Milenkovski v The State of Western Australia
[2011] WASCA 99
•15 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MILENKOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 99
CORAM: McLURE P
PULLIN JA
HALL J
HEARD: 22 FEBRUARY 2011
DELIVERED : 15 APRIL 2011
FILE NO/S: CACR 74 of 2010
BETWEEN: STEVE MILENKOVSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BLAXELL J
Citation :MILENKOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 87
File No :MCS 10 of 2010
Catchwords:
Criminal law - Bail - Interpretation of the Bail Act 1982 (WA) - Whether scope for 'exceptional circumstances' test beyond those statutorily specified - Whether the Bail Act 1982 (WA) is a code - Whether presumption for or against bail - Nature of decision-maker's task under cl 1 of pt C of sch 1 to the Bail Act 1982 (WA)
Legislation:
Bail Act 1982 (WA), s 13, s 66(1), s 66(2), s 66(3), sch 1 pt B, sch 1 pt C cl 1, cl 2, cl 3, cl 3A, cl 3C, cl 4, cl 4A, sch 1 pt D, sch 2
Bail Amendment Act 1998 (WA)
Bail Amendment Act 2008 (WA)
Criminal Procedure Amendment Act 1993 (WA)
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Supreme Court Act 1935 (WA), s 16
Result:
Leave to appeal on ground 3 refused
Grounds 1, 2 and 4 dismissed
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Ms L B Black
Respondent: Mr J A Scholz
Solicitors:
Appellant: Kate King Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Mercanti v The State of Western Australia [2005] WASCA 254
R v LK; R v RK [2010] HCA 17; (2010) 241 CLR 177
Rauch v The State of Western Australia [2005] WASC 241
Ribot-Cabrera v The Queen [2004] WASCA 101
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34
WCVB v The Queen (1989) 1 WAR 279
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
McLURE P: This is an appeal from the decision of Blaxell J on 30 April 2010 refusing the appellant's application for bail.
The appellant applied for bail pending his trial on two charges of conspiracy to possess methylamphetamine with intent to sell or supply contrary to the Misuse of Drugs Act 1981 (WA). The first charge relates to a quantity of 2.67 kg of methylamphetamine seized on 4 December 2009. The second charge relates to the seizure of more than 5 kg of methylamphetamine on 16 February 2010. On 18 February 2011, the State presented an indictment in the District Court charging one count of possession of, and one count of attempting to possess, the methylamphetamine the subject of the original charges with intent to sell or supply. The alleged co‑offenders on count 1 are Yavuz Ozan and Paul Da San Martino. The alleged co‑offenders on count 2 include Ozan and Hao Bi. The appellant has been in custody since his arrest on the original charges on 25 February 2010. His trial is listed for hearing in August 2011.
The grounds of appeal, excluding particulars, are that the primary judge erred in:
(1)finding that the appellant was required to demonstrate what amounted to exceptional circumstances;
(2)refusing to make a grant of bail having regard to all the circumstances of the case;
(3)finding that no conditions of bail could be reasonably imposed which would sufficiently remove the possibility of the appellant's non‑appearance at trial;
(4)finding that the appellant may commit a further offence if not kept in custody and giving undue weight in making this finding to what were merely unproven allegations, namely that he had continued to deal in illicit drugs.
The primary issue in the appeal is whether the Bail Act1982 (WA) (Bail Act) required the appellant to establish exceptional circumstances in order to succeed in his application for bail. Leave has been granted on grounds 1, 2 and 4. The application for leave on ground 3 was referred to the hearing of the appeal.
The factual background
The primary judge outlined the circumstances of the alleged offences as follows. At around 11.00 am on 4 December 2009 police officers executed a search warrant at a house in Stirling and found 2.67 kg of methylamphetamine hidden in the garage. The occupant of the house, Paul Da San Martino (who is the husband of the appellant's cousin), was charged with possessing methylamphetamine with intent to sell or supply.
While police were conducting their search, the appellant arrived at the premises in his motor vehicle. A search of the vehicle revealed a loaded .22 calibre pistol concealed in the armrest of the driver's door. The serial number of the pistol had been drilled out so as to make it unidentifiable. The police also found $13,765 in cash and six mobile phones in the vehicle. Only one of those mobile phones had been subscribed for in the name of the appellant. The appellant was arrested and charged with firearms offences and then released to bail.
A mobile phone was seized from Da San Martino and a subsequent download showed it had been used to exchange five text messages with one of the mobile phones in the appellant's vehicle. The exchanges occurred between 10.35 am and 10.50 am on 4 December 2009. The primary judge said it was open to infer from their content that they constituted a coded discussion concerning an imminent collection of drugs and the payment of money. Both of the mobile phones used in the exchange had been subscribed for in the same false name and were first activated on 1 October 2009. The evidence before the primary judge was that it is common for persons involved in illicit drug dealing to subscribe for mobile phones in false names in an endeavour to frustrate monitoring by law enforcement officers.
Between 18 January and 25 February 2010, police lawfully intercepted a mobile telephone service allegedly being used by the appellant. That service was subscribed for in the name of a person and at an address that did not exist. There was also evidence of movements by the appellant on 25 February 2010 which correlated with the content of the text messages. The primary judge concluded that all of the circumstances combined to raise a very strong inference that the appellant was operating the mobile telephone service (the appellant's phone) during the period it was being monitored by police. Between 29 January and 25 February 2010, numerous text messages passed between the appellant's phone and phone services operated by other parties. The content of the various text messages was adduced in evidence. The primary judge concluded that they gave rise to a compelling inference that the exchanges were concerned with the availability of a very large quantity of methylamphetamine.
On 12 February 2010, New South Wales law enforcement officers observed Yavuz Ozan deliver a Daihatsu motor vehicle to a transport company. The Daihatsu was transported by road to Perth via Adelaide. On 16 February 2010, police officers seized 5 kg of methylamphetamine from the spare tyre of the Daihatsu whilst it was located at the transport company's depot in Adelaide. The methylamphetamine had an average purity of 60%. When the Daihatsu arrived at the transport company's depot in Perth on 22 February 2010, police officers inserted 5 kg of an inert substance into the spare tyre.
On 25 February 2010, the Daihatsu was collected by Ozan who drove it to a shopping centre car park in Bayswater. Ozan then caught a taxi to the Charles Hotel in North Perth where he handed the keys of the Daihatsu to Hao Bi. On the same day there were a number of communications to and from the appellant's phone. At 5.23 pm the appellant sent a text message giving directions to a place consistent with the KFC store at the Dog Swamp Shopping Centre in Yokine. At 6.00 pm, a surveillance officer observed Hao Bi speaking with an associate of the appellant near that KFC store. At about that time the appellant was observed on several occasions to drive a vehicle through the Dog Swamp Shopping Centre. Shortly afterwards, the Daihatsu was driven by the appellant's associate to a house in Stirling. The police later searched that house and located the 5 kg of inert substance which had previously been placed in the spare tyre of the Daihatsu.
When the appellant was apprehended by police on 25 February 2010, he was found in possession of six mobile phones. Five of the phones were subscribed for in names other than the appellant's. The appellant's phone (which provided the service being monitored by police) was one of those in the appellant's possession at the time of his apprehension.
The appellant has no significant prior record. He had previously stood trial in 2008 for serious drug charges of which he was acquitted. He was released to bail for those matters between 2006 and 2008 and fully complied with all bail conditions.
The evidence was that the appellant owned real estate and other property to a value of between $1.5 million to $2 million, all of which was subject to a freezing order under the Criminal Property Confiscation Act 2000 (WA).
The primary judge's reasons
The State contended before the primary judge that the appellant had failed to establish exceptional circumstances, which was required before there could be a grant of bail. The State also opposed bail on the grounds that the appellant was a significant flight risk, that there was a risk of the appellant committing a further offence, and that the circumstances of the alleged offences are of such a serious nature as to make a grant of bail inappropriate.
The primary judge considered the relevant case law on whether the appellant was required to establish exceptional circumstances, including Jemielita v The Queen (1994) 12 WAR 362, Ribot-Cabrera v The Queen [2004] WASCA 101, Rauch v The State of Western Australia [2005] WASC 241, The State of Western Australia v Sturgeon (2005) 158 A Crim R 34 and Mercanti v The State of Western Australia [2005] WASCA 254. E M Heenan J in Sturgeon retreated from the position taken by the court in Ribot‑Cabrera on this issue.
After referring to Jemielita, the primary judge said (at [28]):
Further authority to this effect is to be found in Ribot-Cabrera … There it was held that cases where long periods of imprisonment could be expected upon conviction, fell into a 'special category', which required an applicant for bail to demonstrate exceptional circumstances. At [50] EM Heenan J stated that this was an illustration of:
'[T]he wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial'.
The primary judge continued:
For the present, and in the particular circumstances of the present case, I consider that it is appropriate to apply the broader principle as expressed in Ribot-Cabrera. Obviously, and as a matter of 'logic, experience and common sense', charges of conspiring to possess large quantities of illicit drugs provide the defendant with an inherent incentive to abscond. The larger the quantities of drugs involved, and the stronger the prosecution case, the greater is the need for the applicant seeking bail to demonstrate that he will meet the obligations of bail by appearing at his trial [31].
The primary judge then turned his attention to the particular questions posed in cl 1 and cl 3 of pt C sch 1 of the Bail Act.
The primary judge's assessment was that there was a very strong circumstantial case against the appellant, particularly in respect of count 2. There is no challenge to that assessment.
The primary judge stated his reasons for refusing bail as follows:
In the event that [the appellant] is convicted of the charges against him, he faces the prospect of very lengthy terms of imprisonment. Self-evidently, and in light of the strong prosecution case, if [the appellant] is not kept in custody, there will be a significant incentive for him to take flight in order to avoid punishment. In these circumstances, the fact that his frozen property would be forfeited in the event of conviction would be unlikely to deter him from taking that step. In the end, I consider that there is a substantial risk of flight, and that no conditions of bail can be reasonably imposed which would sufficiently remove the possibility of his non‑appearance at trial.
In my view the State has also established its second ground for opposing bail, namely that [the appellant] may commit a further offence if not kept in custody. He had a very close call on 4 December 2009 and was fortunate not to be arrested on a serious drug charge at that time. It should have been obvious that the police would be interested in his future activities, but notwithstanding this (on the evidence before me) he continued to deal in illicit drugs. These circumstances suggest that he may have a similar attitude towards further offending at the present time [38] ‑ [39].
The common law and statutory background/framework
The Bail Act was assented to in 1982 but not proclaimed until 1989. The law as it stood prior to the commencement of the Bail Act was stated by Nicholson J at first instance and approved on appeal by the Full Court in Lim v Gregson [1989] WAR 1, 12. The relevant principles (referred to as 'common law' principles) applicable to the grant of bail prior to trial included the following. Prima facie, a person accused of a crime should be allowed his liberty before the trial. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The onus is on the State to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. However, where an accused is charged with wilful murder or murder, bail will generally be refused except in rare cases where exceptional circumstances are shown to exist and the onus of showing such circumstances is on the applicant for bail and not the State.
In WCVB v The Queen (1989) 1 WAR 279, Ipp J held that the common law principles relating to bail for a person charged with murder also applied to other crimes that could be classified as 'extremely serious' and that the common law principles were consistent with, and continued to apply under, the Bail Act.
Section 13 of the Bail Act provides that jurisdiction to grant bail is to be exercised subject to and in accordance with pt III of the Bail Act and the further provisions in pt B, pt C and pt D of sch 1 to the Act. Part C contains the general principles governing the grant or refusal of bail. Clause 1 of pt C relevantly provides:
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;
(ii)commit an offence;
(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;
…
(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);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
…
(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 pars (a) to (g) of cl 1 are non‑exhaustive mandatory considerations. Clause 3 of pt C of sch 1 deals with matters relevant to the question in cl 1(a). It provides:
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;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The matters in pars (a) to (d) in cl 3 are non‑exhaustive mandatory considerations.
The Bail Act as originally enacted was based on the 1979 Report on Bail of the Law Reform Commission of Western Australia and contained no provisions incorporating an 'exceptional' circumstances or reasons test for bail prior to conviction. That changed in 1993. The Criminal Procedure Amendment Act 1993 (WA) amended the Bail Act to include cl 3A in pt C of sch 1. That amendment took effect on 17 January 1994. Clause 3A provides for situations where an accused commits a serious offence, being an offence listed in sch 2, while on bail or at liberty under an early release order for another serious offence. The clause relevantly provides:
(1)Notwithstanding clause 1, 2 or 4 or any other provision of this Act, where ‑
(a)an accused is in custody ‑
(i)awaiting an appearance in court before conviction for a serious offence; or
(ii) …
and
(b)the serious offence is alleged to have been committed while the accused was ‑
(i)on bail or for; or
(ii)at liberty under an early release order made in respect of,
another serious offence,
the judicial officer … shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer … ‑
(c)is satisfied that there are exceptional reasons why the accused should not be kept in custody … ; and
(d)is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child accused, clauses 2 and 3.
On 28 December 1994, the Full Court handed down its judgment in Jemielita. In that case the appellant was charged with the wilful murder of his wife. Anderson J refused the appellant's application for bail. On appeal, the Full Court held that the statutory discretion under the Bail Act should be exercised in accordance with established common law principles. Pidgeon J said:
In the case of murder and other very serious crimes the gravity of the crime and the nature of the penalty on conviction increases the risk of a failure to appear in court to the extent that special or unusual circumstances must be shown. The principles which have been evolved when considering these factors under the earlier statutes are based on logic, experience and common sense and as alluded to by Anderson J, in the present case, are principles the community would expect in cases of this nature. I do not consider that there has been an intention in the Bail Act to exclude them. On the contrary, I consider that the omission of a reference to a right to have bail granted and the emphasis on the discretion to grant it with power to consider all relevant questions and matters results in the requirement that the discretion be exercised in accordance with the established principles. It results in a right to bail in the sense outlined by Nicholson J in Lim v Gregson. I consider therefore that Ipp J was correct in WCVB v The Queen in saying that the Bail Act has not altered these earlier principles and I consider that the principles outlined in Lim v Gregson would continue to apply (367 ‑ 368).
The case law makes no relevant distinction between 'special or unusual circumstances' and 'exceptional circumstances': Lim v Gregson (13).
Paragraph (g) of cl 1 of pt C sch 1 was inserted by the Bail Amendment Act 1998 (WA). The second reading speech for the Bill which became the Act states:
Another important aspect of the Bill is that it will make the granting of bail inappropriate where the alleged circumstances of the offence amount to wrongdoing of a serious nature. While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail
See Western Australia, Parliamentary Debates, Legislative Assembly, 27 October 1998, 2673 (Mr Prince, Minister for Police).
The Bail Amendment Act 2008 (WA) added to the number of situations in which there is a statutory requirement for exceptional reasons. That Act inserted cl 3C (bail in murder cases) and cl 4A (bail after conviction: accused awaiting disposal of appeal). Clause 4A (and cl 4) replaced the original cl 4 which provided an exceptional reasons test for post‑conviction bail. Clause 3C relevantly provides:
Notwithstanding clause 1, 2 or 4 or any other provision of this Act, where an accused is in custody ‑
(a)awaiting an appearance in court before conviction for an offence of murder; or
(b)waiting to be sentenced or otherwise dealt with for an offence of murder of which the accused has been convicted,
the judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that ‑
(c)there are exceptional reasons why the accused should not be kept in custody; and
(d)bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
The proper construction of the Bail Act
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 and WCVB are primarily secondary sources (case law) construing and applying statutes (other than the Bail Act) from this and other jurisdictions.
Only cls 3A, 3C and 4A of pt C sch 1 of the Bail Act provide for a (rebuttable) statutory presumption against the grant of bail. That is indicated by the statutory expression that the judicial officer 'shall refuse to grant bail for the offence' unless satisfied of the specified matters.
The statutory presumptions against the grant of bail in cls 3A, 3C and 4A require that the judicial officer be satisfied of two matters. The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3. In addition the judicial officer must be satisfied that there are exceptional reasons why the accused should not be kept in custody. If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are relevant exceptional reasons. This structure reflects the possibility that the exceptional reasons may not be relevant to or inform the answers to the mandatory questions in cl 1(a) to (g). There is no scope for the application of an exceptional reasons or circumstances test beyond those statutorily specified in cls 3A, 3C and 4A.
There is only one situation in which there is a (rebuttable) statutory presumption in favour of bail. That is in cl 2 of pt C of sch 1 which relates to a child accused who is expressly stated to have 'a right to be granted bail unless' the matters specified in cl 2 apply.
There remains the proper construction of the general provision in cl 1 of pt C. It contains no express statutory presumption for or against bail. Rather, 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 pars (a) ‑ (g) and to any other questions which the decision‑maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) ‑ (g). There are a number of significant points to note. First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
The word 'may' in pars (a) and (d) of cl 1(a) means the possibility of the relevant event occurring: see cl 1(e)(i). For example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility he would fail to appear in court in accordance with his bail undertaking. In answering that and the other questions in cl 1(a), the court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C. It is self‑evidently the case that the seriousness of the offence, with or without regard to the maximum penalty for it, does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The court is required to have regard to all of the questions in cl 1 and the matters in cl 3 in the exercise of the discretion to grant or refuse bail.
It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused for it if the accused is convicted are sufficient to enable the court to conclude that the accused may fail to appear in court in accordance with his bail undertaking, and the existence and extent of that possibility may, having regard to the answers to all the other mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach (for or against bail) is inconsistent with the approach required of decision‑makers under the Bail Act.
This review demonstrates that the text and purpose of the Bail Act is inconsistent with the common law approach in general and the requirement that the accused establish exceptional circumstances in order to obtain bail for a serious offence other than murder in particular.
In relying on Ribot-Cabrera and concluding that the appellant was within a 'special category' of cases which required an applicant for bail to demonstrate exceptional circumstances, the primary judge was in error. However, that error did not have any effect on the outcome. The primary judge turned his attention to the questions in cl 1 and the matters in cl 3 in an entirely orthodox and appropriate manner and made findings as to the substantial risk of flight and the possibility that the appellant may commit a further offence, which provided proper grounds for the refusal of bail. Accordingly, I would dismiss ground 1.
Ground 2
This ground does not raise an appealable error that entitles this court to intervene in the exercise of the discretion to grant or refuse bail. In an appeal from a discretionary decision, the principles in House v The King (1936) 55 CLR 499, 504 ‑ 505 apply. In particular, the appellant must demonstrate that the primary judge made an express or implied material error of fact or law. A failure to give 'adequate weight' or 'insufficient regard' to relevant considerations only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen (2000) 202 CLR 321, 330; Mallet v Mallet (1984) 156 CLR 605, 614 ‑ 615. The appellant falls well short of meeting that high threshold. Ground 2 should be dismissed.
Ground 3
The appellant challenges the primary judge's finding that no conditions of bail could be reasonably imposed that would sufficiently remove the possibility of the applicant's non‑appearance at trial. Insofar as the ground depends upon assertions of undue weight and insufficient regard to relevant matters, the ground must fail. The appellant has the difficult task of establishing that the finding was not reasonably open on the evidence. He must fail in that endeavour. The finding was reasonably open having regard to the primary judge's finding that there was a substantial risk of flight as a result of the strong prosecution case and the prospect of very lengthy terms of imprisonment. Ground 3 should be dismissed.
Ground 4
The appellant challenges the finding that the appellant may commit a further offence if not kept in custody which is linked in the ground with allegedly giving undue weight to unproven allegations. The issue is whether the finding is reasonably open on the evidence. The court only
has to satisfy itself of the possibility of the appellant committing a further offence. In making that assessment, the primary judge clearly had regard to the strong prosecution case and the fact that the conduct the subject of count 2 occurred when the appellant knew the police were investigating the circumstances surrounding count 1. The primary judge's reasoning and conclusion was reasonably open on the evidence. Ground 4 should be dismissed.
Conclusion
For these reasons, I would refuse leave to appeal on ground 3 and dismiss grounds 1, 2 and 4 and the appeal.
PULLIN JA: I agree with McLure P.
HALL J: I agree with McLure P that this appeal should be dismissed. I substantially agree with McLure P's reasons for coming to that conclusion. The only matter on which I differ is as to whether the primary judge in fact applied an exceptional circumstances test in this case.
His Honour did refer to Ribot-Cabrera v The Queen [2004] WASCA 101 as being authority for the proposition that cases where long periods of imprisonment could be expected upon conviction fell into a 'special category' which required the applicant for bail to demonstrate exceptional circumstances. However, his Honour then noted that in The State of Western Australia v Sturgeon [2005] WASC 256 it had been recognised by EM Heenan J that there was no indication in the Bail Act 1982 (WA) that exceptional circumstances must be established in a case involving serious offences. His Honour also noted that in Mercanti v The State of Western Australia [2005] WASCA 254 the Court of Appeal had indicated that the decision in Jemielita v The Queen (1994) 12 WAR 362, which had supported the continued existence of an exceptional circumstances test in the case of murder and other very serious crimes, may need to be revisited. It is apparent from this that his Honour appreciated that the broader application of such a test, other than in those circumstances provided for by the Bail Act, was open to question.
In my view, when his Honour said that he considered it appropriate to apply the 'broader principle' as expressed in Ribot-Cabrera, this was simply a reference to the need to take into account that there may be a greater incentive to abscond where the potential consequence on conviction is a substantial term of imprisonment. This was not to suggest a special category of cases in respect of which there was any presumption
against bail. It was an acceptance that as a matter of 'logic, experience and commonsense' the potential consequences were relevant in assessing whether bail could be granted.
I am not convinced that the primary judge applied an exceptional circumstances test in assessing the appellant's application for bail. In my view, a reading of his Honour's reasons as a whole supports a conclusion that he did not do so, but rather applied the criteria mandated by the Bail Act. However, I agree with McLure P that even if such an error was made it did not have any effect on the outcome.
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