King v Nash - [2022] WASC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   KING -v- NASH [2022] WASC 102
CORAM:   MCGRATH J
HEARD:   10 MARCH 2022 and 15 MARCH 2022
DELIVERED          :   30 MARCH 2022
PUBLISHED           :   30 MARCH 2022
FILE NO/S:   INS 51 of 2021
BETWEEN:   JAKE RICHARD KING
Prosecution
AND
MARK STEPHEN NASH
Accused

Catchwords:

Criminal law and procedure - Prosecution - Breach of bail (failure to appear) - Summary prosecution trial conducted before Judge

Legislation:

Bail Act 1982 (WA), s 28, s 51(2), s 52
Criminal Procedure Act 2004 (WA), s 126

Result:

Verdict guilty

Category: B

Representation:

Counsel:

Prosecution	:	Mr T B L Scutt
Accused	:	In Person

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	In Person

Cases referred to in decision:

Geldert v The State of Western Australia [2012] WASCA 226
Nash v Director of Public Prosecutions (WA) [2021] WASC 313
Wright v Western Australia (2010) 203 A Crim R 339

MCGRATH J:

Introduction

Mark Stephen Nash is charged that on 17 September 2021, without reasonable cause, he failed to appear at the Supreme Court Stirling Gardens Courthouse and failed to appear as soon as practicable thereafter, with such appearance being a requirement of a bail undertaking entered into by him on Wednesday, 25 August 2021, contrary to s 51(2) of the Bail Act 1982 (WA) (the charge).
On 27 January 2022, the accused declined to enter a plea to the charge.[1] Accordingly, Curthoys J entered a plea of not guilty pursuant to s 126 of the Criminal Procedure Act 2004 (WA). On 10 March 2022, the first day of the hearing of the charge, the accused once again declined to enter a plea to the charge. Accordingly, given that the accused did not plead, I entered a plea of not guilty on behalf of the accused, pursuant to s 126 of the Criminal Procedure Act. Therefore, the accused, having refused to enter a plea, proceeded to trial on a plea of not guilty.
[1] ts 18 (27/01/2022).
Section 52 of the Bail Act provides that where the accused was bound to appear before the General Division of the Supreme Court, a breach of bail shall be dealt with before a judge of the Supreme Court. Further, s 52 provides that the charge is to be dealt with under the Criminal Procedure Act as if it were a prosecution of a simple offence in a court of summary jurisdiction.
The prosecution's case against the accused was that he entered into a bail undertaking on 25 August 2021 and that he was granted a bail extension on 15 September 2021 to appear on 17 September 2021 and that the accused failed to appear without reasonable cause and, further, failed to appear as soon as practicable thereafter, as he was required to do pursuant to the bail undertaking. The accused maintained at trial that he had answered his bail on 15 September 2021 and, therefore, was not required to attend on 17 September 2021. Further, the accused contended that in any event he did attend the Supreme Court Stirling Gardens Courthouse on 17 September 2021 though he believed that he was not required to do so, and thereby he did answer any bail commitment. Accordingly, he contends that he is not guilty of the charge.
For the following reasons, I am satisfied beyond a reasonable doubt that the accused is guilty of the charge.

Legal principles and general directions

I turn to the legal principles that I apply in determining whether the prosecution has proved the charge beyond a reasonable doubt.

Presumption of innocence, onus of proof and standard of proof

The accused is presumed innocent. The accused cannot be convicted of the charge unless the State has proven the accused's guilt beyond a reasonable doubt. The State bears the onus of removing the presumption of innocence by establishing guilt beyond a reasonable doubt. That burden of proof never shifts. The standard of proof of beyond a reasonable doubt is the highest standard known to the law. Before I could find the accused guilty of the charge, I must be satisfied beyond a reasonable doubt of each element of the offence. If I am not satisfied to that standard, then the verdict must be not guilty.

Verdict based on the evidence

I must consider this case based upon the evidence which has been produced in the trial. That is, the verdict must be based on the evidence that the prosecution and accused have adduced at trial. I must assess the credibility and reliability of each witness. I must assess the evidence dispassionately. I must not decide the case based on prejudice against any person or sympathy towards any person. I must not speculate about matters that are not in evidence.
I received oral submissions from the accused and the counsel for the prosecution. I have considered these submissions, but I am mindful that the submissions are not evidence and therefore, the inferences and conclusions that may be drawn from the evidence are matters for my assessment and determination.
Having considered all the evidence, I may find the accused guilty or not guilty of the offence.

Right to silence

An accused person has the right to silence. Therefore, an accused is not obliged to speak to the police or to give evidence at trial but may do so if they so choose. The accused elected to give evidence at his trial.
The fact that the accused chose to give evidence does not in any way detract from the important principles of our system of law that the onus is on the prosecution to prove the charge and that the accused is presumed to be innocent until the charge against him has been proven beyond reasonable doubt.
Even if I were to not believe the accused's evidence, I cannot find an issue against the accused contrary to his evidence if his evidence has given rise to a reasonable doubt on that issue.
Further, even if I were not to accept the accused's evidence, and reject that evidence, it would not follow automatically that the verdict is guilty. If I did not believe the accused then I should put his evidence to one side. The accused does not have to prove anything. The question will remain; has the prosecution, on the basis of the evidence that the accused accepted, proven the accused's guilt beyond reasonable doubt.

Assessing witnesses

It is necessary for me to assess the credibility and reliability of the evidence of each witness and thereby determine the weight to be given to the respective witness' evidence. In determining credibility, I am assessing the honesty of the witness. In determining reliability, I am assessing whether the witness has given an accurate account of what happened. A witness may be honest but not reliable due to factors such as circumstances affecting memory. I will take into account any relevant factors in assessing the reliability of a witness.
I must consider the consistency of a witness' utterances on different occasions. I must consider whether the witness' testimony is consistent and, if there are inconsistencies, I must assess whether the inconsistencies are in respect of significant matters and determine if there is any reasonable explanation for the inconsistencies. I will consider whether the evidence of a witness is consistent with the evidence of other witnesses whose evidence I have accepted. If a witness' evidence is inconsistent, that is a factor that I can take into account in assessing the evidence of that witness. If the evidence given by a witness has been consistent on significant matters, that may be a factor that supports determination that the witness is telling the truth.
I have had regard to the demeanour of each of the witnesses in assessing their evidence. I must be mindful that some witnesses, understandably, may feel apprehensive when giving evidence in a court room and this may affect the witness' demeanour and therefore, should not necessarily reflect on their credibility.
I am able to accept all or part of the evidence of a witness or disregard all or part of the evidence of a witness. I am mindful that the evidence of a witness is the answers that are given in response to a question and not the question itself.

Circumstantial evidence - drawing inferences

In a criminal trial, facts in issue may be proven by direct evidence alone or by a combination of direct evidence and circumstantial evidence or by circumstantial evidence alone.
Circumstantial evidence is evidence of a fact or combination of facts from which another fact or facts may be inferred. Circumstantial evidence does not provide a fact directly, rather it increases the probability or likelihood that the fact in issue existed.
In circumstantial cases there may be components, being steps in a course of reasoning, which lead to a conclusion that is essential in proving guilt. Alternatively, a component may not be essential but rather contributes to the State's circumstantial case. If a component is essential to proof of guilt then it must be proven beyond a reasonable doubt. If there are no essential links, then the standard of beyond a reasonable doubt applies to the proof of the elements of the offence.
Inferential reasoning is not speculative. The inference must be rational. That is, there must be a logical and rational connection between the facts that I find and the inference that I draw or the determination that I make. There must be positive proven facts from which the inference could be made.
The inference or determination must be reasonable which means that the inference must not be based upon conjecture or speculation. Inferences can only be drawn if facts proven by the evidence properly support the drawing of the inferences.
The facts are not to be looked at in a piecemeal manner or in isolation. I am required to consider all the facts and circumstances as a whole to determine whether the particular inference adverse to the accused is the only rational and reasonable inference that the facts permit me to draw and that there is no inference consistent with innocence reasonably open on the evidence.
Before I make a finding by inference of any fact which constitutes an indispensable link in a chain of reasoning towards guilt, I must be satisfied that the inference is the only rational and reasonable inference, or conclusion, that can be drawn from all the facts established by the evidence. That requirement is no more than amplification of the rule that the prosecution must prove its case beyond a reasonable doubt.
When a case against an accused person rests substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty. Guilt must not only be a rational inference, but it must be the only rational inference that the proven facts enable me to draw.

Elements of the offence

I will now turn to the elements of the offence and, in so doing, I will outline the prosecution's case at trial.
The prosecution relies upon s 51 read with s 28(2)(b) of the Bail Act. Section 51 of the Bail Act provides:
51. Failing to comply with bail undertaking, offence
(1)An accused who, without reasonable cause, fails to comply with the requirement of his bail undertaking mentioned in section 28(2)(a) commits an offence.
(2)An accused who fails to comply with the requirement of his bail undertaking mentioned in section 28(2)(b) commits an offence.
(2a)An accused -
(a)whose bail undertaking includes any condition imposed for a purpose mentioned in clause 2(2)(c) or (d) of Part D of Schedule 1; and
(b)who fails to comply with the condition,
commits an offence.
(3)An accused shall not be convicted in his absence of an offence against this section.
(4)An accused who is charged with an offence against subsection (1) or (2) may be convicted of the other of those offences if that other offence is proved by the evidence.
Section 28 of the Bail Act relevantly provides as follows:
28. Bail undertaking, when required and nature of
(1)A person shall not be released on bail for an appearance in court unless he has entered into a bail undertaking for that appearance or is deemed to have done so under section 31(3).
(2)A bail undertaking is an undertaking in writing by an accused in the prescribed form -
(a)that he will appear at a time and place specified, or deemed by section 31(3) to be specified, in the undertaking; and
(b)that if the accused fails to appear at that time and place the accused will, as soon as is practicable, appear at the court at which the accused was required to appear, when that court is sitting; and
(c)that he will comply with such conditions as may be imposed on him under clause 2 of Part D of Schedule 1; and
(d)that he will comply with any home detention condition which may be imposed as a condition on a grant of bail to him pursuant to clause 3 of Part D of Schedule 1,
and containing any agreement as to forfeiture of money by the accused which may be required pursuant to clause 1 of that Part.
In order to prove that the accused committed the offence, the prosecution must prove each of the following five elements beyond a reasonable doubt:
(1)That the accused was the person who failed to do the relevant act (the identity question);
(2)That the accused entered into a bail undertaking (on 25 August 2021 which was then extended on 15 September 2021 to appear at the Supreme Court hearing on 17 September 2021);
(3)That the accused failed to appear to answer his bail (at the Supreme Court hearing on 17 September 2021);
(4)The accused failed to appear as soon as practicable thereafter; and
(5)The accused failed to appear without reasonable cause.

Evidence received

The prosecution called three witnesses being Ms Merima Suljic,[2] employee of the Office of the Director of Public Prosecutions, Officer Larkan,[3] police officer, and Officer King,[4] police officer. The prosecution tendered 19 exhibits comprising mainly of correspondence between the court and the parties regarding the accused's bail and further, video recordings of the arrest of the accused from body worn cameras of Officers Larkan and King.[5]
[2] ts 39 ‑ 65 (10/03/2022).
[3] ts 88 ‑ 104 (15/03/2022).
[4] ts 104 ‑ 112 (15/03/2022).
[5] Exhibit 18, DVD of recording from Officer King's body worn camera taken on 27 September 2021; Exhibit 19, DVD of recording from Officer Larkan's body worn camera being 5 minute portion commencing immediately after Mr Nash enters secure pod in police vehicle taken on 27 September 2021.
The accused gave evidence on his own behalf and tendered two exhibits,[6] including the arrest warrant issued by Curthoys J on 17 September 2021.[7]

Objection to the admissibility of the recordings from the body worn cameras

[6] ts 120 ‑ 146 (15/03/2022).

[7] Exhibit 21, An arrest warrant for an accused, namely Mr Nash, signed by Officer King on 27 September 2021.

The accused objected to the admissibility of the video recording taken during his arrest with the body worn cameras of Officers Larkan and King.[8] The State relied upon utterances made by the accused during his arrest as admissions. I will outline the admissions at [73] when considering the elements of the charge.
[8] Exhibit 18, DVD of recording from Officer King's body worn camera taken on 27 September 2021; Exhibit 19, DVD of recording from Officer Larkan's body worn camera being 5 minute portion commencing immediately after Mr Nash enters secure pod in police vehicle taken on 27 September 2021.
The accused contended that the recordings from the two body worn cameras are inadmissible for the reason that the entry to the premises was unlawful. The accused contended that the arresting officers did not produce the arrest warrant to the occupier of the premises and that permission to enter was not given by the occupier.
The accused was not the owner nor was he normally a resident at the premises. In cross-examination, Officer King stated that he did not have the arrest warrant in his possession at the time that he attended the premises.[9] Officer King stated that the owner/occupier gave verbal consent prior to entry into the premises.[10] Mr King stated that he received consent to enter at the door and prior to attending. In re‑examination, Mr King stated that the person who answered the door and is visible in the recording was the person who gave consent. Mr King stated that the previous night he received consent from the owner-occupier of the premises in writing by way of text message.[11]
[9] ts 100 (15/03/2022).
[10] ts 107 (15/03/2022).
[11] ts 112 (15/03/2022).
The objection is without merit. The court issued a warrant of apprehension in respect of the accused. The officers attended at the premises and arrested the accused. The entry into the premises was lawful. The owner-occupier consented to the entry. The officers undertook their task diligently and lawfully.
One other issue arises for consideration concerning the recordings from the body worn cameras. Counsel for the prosecution observed that the officers did not give the accused a caution.[12] Counsel stated that it was not necessary to do so for the reason that the accused was not being arrested as a suspect and then interviewed but rather the officers were executing an arrest warrant issued by Curthoys J on 17 September 2021.
[12] ts 96 (15/03/2022).
Section 138 of the Criminal Investigation Act2006 (WA) (CIA Act) provides that an arrested suspect is a person who is under arrest having been arrested under s 128 of the CIA Act, under an arrest warrant, or under another written law, on suspicion of having committed an offence. The accused was arrested pursuant to an arrest warrant under the Bail Act. The prosecution submitted that because the accused was not arrested as a suspect but rather pursuant to the execution of an arrest warrant to bring him to court, then the rights under s 138 of the CIA Act have no application. Section 138(2)(b) of the CIA Act provides that an arrested suspect is entitled to be cautioned before being interviewed as a suspect. When the accused was arrested, he was not a suspect and was not being interviewed. In the event that I had found that the accused was an arrested suspect and that the limited discourse with the officers at the time of the arrest constituted an interview, then I would nevertheless decide to admit the evidence for the reason that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence pursuant to s 155 of the CIA Act.
I am satisfied that the recordings from the body worn cameras are admissible. Accordingly, the utterances relied upon by the prosecution as admissions are admissible.
In assessing the admissions, I must not use any admission relied upon by the prosecution unless I am satisfied not only that they were made but also that they were truthful and accurate. I take into account all the circumstances in which any utterances of the accused, said to be admissions, were made in assessing whether the utterances are admissions and if so, the weight to be given to the admissions. I am satisfied that the utterances were made by the accused and that they were truthful and accurate. There is no ambiguity in respect of the statements. I will consider the admissions in detail when considering the issue of whether the accused did appear in answer of his bail undertaking as soon as practicable thereafter.
I now turn to the elements of the charge and consider the relevant evidence.

Elements 1, 2 & 3 ‑ Whether the accused was subject to bail to attend the court hearing on 17 September 2021 and whether the accused failed to appear

There was no dispute at the trial concerning identity. The accused was convicted in the Magistrates Court, upon his own plea, of four counts of using an optical recording device to visually record a private activity to which he is not a party, contrary to s 6(1)(a) of the Surveillance Devices Act1998 (WA) and one count of threat to unlawfully distribute an intimate image, contrary to s 338B(b) of the Criminal Code (WA). The accused was sentenced to a total effective sentence of 8 months' imprisonment. The accused appealed his conviction and sentence to a single judge of the Supreme Court.[13] Upon lodging the first appeal notice against sentence, the accused applied for bail on 20 November 2020. On 27 November 2020, Archer J granted the accused bail pending the determination of his appeal. The accused was therefore released immediately and prior to completing the sentenced imposed by Chief Magistrate Heath in the Magistrates Court. Curthoys J heard the appeals on 24 and 25 August 2021. On 17 September 2021, Curthoys J dismissed both appeals.[14]
[13] Notice of appeal lodged on 20 November 2020 (Appeal against sentence); Notice of appeal lodged on 12 January 2021 (Appeal against conviction); Notice of appeal lodged on 11 August 2021.
[14] Nash v Director of Public Prosecutions (WA) [2021] WASC 313.

The issue at this trial was whether the accused failed to appear in answer of a bail undertaking on 17 September 2021, being the date of the judgement delivery by Curthoys J.
The accused contended that he was not subject to bail to attend the Supreme Court Stirling Gardens Courthouse for the hearing on 17 September 2021. Further, the accused contended that even though he was not subject to bail to attend the Supreme Court on 17 September 2021 he did attend the Supreme Court Stirling Gardens Courthouse on 17 September 2021 and that he then departed for the reason that he believed the matter was not listed.
I must be satisfied beyond a reasonable doubt that the accused entered into a bail undertaking on 25 August 2021 and that his bail was lawfully extended on 15 September 2021 to attend at the Supreme Court hearing listed on 17 September 2021. Further, I must be satisfied beyond a reasonable doubt that the accused failed to appear at the Supreme Court hearing on 17 September 2021.
I will outline the evidence from prosecution witness Mr Suljic who I find was both a credible and reliable witness, before turning to the evidence of the accused.

Ms Suljic's evidence

The prosecution lead evidence from Ms Suljic concerning the granting of bail to the accused and the subsequent extension of bail via email correspondence.[15]
[15] ts 39 ‑ 65 (10/03/2022).
Section 31 of the Bail Act provides that a different time and place may be substituted by directing written notice to the accused of the time or time and place for the proceedings. Regulation 8B(1) of the Bail Regulations 1988 (WA) provides that the written notice may be sent via email.
Ms Suljic gave evidence that a Form 5AA notice of change of representation, service details and address dated 12 March 2021 was filed and received via email from the accused.[16] The Form 5AA dated 12 March 2021 provided an email address. There was no dispute during the trial that the email address stated on that Form 5AA was an address used by the accused.
[16] Exhibit 1, Form 5AA Notice of change of representation, service details or address dated 12 March 2021.
Subsequently, a further Form 5AA notice of change in representation, service and address details dated 3 July 2021 was filed by the accused.[17] The Form 5AA dated 3 July 2021 stated a further email address. There was no dispute at trial that the email address stated on that Form 5AA was an email address used by the accused.
[17] Exhibit 2, Form 5AA Notice of change of representation, service details or address dated 3 July 2021.
A further Form 5AA notice of change in representation, service and address details dated 28 August 2021 was filed by the accused.[18] The Form 5AA notice dated 28 August 2021 stated a further email address. There was no dispute at trial that the email address stated on that Form 5AA was an email address used by the accused.
[18] Exhibit 3, Form 5AA Notice of change of representation, service details or address dated 28 August 2021.
Ms Suljic gave evidence that on 24 August 2021 she was present at courtroom 6 at the Supreme Court Stirling Gardens Courthouse.[19] The hearing of the accused's appeal against conviction and sentence was heard on 24 and 25 August 2021. Ms Suljic stated that she observed the accused present in courtroom 6 on 24 and 25 August 2021.[20] On 25 August 2021, Curthoys J reserved his decision in respect of the single judge appeal against conviction and sentence. At the end of the proceedings, Curthoys J granted the accused bail to reappear at the Supreme Court Stirling Gardens Courthouse at 9.15 am on Wednesday, 15 September 2021.[21] An email attaching a copy of the accused's bail undertaking paperwork from the Associate to Curthoys J to the Office of the Director of Public Prosecutions (ODPP) and the accused was sent at 8.31 am on Thursday, 26 August 2021.[22] The conditions of bail included a personal bail undertaking in the sum of $1,000 with a similar surety, and to reside at the stated address being his mother's residential address. Further, that the accused report in person to the Midland Police Station every Monday and Friday.[23] The accused signed the bail undertaking. At the trial there was no dispute by the accused that he signed that bail undertaking.
[19] ts 45 (10/03/2022).
[20] ts 45 (10/03/2022).
[21] Exhibit 4, Email from Associate to Justice Curthoys to DPP Appeals Section sent at 8:31 am on 26 August 2021 attaching bail undertaking.
[22] Exhibit 4, Email from Associate to Justice Curthoys to DPP Appeals Section sent at 8:31 am on 26 August 2021 attaching bail undertaking.
[23] Exhibit 4, Email from Associate to Justice Curthoys to DPP Appeals Section sent at 8:31 am on 26 August 2021 attaching bail undertaking.
By email from the Associate to Curthoys J to the designated email address of the accused and the ODPP, sent at 3.16 pm on Monday, 13 September 2021, the Associate confirmed that the hearing needed to be pushed back 'to 12 noon on 15 September 2021.'[24] The Associate stated that the accused's bail was extended to 12 noon on Wednesday, 15 September 2021.[25]
[24] Exhibit 5, Email from Associate to Justice Curthoys to the accused and to DPP Appeals Section sent 3:16 pm on Monday, 13 September 2021.
[25] Exhibit 5, Email from Associate to Justice Curthoys to the accused and to DPP Appeals Section sent 3:16 pm on Monday, 13 September 2021.
I am satisfied that the email was sent by the Associate and was received by the accused. Significantly, by email from the accused from his designated email address to the Associate to Curthoys J and the ODPP, sent at 11.20 pm on Monday, 13 September 2021, the accused acknowledged receipt of the email observing that if the time is to be pushed back then it should be pushed back to the correct day and hearing time.[26]
[26] Exhibit 6, Email from the accused to Associate to Justice Curthoys and DPP Appeals Section sent at 11:20 pm on Monday, 13 September 2021.
By email from the Associate to Curthoys J to the designated email addresses of the accused and to the ODPP sent at 9.45 am on Wednesday, 15 September 2021, the Associate confirmed that the matter had been vacated and was now to be heard on Friday, 17 September 2021 at 11.00 am. I am satisfied that the email was sent by the Associate and was received by the accused. Significantly, the accused sent an email at 9.58 am on Wednesday, 15 September 2021 to the Associate to Curthoys J and the ODPP in reply, requesting an explanation as to why the matter had been adjourned to 17 September 2021.[27]
[27] Exhibit 7, Email from Associate to Justice Curthoys to the accused and DPP Appeals Section sent at 10:12 am on Wednesday, 15 September 2021 with previous emails on document in email chain.
By email from the Associate to Curthoys J to the designated email address of the accused sent at 10.12 am on Wednesday, 15 September 2021, the Associate to Curthoys J informed the accused that regrettably his Honour was not available to hear the matter because another urgent matter had arisen that was not anticipated. The Associate to Curthoys J stated to the accused in the email sent at 10.12 am on Wednesday, 15 September 2021:
Your bail has been extended to 10.45 am on Friday, 17 September 2021.[28]
[28] Exhibit 7, Email from Associate to Justice Curthoys to the accused and DPP Appeals Section sent at 10:12 am on Wednesday, 15 September 2021 with previous emails on document in email chain.
By email from the Associate to Curthoys J to the designated email address of the accused and the ODPP, sent at 12.08 pm on Wednesday, 15 September 2021, the Associate enclosed the extension of bail granted by Curthoys J, noting that there was no need for the accused to sign the documentation.[29] The notice to the accused providing the extension of bail required the accused to attend at the Supreme Court Stirling Gardens Courthouse at 10.15 am on 17 September 2021.[30] Subsequently, the Associate to Curthoys J forwarded to the parties the notice to the accused of different time for appearance with the additional box stating the accused's service certificate which was signed by the authorised person, being the Associate to Curthoys J, on 15 September 2021. The notice to the accused recorded the designated email address of the accused.[31]
[29] Exhibit 8, Email from Associate to Justice Curthoys to the accused and DPP Appeals Section sent 12:08 pm on Wednesday, 15 September 2021 attaching extension of bail document.
[30] Exhibit 8, Email from Associate to Justice Curthoys to the accused and DPP Appeals Section sent 12:08 pm on Wednesday, 15 September 2021 attaching extension of bail document.
[31] Exhibit 9, Bail extension notice to accused showing service dated 15 September 2021.
By email from the Associate to Curthoys J to the designated email address of the accused and to the ODPP sent at 12.08 pm on Wednesday, 15 September 2021, the extension of bail documentation was forwarded. I am satisfied that the email was sent by the Associate and was received by the accused. Significantly, by email from the accused from his designated email address to the Associate to Curthoys J, sent at 12.19 pm on Wednesday, 15 September 2021, the accused asked for 'written notice by the Registrar. Pursuant of 31B.'[32]
[32] Exhibit 10, Email from the accused sent at 12:19 pm on Wednesday, 15 September 2021.
By email from the accused from his designated email address to the Associate to Curthoys J and the ODPP sent at 5.54 pm on Wednesday, 15 September 2021, the accused requested the court vacate the hearing date on 17 September to a later date due to work commitments.[33] By email from the Associate to Curthoys J to the designated email address of the accused and the ODPP, sent at 8.15 am on 16 September 2021, the Associate confirmed that 'The matter tomorrow will not be vacated' and that any adjournment application should be made in open court.[34] I am satisfied that the email was sent by the Associate and was received by the accused. Significantly, the accused sent an email to the Associate to Curthoys J and the ODPP at 8.17 am on Thursday, 16 September 2021 stating that the court hearing was vacated because of the prosecutor's unavailability, 'As per his schedule of unavailability.'[35] I am satisfied that the accused was subject to bail requiring him to attend at the Supreme Court hearing on 17 September 2021. Further, I am satisfied that the accused received confirmation from the Associate to Curthoys J that he was subject to the bail requirement to attend the court hearing on 17 September 2021.
[33] Exhibit 11, Email from the accused to Associate to Justice Curthoys at 5:54 pm Wednesday, 15 September 2021.
[34] Exhibit 12, Email from Associate to Justice Curthoys to the accused sent at 8:15 am on Thursday, 16 September 2021.
[35] Exhibit 13, Email from the accused to Associate to Justice Curthoys sent at 8:17 am on Thursday, 16 September 2021.
The published Daily Cause List for the Supreme Court for 17 September 2021 stated that the accused's proceedings were listed for 11.00 am in courtroom 7.[36] Ms Suljic gave evidence that she attended court on 17 September 2021. The accused was not present. At 11.00 am the Associate to Curthoys J entered the courtroom but there was no appearance by the accused.[37] Ms Suljic gave evidence that between 11.00 am and 11.30 am security staff endeavoured to locate the accused to determine if he was present at the Supreme Court Stirling Gardens Courthouse.[38] Officer Larkan, in his testimony, gave evidence that he was in attendance at the Supreme Court Stirling Gardens Courthouse on 17 September 2021 and that the accused did not appear.[39] Given that the accused did not appear, a bench warrant was issued for the accused's arrest. [40]
[36] Exhibit 14, Email from [email protected] to Ms Alix Long sent at 4:41 pm on Thursday, 16 September 2021 attaching Cause List for Friday, 17 September 2021.
[37] ts 57 (10/03/2022).
[38] ts 57 (10/03/2022).
[39] ts 89 ‑ 90 (15/03/2022).
[40] Exhibit 21, An arrest warrant for an accused, namely Mr Nash, signed by Officer King on 27 September 2021.
Curthoys J published his reasons for decision in the courtroom without the accused making an appearance. A copy of Curthoys J's reasons for decision was attached to an email from the Associate to Curthoys J to the designated email address of the accused and the ODPP sent at 5.06 pm on Friday, 17 September 2021.[41] The Associate noted in that email that the court waited until 11.30 am before the matters were called in open court and as a consequence of the accused's failure to appear, a bench warrant was issued.[42]

The accused's evidence

[41] Exhibit 15, Email sent from Associate to Justice Curthoys to DDP Appeals Section and the accused sent at 5:06 pm on Friday, 17 September 2021.

[42] ts 58 (10/03/2022); Exhibit 15, Email sent from Associate to Justice Curthoys to DDP Appeals Section and the accused sent at 5:06 pm on Friday, 17 September 2021.

The accused gave evidence. During cross-examination the accused stated that he was aware that he was required to attend court on 17 September 2021 'according to my bail'.[43] Further, the accused stated that he received the emails from the Associate to Curthoys J sent on 15 September 2021 confirming that the hearing for the delivery of judgment was now scheduled for 17 September 2021.[44] The accused stated that at the time he received the email vacating the hearing on 15 September 2021 and listing the matter on 17 September 2021, he had already, on 15 September 2021, entered the Supreme Court Stirling Gardens Courthouse.[45] The accused stated that on 15 September 2021 he entered the courthouse but did not go into a courtroom and that therefore he had answered his bail. The accused stated he could not recall whether he signed any paperwork on 15 September 2021. The accused stated that when he received the email, he left the Supreme Court Stirling Gardens Courthouse but maintains that thereby he had answered his bail.[46]
[43] ts 128 (15/03/2022).
[44] Exhibit 13, Email from the accused to Associate to Justice Curthoys sent at 8:17 am on Thursday, 16 September 2021; ts 128 (15/03/2022).
[45] ts 129 ‑ 130 (15/03/2022).
[46] ts 131 (15/03/2022).
The accused therefore appeared to maintain that he answered his bail on 15 September 2021 and therefore, he was not subject to bail to attend on 17 September 2021. The accused gave evidence that he did attend court on 17 September 2021[47] and that he entered the Supreme Court Stirling Gardens Courthouse and spoke to the security officers. He then left the Supreme Court Stirling Gardens Courthouse shortly after that conversation. The accused stated that by attending the courthouse he answered his bail.[48] The accused was asked why he attended court on 17 September 2021, to which he answered, 'that was my bail'.[49]
[47] ts 125 (15/03/2022).
[48] ts 133 (15/03/2022).
[49] ts 133 (15/03/2022).
The accused then gave the following evidence in cross‑examination: [50]
[50] ts 133 ‑ 134 (15/03/2022).
So you were bailed to attend at what time?‑‑‑Well, according to the document you've submitted 10.15 am.
Right. So tell us what you did on the 17th?‑‑‑I went to the courthouse, entered my - answered my bail ‑ ‑ ‑
Which courthouse did you go to?‑‑‑Old Supreme Court.
Okay. Yes, so you're outside the old Supreme Court. What do you then do?‑‑‑I entered the building.
All right, yes. Through security presumably?‑‑‑Yes.
Yes. And that's the front entrance, the one that faces up towards St Georges Terrace?‑‑‑Correct.
And what time was this?‑‑‑I can't recall.
So this - it all turns on this really, Mr Nash. What time did you enter the court - enter the courthouse building?‑‑‑It was early morning.
All right. And then what did you do?‑‑‑I stayed in the foyer.
Yes. Checked the boards?‑‑‑Looked at the board. The security ‑ ‑ ‑
And what was on the board?‑‑‑Well, my matter obviously.
Okay. And what time did it have your matter listed for?‑‑‑11.
So you saw that on the board in the foyer?‑‑‑Yep.
And then what did you do?‑‑‑I was staring at it and the security came over and said that he didn't have my matter on his court listings.
And your response to that was to say, “Look at the board”?‑‑‑I didn't say that, no.
So what did you do then?‑‑‑Conversed with my partner.
And what did you do then?‑‑‑Stayed in for a bit.
And then?‑‑‑And then walked out.
And so you were in the foyer that entire time?‑‑‑Entire time, yeah.
Yes. And what time did you walk out?‑‑‑I can't recall.
So was it before 11 am?‑‑‑Yep.
So you - you say that you came sometime during that morning at a time that you don't know what it was, you entered, saw your matter listed on the board. You say a security office told you that notwithstanding what was on the board, it wasn't on his list?‑‑‑Well, it wasn't on his list, it wasn't on the eCourts portal.

Assessment

I am satisfied beyond a reasonable doubt that the accused was subject to a bail undertaking to attend the court hearing at the Supreme Court Stirling Gardens Courthouse on 17 September 2021. The accused signed a bail undertaking. The accused then received the series of emails from the Associate, which the accused acknowledged and replied to. I am satisfied that the accused knew that he was subject to bail that required him to attend the court hearing on 17 September 2021.
I find that the accused did not appear in the courtroom for the hearing before Curthoys J on 17 September 2021 as required by his bail undertaking. The accused maintains that he answered his bail on 15 September 2021 and therefore, he was not required to attend on 17 September 2021. The accused's contention is misconceived. The accused was required to attend the court hearing on 17 September 2021. The accused gave evidence that he attended the Supreme Court Stirling Gardens Courthouse on 17 September 2021, despite denying that he was subject to a bail requirement to do so. I will accept that the accused did attend the Courthouse on 17 September 2021. The prosecution did not submit that the accused's testimony in that regard was false.
The accused's contention that he answered his bail undertaking by turning up at the Supreme Court Stirling Gardens Courthouse and then leaving is misconceived. The accused was required to attend the court hearing before Curthoys J in the courtroom at the Supreme Court Stirling Gardens Courthouse. Entering a courthouse and then leaving before the hearing commences does not satisfy the requirement that an accused has appeared in answering his bail. I am satisfied beyond a reasonable doubt that the accused was subject to a bail requirement to attend court on 17 September 2021 and that the accused did not attend the court hearing before Curthoys J and thereby has failed to appear pursuant to his bail undertaking.

Element 4 - The accused failed to appear as soon as practicable thereafter

I now turn to whether the prosecution has proven beyond a reasonable doubt that the accused failed to appear as soon as practicable thereafter. The word 'practicable' is not defined in the Bail Act. The word practicable has its natural and ordinary meaning of 'capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible'.[51]
[51] Wright v Western Australia (2010) 203 A Crim R 339 [26], [148]; Geldert v The State of Western Australia [2012] WASCA 226 [50].
Officer Larkan gave evidence that between 17 September 2021 and the arrest of the accused on 27 September 2021, the accused did not attempt to make contact with the WA Police. Officer Larkan gave evidence concerning the attempts of the WA Police to arrest the accused.[52] On 20 September 2021, Officer Larkan attended at the accused's mother's address, being the address at which the accused was required to reside under the terms of his bail undertaking.[53] The accused was not present.
[52] ts 91 ‑ 94 (15/03/2022).
[53] ts 91 (15/03/2022).

On 23 September 2021, Officer Larkan again attended at the mother's address.[54] The accused was not present. On 23 September 2021, Officer Larkan attended at the accused's brother's address.[55] The accused was not present.
[54] ts 92 (15/03/2022).
[55] ts 92 (15/03/2022).
At approximately 6.30 am on Monday, 27 September 2021, the police attended at a third address at which time the accused was located.[56] The accused was arrested by the police officers pursuant to the bench warrant issued by Curthoys J on 17 September 2021.
[56] ts 92 ‑ 93 (15/03/2022).
During cross-examination, the accused stated that he did not report to the police between 17 September 2021 and his arrest on 27 September 2021.[57] The accused was under the terms of his bail undertaking which required him to do so. Further, the accused accepted that a condition of his bail was that he reside at his mother's address. He failed to do so. The accused stated that sometimes he would reside with his mother but other times at another address.[58]
[57] ts 138 (15/03/2022).
[58] ts 138 (15/03/2022).
At the time of the apprehension of the accused at approximately 6.30 am on Monday, 27 September 2021, the accused made utterances which were recorded by the body worn cameras held by Officers Larkan and King and which are relied upon as admissions by the prosecution. The prosecution provided, by email on Wednesday, 9 March 2022, the following transcription of the utterances which I accept as an accurate transcription.
22.56.40 - 22.56.52 (bedroom)
After silence
Accused: "How did you get knowledge of this address?"
King: "That doesn't matter."
Accused: "It does to me."
Larkan: "Well that's not information we're giving out so finish all your phone calls and let's go."
Accused: "This isn't my house, so …"
22.57.14 - 22.58.22 (bedroom)
King: "Who else do you need to phone?"
Accused: "My brother."
[texting, scrolling on phone, then dials and puts to ear, voicemail message can be faintly heard]
[Then at 22.57.56 the accused speaks to a person who he identified as his brother]
Accused: [on phone] "Hey bro, they've put me into custody, they've found this address - somehow - can you let Mum know as well, so I'll be at the Watch House and um yeah'll see if a private lawyer can get to me in time. Alright? See you."
22.58.41 - 22.58.46 (bedroom)
Accused: "You know I was actually there on the 17th right?"
King: "This is a Supreme Court bench warrant - they've issued it, I haven't."
23.02.26 - 23.02.35 (by vehicle)
King: "There's a bench warrant, it's an arrest warrant, from the Supreme Court."
Accused: "But I was there on the 17th."
King: "Ok, well you can discuss that with the Court."
I am satisfied that the accused did not appear as soon as practicable after not appearing in the courtroom on 17 September 2021. I find that the accused, after failing to appear under the terms of his bail on 17 September 2021, made no attempts to answer his bail thereafter. To the contrary, the accused failed to appear despite knowing that the appeal had been dismissed and that a warrant had been issued. I find that the accused did not reside each night after 17 September 2021 at his mother's address, being a condition of his bail. I find that the accused was residing at the third address (not being his mother's or brother's address) and that he did so to avoid apprehension. The accused well understood that the warrant for his arrest had been issued by Curthoys J. The utterances of the accused recorded on the body worn camera satisfy me that the accused was avoiding detection by the authorities and further, that the accused did not expect the police to locate him at the address. As the accused stated in respect of the police attending at the residence and arresting him 'they've found this address ‑ somehow'.

Element 5 - The accused failed to appear without reasonable cause.

I am satisfied that the accused failed to appear without reasonable cause. The accused did not contend that he had a reasonable cause, rather he maintained that he was not subject to a bail requirement to attend on 17 September 2021 and that in any event he did attend on that date. I have found that the accused was subject to the bail requirement to attend and that he did not attend as required by law. There was no reasonable cause for the accused to leave the Supreme Court Stirling Gardens Courthouse on 17 September 2021 and not to reappear as soon as practicable thereafter.

Conclusion - verdict

Therefore, I am satisfied that the prosecution has proven the charge beyond a reasonable doubt. I convict the accused of the charge.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
31 MARCH 2022