KWLD v The State of Western Australia - [2020] WASCA 94

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KWLD -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 94
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD: 5, 11 & 21 MAY 2020
3 JUNE 2020

DELIVERED          :   16 JUNE 2020
FILE NO/S:   CACR 49 of 2020
BETWEEN:   KWLD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   IND 2113 of 2018

Catchwords:

Criminal law - Appellate procedure - Appeal from a variation of bail conditions - Whether the Court of Appeal has power to order a report from the primary judge

Courts and judges - Natural justice - Whether a reasonable apprehension of bias arises from the primary judge making private factual inquiries about matters relevant to the exercise of the court's discretion in the absence of the parties and without their knowledge

Criminal law - Bail - Imposition of bail conditions - Relevant principles

Legislation:

Bail Act 1982 (WA), s 15A, s 15B, s 21, s 22, s 24, s 24A, s 17, pt D of sch 1 cl 2, cl 3
Criminal Appeals Act 2004 (WA), s 40(1)(h)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 30

Result:

Appeal allowed
Bail conditions varied

Category: A

Representation:

Counsel:

Appellant	:	In person
Respondent	:	B M Murray

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72; (2005) 225 CLR 88
Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184
De Alwis v The State of Western Australia [2012] WASCA 146
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
KWLD v The State of Western Australia [No 4] [2013] WASCA 185
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Morey v The State of Western Australia [2006] WASCA 161
Re JRL; ex parte CJL (1986) 161 CLR 342
Smart v The State of Western Australia [2010] WASCA 218
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
YSN v The State of Western Australia [2017] WASCA 155

JUDGMENT OF THE COURT:

Summary

The appellant is currently awaiting trial in the District Court of Western Australia on an indictment charging him with:
(1)five counts of sexually penetrating a child (the complainant) under the age of 13 years, committed between 31 December 2014 and 2 February 2015; and
(2)one count of using electronic communication with intent to procure a person he believed to be under the age of 16 years to engage in sexual activity.
A trial date has been allocated to commence on 7 September 2020. The appellant is currently representing himself in the primary proceedings, and in this appeal.
This appeal is against a decision made by Birmingham DCJ (the primary judge) on 25 March 2020, to vary the appellant's bail conditions. At the time of the bail variation, the appellant was subject to home detention bail conditions. The effect of the variations which are the subject of this appeal was to:
(1)limit the circumstances in which the appellant could leave the house at which he was residing to obtain urgent medical and dental treatment and to require that he be accompanied by one of his grandparents; and
(2)completely prohibit the appellant from accessing social media network sites.
The process leading to the variation of the appellant's bail conditions was instigated by the primary judge rather than the prosecutor. Prior to varying the appellant's bail, the primary judge had made a number of his own private factual inquiries concerning the appellant's performance on bail. The primary judge made inquiries with a community corrections officer, court staff, and the manager of a dentistry practice which the appellant had attended. The inquiries with the community corrections officer and court staff were disclosed to the parties at the hearing, but the inquiries made with the dentistry practice manager were not disclosed. This occurred in a context where the primary judge had previously dealt with the appellant for serious sexual offending in the Children's Court of Western Australia and had indicated subsequently that he would recuse himself from presiding over the appellant's trial.
In our view, the above circumstances give rise to a reasonable apprehension of bias, and constitute a significant miscarriage of the curial process. It is appropriate for this court to consider, afresh and for itself on the material properly before the primary judge, what amendments (if any) should be made to the conditions of bail which applied before the primary judge made his decision. In exercising that discretion, we would make the amendment noted at [3] (1), varied in a relatively minor respect, and make the same amendment noted at [3] (2) above.

Procedural history in the District Court

Previous convictions in the Children's Court

The primary judge had previously convicted the appellant of sexual offences in the Children's Court of Western Australia. The offences were against four female complainants aged between 13 and 15 years. The appellant had initiated contact with three of the complainants by electronic media. The appellant pleaded guilty and was sentenced following a trial of issues at which the appellant was found to have sexually penetrated two of the complainants without their consent. The appellant unsuccessfully appealed against his convictions and sentences to this court.[1] As a result of these convictions, the appellant became a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) (CPOR Act).

Period on remand from 19 July 2018 to 3 September 2019

[1] KWLD v The State of Western Australia [No 4] [2013] WASCA 185.

On 15 May 2015, the appellant failed to answer bail (on charges under the CPOR Act). He went to Victoria in about May 2015. While in Victoria, the appellant committed offences involving electronic communications with children, for which he was dealt with in the County Court on 27 November 2017. He received a sentence of 29 months' imprisonment in that State.[2]
[2] Primary ts 102.
The appellant was extradited to Western Australia after serving the Victorian sentence. After his extradition, the appellant spent about 13 months in prison on remand from 19 July 2018 to 3 September 2019.

Grant of bail on 3 September 2019

On 3 September 2019, Levy DCJ granted the appellant bail for a trial callover appearance in the District Court at Geraldton on 16 September 2019. The appellant's trial was scheduled to take place on the Geraldton circuit in the week beginning 16 September 2019. At that time, the appellant was represented by senior counsel.
In granting bail, Levy DCJ indicated that bail would have been refused but for his Honour's view that, if the appellant was kept in custody, there was a real risk that he would not adequately be able to present his defence to its fullest.[3] The concern related to attempts by the appellant to obtain access to material on the internet which would be used in his defence. Levy DCJ indicated that he would place 'significant conditions and obligations' on the appellant. Although he did not purport to impose a home detention condition under cl 3 of pt D sch 1 to the Bail Act, Levy DCJ imposed what his Honour described as 'effectively home detention'.[4] The bail conditions required that the appellant reside at a specified address in Geraldton and:
[P]resent at the front door when requested by the police service and not to leave that address unless in the company of [one of two named persons] and only for the purposes of reporting, complying with reporting conditions under the Reportable Offenders Act, for medical treatment or attending the courthouse for any court proceedings relating to you. (emphasis added)
[3] Primary ts 103.
[4] Primary ts 104.
Levy DCJ also imposed conditions including that the appellant was:
(1)'[n]ot to have unsupervised contact with, or communicate by any means [with], anyone under the age of 18'; and
(2)'[n]ot to communicate by whatever means on any social media networking sites'.

Proceedings in the week beginning 16 September 2019

The appellant answered his bail at the trial callover before Levy DCJ on 16 September 2019. At that time, senior counsel for the appellant applied to adjourn the trial, essentially on the ground that the appellant's attempts to obtain evidence that would assist his case had been frustrated. Levy DCJ adjourned the matter until the next day, granting bail.[5]
[5] Primary ts 110 - 129.
On 17 September 2019, senior counsel sought and was granted leave to withdraw as counsel for the appellant, essentially on the basis that the appellant was not accepting advice and the relationship was so compromised that counsel could not continue.[6] Levy DCJ indicated that the hearing would proceed as a pre‑recording of the complainant's evidence.[7] Bail was renewed and the matters were adjourned to 18 September 2019.
[6] Primary ts 153.
[7] Primary ts 159 - 160.
After argument about various matters on 18 September 2019, the evidence-in-chief of the complainant in respect of the sexual penetration offences was pre-recorded.[8] The matter was adjourned until 19 September 2019, when the evidence of a recent complaint witness was pre-recorded. At the conclusion of that day, the appellant was remanded in custody until 26 September 2016. The appellant had applied for bail, and Levy DCJ had noted that the basis on which bail had been granted - to enable him to make certain inquires - no longer existed.[9] Levy DCJ adjourned the matter to consider a severance application by the appellant, to rule on certain objections to the pre-recorded evidence, and to obtain a home detention bail report.[10]

Proceedings on 26 September 2019

[8] Primary ts 204 - 209.

[9] Primary ts 216.

[10] Primary ts 218 - 219.

On 26 September 2019, Levy DCJ delivered his reasons for refusing to sever the trial of the sexual penetration counts from the count concerning online communications.[11] His Honour then heard and dealt with the appellant's application for bail, deciding that he should be granted home detention bail. His Honour indicated that he was cognisant of the fact that the home detention conditions that could be imposed were largely at the discretion of the chief executive officer who administers home detention bail. His Honour indicated his view that he should also impose other conditions of bail, in addition to the home detention condition.[12]
[11] Primary ts 223 - 234.
[12] Primary ts 255 - 256.
Levy DCJ made a number of adjustments to the previous bail conditions as a result of the addition of a home detention condition. He ultimately granted the appellant bail for an appearance at a trial listing hearing on 4 October 2019, subject to the following relevant amended conditions (with amendments indicated):
(1)'[n]ot to to have unsupervised contact with, or communicate by any means [with], anyone under the age of 18 or as otherwise permitted pursuant to orders of the Family Court of Western Australia';
(2)to reside at a specified address in Geraldton and 'present at the front door when requested by the police service and not to leave that address unless in company of [one of two named persons] and only for the purposes of reporting or complying with reporting conditions under the Reportable Offenders Act, for medical treatment or attending the courthouse for any court proceedings relating to you'.
(3)'[n]ot to communicate by whatever means on any online social media networking sites'.
(4)'[t]o be subject to Home Detention Bail as directed by the Chief Executive Officer'.

Proceedings in October 2019 - January 2020

At the trial listing hearing on 4 October 2019, the matter was adjourned to 20 November 2019 for directions before Levy DCJ. Bail was renewed on then existing conditions.[13]
[13] Primary ts 229.
Levy DCJ gave certain directions at the hearing on 20 November 2019. Bail was granted on largely the same conditions for the continuation of the pre-recording of the complainant's evidence on 9 December 2019.[14] One variation which was made to the bail conditions was to remove a requirement that the appellant report to police daily. That variation was sought by the prosecutor on the ground that the condition was unnecessary given that the appellant was under electronic surveillance on home detention.[15] Curiously, the appellant opposed this variation.[16]
[14] Primary ts 263.
[15] Primary ts 258 - 259.
[16] Primary ts 260, 262 - 263.
The pre-recording of the complainant's evidence was completed on 9 December 2019. At that hearing the appellant was represented by counsel, who cross-examined the complainant. The matter was remanded to a directions hearing on 17 January 2020, and bail was renewed on existing conditions.[17]
[17] Primary ts 350 - 351.
On 11 December 2019, the appellant applied to vary his bail conditions. A variation was granted by Bowden DCJ, in effect suspending the home detention conditions on 13 and 23 - 26 December 2019.[18]
[18] Primary ts 381 - 383.
The matter came on for directions before Sweeney DCJ on 17 January 2020. Her Honour programmed an application by the appellant for the permanent stay of the prosecution on the sexual penetration counts, and an application by the State for a change of trial venue, for hearing on the Geraldton circuit in the week beginning 16 March 2020. The appellant was given bail on existing conditions for his appearance at the callover list in Geraldton at 9.30 am on 16 March 2020.[19]
[19] Primary ts 409.
In granting the appellant bail, Sweeney DCJ advised the appellant that he would not need to surrender himself to custody on 16 March 2020, but would need to be at the courtroom for the callover at 9.30 am.[20]

Proceedings in March 2020

[20] Primary ts 401 - 402, 408, 409.

The appellant's case was called on at 10.04 am on 16 March 2020 before the primary judge. During the course of proceedings that day, the appellant applied for the primary judge to disqualify himself, essentially on the ground that his Honour had tried and sentenced the appellant in the Children's Court of Western Australia in June 2012. The primary judge declined to recuse himself 'on what is an interlocutory order'.[21] At a subsequent hearing on 25 March 2020, however, his Honour indicated that he would recuse himself from being the trial judge, having heard the previous matter.[22]
[21] Primary ts 432 - 433.
[22] Primary ts 518.
After various matters were debated on 16 March 2020, the directions hearing was adjourned to 19 March 2020 at 9.30 am, with bail renewed on existing conditions. The following exchange occurred between the primary judge and the appellant at the conclusion of the hearing on 16 March 2020:[23]
Can I just indicate, [KWLD], you were required to be here for 9 o'clock this morning. You arrived at 9.40. Is there an explanation?
ACCUSED: Yes. There is, your Honour.
BIRMINGHAM DCJ: What's that?
ACCUSED: I reported down to the registry. I was here prior to 9 o'clock and I was advised by court security staff that court usually starts around 10.
BIRMINGHAM DCJ: You were required to sit in the back of the court - - -
ACCUSED: I misunderstood, your Honour.
BIRMINGHAM DCJ: - - - and that was your bail conditions. Court security staff do not run this court, I do. You're required to be here. You will be here at 9.30 on Friday (sic) failing which your bail will be revoked. Do you understand?
ACCUSED: Yes, your Honour
[23] Primary ts 450.
On 19 March 2020, the primary judge again raised the issue of the appellant's bail and late arrival at court on 16 March 2020. His Honour indicated that he had made inquiries of a community corrections officer, Ms Mayfield, who informed his Honour that, when the appellant attended to deal with a video-link application on 16 March 2020, he did not travel directly to court and spoke to another person. The appellant said the other person was his grandmother.[24] The primary judge indicated he had requested a report from Ms Mayfield as to the appellant's performance on home detention bail, including leaves of absence to attend medical appointments in circumstances where his Honour understood there were almost daily requests. His Honour anticipated varying the bail conditions.[25]
[24] Primary ts 477 - 478.
[25] Primary ts 479 - 481.
The following details of the primary judge's private discussions with Ms Mayfield, passed on to the parties in the manner described in the previous paragraph, appear from his Honour's report to this court (discussed below):
I subsequently [to the hearing on 16 March 2020] caused enquiries to be made of the Community Corrections office at Geraldton responsible for the management of the [appellant's] bail as to whether they were aware of any reason for the [appellant's] failure to appear at the time appointed. The officer advised that she was not aware of any reason for the [appellant's] absence and further expressed her concern as to his previous compliance and his numerous requests for leave of absence for medical and dental appointments that were possibly unnecessary.
The directions hearing was again adjourned to 25 March 2020. At that time, the primary judge referred to the contents of Ms Mayfield's report.
Ms Mayfield's report had noted the following occurred during a visit to the appellant's residence on 6 December 2019 by Adult Community Corrections (ACC):
Whilst at the residence [the appellant] was requested to show ACC his internet browser history. Upon sighting the history, a site named 'TeenChat.org' was noted. [The appellant] admitted to visiting the site on 21/11/2019, during the term of the current Conditional Bail. He further informed that he had used the site back in 2014 to communicate with [the complainant]. He stated he visited the website to check if they had contact details, in order to query whether the company kept records of this communication and to query if he could obtain a copy of it. There was no evidence sighted that he communicated with anyone, only that he visited the website. No further action was undertaken by ACC however the information was forwarded to the Sex Offender Management Squad on 6/12/2019.
Ms Mayfield noted that the appellant's compliance with home detention conditions was 'largely contingent on his self-reporting and collateral checks with his arranged appointments' and that ACC were 'unable to monitor [the appellant's] exact movements from his house to his arranged appointment'. Ms Mayfield reported that the appellant had 'maintained general compliance' with his bail conditions, but expressed concern as to the number of his leave of absence requests. The report summarised the absences approved in the 4-week period from 17 February 2020 to 19 March 2020, which occurred on 16 separate days.
As to the appellant's attendance at court on 16 March 2020, Ms Mayfield said:
It has been confirmed with the Geraldton Court house that [the appellant] presented at the Registry at 9.01am on 16/3/2020. Court staff confirmed [the appellant] was observed via Closed Circuit Television and did not leave the precincts of the Court.
During the course of the prosecutor's submissions on 25 March 2020, the primary judge made the following observations:[26]
[26] Primary ts 525 - 526.
Well, can I just say, I made inquiries today in relation to follow up what was on the report where K.W.L.D.s explanation for the 40 minutes unaccounted when answering a bail on Monday. Ms Mayfield says it's confirmed at the Geraldton Courthouse that K.W.L.D. presented at the registry at 9.01. They've confirmed he was observed on closed-circuit television and didn't leave the precincts of the court.
ROSENTHAL, MR: Yes.
BIRMINGHAM DCJ: That's not correct. What is recorded there is not correct and the CCTV has been examined today to see where he was.
ROSENTHAL, MR: So what - - -
BIRMINGHAM DCJ: He didn't appear on the CCTV.
ROSENTHAL, MR: I haven't seen the CCTV. I took the - - -
BIRMINGHAM DCJ: No. I haven't either, but I've asked for the clerk to actually examine it, and he's not on there, and to the extent that Ms Mayfield may have been advised that that was the case, it is not right. And the person who she indicates had advised her that has, in fact, been off sick all week.
ROSENTHAL, MR: So what is the actual situation in terms of where he was?
BIRMINGHAM DCJ: Well, all that is known is that he was present at 9.01 downstairs. He didn't walk through that door until 9.40, and during the rest of the time, general public was all available out the front, including the entire jury panel.

The prosecutor also made a submission that the requirement for the appellant to be accompanied by specified persons when leaving the house at which he was staying 'seems just to have fallen away'.[27]
[27] Primary ts 525, 527.
The primary judge confirmed with the appellant that his grandmother, who was surety, was in attendance, and later observed:[28]
Well, currently you've got home detention conditions, which are in general terms, and I think those are, in fact, too general and need to be tightened up. And you are in your vehicle, and you run out of fuel, and you go to pharmacies and things such as that, none of that is intended by the bail that was granted by his Honour Judge Levy.
And it occurs to me that it ought to be in terms of a curfew and that you remain at the house at all times, save for urgent medical treatment, and that on leaving the house, in accordance with the home detention conditions in obtaining - first obtaining approval and then for the basis of essentially urgent medical or dental treatment, that you be accompanied by a responsible adult, either your grandmother - or who's the other - - -
ACCUSED: My grandfather, your Honour.
BIRMINGHAM DCJ: Your grandmother or grandfather.
[28] Primary ts 528 - 529.
The primary judge indicated various variations to the appellant's bail conditions, including in relation to his access to social media sites. The appellant had informed the judge that his reported access to a 'teen chat' site was not for the purpose of communication but to attempt to gather old messages for use in his defence.[29] In indicating the amended bail conditions, the primary judge observed:[30]
BIRMINGHAM DCJ: K.W.L.D., can I just make this point, you were within an ace of having your bail revoked. You were within an ace of having your bail revoked by me. The fact that you had accessed Snapchat, had it been another judge considering the matter I think it would have been revoked particularly in the circumstances where - the nature of the charges.
ACCUSED: Yes, your Honour.
BIRMINGHAM DCJ: The report from Ms Mayfield is troubling. You seem to have been travelling around daily and stopping and have variations and running out of fuel and doing things such as that, all of which puts you in the community unsupervised where you are recognised as posing a high risk of reoffending. Your liberty in the community is restricted significantly for good cause and can I, again, just re-emphasise the need for you to give urgent consideration to being represented so that the impediments of home detention won't impact upon the preparation of your defence.
[29] Primary ts 530.
[30] Primary ts 533 - 534.
The appellant raised scenarios of visits to health professionals, including a chiropractor, which the judge indicated would not be a permitted 'urgent' medical appointment. The primary judge indicated that the appellant's planned visit to the dentist the next day was permitted, but a chiropractic appointment was not.[31]
[31] Primary ts 534 - 535.
The primary judge relevantly varied the bail conditions as follows: (with amendments indicated):[32]
(2)to reside at the specified address in Geraldton and to observe a curfew at that address, with the exception of authorised leaves of absence for urgent medical and dental treatment whilst being accompanied by [his grandmother or grandfather] at all times.
(3)'not to ~~communicate by whatever means on~~ access any social media networking sites whatsoever. For the sake of clarity, this includes Facebook, Snapchat, Twitter, Homeparty or any similar social networking platforms.'.
[32] Primary ts 539.
Bail was granted on these terms for an appearance on 17 April 2020. It was subsequently extended on the same terms to a duty judge mention on 25 May 2020.[33] On 18 May 2020, the 25 May 2020 hearing was vacated and bail was further extended on the same terms to a directions hearing on 10 June 2020.[34] It appears that the matter remains listed for trial commencing on 7 September 2020, although there are a number of applications by the appellant remaining to be dealt with.
[33] Primary ts 550.
[34] Primary ts 571 - 574.

The appeal to this court

On 7 April 2020, the appellant lodged an appeal notice in this court, appealing against orders made by the primary judge on 25 March 2020 varying his bail conditions.
Ground 1 contends that the bail variation decision was 'erroneous', proceeding on 'grave mistakes of fact' and which 'took into account extraneous and/or irrelevant matters, which failed to take into account material considerations and which was tainted by apprehended and/or actual bias'.
Ground 2 contends that the primary judge erred:
[B]y having proceeded to make a decision with respect to the variation of the accused's bail in circumstances whereby His Honour took into account information relevant to said decision which was not disclosed to the parties or otherwise entered onto the record, namely, information obtained in the course of telephone enquiries which His Honour made personally to the [appellant's] health practitioners.
Ground 3 contends that the decision to 'impose a constant curfew' at the appellant's residence was unreasonable or plainly unjust 'insofar as said condition serves absolutely no purpose in light of the prevailing home detention condition'.
Ground 4 contends that the decision to vary the bail conditions to 'specifically prevent the accused from leaving his residence except to attend urgent medical appointments' was unreasonable and plainly unjust and failed to take into account material considerations. The material considerations referred to are the medical treatment advice furnished by the appellant's medical practitioners and the CEO's power, in administering the home detention bail condition, to approve the appellant's leave of absence (including for non-urgent but necessary medical appointments).

Nature of an appeal under the Bail Act.

The nature of an appeal under the Bail Act was summarised by this court in YSN v The State of Western Australia.[35] The following is mainly taken from that summary.
[35] YSN v The State of Western Australia [2017] WASCA 155 [30] - [34].
The appellant's right of appeal from the primary judge's decision to vary a bail condition is provided for by s 15A(2)(b), read with s 15A(1)(b) and (d), of the Bail Act. Section 15A(3) provides that the leave of this court is required for each ground of appeal in an appeal under s 15A of the Bail Act. This court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.[36] Unless the court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.[37]
[36] Section 27(2) of the Criminal Appeals Act 2004 (WA), incorporated by s 15A(4) of the Bail Act.
[37] Section 27(3) of the Criminal Appeals Act, incorporated by s 15A(4) of the Bail Act.
A 'bail decision' which may be the subject of an appeal includes, under s 15A(1) a decision to vary bail and a decision to impose any condition on a grant of bail. The primary judge's decision to vary the conditions of the appellant's bail was a 'bail decision' for the purposes of the appeal provisions.
Section 15B(1) of the Bail Act gives this court jurisdiction to hear and determine an appeal under s 15A of that Act. Section 15B(2) provides:
The Court of Appeal shall determine an appeal on the material and evidence that was before the judge whose decision is the subject of the appeal.
As was noted in Smart v The State of Western Australia,[38] this provision means that, if there are new facts and circumstances which have arisen since the decision under review, the proper course is to make a fresh application to the trial court under s 14(2a) of the Bail Act.
[38] Smart v The State of Western Australia [2010] WASCA 218 [10].
An appeal under s 15A and s 15B of the Bail Act is not an appeal de novo.[39] Rather it is an appeal by way of rehearing,[40] which requires the appellant to establish either error by the primary judge or a miscarriage of justice.
[39] De Alwis v The State of Western Australia [2012] WASCA 146 [14].
[40] Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA), incorporated by s 15A(5) of the Bail Act.
Further, the appeal to this court is against a discretionary decision of the primary judge. In Milenkovski v The State of Western Australia,[41] a ground contended that the primary judge in that case erred in 'refusing to make a grant of bail having regard to all the circumstances of the case'. McLure P noted:[42]
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.
[41] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99.
[42] Milenkovski [46].
Milenkovski also involved grounds contending that the primary judge in that case erred in concluding that no conditions of bail could reasonably be imposed which would sufficiently remove the possibility of non-appearance at trial, and in finding that Milenkovski may commit a further offence if not kept in custody. In relation to these grounds, McLure P observed that Milenkovski had the difficult task of establishing that the findings were not reasonably open on the evidence.[43]
[43] Milenkovski [47] - [48].

The application in an appeal for a report by the judge

By application in an appeal filed 21 April 2020, the appellant applied for an order pursuant to s 40(1)(h) of the Criminal Appeals Act 2004 (WA) requiring the primary judge to provide this court, as soon as practicable, with a report regarding the following aspects of the bail variation decision:
a. the telephone enquiries made by His Honour of the [appellant's] medical practitioners in connection with said decision (also to comprise any notes made by His Honour with respect to said enquiries); and
b. the particulars (and source(s)) of the information relied upon by His Honour in having found, contrary to the explanation volunteered by the [appellant] himself and supported by the Home Detention Assessment Report of [ACC], that the [appellant] had absconded from the Geraldton Courthouse on 16 March 2020 (also to comprise any notes made by His Honour with respect to said information and/or which formed the basis of the reasons for said finding).
In his supporting affidavit, the appellant deposed that:[44]
On 26 March 2020 whilst attending a dental appointment at Agile Dentistry Geraldton, I was advised by the Practice Manager Ms Jenny KITNEY that she had received a call from the Primary Judge earlier that week, during which KITNEY said His Honour (amongst other things) had questioned the manner in which that clinic had delivered my dental treatments.
[44] Appellant's affidavit sworn 17 April 2020, par 8.
The State filed an affidavit of Mr Rosenthal, the prosecutor who appeared on the Geraldton circuit from 16 March 2020. He deposed that, shortly prior to the appearance on 25 March 2020, he telephoned Agile Dentistry and spoke to a woman he believed was Ms Kitney. He introduced himself as a State Prosecutor employed by the Office of the Director of Public Prosecutions, and asked questions pertaining to matters including the nature of the appellant's dental treatment and why so many appointments were required.[45]
[45] Affidavit of Mr Rosenthal sworn 1 May 2020, par 10 - 14.
Subsequently, the appellant obtained an affidavit of Ms Kitney, sworn 16 May 2020. She deposed that, whilst working at the reception area of Agile Dentistry on 25 March 2020, she received a telephone call from a person who identified himself as the primary judge. She made a file note of their conversation, which indicated that the judge rang to check that the appellant actually needed the appointments that he had and to question why they could not have all been done at once given that the appellant was on home detention. The file note indicated that Ms Kitney explained that 'we are unable to fill all Q at the same time for numbing reasons and it is hard to make 1 long appointment when other clients also wish to be seen'. Ms Kitney's note indicates that she said that 'tomorrow's appointment is the last one for this round as requested by the judge'.[46]
[46] Affidavit of Ms Kitney sworn 16 May 2020, pars 5 - 8, Annexure A.
Following the filing of this affidavit, the court made the following relevant orders at a directions hearing on 21 May 2020:
1.Birmingham DCJ is requested to supply to the Court of Appeal by 4 pm on 28 May 2020 a written report as to the following:
(a)whether, at any time prior to Birmingham DCJ making orders on 25 March 2020 varying the appellant's bail conditions, there were any communications between Birmingham DCJ and Jenny Kitney of Agile Dentistry concerning the appellant;
(b)details of the time, manner and substance of each communication (if any) referred to in order 1(a); and
(c)the contents of any notes made by Birmingham DCJ about each communication (if any) referred to in order 1(a).
2.Each of the parties has leave to inspect and take a copy of Birmingham DCJ's written report.
We said that we would publish reasons for making these orders at a later time. What follows are our reasons for making those orders.

The court's power to require the judge to provide a report

Section 40(1)(h) of the Criminal Appeals Act empowers this court, for the purposes of dealing with an appeal, to require a person who constituted the lower court to supply a report about the decision or the case in which it was made or any aspect of either. The application in an appeal indicated that this power was relied upon as authority for this court to order a report. However, counsel for the State, Mr Murray, quite properly raised the issue of whether that section authorised this court to require a report in an appeal under the Bail Act. We turn to consider the question of the court's power to order a report from the primary court in an appeal under the Bail Act.
Provisions for a primary judge to make a report to a court dealing with a criminal appeal are as old as the current form of criminal appeal. Under s 8 of the Criminal Appeal Act 1907 (UK), which established the Court of Criminal Appeal in England:
The judge or chairman of any court before whom a person is convicted shall, in the case of an appeal under this Act against the conviction or against the sentence, or in the case of an application for leave to appeal under this Act, furnish to the Registrar, in accordance with rules of court, his notes of the trial; and shall also furnish to the Registrar in accordance with rules of court a report giving his opinion upon the case or upon any point arising in the case.
In Western Australia, provision was made in the Criminal Code when it was enacted in 1913, by s 696 which provided:
The judge or chairman of any court before whom a person is convicted shall, in the case of an appeal under this chapter against the conviction or against the sentence, or in the case of an application for leave to appeal under this chapter, furnish to the Registrar, in accordance with rules of court, his notes of the trial; and in all cases of an appeal against sentence, and in any other case if he thinks it desirable in the interests of justice to do so, or if required by the Court of Criminal Appeal, shall also furnish to the Registrar in accordance with the rules of court a report giving his opinion upon the case or upon any point arising in the case. (emphasis added)
The scope of this power has not been without controversy.[47] However, an uncontroversial aspect of the power is to enable the appellate court to obtain a report from a primary judge as to what occurred in the proceedings the subject of the appeal when that is not apparent from the record of the lower court transmitted to the appeal court.
[47] See the discussion in F Rinaldi The Role of a Trial Judge's Report in Sentence Appeals [1980] 4 Crim LJ 28.
For example, a report from a trial judge under s 40(1)(h) of the Criminal Appeals Act may be required where there has been a technical failure in recording equipment which means that a transcript is not available. It may also be required where events relevant to the primary proceedings occurred other than in open court. An example of the latter circumstances is found in Morey v The State of Western Australia,[48] where a report was required as to a meeting with counsel in the judge's chambers in the absence of the accused. Another example, of particular relevance to the appellant's second ground of appeal, is found in Teakle v The State of Western Australia,[49] where a report was ordered about a conversation between the sentencing judge and a psychiatrist who had provided a presentence report, in the absence of the parties.
[48] Morey v The State of Western Australia [2006] WASCA 161 [15] - [16].
[49] Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [26] - [27].
In a case to which it applied, s 40(1)(h) of the Criminal Appeals Act would authorise this court to require a report from the primary judge as to whether he had made any private inquiries about the appellant in the absence of the parties and, if so, the information he received as a result.
However, the powers conferred by s 40(1) of the Criminal Appeals Act are only conferred on this court 'for the purposes of dealing with an appeal'. Section 4(2) of the Criminal Appeals Act defines an 'appeal' to be an appeal under that Act or an application for leave to appeal under that Act. The present appeal is not an appeal under the Criminal Appeals Act, which makes no provision for an appeal against a bail decision. Rather, the appeal is an appeal under the Bail Act, and is therefore not an 'appeal' for the purposes of s 40(1) of the Criminal Appeals Act.
Section 15A(4) of the Bail Act picks up and applies certain provisions of the Criminal Appeals Act and applies them to an appeal under the Bail Act. However, s 40(1) is not among those provisions. Section 15A of the Bail Act does not pick up s 40 of the Criminal Appeals Act.[50]
[50] De Alwis [38].
Therefore, any power of this court to order a report in the current appeal must be found elsewhere than s 40(1)(h) of the Criminal Appeals Act.
Section 15A(5) of the Bail Act provides that:
An appeal under this section shall be commenced and conducted in accordance with this section, section 15B and rules of court made by the Supreme Court.
Rule 30 of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides for the registrar to give to a primary court, as soon as practicable after an appeal notice is filed, a copy of the appeal notice and a notice specifying:
(i)the records or things held by the primary court in relation to the primary court case that the primary court must give to the Court of Appeal for the purposes of the appeal; and
(ii)the date by which the primary court must provide the records or things.
'Primary court case' is defined to mean the action, case, matter or proceedings in the primary court in which the decision being appealed was made.
This rule does not provide for the court to require a report of the primary judge, which would not be a 'record or thing held by the primary court'.
In the context of civil appeals, this court has recognised that it is implicit in the establishment of this court as a superior court, and the conferral of its appellate jurisdiction, that the court has power to make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its jurisdiction.[51]
[51] Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [58] - [63]; Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184 [10].

In our view, the same implicit power arises from the conferral on this court of jurisdiction by s 15A and s 15B of the Bail Act. In our view, the court has power to at least request a report of a judge who has made a bail decision where to do so is necessary for the effective exercise of this court's appellate jurisdiction. That may well be so in a case where, for example, a transcript of the primary bail proceedings is not available, and a report of the primary judge is required to enable this court to determine an appeal. In the same manner, this court may require a report of inquiries made by a judge outside a hearing, in a case analogous to Teakle.
Requiring a report of that kind is not inconsistent with s 15B(2) of the Bail Act, which requires this court to determine the appeal on the material and evidence that was before the judge whose decision is the subject of the appeal. The purpose of a report of the kind referred to above is to enable this court to identify the material and evidence which was before the primary court, rather than to supplement that material.
It is unnecessary to determine whether the implicit power of the court extends to requiring, as opposed to requesting, a primary judge to make a report. It would not be expected that a judge of the District Court would refuse a request from this court for a report which this court considered necessary for the effective exercise of its appellate jurisdiction. In any event, the distinction between a request or a requirement would seem theoretical in the absence of any obvious mechanism for this court to enforce such a requirement.

Disposition of application for a report

Having identified the existence of the power to request a report from the primary judge, it remained necessary to consider whether there are proper grounds for doing so in this case.
There was no warrant for requiring a report as to the inquiries which the judge made of ACC and court staff in relation to the appellant's compliance with conditions of bail. The fact that those inquiries were made is apparent from the transcript, and there is nothing to suggest that the judge failed to disclose any relevant information he received as a result of making those inquiries.
However, the affidavit of Ms Kitney indicates that the primary judge did contact her and make inquiries about the appellant on 25 March 2020 (the day on which the bail variation orders were made). Given that the prosecutor, Mr Rosenthal, made a similar call on the same day, of which Ms Kitney's affidavit made no mention, there appeared to be some prospect of a misunderstanding by Ms Kitney, who might have thought that Mr Rosenthal was a judge. However, there remained evidence that the primary judge had contacted Ms Kitney, and any doubts about the reliability of that evidence could readily be resolved by a report from the judge. Therefore, we considered it appropriate for this court to exercise its implied power to request a report from the primary judge as to the matters referred to in the orders set out at [54] above, for the purpose of ascertaining the content of the material before his Honour when the bail variation decision was made.

The primary judge's report

As requested by this court's orders, the primary judge provided the court with a report. That report goes beyond the material identified in this court's orders in a number of respects. However, it relevantly indicates that the primary judge did telephone Ms Kitney on 25 March 2020, that his Honour is unable to recall the precise conversation and did not make a note or record of the conversation, and that Ms Kitney's file note generally accords with his Honour's recollection of the conversation.

Reasonable apprehension of bias

In Re JRL; ex parte CJL,[52] Mason J opened his judgment with the following observations:
A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented to him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice. In conformity with the principle, every private communication to a judge made for the purpose of influencing his decision in a case is treated as a contempt of court because it may affect the course of justice: ... Indeed, it is regarded as a serious contempt.
[52] Re JRL; ex parte CJL (1986) 161 CLR 342, 350.
Breach of these fundamental principles may infringe either or both of 'the hearing rule' and 'the bias rule' which comprise the main components of the rules of natural justice. Such a breach may result in an unfair hearing where a party is denied an opportunity to respond to or challenge evidence or other information that may be material to the court's consideration of the party's case. Teakle illustrates this proposition.Such a breach may also give rise to a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the case.
A reasonable apprehension of bias, and breach of the related principle that justice must not only be done but must manifestly be seen to be done, was found to arise in JRL. In JRL, a court counsellor, who had taken an adverse view of one of the parties to a child custody dispute, approached a judge of the Family Court of Australia and had a private conversation about the matter, in which she had been directed to furnish a report to the court. A reasonable apprehension of bias was found to arise notwithstanding that the conversation had not been initiated by the judge and was immediately disclosed to the parties.
In our view, the principle infringed in JRL was also infringed in the present case, in which the primary judge instigated the out-of-court communications and did not disclose one of the communications to the parties. In summary, a reasonable apprehension of bias arose from the following combination of circumstances:
(1)the primary judge had instigated and driven the inquiry into the appellant's compliance with his bail conditions;
(2)the primary judge made private inquiries (later disclosed to the parties) with Ms Mayfield in which he received oral, untranscribed information adverse to the appellant;
(3)after receiving Ms Mayfield's report, the primary judge made private inquiries (later disclosed to the parties) with court staff as to the correctness of a statement in Ms Mayfield's report (favourable to the appellant) as to the appellant's whereabouts in the courthouse on 16 March 2020;
(4)after receiving Ms Mayfield's report, the primary judge made private inquiries (not disclosed to the parties) of Ms Kitney as to the appellant's dental treatment; and
(5)before varying the appellant's bail on 25 March 2020, the primary judge, who had previously found the appellant to have committed offences of the same general character as currently alleged against him, said that he would recuse himself from the appellant's trial.
The most significant aspects of the above circumstances are the judge's private factual inquiries, conducted out of the hearing room, as to matters going to the merits of the exercise of the judge's bail discretion. In combination, the above circumstances give rise to a reasonable apprehension that the judge stepped into the role of a protagonist in the proceedings, in a way that might reasonably be perceived to have compromised his Honour's ability to bring an impartial and unprejudiced mind to the question of bail.
Before turning to deal with these particular matters, we will note the general law as to apprehension of bias and the statutory setting in which the primary decision to vary bail was made.

General principles

The test to be applied in determining whether a judge should recuse himself or herself by reason of reasonable apprehension of bias is well established. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[53] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[54]

Statutory setting

[53] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60].

[54] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

Under s 21 of the Bail Act, the parties to proceedings on a case for bail are the prosecutor and the accused. In the present case, the State was the prosecutor for the purposes of the Bail Act.[55]
[55] Section 3(1) of the Bail Act (par (b) of the definition of 'prosecutor').
Section 22 of the Bail Act provides:
A judicial officer … may in considering any case for bail receive and take into account such information as he thinks fit whether or not the same would normally be admissible in a court of law.
Section 24(1)(a) of the Bail Act empowers a judicial officer who is called upon to consider a case for bail to request that any information placed before the judicial officer by the accused for the purposes of the case be verified by a police officer. Section 24(1)(b) of the Bail Act empowers a judicial officer who is called upon to consider a case for bail to request that a report on any matter mentioned in pt C of sch 1, so far as it applies to an accused whose case is being or to be considered, be made by a police officer. The matters mentioned in pt C of sch 1 are the considerations relevant to the exercise of the bail discretion. Under s 24(2) of the Bail Act, the police officer shall, as soon as is practicable, make a report to the judicial officer and furnish a copy of the report to the accused or his solicitor or counsel.
Section 24A(1) of the Bail Act provides:
A judicial officer who is called upon to consider a case for bail may refer to a community corrections officer any matter referred to in section 24(1) and may request a community corrections officer to do any matter referred to in that section.
Section 24A(3) of the Bail Act requires the community corrections officer to make a report to the judicial officer as soon as is practicable, and provides that:
at the discretion of the judicial officer, copies may be made available to the prosecution or to the accused or his solicitor or counsel. (emphasis added)
Section 17 of the Bail Act confers the power to impose conditions on the grant of bail. Relevantly in the present matter, the primary judge could impose conditions on a grant of bail only to the extent that his Honour was authorised to do so by pt D of sch 1 to the Bail Act. Section 17(2) requires that:
Conditions imposed on a grant of bail shall not be any more onerous on the accused than the judicial officer or authorised officer considers 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.
The bail conditions varied by the primary judge were authorised by cl 2(1) and cl 2(2) of pt D of sch 1, if the judicial officer considered them desirable for the purpose of ensuring that the appellant:
(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;
The home detention condition to which the appellant was subject was imposed under cl 3 of pt D of sch 1 to the Bail Act. Under cl 3(3)(a), the appellant was to remain at and not leave the place specified in his bail undertaking, except:
(i)to work in gainful employment approved by a community corrections officer; or
(ii)with the approval of a community corrections officer, to seek gainful employment; or
(iii)to obtain urgent medical or dental treatment for the accused; or
(iv)for the purpose of averting or minimizing a serious risk of death or injury to the accused or to another person; or
(v)to obey an order issued under a written law (such as a summons) requiring the accused’s presence elsewhere; or
(vi)for a purpose approved of by a community corrections officer; or
(vii)on the direction of a community corrections officer;

Instigation of bail reconsideration

It is relevant to note that the process by which the appellant's bail conditions came to be varied was instigated and driven by the primary judge rather than the prosecutor. As described above, it was the primary judge who raised the appellant's late appearance on 16 March 2020, and who indicated that he had made inquiries of and requested a report from Ms Mayfield. The prosecutor had not, before the primary judge took this action, raised any concern about the appellant's past compliance with bail conditions or the adequacy of the existing conditions to ensure the matters referred to at [88] above.
The fact that bail conditions were varied at the instigation of the judge rather than the prosecutor is not itself sufficient to give rise to a reasonable apprehension of bias. However, it is a significant part of the setting of what subsequently occurred. It increased the prospect that a reasonable observer would see the judge as investigating and prosecuting the case for a bail variation, rather than ruling on a disputed question as to the appropriate bail conditions.

Oral and written reports from Ms Mayfield

It was, in our view, at least highly undesirable for the primary judge to have discussed with Ms Mayfield, out of court and in the absence of the parties, the appellant's performance on bail. While s 24A authorised the primary judge to request a report from a community corrections officer such as Ms Mayfield about the suitability of the appellant to be subject to a home detention condition, the ordinary practice would be to request a written report after giving notice to the parties that a report was being requested. If an oral report is to be provided, then that should be done in the hearing room where a record of the report can be transcribed and retained. In our view, it was not appropriate for the primary judge to have had a private discussion with Ms Mayfield, in which his Honour received oral, untranscribed information adverse to the appellant.
It is unnecessary for the court to determine whether the discussions with Ms Mayfield of themselves gave rise to a reasonable apprehension of bias. The discussion was disclosed to the parties, and Ms Mayfield's concerns were subsequently reduced to writing in her report and provided to the parties, who were given an opportunity to make submissions about it. Further, s 24A(3) conferred a discretion on the primary judge as to whether copies of a community corrections officer's report were to be made available to the parties. This indicates that there may be some circumstances in which a judge might permissibly not disclose a community corrections officer's report to the parties (it is not appropriate to explore what these circumstances might be in the abstract). It may be arguable that in these circumstances and this statutory setting the fact of private oral and untranscribed communications between the primary judge and Ms Mayfield would not itself give rise to a reasonable apprehension of bias. We will assume, in the State's favour, this to be the case.
However, even in the above assumption, the primary judge can be seen to have obtained information adverse to the appellant in a private discussion instigated by his Honour. Assuming that this did not of itself give rise to a reasonable apprehension of bias, the fact that the primary judge has investigated matters relating to the appellant's bail conditions in this manner also forms part of the setting in which later steps are to be assessed.

Inquiries of court officers as to CCTV footage

As noted above, Ms Mayfield's report indicated that, after arriving at the court registry at 9.01 am on 16 March 2020, the appellant was observed via CCTV and did not leave the court precincts. The primary judge then appears to have taken it upon himself to cause an investigation of the accuracy of this aspect of Ms Mayfield's report, which was favourable to the appellant, to be conducted.
Consistently with what was said by the primary judge in the transcript, his Honour's report discloses the following matters about the investigation:
On the morning of 25th March 2020, having reviewed the Bail Performance report, I requested the Clerk of the Geraldton Court to review the CCTV footage for 16^th March 2020 and advise as to the observed movements of the accused from the time that he presented at the Registry at 9.01 am and was directed to go to the Court and his appearance before me at 9.40 am. Later that morning I was advised that the accused's whereabouts following his leaving of the registry could not be confirmed.
Neither the primary judge's report nor the transcript indicates why it was felt necessary to cause this aspect of the information provided by Ms Mayfield in her report to be checked.
These out-of-court communications with the Clerk of the Geraldton Court as to matters going to the merits of the exercise of the primary judge's bail discretion were not authorised by any provision of the Bail Act. They occurred in breach of the principles noted above, and should not have occurred at all. The fact that communications for the purpose of the judge obtaining factual information going to the merits of a matter to be determined by the judge are with a court officer does not make them less objectionable. As Gibbs CJ observed in JRL:[56]
It is quite antipathetic to and subversive of the exercise of the judicial power that a judge should receive private communications from any official, however well informed and well intentioned, even if the official is an officer of the court.
[56] JRL (347).
The fact that the counsellor communicating with the judge in JRL was a court officer did not prevent a reasonable apprehension of bias arising in that case. Mason J observed:[57]
The fact that the counsellor is an officer of the court is a matter which enhances, rather than diminishes, cause for concern. A fair-minded observer, as well as a concerned parent who is a party to the litigation would naturally and rationally conclude that the counsellor's standing as an officer of the court would ensure that her opinion would carry weight with the judge. The subsequent discussion between the judge and counsel in private chambers would have done nothing to dispel that cause for concern. The case is plainly one in which the principle that justice must manifestly be seen to be done requires that the matter be heard by another judge.
[57] JRL (357).
In the present case, the communications were with an official who had certain administrative responsibilities for the management of the Geraldton Courthouse. The official was not an officer of the District Court of Western Australia and was not a member of the judge's personal staff assigned to assist his Honour in performing his judicial functions. The communication was instigated by the primary judge for the purpose of obtaining factual information as to the appellant's past compliance with his bail undertaking. The purpose of the exercise was to check the correctness of information favourable to the appellant in Ms Mayfield's report, the accuracy of which had not been challenged by the prosecutor. Although the information obtained as result of the inquiry was disclosed to the parties, it was not done so in terms which gave the appellant any real opportunity to challenge the correctness of the information which the Clerk of the Geraldton Court had provided to the judge.

Communications with Ms Kitney

Against the above background, the primary judge himself telephoned Ms Kitney to make inquiries about the appellant's dental treatments, a factual matter going to the merits of one of the bail conditions the judge was considering altering. His Honour did not disclose the fact of the communication, or the information obtained as a result of the inquiry, to the parties. The fact that his Honour made this private factual inquiry as to matters relevant to the exercise of his bail discretion, without disclosing the fact or outcome of the inquiry to the parties, constituted a significant departure from the proper judicial approach.
The primary judge's report to this court raised a number of matters, not responsive to the questions posed in the order requesting the report. None of those matters, or matters raised by the State, alter the conclusion reached in the previous paragraph. We note two matters in particular.
First, the primary judge reports that, having ascertained that the dental treatment was necessary, his Honour 'gave no further thought to the conversation whatsoever'. The State's submissions and judge's report also note that the primary judge indicated that the appellant could attend the dental appointment on 26 March 2020. These observations appear to be put forward as suggesting that the information the primary judge received from Ms Kitney may not have affected his Honour's exercise of the bail discretion adversely to the appellant.
However, the question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision is taken. So, when a breach of the hearing rule is alleged, the question is whether information to which parties have not had an opportunity to respond is credible, relevant and significant to the decision rather than whether the decision-maker gave the information any weight in reaching the decision.[58] Where apprehended bias is alleged, the reasons ultimately given for the impugned decision are not relevant to the objective assessment of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues.[59]
[58] Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72; (2005) 225 CLR 88 [16] - [18].
[59] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33], [67] - [68].
Secondly, the primary judge's report indicates that the failure to mention his discussion with Ms Kitney was an inadvertent oversight. We accept that to be the case, but it does not affect the conclusion as to what a reasonable observer might apprehend as a result of the process followed. When considering apprehended bias, the important consideration is the fact that the parties were not informed of the judge's private factual inquiries, rather than the reasons why they were not informed.

Recusal from the appellant's trial

As noted above, on 16 March 2020, the appellant asked the primary judge to recuse himself from hearing the pre-trial applications. The primary judge refused to do so on the ground that the applications were 'interlocutory'. However, on 25 March 2020, before dealing with the appellant's bail conditions, the primary judge indicated that he would recuse himself from the appellant's trial, having heard the previous matter.[60]
[60] Trial ts 518.
It is unnecessary to determine whether the primary judge was correct in refusing to recuse himself from dealing with the pre-trial applications or correct to recuse himself from sitting on the appellant's trial. Even if the primary judge had recused himself from hearing all matters, it would still have been necessary to deal with the appellant's bail for his next appearance. For present purposes, it is sufficient to note that the primary judge's own statement that it would not have been appropriate for him to sit on the appellant's trial was one of the background circumstances in which a reasonable observer would assess the above events.

Conclusion as to reasonable apprehension of bias

In our view, having regard to all of the above matters in combination, a fair-minded lay observer might reasonably have apprehended that the primary judge might not bring an impartial and unprejudiced mind to the exercise of his bail discretion. The most significant feature of those circumstances is the primary judge's private factual inquires conducted out of the hearing room, one of which was not disclosed to the parties. The inquiries of the Clerk of Court and Ms Kitney were not authorised by the Bail Act. Section 22 of the Bail Act, by providing that a judge, in considering any case for bail, may receive 'such information as he thinks fit' excludes the rules of evidence but does not authorise a judge to make private inquiries in the absence of the parties or not to disclose private enquiries. Those inquiries were undertaken in a setting where the primary judge, rather than the prosecutor, had instigated the reconsideration of the appellant's bail conditions.
In effect, the primary judge assumed the role of a protagonist in relation to the appellant's bail conditions, undertaking private factual inquiries as to the appellant's past performance under bail. The fact that the inquiries were undertaken was an indication that the judge was not prepared to determine the question of bail on the material placed before his Honour by the parties. A fair-minded lay observer might reasonably apprehend that, having taken on the role of protagonist in the proceedings, the primary judge might not bring an impartial and unprejudiced mind to exercising his Honour's bail discretion on the basis of material properly before the court. In our view, a reasonable apprehension of bias is established.

Leave to appeal

As noted at [44] above, the appellant requires leave to appeal. Grounds 1 and 2, so far as they raise a breach of the requirements of natural justice, have reasonable prospects of succeeding, and indeed in our view are established, so far as they allege a reasonable apprehension of bias.
The decision to vary the appellant's conditions was the result of a fundamental departure from the proper judicial process. In these circumstances, leave to appeal should be granted on grounds 1 and 2.

This court should re-exercise the bail discretion

Having concluded that grounds 1 and 2 are established to the extent that they assert a reasonable apprehension of bias and that it is appropriate to grant leave to appeal, the question arises as to this court's next step.
As a miscarriage of justice has been established by reason of a reasonable apprehension of bias, it is unnecessary for this court to determine the other aspects of grounds 1 and 2, or to determine the matters raised by grounds 3 or 4.
In an ordinary appeal, the choice would be between remitting the question of bail to the District Court, to be dealt with by another judge, or for this court to itself re-exercise the discretion afresh and for itself.
There are two impediments to remitting the matter. First, the Bail Act does not give any express power of remittal to the primary court. The existence of the power may be open to doubt. Secondly, if this court decided to remit then it would remain necessary to consider what bail conditions should apply pending reconsideration by a judge of the District Court.
In our view, the question of the bail conditions which should have been imposed can be dealt with by this court considering, afresh and for itself, what amendments (if any) should be made to the conditions of bail which applied before the primary judge made his decision. In doing so, the court necessarily looks to the order which should have been made at the time of the primary judge's decision to vary bail. In accordance with s 15B(2) and (3) of the Bail Act, the court makes that decision on the material that was properly before the primary judge and in accordance with the relevant provisions of s 17 of, and sch 1 to, the Bail Act.
Two matters should be noted about the limited scope of this exercise. First, the subject of the appeal is the primary judge's decision to vary the appellant's bail conditions. This court is not called on to consider the appropriateness of the decision to grant the appellant bail at all. Nothing in these reasons should be taken as an endorsement of decisions made in relation to that matter in the District Court. Secondly, because this court is confined to the material before the primary judge, it cannot take account of changed circumstances. In managing the appellant's bail towards trial, the District Court should not feel constrained by this decision. In the future, judges of the District Court can appropriately reconsider or vary bail or bail conditions to meet the exigencies of circumstances as they develop over time.

Appropriate variations to the appellant's bail conditions

We turn to consider, on the material properly before the primary judge, what amendments (if any) should be made to the conditions of bail which applied before the primary judge made his decision.

Authorised leaves of absence

The first variation made by the primary judge was to require the appellant to observe a curfew at his Geraldton residence:
[W]ith the exception of authorised leaves of absence for urgent medical and dental treatment whilst being accompanied by [his grandmother or grandfather] at all times.
In our view, a change providing for a curfew with the exception of authorised leaves of absence for urgent medical or dental treatment is not warranted in the circumstances of this case. The home detention condition set out at [89] above provides for the limited circumstances in which the appellant may leave his residence. The home detention condition limits the permitted departure for medical or dental treatment to 'urgent' treatment, so there is no need for the other conditions to repeat the requirement. Nor do we see it as necessary to limit the other circumstances, permitted by cl 3(3) of pt D of sch 1, in which the appellant may leave his residence. Counsel for the State did not press for this condition in his submissions.
However, in our view, it is appropriate that the appellant be accompanied by a responsible adult when he leaves the residence for authorised purposes. Ms Mayfield's report indicates that the appellant had left the residence on a large number of occasions and could not be subject to electronic monitoring when he did so. Those frequent absences occurred against a background where the appellant has a history of opportunistically committing serious sexual offences against young teenage girls. In our view, a condition requiring that he be accompanied by a responsible adult when he leaves the residence is reasonably required to ensure that he does not commit an offence, and does not endanger the safety or welfare of any person, while on bail.
In opposing the imposition of such a condition, the appellant submitted that he had complied with the previous conditions of bail for 6 months. He said that he had done nothing wrong, and his bail conditions should not be tightened when there was no evidence that he presented an increased risk of flight or committing an offence while on bail. He noted that he had been permitted to travel from Geraldton to Perth unaccompanied on two occasions.
We do not accept that the matters raised by the above submissions make the amendment to the appellant's bail conditions inappropriate. The basis for the alteration of the appellant's bail conditions which we consider to be appropriate is not any demonstrated misconduct by the appellant. Rather, the issue is, as revealed by Ms Mayfield's report, that the appellant has had frequent authorised absences from his residence and is not able to be electronically monitored during those time.
We would, however, give some greater flexibility to the supervision requirement than the primary judge, by also providing for the appellant to be accompanied by an adult who has previously been approved by a community corrections officer.

Access to social media sites

The other change made to the appellant's bail conditions concerned the appellant's access to social media sites. The previous condition required the appellant not to communicate by any means on social media networking sites. The amended condition required the appellant not to access such sites.
Given the appellant's history of using social media to commit or facilitate the commission of offences involving underage girls, the fact that he had accessed a 'teen chat' site was concerning. We recognise that there is no evidence that the appellant used the site to communicate with anyone, and we will proceed on the assumption that he accessed the site in an attempt to retrieve past communications which may be of use in his trial. As such, no failure to comply with the former condition is apparent. However, given that the appellant has had ample opportunity to obtain evidence for his trial and has no demonstrated need to continue accessing social media sites for the purposes of preparation for trial, it seems to us to be appropriate to amend the condition to exclude all access to such sites. Therefore, in the exercise of our independent discretion, we would make the same amendment to this condition as was made by the primary judge. The appellant did not oppose this amendment.
Neither party suggested that any other amendments should be made to the bail conditions in force prior to the primary judge's decision.

Suppression orders

The appellant has been referred to as 'KWLD' in the proceedings in the District Court, following suppression orders that were made in the Magistrates Court prior to committal. It is not obvious why those orders remain necessary in the District Court. We have used the anonymised reference to the appellant in these reasons, so that they can be published without prejudicing the appellant's forthcoming trial, and because they refer to his Children's Court convictions. However, whether the suppression orders appropriately continue in their present form past this point in the District Court will be a matter for that court to determine.

Orders

For the above reasons, we would grant leave to appeal on grounds 1 and 2, allow the appeal and set aside the following bail condition varied by the primary judge:
[T]to reside at [the specified address in Geraldton] and to observe a curfew at that address, with the exception of authorised leaves of absence for urgent medical and dental treatment whilst being accompanied by [his grandmother or grandfather] at all times.
We would substitute the following condition:
To reside at [the specified address in Geraldton] and on any authorised absences from that address shall be accompanied at all times by [his grandmother or grandfather] or by an adult previously approved by a community corrections officer.
Although we would only make the above substantive alteration, it is appropriate to set aside and substitute the whole of the bail conditions, with that variation made, so that all the bail conditions are contained in the one order.
Therefore, we would make the following orders in this appeal:
(1)Leave to appeal is granted on grounds 1 and 2.
(2)The appeal is allowed.
(3)The appellant's current bail conditions are set aside, and the following conditions for his next appearance in the District Court are substituted:
1. $10,000 personal bail undertaking.
2.$100,000 surety, with a cash deposit of $10,000, by [the appellant's grandmother].
3. Not to contact or attempt to contact directly or indirectly, by whatever means, any of the witnesses on the indictment being [three named persons].
4. Not to have unsupervised contact with, or communication by any means, with anyone under the age of 18 except as otherwise permitted by the Family Court of Western Australia.
5. To reside at all times at [a Geraldton address] and on any authorised absences from that address shall be accompanied at all times by [the appellant's grandmother or grandfather] or by an adult previously approved by a community corrections officer.
6. To present at the front door of that residence when requested by the police service.
7. Not to access any online social media networking sites whatsoever. For the sake of clarity this includes Facebook, Snapchat, Twitter, Home Party and any other similar social networking platforms.
8. Not to apply for, or possess, a passport nor attend any point of domestic or international departure.
9. To be subject to Home Detention Bail as directed by the Chief Executive Officer in accordance with these bail conditions.
10. Not to consume any prohibited drug.
11. To provide a sample of urine for urinalysis as and when requested by Community Corrections and any positive sample is deemed a breach of bail.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell
16 JUNE 2020