Leeder v The State of Western Australia - [2012] WASC 441

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 441

CORAM: SIMMONDS J

HEARD: 31 OCTOBER 2012

DELIVERED : 31 OCTOBER 2012

FILE NO/S: MBA 22 of 2012

BETWEEN: ERICA STEPHANIE LESLIE LEEDER
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Requirement for 'exceptional reasons' before bail can be granted in circumstances in Bail Act 1982 (WA) sch 1 pt C cl 3A(1)(B)(ii) - Applicant in custody following arrest on warrant after nonappearance to bail - Meaning of 'on bail'

Legislation:

Bail Act 1982 (WA), s 11, s 16, s 34
Criminal Code (WA), s 318
Sentence Administration Act 1995 (WA)

Result:

Bail granted on conditions

Category: A

Representation:

Counsel:

Applicant: Ms N R Sinton
Respondent: Mr B E F Tooker

Solicitors:

Applicant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia [2011] WASCA 99
Neumann v The State of Western Australia [2011] WASC 173
Roberts v The State of Western Australia [2011] WASC 118
Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303

SIMMONDS J:
(This judgment was delivered extemporaneously on 31 October 2012 and has been edited from the transcript.)

This is an application for bail involving some fairly difficult matters of a technical kind, arising out of the circumstances. The bail is sought on two charges, both laid under s 318 of the Criminal Code (WA) but in respect of different paragraphs.
One charge arose out of an assault allegedly committed on 29 July 2012 on an ambulance officer while performing their duties as such and was laid under s 318(1)(h)(i).
The other charge for which bail is sought was of allegedly assaulting a public officer, namely a police officer, performing a function of her office or employment or on account of her being such an officer or her performance of such a function, on 21 August 2012, contrary to the Criminal Code s 318(1)(d).
The technical issue that arises in this case - and both counsel acknowledged, perhaps counsel for the respondent most directly, that it was critical - has to do with the additional circumstance in respect of the alleged commission of the second assault.
That assault had been committed following the date at which pursuant to bail granted on the first assault the applicant was required to appear, namely, 14 August 2012. A warrant was issued for her arrest following that failure to appear. It was executed on 21 August 2012, prior to the second assault.
The second assault was allegedly committed following the instruction to the applicant to submit to a strip search at the Perth Watch House.
The applicant sought bail in respect of both of these charges, following her indication she would plead guilty to the breach of bail matter, on 22 August 2012 before Magistrate Maughan in the Perth Magistrates Court.
Magistrate Maughan initially had submitted to him the proposition made by the prosecutor that the applicant was a 'schedule 2' offender. That was because the second assault was considered, as I understood the submission, which was made in brief form, to have been a serious offence following an earlier serious offence, both being a serious offence within sch 2 to the Bail Act 1982 (WA), where the second of the two serious offences was alleged to have been committed while the accused was 'on bail' for the first serious offence. The language that I have quoted is taken from the Bail Act sch 1 pt C cl 3A(b)(i).
However, the prosecutor withdrew that submission before Magistrate Maughan because, the prosecutor said, the bail should be seen to have been terminated by reason of the issuance of the arrest warrant on 14 August 2012.
I pause to say that I have some considerable difficulty in accepting any such proposition. There does not seem to be any support for it in any provision of the Bail Act that I can find. Magistrate Maughan then granted bail.
Subsequently, on 19 September 2012, the applicant duly presented herself in answer to her bail before another magistrate, Magistrate Lane in the Perth Magistrates Court. Her Honour, part way through her exchange with the prosecutor, counsel for the applicant and the applicant in relation to the applicant's application for bail for both of these assaults, said, 'I've just realised, sergeant, [the applicant] is a schedule 2'.
Her Honour then went on to indicate that she understood the matter had not been picked up on 22 August 2012, although it will be seen that that understanding cannot be reconciled with what occurred at that earlier date.
Magistrate Lane made directions that the applicant and her solicitor have consultations concerning whether or not to continue with the applications for bail, in light of the requirement for, as her Honour described it, 'exceptional circumstances'. I understand from the affidavit of counsel for the applicant at that time, who was not the counsel before me today, that after the consultation the applicant did not make a further bail application.
It was not pressed strongly, subject to a point that I will shortly reach, by counsel for the respondent against the grant of bail that if cl 3A had no application there could not be a set of conditions, provided they were properly specified and of a kind which gave a measure of reassurance that events of the kind that had occurred on 21 August 2012 did not reoccur, could result in the grant of bail.
Counsel for the respondent strongly pressed on me that, if exceptional reasons were required, exceptional reasons had not been shown here. The exceptional reasons put forward for the applicant were that the applicant had been in custody since 19 September, that there had been a vacating of the trial date at least for the first offence, that the applicant had no significant record and that the circumstances pointed to considerable mitigation arising from the mental condition of the applicant of a kind which would likely count against, and fairly strongly count against, a sentence of imprisonment for the accused.
However, with counsel for the respondent I do not consider that those matters are readily to be seen, or indeed in the final analysis are to be seen, as 'exceptional reasons'. I note for that purpose Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303, referred to in Roberts v The State of Western Australia [2011] WASC 118, which it seems to me requires I attend to the ordinary meaning of the words of cl 3A. This is something which it seems to me the principal authority on the grant of bail in this state, Milenkovski v The State of Western Australia [2011] WASCA 99, commends in any event. It seems to me that, as regrettable as the circumstances of the applicant are, those circumstances do not, it seems to me, taken together, as indeed it seems they must be on the authorities on exceptional reasons, amount to such reasons.
I turn then to whether exceptional reasons are required.
The matter has previously been discussed in a judgment of mine in Neumann v The State of Western Australia [2011] WASC 173 where I did not arrive at a final view, and where the context was different in any event, because the second offence was, at least for the sake of the argument that I entertained, committed before the applicant had been taken back into custody.
It seems to me that the taking of the applicant back into custody is indeed the crucial consideration. Counsel for the respondent in his very able argument pressed strongly on me the view that it was the grant of bail which was crucial, and that provided the bail undertaking subsisted - and in this case on s 34 of the Bail Act, it is difficult to see how the bail undertaking could not be said to have continued to subsist - an offence committed while the bail undertaking subsisted was one that fell within Bail Act sch 1 pt C cl 3A.
My difficulty with that is that it is not evident to me that the policy of the Bail Act is to make the matter turn on whether or not bail itself has been granted. Bail may be granted without liberty resulting, most obviously because the conditions set for the bail cannot be met by the applicant.
It strikes me as a curious result that the person who commits an offence in circumstances where they have not been able to take advantage of their bail should be treated as subject to a requirement for exceptional reasons. I am fortified in that by the reference in cl 3A(1)(b)(ii) to 'at liberty'.
It seems to me that the important matter is the use of the words 'on bail', those two words, rather than simply 'had bail' or 'was subject to a bail undertaking'.
In those circumstances it seems to me that the policy of the Bail Act can be expressed this way. A person alleged to have committed an offence who, having been granted their liberty, commits a second serious offence while under that liberty should be made subject to the exceptional reasons requirement.
The fact that they continue at liberty after missing a court appearance does not, it seems to me, change the analysis, and to that extent I have revised at least one of the preliminary views I expressed in Neumann. However, it strikes me as odd that there is a very considerable difference made by whether or not a formal revocation of a bail undertaking has been ordered.
I derive further fortification of the view I have just expressed from s 11 of the Bail Act, which fairly clearly recognises the notion that there is a distinction between a grant of bail and being at liberty on bail, a distinction which, however, is nowhere near as clear in the Bail Act as I accept it is in other legislation, such as the Sentence Administration Act 1995 (WA) to which cl 3A(1)(b)(ii) speaks. There is also, and perhaps even more importantly, Bail Act s 16, which deals with an arrest of an accused pursuant to a warrant.
It does not seem to me that this then means there is an advantage for a person in the position of the accused, except in this sense. Everything turns on whether or not the offender granted bail and at liberty has been taken back into custody. I accept that this will then make for some fairly uncomfortable possibilities where an offence is committed against public officers trying to arrest a person on bail but who have not succeeded in doing so.
It is to be regretted the Bail Act, on my analysis or construction, sets such requirements; but it seems to me that the alternatives are rather less satisfactory.
If exceptional reasons, as I believe is the case, are not required in this case, then there are the considerations to which counsel for the respondent drew my attention.
Milenkovski of course requires me to carefully attend to the language of the Bail Act, and in particular to cl 1(a)(i) ‑ (iii).
When read with cl 3, particularly (a), nature and seriousness of the offence, and here notwithstanding the relatively minor character of the injuries sustained, I accept that these offences were relatively serious. However, the problem or method of dealing with them, it seems to me, must also be taken account of, and, given the character of the accused's record and the circumstances in this case, it seems to me not probable, without of course it being at all possible to express a final view on a matter of this kind, that the accused would be subject to a term of imprisonment to be immediately served in respect of these matters.
As to (b), character, previous convictions, antecedent association, home environment, background, place of residence, financial position of the accused, here it is not in dispute that the accused's criminal record is minor.
There is the previous conviction for breach of bail. Undoubtedly that is a matter of some concern. It may, however, be, and it seems to me likely to be, that there are considerations relevant to the mental condition of the applicant which have a bearing on that offence.
Home environment, background, place of residence and financial position of the accused go also, it seems to me, to matters made relevant by cl 1(e), and I will reach this in a moment.
As to (c), history of any previous grants of bail, I have already referred to that.
As to (d), the strength of the evidence against the applicant, I accept that the State case against the applicant, on the face of it, is strong, being on the face of the material presented to me.
No other part of cl 1, it was suggested, was relevant to me. I did raise the question with counsel for the respondent, and I believe I got an affirmative answer, that it might be possible to view the commission of the second alleged offence while being drawn into the criminal justice system as being a relevant consideration, in this sense, that the applicant by committing the offence allegedly, as is the case here, while having been taken into custody, might be seen to pose a greater risk than otherwise of similar conduct.
Again, qualifications having regard to the mental condition of the applicant with which counsel for the respondent did not quarrel might be relevant.
That then takes me, as I have indicated at a number of points I do need to be taken to, (e).
It seems to me that if bail is to be granted in this case, then there needs to be a set of conditions which would ensure, as much as is reasonably possible and at a high level of assurance, that the applicant maintains a regime of compliance with the advice and instructions of those concerned for her mental health, which include, as I understand it, a regime involving medication that may well extend beyond that to ensure that the present stability which she is enjoying, in custody of course, would continue; further, that there be the reinforcement for those conditions leading to stability that appropriate residential conditions would allow, and appropriate residential conditions it seems to me would involve living in a suitable set of accommodation, preferably one with a relative or relatives with whom the applicant is happy to live.
I have noted in all of this the fact that the applicant has children whom the applicant is keen to be able to resume contact with and indeed keen to obtain custody of. That, it seems to me, offers a measure of further support of stability which makes suitable conditions under (e) more likely.
With the respondent, however, it seems to me that it is necessary that I now have detail from the legal representative for the applicant of a kind which addresses the considerations in respect of (e) that I have referred to.