Mulholland v The State of Western Australia - [2016] WASC 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MULHOLLAND -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 180

CORAM: SIMMONDS J

HEARD: 31 MAY 2016

DELIVERED : 31 MAY 2016

PUBLISHED : 16 JUNE 2016

FILE NO/S: MBA 13 of 2016

BETWEEN: DEVIN MULHOLLAND
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application for bail - Two sets of charges - Strength of prosecution case - Risk of applicant reoffending if granted bail - Further charges pending against applicant in another court

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)

Result:

Bail granted

Category: B

Representation:

Counsel:

Applicant: Ms L B Black
Respondent: Mr D S Johnson

Solicitors:

Applicant: Kate King Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
Ugle v The State of Western Australia [No 2] [2015] WASC 204
Va v The State of Western Australia [2014] WASC 74

SIMMONDS J: This is an application in relation to, as I understand it, 10 charges pending in the Perth Magistrates Court. A previous application for bail in respect of those charges, together with certain others that I will need to go into, before Magistrate Lawrence in Fremantle was unsuccessful. I will then describe by way of background the charges in respect of which bail is applied for and the nature, in very general terms, of the decision made by Magistrate Lawrence.
So far as the first of those two matters is concerned, the applicant faces two sets of charges. Five were called before me 'the Fremantle charges'. He has pleaded not guilty to all of those with the exceptions I will indicate. The other five were called before me 'the Perth charges', to all of which he has pleaded not guilty.
The Fremantle charges are, in more detail:
•FR 10517 of 2014: an offence under the Misuse of Drugs Act 1981 (WA) s 6(2)A, possession of a prohibited drug, which was gone into with me in some detail as a drug relating to a substance used on prescription, at least in bodybuilding activities, being somatropin, that he has pleaded guilty to;
•FR 10519 of 2014: an offence under the Firearms Act 1973 (WA) s 23(3)(a), possession of a firearm, namely, an 0.38 calibre revolver;
•FR 10520 of 2014: an offence under the Firearms Act s 19(1)(c)B, this time in relation to ammunition;
•FR 10521 of 2014: an offence under the Criminal Code (WA) (Code) s 417(1), possession of a thing capable of being stolen, namely, a sum of $79,545 cash; and
•FR 1240 of 2015: another offence under the Misuse of Drugs Act s 6(2)A, possession of mestanolone, another drug of the bodybuilding kind like somatropin, another charge to which he has pleaded guilty.
The five Perth charges are:
•PE 38186 of 2015 and PE 38187 of 2015: two offences under Code s 557I(2), possession of bulletproof clothing;
•PE 38188 of 2015: an offence under the Weapons Act 1999 (WA) s 6(1)(b)B, offence of possession of a prohibited weapon without the relevant exemption, knuckledusters;
•PE 41120 of 2015: an offence under the Misuse of Drugs Act s 14(2), of a possession of a particular defined category of chemical equipment, category 2, namely, round‑bottom reaction flasks; and
•PE 41121 of 2015: an offence under the Surveillance Device Act 1998 (WA) s 7(1), possession of a tracking device used to determine the geographic location of a named person without consent, which, as I understand it is to be discontinued.
As to the second matter I referred to, that is to say, the decision by Magistrate Lawrence, the applicant had previously been granted bail by the Magistrates Court in Perth in relation to the Fremantle charges. There were some additional charges bearing FR designations. Those additional charges, as I understand it, had in fact been dismissed.
The bail that had been granted on the Fremantle charges was, as I understand it, revoked when the Perth charges were brought. The Perth charges were brought in respect of discoveries made of the various items to which charges related in premises associated with the applicant, most notably, a storage unit which the applicant had taken a contract for shortly after the discovery of the items to which the Fremantle charges related. I had a number of things said to me about that storage unit and the discovery of the items in it to which it will be necessary for me to return to.
Magistrate Lawrence considered an application for bail in relation to the Fremantle charges, the Perth charges and also other charges arising out of discoveries made at the same time as those the subject of the Perth charges which, by reason of their nature and treatment, have been remitted to the District Court where a trial has not yet been listed, although there is a hearing on 17 June 2016 where it is expected that matter will be addressed.
The Fremantle charges are expected to be tried in the Magistrates Court in August.
That then takes me to the matter that is before me in relation to the present application. I will refer in due course to some particular parts of the materials or at least some of the materials before me.
The approach to the decision as to bail is the well‑understood approach required to be taken following Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. There are a number of decisions of judges of the General Division which I have found useful in applying that approach. I need only refer to Va v The State of Western Australia [2014] WASC 74 [27] ‑ [29] (EM Heenan J), where his Honour in turn refers to Quaid v The State of Western Australia [2013] WASC 228 [13] (Edelman J) and the following.
EM Heenan J in Va stated:
In Milenkovski, at [31] - [45], McLure P set out extensively the now authoritative exposition of the significance of the Bail Act for present applications. I, of course, accept that and apply it accordingly. A summary of the effect of that decision was helpfully made by Edelman J in the recent case of Quaid v The State of Western Australia [2013] WASC 228, where his Honour said, at [13] and following, that the principles concerning the application of Sch 1, Pt C, cl 1 of the Bail Act, which applies by virtue of s 14 of that Act, can be summarised by the following points:
'1.The Bail Act is a Code in a sense that it is intended to displace the common law.
2.In circumstances such as those in this application, 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.
3.As to the general provision in cl 1 of pt C, that clause contains no express statutory presumption for or against the grant of bail. The only clauses of pt C, sch 1 of the Bail Act which provide for a (rebuttable) statutory presumption against the grant of bail are cl 3A, cl 3C and cl 4A.'
None of those clauses was relevant to the application before Edelman J, and as I have said, none is relevant to the present case. The only situation where there is a rebuttable statutory presumption in favour of bail is clause 2 of part C of schedule 1, which again does not apply:
'4.The Bail Act does not place any legal onus on any party to a bail application. However, in circumstances where a bail application is to be determined and under cl 1, the consequence of the structure of that clause is that bail would 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 for provide proper foundation for refusing bail.
5.The grant or refusal of bail is at the discretion of the person vested with jurisdiction who is required to have regard to the questions in paragraphs (a) - (g) and to any other questions which the decision-maker considers relevant. The correct approach to the exercise of the discretion is sourced in and guided by the matters in paragraphs (a) - (g). The mandatory answers to the "questions" in those paragraphs and other relevant questions of findings provided the factual basis for the exercise of the discretion. The Court is required to consider an answer to mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
6.The Court is not required to consider questions directed to whether there are positive grounds for granting bail.
7.Paragraphs (a) and (d) of cl 1(a) are concerned with the possibility of the relevant event occurring. In answering that, and 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.
8.The seriousness of the offence 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 the questions in cl 1 and the matters in (c)(iii) in the exercise of the discretion to grant or refuse bail.'
And finally:
'9.It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the events and the probable consequences 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. The nature of the potential sentence imposed by the court, having regard to the answers to all the other mandatory questions in cl 1, may require or justify the refusal of bail.' [27] ‑ [29]
I should note that in determining the present application I may 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. The weight of that information is a distinct consideration and, as EM Heenan J said in Lai v The State of Western Australia [2010] WASC 334, matter not supported by any evidentiary foundation would likely be of diminished, sometimes substantially diminished, weight.
I did have reference made in some detail to particular passages in the decision of Magistrate Lawrence. Those passages were in the nature of the magistrate's use of the material put before him. There was no factual matter there, other than a matter upon which in the end the respondent did not place any reliance in its case against bail. That matter was the association the applicant had with an outlawed motorcycle gang. I do not believe I need to go further into that, simply because of the position of the respondent .
The basis for disposing of the present application, as the respondent ultimately put it, is fairly simple. It is a case, the respondent said, based on the Bail Act 1982 (WA) sch 1, pt C, cl 1(a)(ii):
(a)whether, if the accused is not kept in custody, he may -
...
(ii)commit an offence.
Flight risk in cl 1(a)(i), endangerment in cl 1(a)(iii) and interference or other obstruction in cl 1(a)(iv) were matters the respondent expressly indicated it did not put against the grant of bail.
The respondent's submission was that the possibility of the applicant committing a further offence was such that there was no condition that could reasonably be imposed as referred to in cl 1(e) that would sufficiently remove that possibility.
The respondent relied for the answer to the question as to possibility upon the matters the subject of the Perth charges, considered with the matters remitted into the District Court. There was considerable argument before me about how I should take account of the matters remitted into the District Court in respect of which there is, as I understand it, no present application for bail, but one may well be made.
It is of course a matter for the District Court on the analysis provided by the decision, which I should immediately say is a most helpful one, of Martino J in Ugle v The State of Western Australia [No 2] [2015] WASC 204. It is not a matter for this court. I do not see, at the very least, any obvious or clear reason why the view expressed there by Martino J, on which I am relying in this context, is incorrect. I did not understand there to be any disagreement between counsel on this point. It therefore follows that anything that falls from me in relation to that any such application for bail is matter which the decision-maker in the District Court can simply put to one side. Whether any such thing is part of the approach that decision-maker takes is entirely a matter for that decision‑maker.
The more difficult problem is that of how the charges remitted to the District Court bear on my decision. I should immediately say that they do not represent matter that is relevant through sch 1, pt C, cl 3(a): 'nature and seriousness of the offence or offences'. The 'offence or offences' there are the offences in respect of which the bail application is being made. It seems to me that as a matter of ordinary approach to statutory interpretation of the kind that was employed in Ugle that is what 'the offence or offences' means.
However, it also seems to me that the fact that an applicant for bail is the subject of criminal proceedings in respect of charges for offending that are alleged to have occurred after the offending, as in the case of the Fremantle charges for which he was granted bail, is capable of being relevant to the risk in cl 1(a)(ii).
In my view, in assessing the significance of that risk and the level of probability to which it refers, there is no escape from me giving consideration to what information, if any, I have before me relevant to the likelihood that the applicant did indeed commit subsequent offences in the circumstances I have described. It seems to me that in assessing that probability I am involved in looking at matters of a kind that ultimately the decision‑maker in the District Court is likely also to be concerned with as part of that decision‑maker's assessment of whether or not to grant bail in respect of those charges. That decision‑maker, of course, has many other things to look at, not least the seriousness of the charges before him or her.
It seems to me to be quite clear that the seriousness of the charges in respect of which bail is applied for before me is altogether significantly less than the seriousness of at least some of the charges, perhaps most notably the charge of possession of a prohibited drug with intent to sell or supply dexamphetamine and, to a lesser extent, the possession of $310,105, another charge before the District Court. This takes account of the fact that one of the Fremantle charges was in respect of a handgun with ammunition in it, which it seems to me is indeed a significant matter.
The evidentiary matter in respect of the charges in the District Court goes to the fact that the subject matter of those charges, if I have understood it correctly, and particularly the most serious of them, was items of property found in the unit rented by the applicant, as I have indicated. There is evidence that the applicant did not simply rent that unit but had from time to time accessed it.
Counsel for the respondent put to me that while the case in respect of the matters in the District Court and the Perth charges was circumstantial, it was nonetheless a strong circumstantial case. I should indicate that on what I was told that is not an assessment I myself can share. It seems to me that a strong circumstantial case would be one with stronger connections between the applicant and the items the subject of the District Court proceedings and the Perth charges.
The kind of connection referred to by counsel for the applicant would be uses of the unit proximate to the time at which it might be inferred that the items of property were placed in it. It might also go to how clearly visible those items were to anyone entering the unit at any time. As counsel for the respondent acknowledged, there was evidence that the applicant had sought to deal with the unit on the basis that, in the period of some months preceding the discovery of the items in question, he would be absent from or would not be in a position to use the unit, from which I took it that the respondent had at least at present no evidence of use during that period of some months.
Putting all of that together it seems to me that in assessing the likelihood or probability referred to in c 1(a)(ii), I must put the likelihood significantly lower than I would have put it at had I had the connection that I have indicated.
In taking all of those matters into account, I also need to take into account, as indeed cl 1 opening words indicates, of such other matters as, to use the language of opening words cl 1, represent matters which I consider to be relevant. There were a number of these which were referred to by counsel for the applicant and which counsel for the respondent accepted were capable of being relevant, although, as counsel for the respondent strongly put to me, these should not be weighed heavily against what it said were the possibilities of committing further offences. Those matters were health ones related to, as I understood it, an injury the applicant had sustained in an accident, as well as certain dental concerns, going to the ability of the applicant to access the services needed for treatment of or recovery from the relevant conditions.
There is material in the supporting affidavit of the applicant which indicates, if not perhaps with the clarity that might have been wished for but there was no suggestion that the material should simply be set aside on that basis, that this was interfered with by being in custody.
In addition, there was the relationship the applicant had with members of his family, most notably an infant child and the partner with whom he had had that child.
Finally, there are financial matters of two types. One was aspects of the running of the applicant's three businesses in respect of which the applicant had concerns which release on bail would most fully permit him to address, concerns that were not to be addressed, at least in the one specific case given, by having others take care of the business in question for him. Secondly, there was his ability to deal with a pending tax audit where access to accounting advice had simply not been granted him while in custody. As I said, none of that was, in the terms in which it appears in the affidavit, contested by the respondent. The weight, as I have said, was a different matter.
The criminal history of the applicant is made up of a variety of offences including disorderly behaviour, importation of prohibited imports, intentionally made false statement, common assault, breach of bail and unlicensed vehicle offences, which taken together let alone individually, do not represent a substantial history. The contrary was not put to me. The only penalties imposed have been fines. The most substantial fines have been in the amount of $2,000.
So far as the breach of bail is concerned, which is of course directly relevant under cl 3(c), it was common ground that the breach of bail was in circumstances which had no substantial bearing, indeed no bearing at all, on my decision. It was a mistake as to an appearance date and the amount of fine would appear to indicate that lack of bearing.
So far as the case against the applicant or the strength of the evidence against the applicant is concerned on the Fremantle charges, it is difficult on what I was told, and I do not need to go into this in any detail, to avoid the conclusion that that case is a strong one. The relevant items of property were found in a motor vehicle of which the applicant was the sole occupant at the relevant time, although the vehicle did not belong to him, as I understood it.

So far as the strength of the evidence against the applicant in respect of the Perth charges is concerned, while I do not consider the case to be weak, the matter might have been otherwise had there been no evidence of the use by the applicant of the unit from the moment he rented it. Nonetheless, it is not a strong one, at least for the purpose of assessing the probability of the risk of committing further offences, as I have done.
Again, the assessment of the strength of the case against the applicant for the purposes of any ultimate application for bail in respect of the District Court offences, which would go into the same kinds of matters I have gone into briefly here for the Perth charges, is for the other decision‑maker on the material that will be before that decision-maker at that time.
That then takes me to cl 1(e), what the conditions might be that would address the matters in question here. I have looked at the conditions of bail granted on the previous occasion in respect of the Fremantle charges alone, which was revoked when the subsequent charges, including the Perth charges, were laid, or at least there was arrest on them. Those conditions were a $5,000 personal undertaking, a $5,000 surety and reporting to the Fremantle Police Station every Monday, Wednesday and Friday, with an amendment to require a report only on Mondays.
It seems to me that stringent bail conditions of the kind that bring forcefully home to the applicant the importance of what might be described in general terms as law-abidingness are significant. For that purpose it seems to me that the following conditions would be appropriate: a personal undertaking and a surety in an amount more substantial than $5,000, a curfew imposed, and daily reporting.
So far as surrender of passport and not to approach any exit or port is concerned, given the nature of the case against bail I do not see why those provisions are called for to serve the reminder purpose that I indicated.
However, there should also be a residential condition. I note there was not one in the original bail conditions but it seems to me that that is significant, particularly for the purpose of the operation of the curfew provision. What is proposed, as I understood it, is to have the applicant reside with his partner at an address given in his affidavit. It seems to me that as the home detention bail is not an issue here, the proposed residential address would be appropriate given the presence as well at that address, I have to assume, of the infant child.
There is no other question in the Bail Act cl 1 which is relevant to me. However, I still have not conducted in the final analysis the weighing that Milenkovski calls for. It is a process that forms an integral part of the exercise of the discretion under the Bail Act which Milenkovski sets the approach to.
In the balancing process, I am involved not simply in considering the possibility to which the respondent refers but also, of course, the nature of offending that might occur were that possibility to mature. Of course, in that regard I have noted the significant seriousness of at least some of the offences in the District Court. That is to be weighed together with the likelihood which is what the word 'may' in cl 1(a)(ii) on Milenkovski directs my attention to. Having done all of that, it seems to me that, in view of all the other circumstances to which I have referred including the financial and medical ones particularly, I would grant bail.
I should add that so far as the question of delay is concerned, to which counsel for the applicant referred in her submissions in reply, I should wish to reserve my position on that. It is not altogether clear to me that there is a delay of the kind that authorities on delay before final disposition of proceedings refer to is involved here, given, as I understood it, the expected trial date in relation to the Perth as well as the Fremantle charges. However, that being said, I do not have to go into the matter because I consider that bail is justified on the other reasoning I have provided.
I will now hear from the parties with respect to the bail conditions, as I indicated I would allow.