Kickett v Nayler

[2010] WASC 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   KICKETT -v- NAYLER [2010] WASC 70

CORAM:   McKECHNIE J

HEARD:   17, 19 & 25 MARCH 2010

DELIVERED          :   7 APRIL 2010

FILE NO/S:   MCS 6 of 2010

BETWEEN:   BJORN KICKETT

Applicant

AND

PAUL ANTHONY NAYLER
Respondent

Catchwords:

Criminal law - Bail variation - Fine the maximum penalty for offence - Bail conditions of a curfew and alcohol restriction - Whether too onerous

Legislation:

Bail Act 1982 (WA)

Result:

Bail varied

Category:    B

Representation:

Counsel:

Applicant:     Ms K J Farley

Respondent:     Mr D E Leigh

Solicitors:

Applicant:     Legal Aid (WA)

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  The Town of Narrogin has been beset by feuding families over the past year and it is alleged that Mr Kickett is in the thick of it.  For the protection of the public in general he was made subject to a misconduct restraining order on 4 November 2009.  No relevant restrictions were placed on his conduct.  It is alleged that within 10 days he breached the order when he attended a park outside Ashworth Crescent in company with other family members in order to confront members of the Colbung family and initiate a fight.  Certainly there was a fight.  Bottles were smashed, a firearm was discharged and people were assaulted.

2. Mr Kickett was arrested a week later and admitted to bail.  The bail conditions included a curfew from 7.00 pm to 7.00 am, a prohibition on entering licensed premises and a prohibition on consuming alcohol.  The State contends that these conditions may be imposed to ensure that Mr Kickett does not endanger the safety, welfare or property of any person: Bail Act 1982 (WA) pt D, sch 2(2)(c). Mr Kickett's counsel contends that the police in Narrogin are engaged in social engineering and that the conditions imposed on a grant of bail shall not be any more onerous on the accused than is required in the public interest having regard to the nature of the offence for which the accused is in custody and the circumstances of the accused.

3. I reject emphatically the submission that the police are engaged in social engineering.  What they are trying to do is maintain a fragile peace in a town blighted by incessant feuding where there are no doubt faults on both sides of the feud.  It is small wonder that the police will try and engage any lawful measure which will assist in preventing violence and keeping the peace.

The purpose of bail

1. The original purpose of bail was to secure the attendance of a person to face trial if released from custody.  That is still a principal purpose but the Bail Act has other purposes as well. An authorised person considering an accused's case for bail for an initial appearance in a summary court on a charge of a simple offence must order the release of the person unless there are reasonable grounds to suspect that if the accused were released, the accused would commit an offence or endanger other persons' safety or property or the accused's safety would be endangered: s 6A(4). As a reference to the Bail Act s 6A(4) and also pt D cl (2)(2) show, other considerations including the likelihood of further offending and the need to protect the community are also relevant.

2. An authorised person granted bail to Mr Kickett on conditions.  Subsequently a magistrate refused to vary the conditions. 

3. Bail conditions must take into account the safety and welfare of other people.  They must also be proportionate to the offence and the maximum penalty.  The maximum penalty for the breach of a misconduct restraining order is a fine of $1,000:  s 61(2).  It is not possible to restrict an offender's liberty.  The condition which restricts Mr Kickett's liberty is too onerous within the meaning of the Bail Act and must be lifted.

4. The conditions relating to consumption of alcohol and not entering licensed premises will remain.  Sergeant Nayler has testified that Mr Kickett has behaved badly towards others while intoxicated.  These allegations have not been proven but the evidence is sufficient to justify the condition for the protection of others.  They are not unduly onerous when balanced against the other requirements of the Bail Act.  While there may be other legally effective ways to accomplish the same result, the Bail Act can be used as a temporary measure before trial to protect the safety of others.

Conclusion and orders

1. Bail is varied.  The curfew condition is revoked.