Jolly v The State of Western Australia
[2014] WASC 118
•24 MARCH 2014
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL |
| CITATION | : | JOLLY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 118 |
| CORAM | : SIMMONDS J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : MARIA JOLLY |
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Application for bail - Bail Act 1982 (WA) sch 1 pt C cl 3A - Whether exceptional reasons - Whether bail properly granted having regard to cl 1 read with cl 3
Legislation:
Bail Act 1982 (WA)
Result:
Application refused
[2014] WASC 118
Category: B
Representation:
Counsel:
| Applicant | : | Mr G M Rodgers |
| Respondent | : | Mr B W Standish |
Solicitors:
| Applicant | : | Gary Rodgers Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Di Fazio v The State of Western Australia [2013] WASC 82
Donatelli v The State v Western Australia [2004] WASC 168
EAGD v The State of Western Australia [2013] WASCA 81
Hedgeland v The State of Western Australia [2011] WASC 181
Milenkovski v The State of Western Australia [2011] WASCA 99
Stagno v The State of Western Australia [No 2] [2013] WASC 338
[2014] WASC 118
SIMMONDS J
SIMMONDS J:
(This judgment was delivered extemporaneously on 24 March 2014 and
has been edited from the transcript.)1 This is an application for bail in relation to two charges pending in
the Perth Magistrates Court. I will call it the present application. Those two charges (the present charges) were of offences each of which was alleged to have been committed while the accused was on bail for three previous charges. I call them the previous charges. The previous application for bail to Magistrate D Scaddan in Perth in respect of the present charges - I will call that the previous application - was unsuccessful.
2 It is the case that the application must be one that meets the
requirement set out in the Bail Act 1982 (WA), sch 1 pt C cl 3A. That requirement has, of course, authoritatively been analysed in Milenkovski v The State of Western Australia [2011] WASCA 99 [36] - [37] (McLure P, Pullin & Hall JJ agreeing). There are two elements to the requirements.
3 The first element, in the order in which cl 3A lists them, not the order
in which they are described in Milenkovski, is (excluding inapplicable words) that the judicial officer is satisfied there are exceptional reasons why the accused should not be kept in custody.
4 The second element is that the judicial officer must also be satisfied
that bail may properly be granted having regard to the provisions of cl 1
and cl 3 (again excluding inapplicable words).5 In Milenkovski, as I indicated to counsel for the state, those two are listed in the reverse order. Her Honour President McLure goes on to say that if the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are exceptional reasons: Milenkovski [37].
6 However, deferring both to the approach taken by counsel for the
state and the approach evident, so far as I have been able to take it, both from the decision before Milenkovski of Donatelli v The State v Western Australia [2004] WASC 168 by Roberts-Smith J, who approaches the two requirements in the order in which they appear in cl 3A, as well as the decision after Milenkovski of Hall J in Di Fazio v The State of Western Australia [2013] WASC 82, I should focus my attention first on exceptional reasons.
[2014] WASC 118
SIMMONDS J
I should immediately indicate that I am not satisfied exceptional reasons have been made out to me.
It is clear that the burden of proof as to exceptional reasons lies on
the applicant.
9 Indeed, I should note in passing that the judicial officer must also be
satisfied of the second element, that bail may properly be granted having regard to the provisions of cl 1 and cl 3, which, in my view, requires the matter to be addressed by the applicant.
10 The difficulty for the applicant, as this case itself shows, is that
without knowing the objections to the grant of bail or objections to the grant of bail to be put by counsel for the state are, addressing that matter is not straightforward. In my view, all it requires, at least initially, is that counsel for the applicant remind me of the very well understood application to cl 1 and cl 3 which most of Milenkovski is devoted to.
11 Turning back to exceptional reasons, there were two in combination
put to me by counsel for the applicant. It is clear that exceptional reasons are not required to be singular, although a reason may be exceptional in and of itself. There may be a combination of reasons which may be sufficient. I should refer for that understanding of how exceptional reasons is to be approached to the very helpful recently published decision of Corboy J in Stagno v The State of Western Australia [No 2] [2013] WASC 338 [24], where his Honour collects the well understood authorities in this area on which, as I understand it, particularly Di Fazio rests, and leaving aside my own decision in Hedgeland v The State of Western Australia [2011] WASC 181, to which reference is made by Corboy J. I also note EAGD v The State of Western Australia [2013] WASCA 81 [8], his Honour Mazza JA, who also seems to invoke the same authorities Corboy J refers to.
12 The combination here is said to lie in the matters of delay, from the
date that the applicant first entered custody on the present charges, 3 December 2013, to the expected trial date; and the condition of the applicant's mother and her brother, being the applicant's mother's intellectually handicapped son, being needs for the two of them who live together in the home of the applicant's mother for care and assistance of a kind that the applicant has previously provided, and would be best in a position to provide were she to be on suitable bail conditions, but could not provide while in custody.
[2014] WASC 118
SIMMONDS J
13 The matter of delay is not, in my view, made out such that it would
on its own be of an order that would arouse judicial concern of a kind that might represent exceptional reasons. While counsel for the applicant referred to delay extending out to 15 months, which might well engage such a concern, I note at the same time, as counsel for the applicant himself acknowledged, that the matters the subject of the present charges are still at a relatively early stage, with a disclosure committal hearing for the first time to occur on 28 May 2014. That makes very difficult the prediction of times which could be made with the kind of confidence that exceptional reasons resting on delay in and of itself would tend to require.
14 Counsel for the state took issue with the inevitability of a 15 month
timeframe, pointing to a possibility as short as eight months depending on what occurs at that disclosure committal hearing and allowing for the fact that at least one of the present charges, the aggravated burglary in dwelling, would likely be committed for trial to the District Court.
15 Turning to the matter of the mother's and the son's needs, I have
material before me of a kind which was not before their Honours Roberts-Smith J in Donatelli and Hall J in Di Fazio, from the persons whose needs were being relied upon. In Donatelli there was a medical report, and there was in Di Fazio, so far as I am able to understand it from the brief reasons of Hall J, an affidavit of the applicant himself, described by his Honour as a brief affidavit, referring to the needs of children and the needs of his parents, including his mother who had diabetes, with a lack of elaboration as to those needs and why it was, as that affidavit stated, the applicant's presence was required to assist.
16 In this case I have an affidavit from the mother attached to the
supporting affidavit of counsel for the applicant identifying, as the mother does, her physical condition in connection with her advanced age, 91 years; her history of needs both with household chores and to attend to her personally; the condition of her 67-year-old son who apparently has a substantial intellectual infirmity which, while it does not prevent him working and leaving for work in the morning and coming back in the afternoon, and providing some assistance with meeting at least the household chores, means that it is a struggle for him to do so in the absence of assistance from the applicant.
17 The applicant herself is a person who is referred to as having
contributed or been able to assist, I accept on my reading of the affidavit, satisfactorily, with household chores and the other needs of the mother. However, I have to note, as counsel for the state reminded me, that the
[2014] WASC 118
SIMMONDS J
applicant has been in custody now for four months. The affidavit of the mother, which is dated 10 March 2014, is only able to refer to the struggles that the son has had to undertake and to the fact the mother has not had, as she puts it, a decent meal since then.
18 Reading the affidavit as broadly as I can, it falls well short of
indicating, in my view, what might be called a critical need of the kind upon which the applicant, it seems to me, was relying. In any event, to the extent that she was relying upon a need less than critical but greater than simply of assistance, that is to say, something of a very substantial or significant assistance kind, the affidavit, it seems to me, falls short in that regard also.
19 I have taken account of what was said to me from the bar table by
counsel for the applicant, that by virtue of the previous history of the applicant with her mother she receives financial assistance from Centrelink as a carer. That goes to some extent to showing her significance to the mother. But the informational deficiencies in the mother's affidavit are not, it seems to me, cured by that information, given the fact the applicant has been in custody since the beginning of December.
20 That, of course, does not complete the matter of exceptional reasons,
because I must then combine both the matter of delay and the matter of assistance to the mother. It seems to me, that in that regard, having looked at both of the matters separately, and then in combination, that their combination does not show exceptional reasons.
21 That having been determined, that is to say, having arrived at a
conclusion similar to the one that Hall J arrived at in Di Fazio, it would not strictly be necessary for me to go on to look at whether this would be a proper case for bail under cl 1 and cl 3.
22 However, I do note that Hall J very briefly, in the last paragraph of
his 11 paragraphs of reasons, referred to the matter. As I put to counsel for the state, Milenkovski seems to contemplate that, in applications of this kind, at the very least, the judge charged with the determination should consider both matters and, if appropriate, call for submissions on the matter.
23 Having regard to the information available to me in respect of the
mother's condition, and having regard as well to the relatively early stage which the proceedings have reached, and prior to concluding my
[2014] WASC 118
SIMMONDS J
reflections on the application for bail, I sought just such assistance from
counsel for the state.24 I should therefore say a few brief words about that assistance.
Counsel for the state, as I had expected him to do, put his objections for the purposes of sch 1, pt C, cl 1(c), his grounds for opposing the grant of bail, on cl 1(a)(ii), commit an offence. No other part of cl 1 was referred to. And no other part of cl 1 presents itself to me as raising an issue in this way save, of course, that the matter would arise in respect of cl 1(e), the neutralisation of grounds for objection, of whether such neutralisation could reasonably be had through conditions.
25 It seems to me there is indeed a significant risk of serious
reoffending, for the reasons counsel for the state put to me, and notwithstanding the submissions put against such conclusion by counsel for the applicant in his reply. The matters here are twofold.
26 The first is the alleged commission, alleged it must be stressed, of the
offences charged by the present charges so soon after the bail on the previous charges was granted, being offending of a similar kind, although, as I was reminded, the aggravated burglary under the present charges was committed during the day where the aggravated burglary under the previous charges was committed in the early hours of the morning.
27 In relation to both sets of charges, in respect of the aggravated
burglaries and related assault occasioning bodily harm for the present charges and stealing for the previous charges, it seems to me, again at a fairly early stage of the present matter and so far as I can gather it of the previous matter, the prosecution case could not be seen otherwise than as strong. Of course, that case needs to be tested. Nonetheless, I have noted that there is DNA evidence both from the applicant and from the applicant's son, DNA evidence in respect of the aggravated burglary and stealing for the previous charges, and recognition evidence in respect to the aggravated burglary and assault occasioning bodily harm for that offending under the present charges.
28 In addition, I should take account of the criminal history of the
applicant. It is a lengthy one. It is far from the most serious, perhaps, that this court sees. Nonetheless, it includes offending of a burglary in dwelling kind, including one of aggravated burglary in a dwelling, albeit, as counsel for the applicant reminded me, more than a decade ago, committed in 2000. More recently, however, there is possess stolen or unlawfully obtained property offending.
[2014] WASC 118
SIMMONDS J
29 All of that material, the alleged offending under the previous charges
related to the alleged offending under the present charges; the strength of the evidence; and the criminal history in the respects that I have noted, seems to me points to a significant risk of reoffending including of serious reoffending.
30 That would then direct my attention to the conditions proposed in the
application for bail. They include a reporting condition, although I note that a reporting condition was also present in respect of the bail granted for the previous charges, and indeed, it was when, as I understand it, the applicant presented herself in answer to that reporting that she was arrested on the present charges.
31 In addition, however, the proposed conditions include a curfew,
although it was acknowledged that the curfew would need to be modified if the applicant were to live anywhere else other than with her mother. The possibility of the applicant returning to her present Homeswest accommodation, which she risks losing if she is not in residence there, was discussed with me, including a consequential adjustment of the curfew condition so that the applicant would be present at home for the very early morning departure by the intellectually infirm son of the applicant's mother for work.
32 The alternative of a home detention bail was proposed. But it seems
to me there would be considerable practical difficulties in that bail operating so as to permit the applicant to provide the care which underpins the exceptional reasons upon which the applicant relied. It may be possible to address these difficulties through the design of appropriate home detention arrangements but they would pose issues of considerable difficulty. I simply note in passing that matter.
33 I further note from the criminal history of the applicant that there is a
not insignificant history of breach of court orders, including intensive supervision and conditional release orders, and prior breaches of bail condition, albeit of some age, for which sentences of imprisonment, albeit relatively short ones, three months in each case, were imposed.
34 It seems to me that were my first determination to be the matter of
whether or not this was a proper case for a grant for bail under cl 1 and
cl 3 that I would not indeed have been persuaded of that.
However, for the reasons I gave earlier with respect to exceptional reasons, I would dismiss the present application for bail.
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