MARGJINI v The State of Western Australia
[2013] WASC 193
•20 MAY 2013
MARGJINI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 193 | |
| 20/05/2013 | |||
| Case No: | MBA:11/2013 | 10 MAY 2013 | |
| Coram: | SIMMONDS J | 10/05/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Bail granted on conditions | ||
| B | |||
| PDF Version |
| Parties: | EDMOND MARGJINI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail Questions under cl 1(a)(i), (ii) and (iv) and cl 1(e) pt C sch 1 to Bail Act 1982 (WA) |
Legislation: | Bail Act 1982 (WA), s 14, s 22, sch 1 pt C cl 1, sch 1 pt C cl 3 |
Case References: | Ganeshamoorthy v The State of Western Australia [2010] WASC 123 Hedgeland v The State of Western Australia [2011] WASC 181 Lai v The State of Western Australia [2010] WASC 334 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Questions under cl 1(a)(i), (ii) and (iv) and cl 1(e) pt C sch 1 to Bail Act 1982 (WA)
Legislation:
Bail Act 1982 (WA), s 14, s 22, sch 1 pt C cl 1, sch 1 pt C cl 3
Result:
Bail granted on conditions
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Category: B
Representation:
Counsel:
Applicant : Ms L B Black
Respondent : Ms D Van Nellestijn
Solicitors:
Applicant : Kate King Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ganeshamoorthy v The State of Western Australia [2010] WASC 123
Hedgeland v The State of Western Australia [2011] WASC 181
Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
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- SIMMONDS J:
Introduction
1 These are the reasons in full for the decision I made at the end of the hearing of this application. These reasons elaborate upon the reasons in brief I delivered then.
2 This is an application for bail following the refusal of such an application by a magistrate in the Midland Magistrates Court. The applicant (also referred to in these reasons as the accused) is in custody on five charges.
3 In what might be said to be descending order of seriousness the offences (the alleged offending) the subject of those charges are:
• an offence of possession of a prohibited drug with intent to sell or supply (the prohibited drug charge);
• an offence of wilfully driving a motor vehicle in a place to which the public were permitted to have access in a manner dangerous to the public and in circumstances of aggravation, namely, driving to escape pursuit (the aggravated reckless driving charge);
• an offence of possession of property, namely, $2,925, reasonably suspected of having been stolen (the possess stolen property charge);
• an offence of driving while not being a person authorised to drive and while being a person whose authority to drive had been suspended (the driving while licence suspended charge); and
• an offence of failing to stop after having been called upon to do so by a member of the police force (the failure to stop charge).
4 It is the case that one of those charges, the prohibited drug charge, is a charge in respect of which, as counsel for the respondent frankly acknowledged, the only material before me would indicate that there is, at least at present, no evidence in support. A test (such as it was) was conducted on the substance in question and did not reveal an illicit substance. Some time was spent addressing me on what was identified; but it seems to me that, for my purposes, I should simply put the prohibited drug charge aside, on the material before me.
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5 The statement of material facts for the four charges listed after the prohibited drug charge (the remaining four charges) is in summary form as follows.
6 On 16 April 2013, a Tuesday, the accused drove a black BMW sports utility vehicle (the BMW) with the registration number identified along Lord Street in Henley Brook. Further inquiries revealed that the accused's motor driver's licence was subject to a demerit point suspension as from 8 January 2013.
7 While the accused was driving along Lord Street in Henley Brook police activated the emergency lights and sirens they had requesting that the driver of the vehicle in question stop that vehicle. The accused failed to stop the vehicle and accelerated away from police.
8 The accused attempted to evade police by speeding excessively above the posted speed signs, crossing to the wrong side of the road into oncoming traffic and causing members of the public to mount the median strip to prevent a collision.
9 The accused drove in this manner for about four minutes before crashing into a sand pile at the end of Saunders Street in Henley Brook.
10 The accused was arrested approximately five metres from the BMW, hiding under a bush. The accused had exited the BMW and gone to nearby scrub behind it. The accused was located near the scrub.
11 The accused was searched. In his front left pocket police located a quantity of money amounting to $2,925, in cash. The accused offered no explanation for the money.
12 I should add that the applicant made one previous application for bail, which was heard on 18 April 2013 before Magistrate Benn of the Midland Magistrates Court.
13 On that date, following submissions from counsel for the applicant then, and from the prosecutor, Magistrate Benn refused to grant the application.
14 What is of particular importance for my purposes from the statement of material facts is that the events constituting the subject matter of the remaining four charges all arose out of the driving of the vehicle identified in the number of the charges on 16 April 2013. Those events
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- occurred while the applicant was on bail for eight charges presently pending against him. Those charges were:
• of possession of a prohibited weapon;
• of reckless driving;
• of driving without authority;
• of possession of a controlled weapon;
• another of driving while not authorised to do so;
• of criminal damage;
• of possession of property believed to have been unlawfully obtained; and
• another of possession of a controlled weapon.
15 It was accepted on both sides before me that the matter of the applicant having been on bail at the time of the alleged offending was a characteristic which I could properly take into account in respect of the offending the subject of the remaining four charges, as indeed Magistrate Benn had done for all of the alleged offending.
16 I have determined that this is a case where, notwithstanding the various matters put to me which, in my view, tend to count against a grant of bail, it is appropriate to grant bail.
17 I now explain why I have arrived at that determination.
The approach to the decision as to bail
18 There can be no contest as to the principles applicable to the determination of an application for bail such as the present one.
19 Bail Act 1982 (WA) regulates that determination. By s 14, my jurisdiction to grant bail is an original one, and is not affected in any way by the determination of any other judicial officer, like Magistrate Benn, whose jurisdiction is inferior to my own. The present is not in any sense an appeal from or review of the magistrate's decision in relation to the accused's application for bail before the magistrate.
20 The general approach to the grant of bail is determined by Bail Act sch 1 pt C cl 1 read with cl 3. Those provisions are to be approached as
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- has been stated in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] - [43] (McLure P, Pullin JA and Hall J agreeing), on which see Hedgeland v The State of Western Australia [2011] WASC 181 [16] (Simmonds J).
21 From Milenkovski I extract the following ten principles:
(1) There is no express statutory presumption for or against the grant of bail.
(2) The court has a discretion whether to grant bail, which involves a weighing or balancing process that may only commence after considering and answering the questions in Bail Act sch 1 pt C cl 1(a) to (g).
(3) All of the questions, save for (e), are directed to whether there are positive grounds for refusing bail: (e) goes to the question whether it is possible to neutralise, wholly or sufficiently, the positive grounds for bail.
(4) The word 'may' in cl 1(a) and (d) means the possibility of the events occurring.
(5) In answering the questions in cl 1(a) the court must have regard to all of the matters in cl 3(a) to (d).
(6) The seriousness of the offence with or without regard to the maximum penalty for it does not produce under the Bail Act the common law result of requiring the applicant to establish exceptional reasons or circumstances for the grant of bail.
(7) It may be, having regard to all of the relevant matters in cl 3, that the nature and seriousness of the offence, with or without the method of dealing with the accused for it if convicted, are sufficient to enable the court to conclude that the accused may fail to appear in accordance with their undertaking, and the existence and extent of that possibility may, having regard to the answers to all of the other mandatory questions in cl 1, require or justify the refusal of bail.
(8) The court may make a decision to refuse bail solely because of the answer to the question in cl 1(g): See Milenkovski [29] and see Hedgland [13].
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- (9) The court is required to consider, in addition to the answers to the mandatory questions in cl 1, the answers to any other questions it considers relevant.
(10) In cases where the bail application is determined under cl 1 bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail.
22 In view of my readings of the authorities I should add the following.
23 Milenkovski must now be taken as the principal reference point for analysis of applications such as this one. As I indicated in Hedgeland [15], referring to particular paragraphs in Milenkovski,earlier statements from other authorities of and on the common law approach cannot be so taken. For a listing of such other authorities see Ganeshamoorthy v The State of Western Australia [2010] WASC 123 [10].
24 Further, it must now be accepted as clearly established that the Bail Act is a code in the sense described in Milenkovski [34] as further elaborated upon in [35]:
It is clear from the text and purpose of the Bail Act as a whole that it is intended to be a comprehensive code on the subject of bail. Section 66(1) of the Bail Act provides:
Any power or duty that, at the commencement of this Act, exists apart from statute to grant bail to an accused awaiting an appearance in court for an offence, is abolished.
Section 66(1) has effect notwithstanding anything in s 16 of the Supreme Court Act 1935 (WA) and 'statute' in subs (1) means an Act of the Parliament of Western Australia other than the Supreme Court Act 1935 (WA) (s 66(2), (3)). Thus any common law or inherent power to grant bail has been abolished.
The statutory intention evident from the text and purpose that the Bail Act is intended to be a code is consistent with the second reading speech for the Bail Act (Western Australia, Parliamentary Debates, Legislative Assembly, 14 September 1982, 2755 - 2756) and the Law Reform Commission Report, 3.
The Bail Act is a code in the sense that it is intended to displace the common law, with the consequence, as Mason J said in Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, 22 that:
Its meaning, therefore, is to be ascertained in the first instance from its language and the natural meaning of that language is not to be qualified by considerations deriving from the antecedent law … An
- appeal to earlier decisions can only be justified if the language of the statute is itself doubtful or if some other special ground is made out, eg if words used have previously acquired a technical meaning.
Here the ordinary meaning of the words is clear and it is not suggested that they previously acquired a technical meaning. Accordingly, it is not to be presumed that the section was intended to reiterate the antecedent law or to conform as closely as possible to that law.
- See also R v LK; R v RK (2010) 241 CLR 177 [96] - [97]. It is also well to remember that the High Court has repeatedly emphasised the need, when applying a statutory provision, to look to the language of the statute rather than secondary sources or materials: Weiss v The Queen (2005) 224 CLR 300 [31]. It is significant that the 'common law' principles referred to in Lim v Gregson [[1989] WAR 1] and WCVB [WCVB v The Queen (1989) 1 WAR 279] are primarily secondary sources (case law) construing and applying statutes (other than the Bail Act) from this and other jurisdictions [31] - [35].
The application for bail
25 The application for bail before me is dated 1 May 2013 (the present application). The present application is principally supported by an affidavit of the accused sworn 2 May 2013, with annexures (the accused's affidavit of 2 May 2013). Parts of the accused's affidavit of 2 May 2013 were extensively referred to by counsel for the applicant at the hearing before me.
26 I also have the transcript of the hearing before Magistrate Benn of 18 April 2013.
27 Further, I have a written outline of submissions from counsel for the applicant dated 9 May 2013 (the applicant's written submissions).
28 I did not have any written submissions for the respondent.
29 However, I had extensive oral submissions for both parties that were made at the hearing before me.
30 I note that I may, in determining this application, receive and take into account such information as I see fit 'whether or not the same would normally be admissible in a court of law': Bail Act s 22. The weight of such information is a distinct consideration. This allows for me to receive and take into account material going beyond material the subject of an affidavit: see Lai v The State of Western Australia [2010] WASC 334 [20] - [25] (E M Heenan J).
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31 It is a matter of some regret to me that some important matters which were of significance to the arguments put before me, both for the applicant and for the respondent, were not the subject of any written material, save in part for what emerges from the transcript of the hearing before Magistrate Benn.
32 By written material that would have been of particular assistance to me I mean, first, a complete listing of the charges upon which the applicant had bail at the time of the alleged commission of the offences the subject of the remaining four charges. Those are the charges of the eight offences that I have described. There was before me a somewhat arduous process of extracting what those charges were, and when their offending had been committed.
33 However, in addition, and rather more worryingly, an up-to-date criminal history for the applicant was initially missing. Counsel for the applicant was at the hearing before me able to produce a criminal history which, it turned out, was out of date, not least in one particular regard which required careful address by both counsel.
34 This is the first bail application I can recall where I have not had the benefit of an up-to-date criminal history for an applicant. Given the Bail Act sch 1 pt C cl 3(b), returned to below, that is a fairly significant omission.
35 I turn now to the application of the approach I have described.
The application of the approach described
36 As I understood the way in which, ultimately, the case for bail was argued, my attention should be focussed on Bail Act sch 1 pt C cl 1(a)(i), cl 1(a)(ii) and cl 1(a)(iv).
37 The questions in those subclauses in summary are as follows.
38 The questions in those sub-clauses of Bail Act sch 1 pt C cl 1(a) are whether, if the accused is not kept in custody, he 'may' fail to appear (see (i)); or commit an offence (see (ii)); or interfere with witnesses or otherwise obstruct the course of justice (see (iv)) - in each case, when the judicial officer has had regard to the matters referred to in cl 3.
39 Bail Act sch 1 pt C cl 3 directs the judicial officer, in considering whether an accused may do any of the things mentioned in cl 1(a), to have regard to certain specified matters, as well as to any others which the judicial officer considers relevant. The specified matters are the nature
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- and seriousness of the offence or offences (including any other offence or offences for which the accused is awaiting trial) and the probable method of dealing with the accused for it or them if the accused is convicted (see (a)); the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the accused (see (b)); the history of any previous grants of bail to the accused (see (c)); and the strength of the evidence against the accused (see (d)).
40 It was accepted before me that for the purposes of Bail Act sch 1 pt C cl 1(a)(i) (flight risk) the applicant in respect of the aggravated reckless driving charge faces a charge of an offence for which, if he is convicted, he is subject to a mandatory term of immediate imprisonment of at least six months. The up-to-date criminal record which I have for the applicant would indicate that he has not previously been sentenced to any custodial term, let alone one of immediate imprisonment.
41 However, I note that it was uncontradicted that the applicant had previously faced charges of offending of a drug kind, carrying with them maximum terms of imprisonment, if not mandatory terms of imprisonment, significantly greater than that which he faces in respect of the aggravated reckless driving charge. Those were charges for which he had received bail and of which he was ultimately acquitted. Perhaps most significantly for my purposes (see Bail Act sch 1 pt C cl 3(c)) he had been either in full compliance or, as I will shortly explain, substantial compliance.
42 Further, there is only one conviction for breach of bail undertaking on his record. The circumstances of it, showing a result date 20 December 2012 in respect of offending in October 2011, were explained to me in some detail. That explanation would account for the relatively modest penalty, $100, appearing for the offence.
43 The matter of reoffending by the applicant while he was on bail (see Bail Act sch 1 pt C cl 1(a)(ii)) was a matter to which counsel for the respondent assigned the greatest significance in her submissions. For that purpose I was referred to the fact that there is one conviction the applicant has in respect of driving where that offence was committed while he was on bail, an offence that involved him driving outside the curfew period for that bail.
44 However, the circumstances of that offending were also drawn to my attention in some detail. I note that the applicant has not, at least to date,
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- been prosecuted in respect of the breach of bail referred to. The explanation for the driving outside the curfew which was drawn to my attention was consistent with a reasonable misunderstanding of whether or not the applicant was still on bail on such conditions. That explanation was not contradicted.
45 In those circumstances, it does not seem to me that I am presented with a record for an accused which would arouse strong concerns, indeed any significant concerns, as to reoffending while on bail. Certainly no concerns are aroused of a kind which suitable bail conditions, clearly understood by the accused, could not meet.
46 As to the matter of interference with witnesses (see Bail Act sch 1 pt C cl 1(a)(iv)) it was not apparent to me that the matters of relevance to that question have not been subsumed in the submissions in respect of the possibility of flight and the possibility of reoffending to which I have previously referred.
47 There was considerable argument before me directed to Bail Act sch 1 pt C cl 3(d) (the strength of the evidence against the accused).
48 There were two aspects to that argument. One was the suggestion in the written outline of submissions (which counsel for the applicant did not press before me, but rather held in reserve, in a fashion I do not now need to explore) that there was reason to believe that the evidence from those associated with the investigation of the alleged offending the subject of the remaining four charges might need to be subjected to particularly close scrutiny, in light of a previous history of the dealing with this offender by the investigating authorities.
49 I do not need to say anything more about that. I am not called upon to do so. I did not weigh it in any way in relation to the material that was placed in front of me.
50 The material that was placed before me at the hearing was two witness statements, one each from two different police officers who had been involved in the pursuit the subject of the aggravated reckless driving charge. Those witness statements contain elements which, perhaps in a regrettable way for witness statements of this kind, showed considerable parallelism. Nonetheless, if the matters in the witness statements come up to proof from the two police officers, those witness statements indicate that the principal issue, as counsel for the applicant formulated it, namely, was the accused driving the vehicle at the time or simply a passenger in it,
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- would be resolved in favour of the prosecution contention that he was the driver.
51 I conclude then that the evidence against the accused is of not insignificant strength; but, equally, it is not evidence of overwhelming strength, given that there is a lack, acknowledged by the prosecution or by the investigating authorities, of what might be called independent forensic material, such as CCTV footage or the like. There are also question marks hanging over the accuracy of the identification of the accused as the driver to which my attention was drawn by counsel for the defence.
52 Obviously in a proceeding such as the present application the best that can be done is to work with the material that one has and to recognise that there is some significant distance still to go in respect of the matter at this stage of development.
53 There is as well – although it seemed to me it was stressed at a rather lower level of significance, while being nonetheless pressed upon me by counsel for the respondent – what was said, without objection from counsel for the applicant, to be what was described as associations the accused had with persons of concern to the police.
54 Matters of the associations of an applicant for bail are of course relevant under Bail Act sch 1 pt C cl 3(b). Those associations are simply part of all the circumstances to be weighed as Milenkovski explains.
55 Without further development of those associations than occurred at the hearing before me for what they may say as to the possibility of offending, there needs to be particularly taken into account the paucity, if not entire absence, of material as to offending. There is also the complete absence of material as to, as I understood it, serious offending while the applicant has previously been on bail, where serious offending is judged by reference not simply to the nature of the offence but the penalty that was imposed for the offence.
56 The up-to-date criminal record of the applicant that I have referred to in one respect already is a matter I need to return to. That of course is relevant also under Bail Act sch 1 pt C cl 3(b). The up-to-date criminal record shows that there are some previous incidents of violent offending, although not offending for which substantial penalties were imposed. The criminal record also shows that there has been a pattern of late of more frequent convictions than in the past. However, the penalties, while not insignificant in dollar amounts most recently, are not yet ones of serious concern.
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57 The matters then being in that state, I turn to Bail Act sch 1 pt C cl 1(e) (the bail conditions that might be imposed).
58 Counsel for the respondent indicated that there were no such conditions which, in her submission, either alone or in combination, would adequately address the concerns she had impressed upon me.
59 I have addressed those concerns above. It seems to me that on that assessment this is not a case where there could not be conditions suitable for the purpose.
60 Conditions that were suggested to me by counsel for the applicant were the following:
• a residential condition;
• a reporting condition;
• a condition that the applicant make no application for a passport and not approach departure points from the state;
• a curfew condition; and
• protective conditions for witnesses, subject only to a provision that would allow legal representatives for the applicant to approach those persons who, in the responsible discharge of their representative function, those legal representatives thought it appropriate to approach for the purposes of the preparation and presentation of the applicant's case.
61 Those conditions would be in addition to a personal undertaking by the applicant, in the order of $10,000.
62 Counsel for the respondent did not press upon me, if I concluded that there were otherwise adequate conditions, the need for a surety.
Conclusions
63 In reviewing all of the matters above, I have come at last to the weighing or balancing process referred to in Milenkovski. This is a process I can only arrive at after assessments of the kind I have described.
64 Having regard to the conditions that I have described and subject to their elaboration, as well as a further condition I will reach, I arrived at the conclusion that I indicated at the outset, namely, that bail should be granted in this case.
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65 The conditions with that addition should be the ones I have described.
66 The residential condition should be for the premises at which the applicant, as I understand it, presently resides and which he rents.
67 I note the submission that was put to me by counsel for the respondent that the applicant has no sufficient connections or ties to this state. However, I understood – and this was not objected to – that the applicant has been living in this state now for some 15 years. He has a child here and, although he once held an Albanian passport, now lost, he has shown no inclination to, or history of, return to Albania. Indeed, he has business connections to this state.
68 The reporting condition should be one that mirrors the reporting conditions that he is presently under.
69 The condition as to passport is that he should make no attempt to apply for one; nor should he approach any departure point from the state, whether interstate or overseas, within the appropriate distance, which at first blush would seem to be half a kilometre.
70 There should be a curfew condition; I understand at present he is subject to one.
71 The further condition is not to reoffend while on bail. I am satisfied that that is an appropriate reminder to the applicant of the seriousness of the bail conditions and the nature of the concern he must take to see that he complies with them.
72 Finally, as to the protective conditions, these should be what might be the standard form for these, that the applicant not approach directly or indirectly, by any means, any person who is, or is reasonably to be expected to be, a witness in this case, subject to the exception or saving I have described.
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