and looking after the children. She describes the tasks which the applicant performed at that time. She deposed, at that time, to being confined to bed for three to four days after receiving each course of a fortnightly treatment. She said that she and the children were heavily dependent on the applicant for transport. She said that restrictions in her fine motor movements at that time meant that the applicant was responsible for running the household.
15 Having reviewed the evidence, I am not satisfied that there is any significant change in the demands which are placed on the applicant by his wife's illness and the requirement that he take primary responsibility for the management of the household affairs in addition to pursuing his business interests. There is no evidence that the freezing notices have made it impracticable for the applicant to continue with the reporting obligation, or that the reporting obligation has prevented him from fulfilling his other commitments.
16 As to the length of time until trial, it is true that the obligations will be imposed for a longer period of time than may initially have been anticipated when bail was granted. However, the nature of these obligations has not changed.
17 In the end, the applicant's affidavit of 17 October 2014 puts matters no higher than they were when Le Miere J rejected a similar application in July 2014. The position remains, as indicated in par 20 of that affidavit, that he is finding it very difficult to cope with the condition that requires him to check-in to the Cannington Police Station three times per week. However, submissions filed on behalf of the applicant indicate that he has been strictly complying with those conditions, including the reporting conditions.
18 Even if I had been satisfied that there had been a relevant change in circumstances, I consider the reporting conditions which currently exist to be required in the public interest having regard to the serious nature of the drug offences with which the applicant has been charged and the circumstances of the applicant. In my view the existing reporting condition is reasonably imposed to deal with the risk that the applicant may fail to appear in court in accordance with his bail undertaking. While the applicant may find the existing reporting condition extremely inconvenient, there is no evidence that the applicant has not in fact been coping with the condition.
19 For these reasons the application to vary the reporting condition is refused.
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