Lewandowski v Sherman
[2002] WASC 239
LEWANDOWSKI -v- SHERMAN [2002] WASC 239
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 239 | |
| Case No: | MCS:63/2002 | 14 OCTOBER 2002 | |
| Coram: | HASLUCK J | 14/10/02 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| A | |||
| PDF Version |
| Parties: | ANTHONY LEWANDOWSKI SHAYNE SHERMAN |
Catchwords: | Bail Application for bail before pending trial Charges of perjury and related offences Applicant not obliged to show exceptional circumstances Obligation on Crown to show that the applicant may not answer to bail Insufficient evidence in that regard Effect of conditions aimed at reducing the risk of flight Application for bail allowed |
Legislation: | Bail Act 1982, s 13, s 14, s 22, s 23, Pt C Sch 1 Criminal Code 1913, s 124, s 125, s 129(1), s 143 Criminal Law (Mentally Impaired Defendants) Act 1996, s 5 Evidence Act, s 11 Justices Act 1902, s 69(7) Misuse of Drugs Act 1981 |
Case References: | Goldie v The Queen [2001] WASC 153 Jemielita v The Queen (1994) 12 WAR 362 Lim v Gregson [1989] WAR 1 Pinkstone v The Queen [2000] WASC 199 Pinkstone v The Queen [2000] WASC 321 R v Watson (1947) 64 WN (NSW) 100 Rus v The Queen [2000] WASC 297 Saka v The Queen[2001] WASC 92 WCVB v The Queen (1989) 1 WAR 279 Alexopoulos v The Queen, unreported; SCt of Vic; (Hampel J); 23 February 1998 Gillis v Gawned (1992) 8 WAR 211 KM v The Queen, unreported; SCt of WA; (Nicholson J); Library No 7193; 14 July 1988 Marotta v The Queen (1998) 160 ALR 525 Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; (Malcolm CJ); Library No 980249; 8 May 1998 R v Clarke II (2001) 118 A Crim R 585 R v Rechichi [1999] WASC 73 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
SHAYNE SHERMAN
Respondent
Catchwords:
Bail - Application for bail before pending trial - Charges of perjury and related offences - Applicant not obliged to show exceptional circumstances - Obligation on Crown to show that the applicant may not answer to bail - Insufficient evidence in that regard - Effect of conditions aimed at reducing the risk of flight - Application for bail allowed
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Legislation:
Bail Act 1982, s 13, s 14, s 22, s 23, Pt C Sch 1
Criminal Code 1913, s 124, s 125, s 129(1), s 143
Criminal Law (Mentally Impaired Defendants) Act 1996, s 5
Evidence Act, s 11
Justices Act 1902, s 69(7)
Misuse of Drugs Act 1981
Result:
Application allowed
Category: A
Representation:
Counsel:
Applicant : Mr M T Trowell QC & Mr L M Levy
Respondent : Ms A L Forrester
Solicitors:
Applicant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Goldie v The Queen [2001] WASC 153
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Pinkstone v The Queen [2000] WASC 199
Pinkstone v The Queen [2000] WASC 321
R v Watson (1947) 64 WN (NSW) 100
Rus v The Queen [2000] WASC 297
Saka v The Queen[2001] WASC 92
WCVB v The Queen (1989) 1 WAR 279
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Case(s) also cited:
Alexopoulos v The Queen, unreported; SCt of Vic; (Hampel J); 23 February 1998
Gillis v Gawned (1992) 8 WAR 211
KM v The Queen, unreported; SCt of WA; (Nicholson J); Library No 7193; 14 July 1988
Marotta v The Queen (1998) 160 ALR 525
Parker & Ors v Miller & Ors, unreported; FCt SCt of WA; (Malcolm CJ); Library No 980249; 8 May 1998
R v Clarke II (2001) 118 A Crim R 585
R v Rechichi [1999] WASC 73
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1 HASLUCK J: This is an application for bail made by the applicant, Anthony Lewandowski, pending the hearing of various charges under the Criminal Code 1913 and the Justices Act 1902.
2 The application for bail is signed by his solicitor and is dated 7 October 2002. Bail is sought on "the terms and conditions that this Honourable Court deems fit to impose."
3 The application comes before me pursuant to s 14 of the Bail Act 1982 which provides that a Judge of the Supreme Court may exercise the power to grant bail which is conferred upon any other judicial officer. The jurisdiction may be invoked whether or not any other judicial officer has previously granted or refused bail.
4 The applicant has filed an affidavit in support of the application for bail sworn by his solicitor, Laurence Mark Levy, on 8 October 2002.
5 The applicant relies also upon his own affidavit sworn 14 October 2002, the affidavit of his mother Irene Burns sworn 14 October 2002 and the transcript of a previous bail application before Wheeler SM on 7 October 2002.
6 The application was opposed by the respondent, Shayne Sherman, who I understand to be a senior investigator employed by the Anti-Corruption Commission. He was represented by counsel instructed by the Director of Public Prosecutions. The respondent relies upon documents contained in a Book of Documents filed 11 October 2002 which included copy affidavits sworn by the respondent, by a senior intelligence analyst, by a chief investigator employed by the Royal Commission into Corrupt or Criminal Conduct by WA Police Officers, and by the applicant's mother, Irene Burns. The Book also contained documents related to evidence given or to be given by the applicant in various proceedings.
7 Section 22 of the Bail Act allows a judicial officer to receive and take into account such information as he thinks fit, whether or not the same would be normally admissible in a court of law. It was on this basis that I received further information at the hearing. I remind myself that by s 23 a defendant is not obliged to furnish any information for the purpose of having his case for bail considered.
8 More particularly, it was put to me by counsel for the applicant that the likely time before trial in the event of the applicant being remanded in custody could be as much as two years. Counsel for the DPP was of the
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- view that the period before trial could be less than 12 months. She said that provision could be made for an expedited trial.
The Charges
9 I understand from matters raised at the hearing before me that the applicant is a former police officer who played a part in the prosecution and subsequent conviction of the Mickelberg brothers. The three brothers were arrested on 26 July 1982 after an investigation into what has become known as the Perth Mint Swindle. I understand that the investigation was headed by Detective Sergeant Hancock who led a team of detectives that included the applicant. Admissions allegedly made to Hancock and the applicant, and related notes of interview, were an important feature of the case against the accused.
10 In recent times the applicant has been minded to retract statements made by him previously in regard to the Mickelberg matter. It appears from the materials before me that the applicant has made disclosures concerning his alleged criminal behaviour in relation to the prosecution of the Mickelbergs.
11 It was against this background that the applicant's legal advisors entered into correspondence with the DPP concerning a proposal that the applicant would give evidence before the Court of Criminal Appeal and the Royal Commission in relation to the Mickelberg case, provided he could obtain an indemnity from prosecution.
12 The correspondence in question recognised that the DPP could not offer an indemnity on behalf of any other agency.
13 The applicant presented an affidavit by himself sworn 5 June 2002 concerning the Mickelberg appeals to the DPP on the understanding that he had an undertaking in relation to the affidavit. Shortly afterwards, he left Australia and travelled to Thailand.
14 The applicant subsequently returned to Australia believing he had an indemnity from prosecution. The applicant then appeared before the Royal Commission and the Court of Criminal Appeal to give evidence in relation to the Mickelberg case. At the conclusion of his evidence to the Court of Criminal Appeal he was granted an indemnity certificate pursuant to s 11 of the Evidence Act.
15 It seems that on Wednesday, 2 August 2002 the applicant was arrested at Fremantle pursuant to a warrant for his arrest obtained by the
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- respondent as an employee of the Anti-Corruption Commission. He was charged at Fremantle Hospital on Wednesday, 3 October 2002 with 21 offences being:
(1) 6 charges of attempting to pervert the course of justice by concealing the fabrication of evidence in the Mickelberg case contrary to s 143 of the Criminal Code.
(2) 1 charge of tendering a statement in evidence which he knew to be false or did not believe to be true contrary to s 69(7) of the Justices Act 1902.
(3) 3 charges of fabricating evidence with intent to mislead the District Court contrary to s 129(1) of the Criminal Code.
(4) 11 charges of perjury concerning the Mickelberg case contrary to s 124 of the Criminal Code.
16 I note that by s 143 of the Criminal Code (attempting to pervert justice) an offender is liable to imprisonment for 7 years.
17 By s 69 of the Justices Act (tendering a false statement) an offender is liable to imprisonment for 7 years.
18 By s 129 of the Criminal Code (fabricating evidence) an offender is liable to imprisonment for 7 years.
19 By s 125 of the Criminal Code (punishment of perjury) any person who commits perjury is liable to imprisonment for 14 years.
The Plea
20 I understand that the applicant has not pleaded to the various charges. He has been remanded for committal mention to the Perth Court of Petty Sessions at the Central Law Courts on 11 November 2002.
21 He is considering his position. It is open to him to place reliance upon the correspondence and other events concerning the proposed immunity from prosecution. Counsel for the DPP has said emphatically that no undertaking as to an immunity was given.
22 Shortly after the applicant's arrest an application for bail was commenced before his Worship Mr Michelides SM. This application was adjourned when the learned Magistrate acceded to a submission by the applicant's counsel that the applicant be remanded in custody on a hospital order.
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23 On 7 October 2002 the applicant appeared before his Worship Mr Wheeler SM on an application for bail at Fremantle Court of Petty Sessions.
24 The application for bail was opposed by the respondent who was represented by counsel instructed by the DPP. The application was refused upon the basis that the applicant was charged with serious offences and had expressed an intention to return to Thailand. He was thought to be a flight risk. Mr Levy says at par 7 of his affidavit that the applicant's remarks about returning to Thailand were made at a time when the applicant had no reason to believe that there was any legal requirement to remain in Australia.
25 The applicant has been in custody since that time.
Nature of the Case
26 Broadly described, the allegations underlying the relevant charges are that the applicant in conjunction with Detective Sergeant Hancock (now deceased) played a part in concealing the fabrication of evidence of admissions alleged to have been made by the Mickelberg brothers on 26 July 1982.
27 The prosecution case will be that, in various respects, the applicant acted dishonestly in later years and gave false testimony in judicial proceedings in order to underpin and sustain the case against the Mickelberg brothers. The materials before me suggest that the corrupt conduct alleged against the applicant was instigated by Hancock. The applicant claims that he supported Hancock out of a misguided sense of loyalty to his superior, but has now decided to admit fault in the aftermath of Hancock's death. He says that to the best of his knowledge no other police officers were involved in the misconduct.
28 A statement of material facts prepared by the Anti-Corruption Commission appears at Tab 3 of the Book of Documents. It is lengthy. However, in essence, it is said that on two dates in July 2002 the applicant admitted (in video taped interviews with journalists) that the notes of interview of each of the Mickelbergs had been fabricated in September 1982.
29 Charges 1 to 6 relate to the course of conduct of the applicant over the entire period of September 1982 to 6 June 2002 and should be
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- regarded as three continuing offences, one in relation to each of the Mickelberg brothers.
30 Charge 7 relates to a false statement allegedly signed by the applicant for inclusion in the hand up brief.
31 Charges 8 to 10 relate to the separate acts of fabrication of the notes of interview and the statement allegedly made by the applicant which were incorporated in the hand up brief in relation to each of the Mickelbergs with a view to misleading the Court at trial.
32 Charges 11 to 13 relate to false testimony allegedly given by the applicant at the relevant trial to the effect that each of the Mickelbergs had made a number of admissions. It is said that the applicant was aware that the evidence was false.
33 Charge 14 relates to an affidavit sworn by the applicant and used in civil defamation proceedings concerning a book "The Mickelberg Stitch" published by author Avon Lovell in 1985. It is said the applicant was aware that his statements to the effect that he had never fabricated any evidence against the Mickelbergs were false.
34 Charge 15 relates to an affidavit sworn by the applicant on 21 August 1987 for use in the Court of Criminal Appeal in which he asserted that he had never fabricated evidence against any of the Mickelbergs.
35 Charges 16 and 17 relate to allegedly false evidence given by the applicant at the hearing of the appeals concerning affidavits sworn by the applicant for use in the Court of Criminal Appeal.
36 Charge 21 relates to evidence given by the applicant at the hearing of the appeals in the Court of Criminal Appeal.
Subsequent Events
37 It appears that since the application for bail was refused the applicant has been at Casuarina Prison. According to a report of the Superintendent dated 8 October 2002 he was assessed by the duty doctor and assigned to the Induction and Orientation Unit away from the mainstream prison. He is not assessed as at a high risk of self harm but will continue to be monitored. This involves daily contact with a psychologist.
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Overview
38 In dealing with an application before trial the Court is required to balance the interests of the accused and the public interest in the trial proceedings.
39 A Court must weigh up the presumption of innocence of an accused person against the need to ensure that the accused will be present at the hearing of the charges and that the integrity of the trial process is preserved.
40 The balance of these competing considerations is never easy.
Bail Act
41 Section 13 of the Bail Act provides that the jurisdiction to grant bail should be exercised subject to and in accordance with related provisions and the factors set out in Pt C of Sch 1 of the Act.
42 Clause 1 and cl 3 of Pt C cover applications for bail before conviction. The criteria are well known and I will not repeat them in full.
43 By cl 1(a), the questions to be considered include whether the defendant may fail to appear, commit an offence, endanger the welfare of others or interfere with witnesses.
44 In addressing these questions, the judicial officer shall have regard to the nature and seriousness of the offences, the probable method of dealing with the defendant if he is convicted, the antecedents and previous convictions of the defendant, the history of any previous grants of bail to him, and the strength of the evidence against him.
45 The judicial officer is also obliged to take account of the prosecutor's position and whether the circumstances of the offence are of such a serious nature that a grant of bail would be inappropriate.
46 Different considerations apply in regard to bail after conviction (save for convictions under the Justices Act 1902) or where a serious offence is allegedly committed while a defendant is on bail for another serious offence.
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Decided Cases
47 The decided cases show that common law principles may be considered in conjunction with the principles reflected in the Bail Act.
48 Prima facie, an accused person should be allowed his liberty pursuant to the presumption of innocence and in order to prepare his case, provided there is a reasonable likelihood he will appear at the hearing of the charge: Saka v The Queen[2001] WASC 92.
49 The three main tests of the probability of the accused appearing can be summarised as the nature of the crime charged, the probability of a conviction and the severity of the punishment which may be imposed: Lim v Gregson [1989] WAR 1 at 16.
50 The onus is usually on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it: R v Watson (1947) 64 WN (NSW) 100.
51 It seems, however, that under the Bail Actall matters referred to in cl 1 of Pt C to the Schedule are to be taken into account before the Court exercises its discretion: WCVB v The Queen (1989) 1 WAR 279.
52 In cases where the charges fall into the "extremely serious" class, the applicant must show exceptional circumstances to justify bail because the gravity of the crime is thought to increase the risk of a failure to appear: WCVB v The Queen (supra); Jemielita v The Queen (1994) 12 WAR 362.
53 The application of these principles can be illustrated by reference to Pinkstone v The Queen [2000] WASC 321.
54 In that case the applicant was charged with supplying cocaine and conspiracy to possess cocaine. Roberts-Smith J approved the rule that in the case of a serious charge the applicant bears the onus of demonstrating that there are exceptional circumstances which justify the grant of bail.
55 He went on to hold that charges under the Misuse of Drugs Act with a maximum statutory penalty of 25 years' imprisonment or a fine of $100,000 or both for the substantive offence and half that penalty for an attempt should be characterised as extremely serious.
56 He held further that where the strength of the prosecution case was such as to give rise to a real prospect of conviction, such a prospect could be viewed as a powerful incentive to abscond. He took account of the fact
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- that the applicant had made use of false identities and had comparatively few residential links to the State.
57 Having identified a risk that the applicant might abscond if granted bail, the learned Judge could envisage no conditions, no matter how strict, short of remanding the applicant in custody, which would reduce the risk to any acceptable level.
58 The various factors before the Court outweighed the prospect that by the time the applicant came to trial he would have spent something like 2 years in custody. Hence the application for bail in that case was refused.
Central Issue
59 It appears from this review of the Bail Act and related legal principles that I am obliged to give consideration to all factors mentioned in Pt C of Sch 1 of the Bail Act. If the charges in question be characterised as extremely serious, the applicant bears the onus of demonstrating that there are exceptional circumstances which will justify the grant of bail.
60 It is submitted by the Crown that the seriousness of the charges in the present matter is such that exceptional circumstances must be demonstrated by the applicant: WCVB v The Queen (supra), Pinkstone v The Queen (supra).
61 The charges are undoubtedly serious. They include 11 charges of perjury each of which carries a maximum penalty of 14 years. It is well-known that perjury is a matter that undermines the integrity of the legal system and for that reason must be treated seriously. However, I am conscious that characterisation of charges as extremely serious for the purposes of a bail application is usually confined to charges of murder or drug trafficking or where a pattern of violence is disclosed. I am not persuaded that the charges against the applicant in the present case are such that the applicant is required to demonstrate that exceptional circumstances exist in order to obtain bail.
62 It follows from earlier discussion that I must now take account of the various considerations prescribed by the Bail Act and make a determination as to whether bail should be allowed to the applicant having regard to the criteria specified in the Bail Act. It will be for the Crown to demonstrate that, if allowed bail, there is a reasonable degree of risk that
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- the applicant "may fail to appear in Court in accordance with his bail undertaking."
Personal Circumstances
63 The applicant is 52 years of age.
64 He is a former detective sergeant of the Western Australia Police Service.
65 The applicant is married but is currently separated. I understand that he still maintains contact with his wife who resides in Perth.
66 The applicant has an adult son, Mark Lewandowski, who resides in Western Australia.
67 The applicant's mother, Mrs Irene Burns, resides at 16 Pine Grove, Kardinya, in the said State. She has a very close relationship with the applicant and is prepared to put up her home as surety. She affirms that the house is believed to be worth a sizeable amount.
68 The applicant also has two brothers who resides in Perth.
69 The applicant has had a problem with alcohol and was prescribed benzodiazapine to deal with his alcohol withdrawal.
70 The applicant has expressed fears for his personal safety if he is held in custody having regard to the evidence he has given concerning the Mickelberg matter.
71 There is no objection on the applicant's side to bail conditions designed to secure an appearance to answer the charges in Court or to report to the police.
72 The evidentiary materials include certain matters favourable to the applicant, namely:
(a) He has said, and he has shown by his actions, that he is minded to admit fault and face up to the consequences of his alleged wrongdoing
(b) He returned to Perth from Thailand voluntarily in August and this suggests he will answer to bail.
(c) He has strong residential and family links to this State. He has said in his affidavit that he would not do anything to jeopardise his
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- mother's home if it is put up pursuant to a surety undertaking. He is prepared to comply with any appropriate conditions of bail imposed by the Court.
73 The materials include also matters weighing against the applicant:
(a) It is said that his previous return to the State can be discounted as it was made in the belief that he would not be prosecuted.
(b) He has made statements to the effect that he has no future in Perth and intends to live abroad. It is said he has no assets in this State and is not employed here.
(c) The affidavits relied upon by the DPP indicate that he and his supporters, including his mother, acted evasively shortly before his arrest and this suggests he has a scant regard for legal process.
(d) The nature of the charges and related evidence, including the alleged presentation by the application of false testimony and affidavits, suggests that the applicant has a scant regard for legal process.
Antecedents
74 As to prior convictions, the evidentiary materials are to this effect:
(a) The Crown has not produced evidence of any prior convictions.
(b) There is no evidence of any previous non-compliance with court orders or bail conditions.
75 As to the present condition of the applicant, I must give consideration to the applicant's psychiatric state and the possible effect of his being held in custody.
76 The Book of Documents includes at Tab 6 various reports bearing upon his condition. In a report dated 18 August 2002 Dr Peter Bremner referred to the applicant as being a patient under his care. It was said the applicant was recovering from a respiratory tract infection and was unfit to leave hospital. He has significant liver disease, which requires monitoring. He also requires high doses of sedative medication as alcohol is withdrawn. Dr Bremner referred also to the applicant being profoundly depressed with the result that a delicate balance of rest and medication was thought to be essential at that time in order to allow him to recover from his physical and mental problems. Reports from Dr Oleh Kay present a picture of chronic depression, anxiety and long standing alcohol
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- abuse. At that time he was thought to be not sufficiently well to appear in Court.
77 The most recent report is from Dr Pascu and Dr Schincann which indicates that the applicant was referred to the Frankland Centre at Graylands Hospital on a hospital order pursuant to s 5 of the Criminal Law (Mentally Impaired Defendants) Act 1996 on 2 October 2002.
78 The authors of the report said that following the charges being brought, the applicant became distressed and self-presented to Murdoch Hospital in an acute crisis, complicated by acute intoxication. This led to his involuntary admission to Alma Street Centre with depressive symptoms and suicidal thoughts.
79 The author of the report went on to say that the applicant had been treated for alcohol withdrawal and anti-depressant. His mental state was stable and appropriate on the ward. He was no management problem on the ward and there was no further suicidal or deliberate self-harm ideation or behaviour. The opinion was that he was fit to plead. The recommendation is that as the applicant did not suffer from a major psychiatric disorder it was open to the Court to deal with the applicant as it saw fit. If the applicant is detained in custody he would also benefit from follow up by prison medical services and the visiting psychiatrist monitor his mood and anti-depressant medication.
80 It was said that if the applicant receives a non-custodial disposal, the recommendation was that he organise follow up with an alcohol rehabilitation programme in the community and continue his follow up with his GP.
Applicant's Case
81 In summary, then, the applicant submits that there are factors in his personal and family situation which justify a grant of bail.
82 He has described his background and says further that his antecedents do not reflect any significant history of wrongdoing or suggest that he is not likely to comply with bail conditions.
83 He points to factors which are likely to ensure his attendance at the hearing of the charges. These include principally his strong residential and family links to this State and the fact that he has been prepared to admit liability for his former actions.
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84 He accepts that special orders, including the provision of an adequate surety undertaking, are required to ensure his appearance. He has indicated by counsel that he will comply with the same.
85 His position in regard to his passport is that he is prepared to surrender his passport to the DPP. I understand that the passport is in Court and is presently held by counsel for the applicant.
86 Paragraphs 18 to 21 of the applicant's affidavit sworn 14 October 2002 have a bearing on these matters:
"18. I am prepared to comply with any appropriate conditions of bail imposed by this Honourable Court.
19. Currently, I am not craving alcohol or reliant upon any medication or drugs.
20. I am not now a threat to myself.
21. I have not got the financial resources to leave Western Australia, even if I wanted to, which I do not."
87 The applicant relies strongly upon the prima facie position at common law that bail should be allowed to an accused person pursuant to the presumption of innocence and so that he can prepare his defence.
Prosecutor's Position
88 It follows from the provisions of the Bail Act that consideration must be given to whether the prosecutor has put forward grounds for opposing the grant of bail.
89 I have already noted that a grant of bail was opposed when previously applied for at the hearing before the Court of Petty Sessions.
90 The Crown continues to oppose any grant of bail.
91 The Crown contends that the charges in question are serious and that a grant of bail is not justified in the special circumstances of the present case.
92 The Crown opposes bail in this matter primarily upon the basis that the applicant poses a significant flight risk, a factor that shall be considered by the judicial officer under Pt C cl 1(a)(i): Pinkstone v The Queen [2000] WASC 199; Rus v The Queen [2000] WASC 297;
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- Pinkstone v The Queen [2000] WASC 321; Goldie v The Queen [2001] WASC 153.
93 The Crown submits that there are reasons why there is a risk that the applicant may not appear in answer to the charges, namely:
(a) The applicant acted evasively before being charged and has previously travelled to Thailand in order to avoid controversy.
(b) By his own admission, the applicant has a prior history of instability, and he may therefore behave in an unpredictable way.
(c) The applicant's associates include a man with prior convictions for passport offences who is said to have influential friends in Thailand.
94 I note in passing that under the relevant Treaty offences for which extradition can be effected in Thailand include perjury but it is questionable whether it extends to attempts to pervert the course of justice.
95 I note also that the Crown previously relied upon the risk of self-harm as a basis for refusing bail. That ground appears to have fallen away having regard to the recent report of Dr Pascu and Dr Schincann.
Strength of the Crown Case
96 I was invited to take account of the following matters in assessing the strength of the Crown case:
(a) The Crown submits that the case against the applicant in respect of the various charges is strong in that, by his own admission, the applicant accepts that he was involved in a protracted period of wrongdoing in regard to the Mickelberg case. The wrongdoing involved perjury and the concealment of the fabrication of evidence of admissions alleged to have been made by the Mickelberg brothers. It is apparent, however, that the Crown will rely strongly upon recent interviews given by the applicant. It is said that the relevant video and other recordings contain admissions of guilt. The defence has foreshadowed a challenge to the admissibility of this evidence.
(b) The Crown recognises that the applicant may seek to rely upon correspondence concerning a proposed indemnity against prosecution. The Crown submits that the correspondence in question will not be a sufficient answer to the charges and refers to
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- the fact that, in any event, the DPP could not and did not purport to bind any other agency.
97 To the limited extent that it is necessary for me to form an opinion as to the strength of the Crown case, my observations are as follows:
(a) The Crown has significant evidence that the applicant has admitted his involvement over a long period in a history of wrongdoing concerning the Mickelberg case. Nonetheless, there are important issues yet to be resolved concerning the use that can be made of some of the evidence relied upon.
(b) There is a degree of ambiguity as to the effect of the recently obtained indemnities concerning prosecution.
(c) In these circumstances, even if the applicant is eventually convicted of the present charges, it is difficult to predict what sentences will be imposed.
(d) The applicant is entitled to give careful consideration to his position at law, and, prima facie, without being constrained by any threat of imprisonment before trial.
Time Before Trial
98 If bail is not allowed to the applicant with the result that he is remanded in custody until trial, there will undoubtedly be a period of many months before the matter is brought to trial.
99 A judicial officer must obviously be conscious that a lengthy period of detention prior to trial for a person who has not been convicted of any offence can give rise to an injustice. It is incumbent on the State to provide the resources necessary to minimise the risk of such an injustice in respect of a person who is at law presumed innocent to the charge.
100 My observations as to this aspect of the matter are as follows
101 The materials before me indicate that in addition to dealing with the charges against him, the applicant will probably be involved in further appearances concerning the Mickelberg case. Prima face, a defendant who has not been convicted of any offence, should be allowed bail in order to deal with such matters.
102 It was put to me that the applicant has finished up in his present situation as a consequence of representations made on behalf of the State which, at best, were ambiguous, and, at worst, misleading. It is said that
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- this state of affairs should be taken into account in determining whether bail is allowed to the applicant.
Other Matters
103 In a case of this kind where the applicant may possibly, on the Crown's case, have had dealings and associations with other parties including police officers, the Court is usually required to consider whether a release on bail is likely to have any adverse effect upon the integrity of the trial process and the evidence to be given by other witnesses.
104 As to this aspect of the matter, I have already noted that the charges appear to relate principally to misconduct alleged only against the applicant and, by implication, against the late Detective Sergeant Hancock. It has not been demonstrated to me that a wider circle of participants or prospective witnesses is involved. I therefore cannot see that in this respect a release on bail will have any adverse effect on the trial process.
105 I note in passing that I am not inclined to attach too much weight to the allegedly evasive behaviour of the application and his supporters shortly before he was charged. It is apparent from the medical reports that the applicant was subject to acute stress at this time, partly contributed to, it seems, by the sudden realisation, contrary to what had been represented previously, that he was to be prosecuted.
106 I have to say also that I am not inclined to give weight to the evidence concerning the applicant's associate Mr Mano. Most of the evidence in that regard appears to be based largely on speculation and hearsay. There is no specific evidence before me that the applicant has utilised any information or service provided by Mano in preparation for flight or movement overseas.
Conclusion
107 The applicant is facing 21 charges including 11 charges of perjury. The Court has to be satisfied that the circumstances justify a grant of bail. It follows from earlier discussion that there are many factors weighing in favour of a grant of bail in this case including the presumption of innocence and the absence of any prior record. The nature of the charges does not suggest that, if released on bail the applicant will endanger the safety, welfare or property of any person.
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108 The principal issue is whether the applicant should be characterised as a "flight risk", that is to say, to use the language of the statute, that he may fail to appear in Court in accordance with his bail undertaking. The Crown places an emphasis upon this ground. I have already determined that the Crown must establish that there is a reasonable degree of risk in that regard.
109 The decided cases show that the main test of probability of the accused appearing at his trial are the nature of the crime charged, the probability of conviction and the severity of the punishment to be imposed. I must also take account of matters personal to the applicant for bail including his recent statements and actions.
110 The charges arise out of allegedly dishonest conduct that occurred many years ago. The applicant has now left the police force and cannot repeat the conduct. It has not been shown that others are to be charged or are implicated. The case against the applicant appears to be strong but the position is complicated by the indemnities against prosecution. I am not prepared to infer that the applicant may fail to answer bail having regard to these matters only.
111 The Crown points to the applicant's recent trip to Thailand. This was the only trip overseas made by the applicant in the past twelve months. He has no prior convictions, no prior history of failing to answer bail, and arrangements can be made for his passport to be surrendered. I accept that his remarks about returning to Thailand were made at a time when he had no reason to believe that there was any legal requirement to remain in Australia. The Crown has not produced any precise evidence of preparation for flight or movement to a destination outside the State. He has strong residential and family links to this State. A surety undertaking to be provided by his mother will provide a strong incentive to answer bail. I give some weight to the applicant's assertions that he has undergone a crisis of conscience and is minded to face up to the consequences of his earlier actions. He has said in the interviews the Crown relies upon that he is willing to face the music and be co-operative.
112 In summary, then, the Crown has not satisfied me that there is a sufficient degree of risk that the applicant will fail to answer bail. I will allow bail on conditions aimed at reducing the risk of non-appearance. I will hear from counsel as to the form of the orders to be made but they will certainly include provision of a personal undertaking and a surety undertaking by his mother, Irene Burns, in sizeable amounts, provision for
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- surrender of his passport, provision for residence at a prescribed address and provision for regular reporting pending hearing of the charges.
113 More particularly, and upon further consideration, the applicant will be allowed bail subject to the following conditions:
1. The applicant, Anthony Lewandowski, is to enter into a personal Bail Undertaking in the sum of $20,000 to appear at the Court of Petty Sessions at Perth on 11 November 2002.
2. There is to be a Surety Undertaking in the sum of $150,000 to be provided by Irene Burns of 16 Pine Grove, Kardinya in a form to be approved by an Associate of the Supreme Court.
3. The applicant is to reside at 16 Pine Grove, Kardinya.
4. The applicant is not to leave Western Australia pending the hearing of the charges and is not to attend at any airport within the State.
5. The applicant is to report to the officer in charge of the Murdoch Police Station on Monday, Wednesday and Friday of each week at a time directed by the officer in charge.
6. The applicant is to surrender his passport forthwith to counsel for the DPP and the passport is to be delivered to the officer of the Murdoch Police Station within 48 hours to be held in safe custody and the applicant is not to apply for or use any other passport.
7. The applicant is to report initially to the officer in charge at the Murdoch Police Station on Tuesday, 15 October 2002 not later than 11 am.
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