McKenna v the State of Western Australia
[2015] WASC 367
•2 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCKENNA -v- THE STATE OF WESTERN AUSTRALIA
CORAM: BEECH J
HEARD: 1 OCTOBER 2015
DELIVERED : 2 OCTOBER 2015
FILE NO/S: MBA 31 of 2015
BETWEEN: DAVID ANDREW MCKENNA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Application for bail - Turns on own fact
Legislation:
Bail Act 1982 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr D A Rawlings
Respondent: Mr J Chu
Solicitors:
Applicant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
BEECH J: The applicant faces a number of charges in the Magistrates Court. Having been refused bail in that court, he applies to this court for bail.
The charges
The applicant faces the following charges:
(1)PE 10548/15 - burglary and commit an offence in dwelling (namely unit 6/8 York Street, South Perth).
(2)PE 19549/15 - stealing.
(3)PE 10550/15 - burglary and commit an offence in a place (unit 3/8 Clarence Street, South Perth).
(4)PE 10551/15 - steal motor vehicle and drive recklessly.
(5)PE 10553/15 - obstructing police officers (although it appears he may plead guilty to this offence).
(6)PE 10554/14 - trespass.
He has pleaded guilty to several related offences for which he is yet to be sentenced.
The applicant has been in custody since his arrest on 25 February 2015.
The charges against the applicant are listed for trial on 3 December 2015.
Application for bail
The applicant seeks bail on his remaining charges, proposing that he be admitted to bail on the conditions set out in par 8 of his submissions, incorporating details included in his affidavit dated 21 September 2015. These conditions are that:
(a)he give a personal undertaking securing his bail;
(b)a surety undertaking be entered into on his behalf;
(c)he reside with his partner at an address in Redcliffe (the Redcliffe premises);
(d)he remain on curfew at the Redcliffe Premises between the hours of 7.00 pm and 7.00 am daily;
(e)he present at the front door at the Redcliffe Premises at any time during his curfew hours to any member of the Western Australian Police;
(f)he report to the officer in charge of the Belmont police station every Monday, Wednesday, and Friday between the hours of 8 am and 4 pm;
(g)he not consume alcohol or illicit drugs; and
(h)he provide a specimen of breath, blood and/or urine for analysis upon request by police.
Application for bail: legal principles
Section 13 of the Bail Act 1982 (WA) provides that the jurisdiction to grant bail is to be exercised subject to and in accordance with Part III of the Act and the further provisions in Part B, C and D of Schedule 1 to the Act. Part C contains the general principles governing the grant or refusal of bail. Clause 1 of Part C provides as follows:
Part C ‑ Manner in which jurisdiction to be exercised
1.Bail before conviction at discretion of court or judicial officer except for child
Subject to clauses 3A and 3C, the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant ‑
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would ‑
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
The questions in par (a) to (g) of cl 1 are non‑exhaustive mandatory considerations.[1]
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24].
Clause 3 of Part C of Schedule 1 deals with matters relevant to the question in cl 1(a). It provides:
Matters relevant to cl 1(a)
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant ‑
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The matters in par (a) to (d) in cl 3 are non‑exhaustive mandatory considerations.[2]
[2] Milenkovski [25].
The approach to be adopted in applying Part C was explained by McLure P (Pullin JA & Hall J agreeing) in Milenkovski v The State of Western Australia. In summary:
(1)The grant or refusal of bail is at the discretion of the person invested with jurisdiction, who is required to have regard to the questions in par (a) to (g) of cl 1 and to any other question which the decision maker considers relevant.
(2)The matters in par (a) to (g) are characterised as questions, not considerations. The answers to the mandatory and other relevant questions provide the factual basis for the exercise of the discretion. The court must consider and answer the mandatory questions before commencing the weighing or balancing process involved in the exercise of the discretionary power.
(3)Apart from par (e), all the mandatory questions are directed to whether there are positive grounds for refusing bail. If there was no material before the court providing the proper foundation for refusing bail, bail would have to be granted.
(4)The word 'may' in par (a) and (d) of cl 1(a) means the possibility of the relevant event occurring.[3]
[3] Milenkovski [39] ‑ [42].
The applicant's case for bail
The applicant accepts that he is charged with serious offences and, if he is convicted, he will be sentenced to immediate imprisonment. The applicant also accepts that his record of previous convictions is discreditable and includes previous burglary offences, offences of stealing motor vehicle and driving recklessly, and offences of failing to appear in court in accordance with bail undertakings.[4] Nevertheless, the applicant submits that those considerations are outweighed by the weaknesses in the evidence against him and the relatively low prospect of a conviction, so that the possibility of his failing to appear in court or committing an offence can be sufficiently removed by the conditions of bail that he proposes.[5]
[4] Applicant's submissions dated 15 September 2015 [9].
[5] Applicant's submissions [13].
The applicant submits that the prosecution case relies heavily on the applicant's recent possession of the motorcycle taken from the Clarence Street property and a Volvo car‑key that was stolen from the York Street property. In his voluntary interview with police officers, the applicant said that both the motorcycle and the Volvo key had been given to him by a friend shortly before he was arrested by police. The applicant points to the fact that the only item taken from the York Street property found in his possession was the Volvo key. He suggests that this supports the conclusion that the remainder of what was taken was in the possession of the person who committed the burglary. The applicant also points to the absence of forensic evidence at the two premises.[6]
[6] Applicant's submissions [21] ‑ [22], [24].
In written submissions, the applicant submitted that the prospects of conviction are remote.[7] In oral submissions he asserted that the prosecution case could be fairly said to be moderate - neither weak nor strong.
[7] Applicant's submissions [26].
The applicant also points to his personal circumstances, including his desire to support his child and the availability of a place in a course he wants to undertake.[8]
[8] Applicant's submissions [14] ‑ [16].
The disposition of the application
The strength or otherwise of the State case was a central focus of the submissions on this application.
In circumstances where the applicant is shortly to stand trial in relation to these offences, it is neither appropriate nor necessary for me to give expansive reasons as to the strength of the prosecution case. The magistrate will have before them considerably more detailed evidence than the outline which I have been given. It will be for the trial magistrate to assess the applicant's case that, in a very short space of time after a person had broken into the two properties, that person met up with the applicant and gave him the motorcycle and Volvo key, for no apparent reason. It will also be for the magistrate to assess the significance, if any, of the absence of forensic evidence at the two premises that were burgled. To my mind, it would be open for a court to view the matter in the way invited in the prosecution's submissions. On my assessment of the material before me, the prospects of a conviction is not a factor favouring the grant of bail.
The applicant has an extensive criminal record. He has a number of prior convictions for burglary. He is a repeat offender pursuant to s 401(4) of the Criminal Code (WA). He will face a minimum term of 12 month immediate imprisonment if he is convicted of charge PE 10548/15.
The applicant has been convicted of breaching bail undertakings in 2012, 2006 and 2002. He has convictions for driving under suspension and other breaches of court orders.
Taking into account the matters referred to in par (a) to (d) of cl 3, I am satisfied that if the applicant is not kept in custody he may fail to appear in court in accordance with his bail undertaking and may commit an offence. I do not consider that the conditions proposed by the applicant, or any conditions, would sufficiently remove those possibilities. In my view, in all the circumstances, the existence and extent of these possibilities require the refusal of bail.
Conclusion
For these reasons, I would decline to grant bail.
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