Milivojevic v The Queen
[1999] WASC 196
MILIVOJEVIC -v- R [1999] WASC 196
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 196 | |
| Case No: | MCS:59/99 | 28 SEPTEMBER & 5 OCTOBER 1999 | |
| Coram: | MURRAY J | 15/10/99 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | DRAGOLJUB MILIVOJEVIC THE QUEEN |
Catchwords: | Criminal law and procedure Application for bail Applicant charged with conspiracy to possess heroin with intent to sell or supply When offence allegedly committed applicant on bail charged with possession of heroin with intent to sell or supply Between alleged commission of conspiracy offence and date of charge Bail Act 1982 (WA) amended to make both offences "serious offences" within meaning of Act Whether Bail Act provision that defendant in custody charged with a serious offence allegedly committed while on bail for another serious offence could only obtain bail if there are "exceptional reasons" why defendant should not be kept in custody, applies Retrospectivity of operation of amendment discussed |
Legislation: | Bail Act 1982 (WA) Sch 1, cl 3A and Sch 2, Item 2a |
Case References: | Dixie v Royal Columbian Hospital (1941) 2 DLR 138 Maxwell v Murphy (1957) 96 CLR 261 Rodway v R (1990) 169 CLR 515 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Application for bail - Applicant charged with conspiracy to possess heroin with intent to sell or supply - When offence allegedly committed applicant on bail charged with possession of heroin with intent to sell or supply - Between alleged commission of conspiracy offence and date of charge Bail Act 1982 (WA) amended to make both offences "serious offences" within meaning of Act - Whether Bail Act provision that defendant in custody charged with a serious offence allegedly committed while on bail for another serious offence could only obtain bail if there are "exceptional reasons" why defendant should not be kept in custody, applies - Retrospectivity of operation of amendment discussed
Legislation:
Bail Act 1982 (WA) Sch 1, cl 3A and Sch 2, Item 2a
(Page 2)
Result:
Application refused
Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr B Fiannaca
Solicitors:
Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dixie v Royal Columbian Hospital (1941) 2 DLR 138
Maxwell v Murphy (1957) 96 CLR 261
Rodway v R (1990) 169 CLR 515
Case(s) also cited:
Nil
(Page 3)
1 MURRAY J: This is an application for bail pursuant to the Bail Act 1982 (WA) s 14 which confers upon this Court jurisdiction to exercise a power to grant bail conferred upon any other judicial officer by the Act, whether or not any other judicial officer has previously granted or refused bail.
2 The history of the matter really commences on 16 April 1998 when the applicant was charged with the possession of heroin (quite a substantial quantity) with intent to sell or supply the drug to another. On 17 April 1998 he was admitted to bail upon his own undertaking in the sum of $20,000 with a surety for that amount and upon condition that he surrender his passport. The applicant has apparently been advised that his surety had "withdrawn" when the applicant was arrested and charged with the matter presently before the Court. It is not clear to me, however, that any action has been taken which would cause the surety undertaking to cease to have effect. It appears that the surety has taken no steps to apprehend the applicant under the Act, s 46; nor it seems has the surety made an application for the cancellation of the surety undertaking pursuant to s 48.
3 All of that, however, is now somewhat academic because on 9 September 1999 the applicant was arrested and charged with the offence of conspiracy to possess heroin with intent to sell or supply, and on 10 September he appeared in the Court of Petty Sessions, bail was refused and he was remanded in custody. The making of those orders, of course, causes the previous bail and surety undertakings to cease to have effect: Bail Act s 34(e) and s 47(g), although they would again come into force if bail should be granted and taken up in respect of the matter now before the Court.
4 It is alleged that the conspiracy offence in respect of which the application for bail is made to this Court was committed on 7 April 1999. It seems to me that there is evidence capable of establishing the commission of that offence which is alleged to arise out of a telephone call made by the applicant to one Hanover with whom the applicant placed an order for 8 ounces of heroin to be delivered to him at his home address that evening. A co-offender agreed to the supply, but before he could provide the heroin to the applicant, so it is said, he was arrested. He had in his possession eight individually wrapped parcels of heroin of a total weight of about 220 grams or just short of the 8 ounces said to have been ordered by the applicant. Again the quantity of heroin is very considerable indeed.
(Page 4)
5 The co-offender, having agreed that he would cooperate, was provided with a concealed audio recording and transmission device and permitted to make contact with the applicant. There is evidence of the exchange between them and I am told that the co-offender has now agreed to give evidence against the applicant, albeit as an accomplice.
6 So far as the applicant is concerned, it is sufficient to say that when his unit was searched on 8 April, $29,000 cash was found in his bedroom and seized. However, the applicant was not then charged. It appears that the investigating police took the view that the evidence available to them was insufficient to warrant the charge until it was bolstered by the co-offender's statement and agreement to give evidence. I make no comment upon the validity of that view. Upon his arrest and interview on 9 September the applicant admitted that he was recorded on 8 April speaking to the co-offender.
7 Matters were brought to a head in September by the co-offender signing a statement implicating the applicant and, I think, by the further enquiry precipitated by the applicant who sought to recover the sum of $29,000 seized from him. Part of that process involved correspondence with the WA Ombudsman. The first stage of the process of his investigation in a case such as this is known as "local resolution". A police officer is instructed about the complaint, investigates it and seeks to resolve it within the police service. That process was initiated by the end of July. On 8 September a letter was written to the applicant by the police informing him that the enquiry into the matter before this Court would probably be finalised within the next two weeks. As has been seen, the applicant was arrested and charged on the following day.
8 In the meantime, of course, the applicant remained at liberty on the bail which had originally been set in April 1998 and most recently continued in the District Court on 22 June 1999. In the circumstances, however, I do not conclude that the fact that the applicant was permitted to remain at liberty for the five month period following his alleged commission of the conspiracy offence reflects any view by prosecuting authorities that he was appropriately on bail despite his alleged commission of the conspiracy offence.
9 In passing I should note that in addition during this period the applicant was dealt with for an offence of uttering threats to kill committed on 9 September 1987. He pleaded guilty in the District Court on 29 March 1999 and was remanded for sentence and for further investigation of his state of mental health. He was ultimately dealt with
(Page 5)
- on 27 July 1999 when a community based order for a period of 18 months was imposed. I know nothing of what was before the Court at that time.
10 However, there are reports before me which deal with the applicant's state of mental health, most recently that of Dr Pullela, the senior consultant forensic psychiatrist with the Ministry of Justice, dated 11 October. They disclose that since at least 1996 the applicant has been diagnosed as suffering from schizophrenia. It appears that his condition may have become worse since then and, having been admitted to Graylands Hospital as an involuntary patient on 28 April 1999, the applicant was diagnosed as suffering from paranoid schizophrenia with depressive features. He was placed on psychotropic medication which seemed to be successful. He was a good patient and presented no particular management problems. His wife noted a marked improvement in his mental state. As a result of the improvement in his condition he was discharged on 4 June and sent home under outpatient supervision, including by a visiting nurse, and upon continued medication.
11 He was discharged because of the improvement he had shown, although when he was taken into custody upon his arrest on 9 September his wife expressed fears for his safety on the ground that the applicant remained suicidal. There is no direct evidence of that in the form of the applicant's affidavit or otherwise. At present the applicant remains on remand in prison in the Medical Infirmary at Casuarina and I must presume that his mental condition is being appropriately managed there. Certainly the authorities are well aware of his situation and there is no evidence of any incapacity to manage his case appropriately.
12 If it is thought that the applicant cannot receive appropriate treatment in the prison, then the superintendent of the prison is obliged to order the removal of the prisoner to some other place for that purpose under the Prisons Act 1981 (WA), s 27. As I understand that section, if such an order is made the person in charge of the hospital concerned is obliged to receive the prisoner, but may discharge him back to the prison when, in accordance with the appropriate professional judgment, the prisoner is fit to be discharged from hospital.
13 I should only add that in Dr Pullela's report there is support for the applicant's statement, made in his affidavit sworn on 17 September, that, "My psychiatric condition has worsened substantially over the last few months such that I require constant psychiatric treatment and care." As I have said, the applicant was discharged from Graylands on 4 June 1999 because of the improvement in his psychiatric condition. He has
(Page 6)
- apparently continued on medication and has been receiving regular medical treatment at the Osborne Park Medical Centre and regular visits from a nurse attached to the Osborne Park clinic and yet, contrary to his above statement, he remained living at home for the three month period prior to his arrest on 9 September, shortly before he swore his affidavit. However, Dr Pullela is of the view that the applicant now requires "strict psychiatric supervision", although not necessarily as a patient in hospital.
14 Applications for bail are dealt with, not only in accordance with the Bail Act, but also, by s 13, in accordance with the provisions of Sch 1 to the Act. Part C of that Schedule sets out the principles governing the grant or refusal of bail. There is no right to bail. It is a matter which lies within the discretion of the court. Under cl 1 of Part C, subject to cl 3A, the discretion is to be exercised having regard to all relevant considerations including various matters enumerated in the clause. Those which appear to me to be of particular relevance are par (a)(ii) - "whether, if the defendant is not kept in custody, he may commit an offence" - and par (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."
15 The provision of par (g) was added by amendment to the Schedule which became operative on 15 May 1999 between the date when the offence was allegedly committed and the date when the applicant was charged with it. I shall return to the significance of that shortly.
16 The respondent relies particularly on cl 3A(1) of Sch 1. It is in the following terms:
"(1) Notwithstanding clause 1 or 2 or any other provision of this Act, where -
(a) a defendant is in custody awaiting an appearance in court before conviction for a serious offence; and
(b) the serious offence is alleged to have been committed while the defendant was on bail for another serious offence or for a group of offences which includes a serious offence,
the judicial officer or authorized officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless he is satisfied that -
(Page 7)
- (c) there are exceptional reasons why the defendant should not be kept in custody; and
(d) he may properly grant bail having regard to the provisions of clauses 1 and 3 or, in the case of a child defendant, clauses 2 and 3."
17 The term "serious offence" is defined in the Act, s 3(1) relevantly as an offence described in Sch 2. Relative to this application that Schedule was amended, by the same amending Act as added par (g) to cl 1, to add to the list of offences contained therein, inter alia, offences under the Misuse of Drugs Act 1981 (WA) s 6(1), being those concerned with prohibited drugs, s 7(1), being those concerned with prohibited plants, and s 33(2)(a), the offence of conspiring to commit an offence under s 6(1) or s 7(1). In this case the applicant has been charged under s 33(2)(a) of the Misuse of Drugs Act with the offence of conspiring to commit an offence under s 6(1). So again, it was by amendment that the offence with which the court is presently concerned was prescribed as a serious offence for the purposes of the Bail Act, that amendment also coming into operation on 15 May 1999.
18 That being the case, for the applicant two arguments are presented in support of the proposition that cl 3A of Sch 1 has no application to this case. The first argument is that to apply it to the offence of conspiracy to possess heroin with intent to sell or supply as a serious offence, is to give the clause a retrospective operation because that offence was allegedly committed prior to the amendment which gave to that offence the status of a serious offence for the purposes of the Bail Act. As part of that argument it is also submitted that the offence of possession of heroin with intent to sell or supply could not be described as a serious offence because that offence was allegedly committed and the applicant was charged with it on 16 April 1998.
19 The law with respect to the retrospective operation of statutes was classically stated by the High Court in Maxwell v Murphy (1957) 96 CLR 261. It is unnecessary, I think, to do more than refer to the judgment of Dixon CJ at 270 where his Honour, quoting the Canadian case of Dixie v Royal Columbian Hospital (1941) 2 DLR 138, 139-40 per Sloan JA, said:
"Perhaps there could be no more practical summary of the principle, which, as was said, emerges from the English and Canadian cases, than the following, -
(Page 8)
- 'unless the language used plainly manifests in express terms or by clear implication a contrary intention -
(a) A statute divesting vested rights is to be construed as prospective.
(b) A statute, merely procedural, is to be construed as retrospective.
(c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.' "
"Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance."
- But in so saying, of course, the High Court made it clear that even read in that way such a statute would not be given an effect to deprive a person of some existing right or to effect some existing obligation recognised by the law.
21 The Court added at 521:
"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly,
(Page 9)
- expressed by saying…that no-one has a vested right in any form of procedure."
22 Rodway was concerned with an amendment made to the Tas Criminal Code which, in relation to sexual offences, repealed an enactment which required as a matter of law that there be corroboration of a complainant's evidence and added a provision to the effect that in addition, no rule of law or practice required a trial Judge to warn a jury of the danger of acting on the complainant's uncorroborated evidence, providing for such a warning only if the circumstances of the particular case justified it. This amendment was held to be concerned with a matter of evidence and the effect of evidence upon the determination of guilt and thus to be a law purely procedural in character not affecting any accrued right and therefore not falling within the presumption against its retrospective operation. The case was one where an offence had been allegedly committed before the new provision came into force, but the trial was held after those legislative changes had been made.
23 In my opinion cl 3A is not a merely procedural provision having no affect upon existing rights. I consider it to be a provision directly affecting the right of a defendant to have his or her case for bail in respect of an appearance in a court before conviction determined by the exercise of the discretion of the judicial officer or authorised officer in whom jurisdiction is vested upon consideration of all relevant matters, including those enumerated in cl 1 of Sch 1. The introductory part of that clause which makes its operation subject to cl 3A confirms that to be the case, as do the express terms of cl 3A which requires the judicial officer or authorised officer to refuse to grant bail in respect of a serious offence unless satisfied about the matters set out in subcl (1)(c) and (d).
24 Clause 3A will therefore not be given a retrospective operation applying it to cases where the right in question has accrued prior to the coming into operation of the current form of the provision as expanded by the list of serious offences provided in Sch 2. But the right affected by the clause is the right of a defendant recognised by the Act, s 5, to have his or her case for bail for an appearance in court "considered under and in accordance with this Act". The correlative obligation is that imposed upon an authorised officer by s 6 and upon a judicial officer by s 7, both of which sections impose a duty to consider the defendant's case for bail.
25 In my opinion that right and duty arise when a defendant is taken into custody for an offence in respect of which there is to be an appearance in a court. That occurred in this case on 9 September 1999,
(Page 10)
- but of course by then the amendment to Sch 2 adding the offences in question here as serious offences, had come into operation as had the amendment by which par (g) was added to cl 1. For the purposes of this argument, in my opinion, it matters not that the offence for which the applicant was then in custody was allegedly committed prior to the amendment to Sch 2 and it does not matter that the offence of possession of heroin with intent to sell or supply was allegedly committed even earlier. I take the same view, for the same reasons, about the availability in this case of cl 1(g).
26 However, although, in my opinion, cl 3A is capable of operation in this case without it being regarded as having retrospective effect, whether in its operation it will actually apply to this case, depends upon the proper construction of its terms. The applicant's second argument is that, properly construed, even upon the view I take of the operation of the clause, it does not apply to this case. It is clear that as at 9 September the applicant was in custody awaiting an appearance in court before conviction for what was then properly described as the serious offence of conspiracy to possess a prohibited drug with intent to sell or supply. So par (a) of cl 3A(1) is satisfied.
27 However, par (b) in terms takes the reader back to the date when the conspiracy offence was committed. The paragraph operates where the allegation is that that offence was committed while the defendant was on bail for another serious offence. The allegation is certainly that on 7 April 1999 the applicant was on bail for the offence of possession of heroin with intent to sell or supply, contrary to s 6(1) of the Misuse of Drugs Act, but that was not then a serious offence, the relevant amendment not having effect until 15 May. So in my opinion, par (b) is not satisfied and cl 3A does not apply to this case. I do not think it is possible to say that on a proper interpretation of par (b) that provision is satisfied because the possession of heroin with intent to sell or supply is a serious offence now, or was able to be so described when the applicant was charged with conspiracy on 9 September.
28 This application therefore falls to be determined in accordance with the provisions of cl 1, but those provisions clearly include par (g) which became operative before 9 September, the date on which, in my view, the applicant's rights in respect of his case for bail accrued.
29 In support of his case the applicant refers to what he describes as the prejudicial impact of being in custody upon his ability to properly prepare to defend the charges against him and to give instructions to his legal
(Page 11)
- representative, but beyond the mere assertion there is nothing to support that contention and for myself, I do not see why it should be so. If it should at some time prove to be the case that the applicant is prejudiced in that way, no doubt a further application for bail might be made to the appropriate court in respect of the applicant's next court appearance, or if this Court was to be involved, relying on that new circumstance or changed circumstance under s 14(2a).
30 The applicant also contends that, "If I remain in custody this may also affect my mental health and thereby worsen my mental illness." Again it seems to me that there is no evidence to support that concern and as I have said, if it should prove to be the case at any time that the applicant's custody in a prison is deleterious to his health, a transfer to an appropriate hospital could be made under the Prisons Act s 27. If some other arrangement was required which could only be facilitated by the grant of bail, that again might ground a further application in the ways referred to above.
31 Finally, the applicant says that he proposes to require a preliminary hearing to be conducted in relation to the conspiracy charge and he suggests that in those circumstances he might remain in custody for over 18 months before the matter finally comes to trial (presumably, if he is committed for trial). I am sure that the courts can arrange to expedite the hearing of matters where accused persons are in custody and I do not see this as a reason justifying the grant of bail if otherwise in the exercise of my discretion I would not consider it appropriate to make such an order.
32 That is indeed my view in this case. I have reviewed the materials presently assembled by the prosecution upon the basis of which at this stage it proposes to prosecute the charge of conspiracy. I think it undesirable to discuss that material in any detail. I have referred above to the bare outlines of the case. In my view I should say no more than that there appears to me to be evidence potentially available which is well capable of supporting the charge and upon which it may be reasonably supposed that a conviction might result.
33 I have no doubt that I should consider the offence charged to be allegedly committed in serious circumstances. The amount of the drug allegedly sought was substantial and the contention of the prosecution is that it was proposed to invest a substantial sum of money in obtaining it. I have no doubt that if those allegations could be made good the case is one in which a conspiracy to traffick in heroin of a substantial kind would be established. Further, it is alleged that when that conspiracy was entered
(Page 12)
- into the applicant was on bail, having allegedly committed an earlier offence in relation to the possession of a substantial quantity of heroin in respect of which the intent to traffic in the drug might be established. Certainly, the amount of drug was, I am told, about eleven times that prescribed in Sch V of the Misuse of Drugs Act as being that giving rise to the presumption of intention to sell or supply provided in the Act, s 11(a).
34 All those are circumstances which, to my mind, make it inappropriate to grant bail in this case. The circumstances of the conspiracy offence are, in my opinion, too serious to make that appropriate and I am concerned that, on the present state of the factual material available and in the light of the history, if the applicant was released on bail he might seek the opportunity to commit yet another serious offence of this kind. The application is refused.
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