Musarri v The Queen
[2001] WASC 200
•3 AUGUST 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MUSARRI -v- THE QUEEN [2001] WASC 200
CORAM: WHITE AUJ
HEARD: 25 JULY 2001
DELIVERED : 3 AUGUST 2001
FILE NO/S: MCS 71 of 2000
BETWEEN: PAOLO MUSARRI
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Application for bail - Second application to this Court after earlier refusal to grant bail - Whether new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously refused by a Judge of this Court, to overcome the effect of Pt B, cl 2 of the first Schedule to the Bail Act 1982 - Turns on own facts
Legislation:
Bail Act 1982, 1st Sch, cl 2 and cl 4
Criminal Property Confiscation of Property Act 2000
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr R Richter QC
Respondent: Mr J Mactaggart
Solicitors:
Applicant: Pryles & Defteros
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards (1988) 35 A Crim R 465
Munro v The Queen [2001] WASC 159
Pinkstone v The Queen [2000] WASC 321
Case(s) also cited:
R v Rechichi [1999] WASC 73
Rus v The Queen [2001] WASC 69
Yanko v The Queen [2001] WASC 114
WHITE AUJ: This is an application to be released on bail pending the trial of the applicant on a charge of conspiring to possess heroin with intent to sell or supply it to another and two charges of supplying amphetamine. After the matter came on before me, my attention was drawn to an affidavit which had, it seems, been filed in court shortly before, but which had not yet reached me. It is the affidavit of Gavin George Wells, the solicitor acting for the applicant. In that affidavit, Mr Wells deals with the events subsequently to the hearing before Heenan J and, particularly, with the state of the business (which has closed down), the actions of Citibank and of Westpac in relation to the calling up of mortgages and the evidence at the preliminary hearing. He submits that an analysis of that evidence shows that the Crown case has been exposed as much weaker than previously submitted, with a clear likelihood that the applicant will be acquitted at trial.
Nonetheless, it is true that, at the conclusion of the preliminary hearing, the learned Magistrate did commit the applicant for trial.
Annexed to Mr Wells' affidavit is a letter from Dr Phil Watts, a Clinical and Forensic Psychologist, who described the effects upon the applicant of his imprisonment. Having perused his letter carefully, I am not persuaded that its contents establish a relevant change of circumstance or a new fact, within the meaning of cl 4.
The applicant was arrested in October 2000 and has been in custody ever since. He made an application to this Court to be released on bail on 17 October 2000 and that application was refused by Heenan J for reasons which his Honour published on 2 November 2000.
Clauses 2 and 4 of Part B of the first Schedule to the Bail Act provide respectively:
"2. Upon decision by judicial officer, his power and that of his peers ceases
Except where clause 4 applies, the power to grant bail for an appearance by a defendant ceases to be vested in any judicial officer (including a Judge of the Supreme Court) after he, or another judicial officer whose jurisdiction is co‑extensive with his, has granted or refused bail for that appearance.
…
4.Judicial officer’s powers where defendant proves new facts or changed circumstances
Notwithstanding clause 2, where a defendant has been refused bail for an appearance or has been granted bail therefor on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is co‑extensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefor if the defendant makes application and satisfies him that —
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance;
(b)he failed to adequately present his case for bail on the previous occasion when it was considered; or
(c)where bail was granted subject to a home detention condition, he has, since the previous occasion when his case for bail was considered, complied with the home detention condition for a period of one month or more."
The first question to arise, therefore, is as to whether there have been established new facts, new circumstances or changed circumstances sufficient to confer jurisdiction upon me to consider afresh whether or not to grant bail to the applicant. Unless this is demonstrated, cl 2 (supra) precludes my being able to reconsider the question of bail.
In the course of his persuasive argument, senior counsel for the applicant submitted that there are three factors establishing new facts or circumstances and changed circumstances.
Firstly, Mr Richter QC pointed out that when the matter was before Heenan J, no committal proceedings had yet been held. It fact, such proceedings were held during June, 2001. In the result, the applicant was committed for trial. In his submission, the matters put before the learned Magistrate were such that the Crown case was not strengthened. The Crown case, it was submitted, is entirely circumstantial and will require the jury to draw inferences from telephonic communications attributed to the applicant. None of the alleged co‑offenders, Mr Richter submitted, had given any evidence implicating the applicant in the alleged offences and the applicant has denied any involvement in the commission of the offences in question.
The fact that the Crown case is circumstantial and dependent upon inferences was recognised by Heenan J and referred to in his Honour's reasons for decision.
The provisions of the Bail Act 1980 of Queensland are different from those of the Western Australian statute, and do not preclude successive applications for bail after unsuccessful applications. Nonetheless, as was pointed out by McPherson J in Edwards (1988) 35 A Crim R 465, the practical effect of the Queensland Act is that any further application will, unless supported by additional relevant facts, be "fruitless" (applying O 45 r 1 of the Rules of the Supreme Court 1901 (Qld)). In Edwards, his Honour held that the mere fact of a committal having taken place is not of itself sufficient to attract the application of O 45 r 1. As to that rule, his Honour referred to:
" … the provisions of O 45 r 1 of the Rules of the Supreme Court 1901 (Qld). Which expressly cater for both the case in which facts arise after the making or an order; and the case in which facts are discovered after the order which if discovered in time would have entitled the party against whom the order was made to an order in his favour: see KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13.
The question is whether there are new considerations which were not before the court on the occasion of the previous application when bail was refused. His Honour held that a persuasive and satisfying case is required, and not one in which the differences disclosed by the additional material go only to matters of mere detail, or to considerations which, although not previously raised, would not have been likely to alter the balance to one favouring the granting of bail."
I respectfully adopt this formulation of the question by McPherson J, mutatis mutandis, as applying to the provisions of cl 4 of Part B of the first Schedule to the Bail Act.
Accordingly, I hold that the matters raised in cl 4(a) must, in order to enliven the jurisdiction conferred by cl 4, be matters that would have been likely, if known to the Judge who previously refused bail, to alter the balance in favour of the grant of bail.
In the present case, the matters relied upon must, therefore, be such as to have been likely to cause Heenan J to grant bail, had they existed and been known to the court at the time, if the provisions of cl 2 are not to preclude my adverting to the merits of the application for bail
Secondly, senior counsel for the applicant submitted that the applicant's property has been frozen pursuant to the Criminal Property Confiscation of Property Act 2000 and Citibank, a creditor of the applicant, has instituted proceedings in this court for orders for the sale of the properties of the applicant at a reserve of 80 per cent of their respective values. Counsel submitted that the applicant needs to be at liberty in order to be able properly to fight for what is his. He submitted that it is difficult for a prisoner properly to instruct his legal advisers and that, where their client is in prison, some practitioners might do things they should not and might fail to do things they should. There was no evidence to this effect and I do not feel that I can accept that proposition from the bar table without evidence.
While the facts that his property has been frozen and is now under threat of being sold for the benefit of the mortgagee may constitute new circumstances, I do not accept that they are matters which, had they been in existence and known to Heenan J, would have been likely to tip the balance in favour of the grant of bail. It follows that I do not accept that they constitute new circumstances of the kind which would operate so as to overcome the prohibition in cl 2. My attention has now been drawn to the decision of Roberts‑Smith J in Pinkstone v The Queen [2000] WASC 321, where his Honour held that the change to be demonstrated is a relevant change. I respectfully agree.
Thirdly, Mr Richter referred to the affidavit of the applicant sworn on 10 July 2001. In that affidavit, the applicant refers to the following matters:
His identity as the applicant;
The refusal of his earlier application for bail,
The subjects raised in the affidavit of Judy Seif which was before his Honour;
The circumstances of his business and the employees dependent upon it;
The condition of his parents and young children;
That the case against him is circumstantial; and
That in all respects, he meets the criteria for the grant of bail.
The operation of the business was adverted to at pages 26 ‑ 28 of the transcript of the hearing before Heenan J, as was the livelihood of the eight employees thereof (transcript at pages 26 ‑ 27).
The circumstances relating to his parents and children, including the unfortunate fact that his mother is ill with cancer, were referred to at pages 30 ‑ 32 of that transcript. The delay likely before the matter comes to trial was the subject of counsel's submissions at page 65 of the transcript. In regard to the submission that the case against the applicant is circumstantial, his Honour said, in par 20 of his reasons for decision: " … the evidence is almost entirely circumstantial but, in my opinion, it shows clearly and convincingly that the applicant was a principal party not only to the conspiracy to possess the heroin but also to the supply of each of the two quantities of amphetamine."
Accordingly, the only new circumstances shown by the affidavit are the facts that the properties have been "frozen" and that Citibank is moving for an order for their sale.
In my judgment, those circumstances are not of the kind necessary to bring cl 4 into effect so as to overcome the prohibition in cl 2 of Part B of the first Schedule to the Bail Act.
In written submissions filed after the conclusion of the hearing before me (and which I invited), I was informed that the position in regard to the applicant's fellow accused is that Justin Vodanovich was remanded in custody by Mr Bromfield SM at the conclusion of the preliminary hearing on 20 June 2001 and, so far as the Director of public Prosecutions is aware, he has not been released on bail. Steve Colman was released on bail with a reporting condition and a residential condition, in an amount of $10,000 with a surety of $10,000, in respect of the charge of supplying amphetamine. Both Dimi Delovski and Sasso Vesinov pleaded guilty to the charge of conspiring to possess heroin and were sentenced to 9.5 years and 9 years' imprisonment with eligibility for parole on fast track pleas respectively. Slobodan Vesinov was sentenced to 4 years' imprisonment in the August 2000 sessions of the District Court. Clive Burke was granted bail in the sum of $10,000 with a surety in that amount and is currently a sentenced prisoner serving 3 years from 7 December 2000 in respect of a possession of amphetamine offence, having been charged with supplying amphetamine. Accordingly, the decision in Munro v The Queen [2001] WASC 159, to which my attention was drawn by the applicant's solicitors and in which the applicant in that case was the only one of the alleged co‑offenders not released to bail, is not on all fours with the present case.
For these reasons, I am of the opinion that I am debarred by cl 2 from reopening the application for bail which was refused by Heenan J. Accordingly, the application must be dismissed.
I note that, if I were not so barred, the Crown was strongly opposed to the grant of bail to the applicant. If I were free to consider the grant of bail afresh, I would, for the reasons expressed by Heenan J, refuse bail in this instance.
I should like to add that the matters addressed by Mr Richter QC, more particularly the delay likely to be experienced before the trial of the applicant, would indicate that this is a case where a measure of expedition might well be thought to be appropriate in relation to the trial and this is something the parties may wish to consider.
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