Neumann v The State of Western Australia - [2011] WASC 173

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NEUMANN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 173

CORAM: SIMMONDS J

HEARD: 26 MAY 2011

DELIVERED : 26 MAY 2011

FILE NO/S: MCS 12 of 2011

BETWEEN: BERND NEUMANN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail - Proper approach to grant or refusal of bail on serious offences where serious offences alleged to have been committed after time for appearance to bail on first set of serious offences - Whether exceptional reasons not to keep accused in custody - Whether bail might properly be granted having regard to Bail Act 1982 (WA) sch 1 pt C, cl 1 and cl 3

Legislation:

Bail Act 1982 (WA), s 4, s 5, s 13, s 14, s 28; sch 1 pt C, cl 1, cl 3, cl 3A
Criminal Code (WA), s 428
Firearms Act 1973 (WA), s 19
Misuse of Drugs Act 1981 (WA), s 5, s 6

Result:

Bail refused

Category: A

Representation:

Counsel:

Applicant: Mr A E Eyers
Respondent: Ms L E Christian

Solicitors:

Applicant: D C Price & Co
Respondent: Director of Public Prosecutions (WA)

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

Dabag v The State of Western Australia [2005] WASC 22
Milenkovski v The State of Western Australia [2011] WASCA 99
Outman v The Queen [2001] WASC 162
Pinkstone v The Queen [2000] WASC 321; (2000) 119 A Crim R 462
Rayney v The State of Western Australia [2011] WASC 3
Roberts v The State of Western Australia [2011] WASC 118
Sabau v The State of Western Australia [2007] WASC 183
Saka v The Queen [2001] WASC 92
The State of Western Australia v Oates [2004] WASC 214
The State of Western Australia v Sturgeon [2005] WASC 256
Van Tongeren v The State of Western Australia [2006] WASC 10

SIMMONDS J:
(These reasons were delivered orally and have been edited from the transcript.)

Introduction

This is an application for bail under Bail Act 1982 (WA), s 14. The application relates to the applicant's next appearance or appearances on two sets of charges, as I understand it. The second set of charges was laid for offences alleged to have been committed after the accused failed to answer his bail on the first set of charges, and before he was returned to custody. Some of the charges in both sets of charges were of 'serious offences' within the Bail Act sch 2.
The written outline of submissions prepared for the applicant and provided to me ahead of the hearing accepted that the argument for bail needed to be made in the terms of Bail Act sch 1 pt C, cl 3A(1)(c) and (d). However, it appeared to me - and I raised the matter with counsel at the beginning of the hearing - that it was simply not clear that cl 3A had application. I will explain in due course the basis for that question and also why in the final analysis I believe I do not need to resolve it.
I will proceed in the balance of these reasons to describe the background to this application in somewhat more detail. I will then turn to describe the applicable principles, including the principles for an application that Bail Act sch 1 pt C, cl 3A does apply to. I will then apply the principles to the circumstances as they present themselves to me, particularly focusing my attention on those matters both counsel pressed upon me.

Background

I turn first to the background. The background is taken principally from an affidavit of Jennifer Rose Cass sworn 13 April 2011 in support of the application for bail. Ms Cass is a solicitor in the firm of solicitors acting for the applicant who has the conduct of the matter for the applicant. The circumstances of the alleged offending are described from the statements of material facts attached to the affidavit of Ms Cass, for the most part. However, I also have material from the State consisting of transcript of video‑recorded interviews by police with the applicant on 28 December 2010.
In referring to the matters in this section of my reasons, it should be understood that I am referring to matters as they are alleged, and of course proof in relation to these matters has not yet been attained.
On 24 September 2010 the applicant was arrested and charged for seven offences. I call these the first set of offences. They were as follows:
(1)two counts of possession of a prohibited drug with intent to sell or supply contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a): one alleged offence was in respect of the discovery by police, on 24 September 2010, at an apartment registered in the name of the accused, of the accused and another person engaged in removing methylamphetamine from packages where approximately 950 g of that drug were seized; as well, on the same day, the other of the alleged offences in this first group was in respect of the discovery by police, in the course of a search of a foyer area outside the apartment I have referred to, of a plastic container in which there were bags containing a total of 395 g of cocaine;
(2)one count of possession of a firearm in circumstances of aggravation contrary to Firearms Act 1973 (WA), s 19(1)(c), read with s 19(1ac): this was in respect of the location by police, in the rear seat of a vehicle associated with the accused parked at a residence of his girlfriend, of a bag in that vehicle where there was found a loaded Glock .22 pistol with the serial number removed;
(3)two counts of possession of a prohibited drug contrary to Misuse of Drugs Act s 6(2): one alleged offence was in respect of the discovery by police on 24 September, the same date on which the discovery in the previous firearms offence was made, at the girlfriend's residence, which the accused occasionally used, in a bag on a floor of a wardrobe used by the accused, of bags containing approximately 0.42 g and 0.39 g of methylamphetamine, making 0.81 g in total; the other alleged offence was in respect of the discovery, at the same time, in the same place, of a bag containing approximately 13 grams of cannabis;
(4)one count of possession of stolen or unlawfully obtained property contrary to Criminal Code (WA) s 428(1): this was in respect of the discovery by police at the same time in a black bag of another bag containing $29,900 in cash; and, finally,
(5)one count of possession of a smoking utensil contrary to Misuse of Drugs Act s 5(1)(d)(i): I appear not to have a statement of material facts for this offence, but I do have a prosecution notice for it, and it was common ground that such a count had indeed been laid.
Shortly after the accused's arrest on these charges, he appeared in the Magistrates Court where he was granted bail on a personal undertaking of $1,000 and a surety of $1,000 also. I did not have a copy of the bail papers but I did have a copy of a prosecution notice which indicated there were further conditions. The further conditions appear to have been these. They are not easily discerned because they are the handwritten notes, presumably of the officer of the Magistrates Court who granted bail on the occasion in question. The additional conditions were: not to approach within a stipulated distance of any point of departure from WA; to surrender his passport; apparently, to report to the police station, although that is not altogether clear; not to contact certain named persons who, as I understand it, were among the co‑offenders in this case; and to reside at the apartment that I have previously referred to. The bail granted was for an appearance at the Magistrates Court on 8 October 2010.
In the event, the applicant did not appear at the Magistrates Court on 8 October 2010. It appears he left this State and went to Sydney. It further appears that he in fact returned to this State and left it again on a number of other occasions prior to events I will now reach.
Those events occurred on 28 December 2010. On that date, the applicant was arrested at a hotel in Perth where he was occupying a room. He was arrested, apparently on a remand warrant issued following his non‑appearance in answer to his bail on 8 October 2010. I do not have a copy of the remand warrant, however.
At the time of his arrest on 28 December 2010, it appears that the applicant declared to the police he had a quantity of methylamphetamine in a black bag, along with a bag of cash. A subsequent search of the black bag revealed approximately 18.3 g of methylamphetamine in a large bag, and in the same bag was a set of scales which the applicant said he used to weigh out methylamphetamine. Located in another bag in the applicant's possession was $6,545 in cash, and as well there was a larger sum of cash, something in the order of $70,000, in a safe in the room in the hotel which the applicant was occupying.
The applicant was charged with three offences arising out of the matters on 28 December 2010. I call these the second set of offences.
These were:
(1)one count of possession of a prohibited drug with intent to sell or supply contrary to the Misuse of Drugs Act s 6(1)(a);
(2)one count of possession of a smoking utensil contrary to Misuse of Drugs Act s 5(1)(d)(i) - and I interpolate that the circumstances involving the smoking utensil appear from the transcript of the video records of interview that I have referred to a short while ago; and
(3)one count of breach of bail contrary to the Bail Act provision in that regard.

Applicable principles

I now turn to the applicable provisions of the Bail Act in relation to my jurisdiction to grant or refuse bail, as well as some of the principal authorities in relation to the exercise of that jurisdiction. I believe I need to set out in full text, the provisions of the Bail Act sch 1 pt C, cl 1(a), (b), (c), (d), (e) and (g), cl 3 and cl 3A(1).
I first set out cl 1(a), (b), (c), (d), (e) and (g):
(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;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(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.
I notice for sch 1, pt C, cl 1(g) that it appears to be established the paragraph should be understood as if it read 'whether the alleged circumstances of the offence or offences amount to wrongdoing of serious nature': see Sabau v The State of Western Australia [2007] WASC 183 [53] (Johnson J) referring to The State of Western Australia v Sturgeon [2005] WASC 256 [37] (EM Heenan J).
In the circumstances of this case, the offences (1) in the first set of alleged offences that I have described, it seems to me, are clearly within the category in cl 1(g). The matter is not as straightforward in respect of the corresponding offence (1) in the second set and, indeed, I am of the view that it is not the case that it falls within cl 1(g).
The purpose of the addition of cl 1(g) is described in the Second Reading speech in relation to the bill adding it which is quoted in Milenkovski v The State of Western Australia [2011] WASCA 99 [29] (McLure P, Pullin JA & Hall J agreeing):
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 Act sch 1 pt C, cl 3 reads:
Matters relevant to consideration of clause 1(a)
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant ‑
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(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.
However, for cases within Bail Act sch 1 pt C, cl 3A(1), there is an additional consideration, that the court is satisfied there are exceptional reasons why the accused should not be kept in custody. I believe it is important in this case that cl 3A(1) be set out in full:
Bail where serious offence committed while accused on bail for another serious offence
(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)waiting to be sentenced or otherwise dealt with for a serious offence of which the accused has been convicted;
and
(b)the serious offence is alleged to have been committed while the accused was -
(i)on bail for; or
(ii)at liberty under an early release order made in respect of,
another serious offence,
the judicial officer or (if section 16A does not apply) the authorised officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer or authorised officer -
(c)is satisfied that there are exceptional reasons why the accused should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; 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.
It is clear that in the first set of offences the offences in (1) are serious offences as defined by Bail Act sch 2, as is the offence (1) in the second set of offences.
The approach to the provisions of the Bail Act that I have set out, including sch 1 pt C cl 3A, is described in Milenkovski [31] ‑ [44]. Those paragraphs, as I indicated to counsel, are, in my view, of central significance in the consideration of bail applications by any judicial officer of any court in the State. I take from that description that the principles as I reviewed them in Dabag v The State of Western Australia [2005] WASC 22 [13] ‑ [15], which drew heavily on common law principles relied upon before the Bail Act was enacted, should not be used as I used them: see Milenkovski [21] ‑ [22] and [27] (noting prior decisions including Full Court ones indicating the equivalence of common law principles with the approach under the Bail Act and describing the common law principles) and [35] (indicating that it is the language of the statute, rather than 'secondary sources', like the common law, that the court should look to) - see also [44].
From Milenkovski I note in particular [36] ‑ [37] and [39] ‑ [43]:
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 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.

As to what meaning should be given to 'exceptional reasons' in Bail Act sch 1 pt C cl 3A(i), I note the following from Roberts v The State of Western Australia [2011] WASC 118 [9] ‑ [10] (Murray J):
The term 'exceptional reasons' is not defined, nor has the court sought to establish a closed list of circumstances which might constitute exceptional reasons. Clearly it could not do so. There can be no closed list. But whatever the factual circumstance or circumstances relied upon may be, that circumstance alone, or those circumstances in combination, must be able to be described as exceptional, in the ordinary meaning of the word.
In Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285, 306 [15], I said (Steytler & Templeman JJ agreeing):
''Exceptional' is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.'
I remain of the view that no more can or should be said about when a circumstance or circumstances may be described as exceptional.
It seems to me that, consistently with the approach to the Bail Act in Milenkovsi that I have described, a requirement for an applicant for bail in a case like this one to demonstrate exceptional reasons only obtains in the circumstances described by the words in cl 3A(1)(b)(i) that are as follows: 'while the accused was … on bail for … another serious offence'. It cannot be suggested that any other of the application circumstances from cl 3A(1) are relevant here.
It seems to me that it may well be the case that the circumstances so described cannot apply where the bail previously granted was for an appearance which has passed without any renewal of the bail so granted, and without the application of s 28(2)(b). I say that because the general provisions of the Bail Act appear to indicate that bail is granted for an appearance and ceases when the time for that appearance, either the original time or the time mentioned in s 28(2)(b), has passed without any renewal of bail: see s 4, s 5(1)(a), s 13(1) and s 14.
I am reinforced in that view by the terms of the power to revoke or vary bail in the Bail Act s 54(1)(a)(i), referring to the circumstance where the relevant officer has reasonable grounds to believe, or is notified in writing by a surety for the accused that the surety has reasonable grounds to believe, that the accused is not likely to comply with any requirement of his bail undertaking mentioned in s 28(2)(a) or (b).
However, the result of that construction would, indeed, be a curious one. The policy of cl 3A would appear to obtain, if anything, with even greater force, in a case of the present kind, where an applicant for bail has failed to answer the bail on which they were previously released on a charge of a serious offence, and it is alleged that, while they remained at liberty after that failure, they committed another serious offence.
However, avoidance of that conclusion would require resort to the view, it would seem, that bail does not cease - at least for the purposes of cl 3A - until it is formally revoked or the offender is taken back into custody. I have some difficulty arriving at such a construction on ordinary constructional principles, but I accept that the point is not as straightforward as I might, at first blush, have considered. The point is a significant one, however, because Milenkovski [37] states there is 'no scope for the application of an exceptional reasons or circumstances test beyond those statutorily specified'.
In the event, as I have indicated, I do not believe I have to come to a final determination at this point. The reasons for that will shortly become apparent.
Argument before me proceeded on the basis that the counsel for the applicant shouldered the burden of showing exceptional reasons, as well as addressing the matters in cl 1 read with cl 3.
I turn, then, to that address.

Application of principles to circumstances

Counsel for the applicant directed my attention to a number of matters which he submitted were exceptional reasons, either singly or in combination. However, in the course of oral argument he made it plain that he particularly laid emphasis on one of them, and that, as to another, it did not assume singular significance. By that I understood him to mean he did not rely upon on it on its own as exceptional reasons, and, indeed, disclaimed reliance on one of the supporting papers in relation to that circumstance.
The circumstances relied upon by counsel for the applicant as going to exceptional reasons were the following three, with the qualifications I have described:
(1)the likely delay before any trial that it was submitted would occur;
(2)prejudice to the applicant's ability to prepare a defence to the charges against him that it was submitted being in custody would cause him, a prejudice of the most serious kind and upon which the heaviest emphasis was laid; and
(3)the applicant's mental condition, which it was submitted being in custody would adversely affect: this was the matter in respect of which the reliance was the least and in respect of which one of the papers that I have referred to was no longer relied upon.
I should note that there is a body of authority that delay is a matter that is relevant, both to a consideration of whether exceptional reasons for a person not to be kept in custody exist, and to be weighed in favour of bail in considering the questions in Bail Act sch 1 pt C, cl 1 read with cl 3. As to exceptional reasons, see Pinkstone v The Queen [2000] WASC 321; (2000) 119 A Crim R 462 and Outman v The Queen [2001] WASC 162; as to cl 1 read with cl 3, see The State of Western Australia v Oates [2004] WASC 214 [15] ‑ [26] (Roberts‑Smith J) and Saka v The Queen [2001] WASC 92 [34] ‑ [40] (McKechnie J).
There is, further, authority that difficulty being in custody might cause an applicant and his legal representatives in the preparation of the applicant's defence is also relevant, not only to whether exceptional reasons exist for a person not be kept in custody, but also to a grant of bail considering the questions in cl 1 and cl 3. On exceptional reasons, I would particularly note the judgment of Anderson AUJ in Rayney v The State of Western Australia [2011] WASC 3; in respect of sch 1 pt C, cl 1 read with cl 3, see Van Tongeren v The State of Western Australia [2006] WASC 10 [63] ‑ [66] (Templeman J).
Finally, there is authority that an adverse impact of custody on an applicant's health is to be weighed at least in favour of bail considering cl 1 and cl 3: see Van Tongeren [60] ‑ [62]. I further consider that it may well be an impact of a particular kind might be an exceptional reason.
I should, however, immediately say that I do not see how that could be in this case, on the material before me. The material that remains before me is in the form of reports by a consultant psychologist, one of 25 March 2008 and the other of 27 May 2008, in relation to a number of conditions from which the applicant was suffering at that time. These went to matters of anxiety and depression. I note the benefit that the applicant appeared to derive - and here I draw on the second of the two reports, 27 May 2008 - from what the author refers to as the 'psychotherapeutic space' to work through his then current situation.
It seems to me that those reports, firstly, do not clearly address what impact might specially be expected from custody, let alone from charges; and, secondly, they do not speak to the time of concern to me, namely, some two and a half years later, when the applicant is presenting as he is. I therefore do not consider that the matters there go to matters that strongly impact, or indeed impact to any significant extent at all, on exceptional reasons.
I was, as I understood the submissions for counsel for the applicant, invited to take judicial notice of the effect incarceration might have on a person who had previously been diagnosed with anxiety and a depressive condition as, I accept, the applicant has been in this case. However, whether or not I would be in a position to take judicial notice of such an effect on someone in respect of whom I had a current diagnosis, I do not believe any such judicial notice would be appropriate where the diagnosis is of the age in this case. Therefore, it seems to me that the mental state is not relevant to cl 1 and cl 3 either.
I say that simply without regard to any questions of burden of proof. Indeed, burden of proof, as I explained in argument, is not apt language to describe the approach to the Bail Act, as Milenkovski makes absolutely clear. Burden of proof is rather redolent of the common law principles. The Bail Act must be approached in its own terms. There may be some analogous effects, particularly in respect of exceptional reasons. But to talk, in a bail application, in terms of burden of proof is apt to be profoundly misleading, as the judgment in Milenkovki of McLure P makes plain.
With respect to the other sets of circumstances, the delay and the prejudice in preparation, the delay, it seems to me here, is not, considered on its own at least, of a kind which would likely represent exceptional reasons. The delay here does not seem to me to be anything like the order of the delay involved in Rayney, let alone in Pinkstone and Outman. The delay might be closer to delays of the kind in Oates and more particularly in Saka where concerns were expressed about delays likely to be greater than 12 months from the time at which the application for bail is heard.
In this case, I was presented with the circumstances of the nature of the material which it was expected the State would be relying upon in relation to the first set of charges. In relation to the second set of charges, it would seem to me extremely difficult, at least if they were tried on their own, to make an argument from delay, given the evidentiary matters to which counsel for the State addressed argument, and with which counsel for the applicant did not strongly cavil.
The position might be otherwise, were the two sets of charges to be tried together. It is not entirely clear, however, at the moment, that they will. Of course, if bail were refused for the first set of charges, any bail granted in respect of the second would not have significance, and vice versa.
The matter of the first set of charges was drawn forcefully to my attention by counsel for the applicant by reference to the number of discs of audio‑visual surveillance materials. Some 30 were mentioned, each comprising many hours, as it was indicated, and with which counsel for the prosecution did not cavil, for her part; and telephone intercept product for some 800 calls or text messages. Those would call for a substantial task of review.
The review by both the prosecution and the defence, but more particularly, perhaps, by the prosecution, together with the fact that other accused were to be joined in the prosecution in respect of the first set of offences, for those that they committed with points of overlap, raised the possibility, at the least, that a trial would not occur for something in the order of at least seven months on. This was the time interval that I understood counsel for the prosecution to suggest; but I think it more likely there will be an interval approaching something in the order of a year.
Counsel for the prosecution, it seemed to me, quite properly raised with me the consideration of how I should take account, in considering a delay of that magnitude, of the fact that a contribution to that delay was represented by the applicant's failure to answer his bail, which retarded the preparation by the prosecution of matters for the trial and accordingly, would also have retarded the trial so far as the co‑accused are concerned.
It appears to me that that is indeed a matter that I can take into account, although, in relation to exceptional circumstances, with greater difficulty than in relation to cl 1 and cl 3. In relation to cl 1 and cl 3 in the Bail Act, it is important that I remind myself again, as Milenkovski reminds me I must, of the factors that relate to my discretion, and they are not only the ones listed in cl 1(a) through (g) as applicable, but also those in the words that introduce (a) through to (g), being 'any others which he considers relevant'. And it seems to me that it would be relevant to consider in relation to matters of delay how the delay came about.
However, there is more to the exceptional circumstances argument than that. It is that upon which counsel for the applicant laid greatest emphasis: the difficulty in preparation. My attention was drawn to the fact that in Hakea prison, where the applicant now is, there are relatively few facilities to enable a person in custody to view for any significant length of time audio‑visual material in DVD form, assuming that the material in this case were in playable DVD form.
I can readily understand why it might be appropriate to have the applicant view a not insignificant quantity of audiovisual material beyond that upon which the prosecution indicates a particular reliance, and for which it might have a transcript done, in order that the accused might properly brief his instructing legal representatives, and they might find lines of inquiry to pursue.
The matter is, however, a close one, notwithstanding what counsel for the applicant put to me. This is not a case like Rayney, although Rayney is not the only such case where exceptional reasons on a ground of that kind might be made out. Rayney, it may be recalled, is a case involving substantial quantities of diverse forms of circumstantial evidence on the material to which Anderson AUJ referred. This is not that kind of case.
However, I should bear in mind the facilities in which Mr Neumann, the applicant, finds himself and the nature of the evidence involved here, which counsel for the prosecution freely admitted was involved, where in fact the prosecution is based, as I understand it, not simply on the presumption arising from the quantity of the drugs, as very substantial as that quantity is, but also on a substantial operation, as it was referred to by counsel for the prosecution, which preceded the search on 24 September 2010, and involved Surveillance Device Act 1998 (WA) monitoring of some considerable duration of the applicant, as well as other audio‑visual material which I would understand was compiled at the time of entry in relation to the 24 September 2010 events.
It is undoubtedly true that the courts are sensitive to concerns having to do with the possibility of preparation for a case that is unduly impeded. Some difficulty may be expected from all forms of incarceration, and it seems to me that difficulty on that account would not normally give rise to an exceptional reason. However, given the character of the prosecution evidence material that I have referred to and given the character of the incarceration facilities in which the applicant finds himself, and although the matter is, if I may put it this way, not altogether free of difficulty, I would find exceptional reasons in respect of the preparation of the case to which I have referred, with some combination, or in combination with, the possibility of greater delay than the prosecution has indicated. The matter is, however, in my view close to the line.
That then takes me to the second set of considerations. Of course it is important, as I note from Milenkovski itself, in a cl 3A case I must not only be satisfied there are exceptional reasons why the accused should not be kept in custody, but also that bail may properly be granted having regard to the provisions of cl 1 and cl 3.
In relation to cl 1 and cl 3, the matters that were drawn to my attention strongly by counsel for the prosecution and responded to by counsel for the applicant, were those in cl 1(a)(i) and (ii), with some suggestion that (iv), or something like it, might be implicated; or, if not (iv), that (d) might be implicated.
The basis for that concern - and, of course, it is the case that the prosecution here has put forward grounds for opposing the grant of bail - was that the alleged circumstances of the offending on 24 September 2010, were, as it seems to me, of a serious nature. Whether of such a serious nature as to make a grant of bail inappropriate is rather harder to say. But, nonetheless, there is a consideration that I need to bear in mind which arises out of the circumstances with which I began these reasons, namely, that the applicant had been bailed in respect of the charges on 24 September 2010 and then not answered his bail, and indeed had left the jurisdiction.
Depending on how 'while on bail' is interpreted - and there is a further difficulty arising in this regard - the applicant had indeed not only failed to appear in court in accordance with his bail undertaking but also breached, by his own admission, conditions in his bail having to do with approaching departure points in this State, not once but several times. Furthermore, the same set of circumstances I described in that way pointed to the commission of an offence; namely, the offences in the second set of circumstances, where there is at least an admission as to possession of a prohibited drug, the matter of intent to sell or supply being left off to one side for this purpose.
Further, in evaluating this I need to remind myself of cl 3, as to the nature and seriousness of the offence or offences. I have already said how I view the seriousness of at least some of the offences here. I also must remind myself of the probable method of dealing with the accused for it or them if he is convicted. That, it seems to me, makes relevant not simply the seriousness of the offence, but also the offender's criminal record.
Criminal record, of course, is not a circumstance in aggravation of an offence for sentencing purposes, but has the effect or can have the effect of reducing mitigation that would otherwise be derived by an accused after conviction facing sentence. In that regard I must note that on 7 May 1999 the accused was convicted of possession of drugs in a quantity with intent to sell or supply, and sentenced to a term of imprisonment of 6 years. There was also a conviction, carrying a one year cumulative term of imprisonment, for an attempt to defeat or pervert the course of justice. However, I would be inclined to put that off to one side in view of the explanation of that offence contained in the Cass affidavit. However, it is clearly the case that this is not a person in respect of whom it could properly be said, as I have to admit the written submissions for the applicant did say, but the oral submissions corrected, that he has no criminal record. It is not only that he has a criminal record, he has a relevant criminal record, and that would make a sentence of immediate imprisonment, if all of the matters are fully proved, not only I would have thought highly likely, but also one of a particularly lengthy term of immediate imprisonment.
From cl 3 I should also note - and emphasis was laid upon this by counsel for the prosecution as well (leaving aside the previous convictions of the applicant and the history of a previous grant of bail to him which are as I have indicated them) - the strength of the evidence against him. The evidence against him sufficient to engage the presumption under the Misuse of Drugs Act to sell or supply is, it seems to me, very strong indeed on the material presented to me. Although, of course, as counsel for the applicant reminded me, there is still disclosure to come, and counsel for the prosecution accepted this.
In respect of the second set of offences, the strength of the evidence is, if anything, even greater. This, of course, is directly relevant as counsel for the prosecution reminded me, to flight risk, because of the apprehended risk of conviction that, as it were, a decision-making, rational accused might engage in, balancing the risks of flight against the risks of remaining to face conviction and sentence.

So far as the risk of reoffending is concerned, it seems to me that the events as I described them at the outset of this judgment are indeed matters of concern.
Counsel for the applicant, for his part, reminded me of two matters. The first of these was that the applicant has been returned to custody, and has now had 5 months in custody to be reminded of the implications of failing to meet bail conditions, including not appearing as required and other bail conditions. Undoubtedly, there is reason to think that has had a salutary impact upon the applicant.
Furthermore, cl 1(e) reminds me that I should ask myself the question whether there is any condition which could reasonably be imposed under pt D sch 1 of the Bail Act - and I have a broad discretion under pt D to impose conditions - which would sufficiently remove the possibility referred to in cl 1(a) and (d), and remove the grounds for opposition referred to in (c).
I should say that I have not spent any time on cl 1(d) or on (a)(iv). These are the matters of the possibility of the applicant - notwithstanding what might be apparent to him, even without a bail condition, that he should not engage in consultations with co‑accused or other potential witnesses in respect of what might transpire at the trial - nonetheless doing so. Particularly, in that regard, I must note the fact that the applicant's girlfriend is one of his co‑accused, and there is the concern that the applicant might be strongly tempted beyond resistance to consult with her.
Now, counsel for the applicant reminded me that there were conditions that might indeed be imposed, and in the Cass affidavit, under 'Proposed Bail Plan', I was referred to the kinds of conditions that counsel could readily suggest, without precluding other conditions that the court might be in a position to arrive at that counsel could not, however, assist me with. There are conditions there as to residence with one of his co‑accused, as it transpires; daily reporting to a local police station in Perth; no application for a passport of any kind; not leave Western Australia or approach within 1 kilometre of any international or domestic airport; a personal undertaking in any amount; a surety undertaking in a significant amount; and abide by the conditions of bail as may be seen as appropriate by the court.
Counsel for the prosecution reminded me that at least the bulk of conditions, plus non‑contact conditions, which at the very least would preclude the residential condition proposed here, had been imposed in the previous bail conditions. Further, I should note in respect of the flight risk - and, indeed, of any conditions that might possibly be imposed of any kind, whether those listed or others - the further circumstances, with respect to the 28 December 2010 arrest of the applicant, which emerge from the affidavit of counsel for the respondent dated 25 May 2011, annexing the video‑recorded interviews with the applicant, both in a vehicle in the parking facility associated with the hotel where he was staying, and in the room in which he was staying, as well as material found on or about the applicant at that time.
This material indicates that the applicant had concerns about his ability to secure hotel accommodation, and in other respects carry on his life, where property of his had been seized, presumably under the Criminal Property Confiscation Act 2000 (WA), which he characterised as a form of appropriation of identity. Against that background, police drew to his attention a large number of papers comprising, amongst other things, a passport application, a birth certificate, bank records, Medicare card, prescription, Centrelink Health Care Card, a series of notes, an Optus Mobile Prepaid SIM Card and a Visa debit card, all in the name of a Mr L, carrying a birth date making him some 14 years younger than the applicant. But with those was associated as well a series of passport sized photographs of the applicant, in addition to the series of notes concerning Mr L of a descriptive kind as to his identity, found on the applicant.
That material, the applicant indicated at one point, as to at least some of it, had been given to him: he had not paid for it, but declined to further elaborate upon why he had it, as indeed it seems to me was his right. This left, however, the material that was on him at that time as a matter which in a bail application I am, it seems to me, in a position to consider as relevant to matters of flight risk. That material, it seems to me, is of twofold significance.
First, it indicates an assemblage of material which may - and I do not say 'must', but may - have been of assistance to the applicant were he minded to seek to leave this country. Whether he would succeed with this material of course is a different matter. That is part of what I meant by 'may'.
The second aspect of it is that it was material that the applicant was able to have, notwithstanding the fact that he was a person who was in breach of bail conditions, including for failure to answer his bail undertaking in accordance with Bail Act s 28(2)(a) and conceivably - and it seems to me this is probably also the case - s 28(2)(b). That is a matter, it seems to me, of concern and relevance in relation to a bail application.
It seems to me that I must weigh all of those factors. Again, as Milenkovski reminds me, there may indeed be exceptional reasons present, but bail refused, because of cl 1 and cl 3, and this is clear, in my view, from the language of cl 3A.
It seems to me that this is indeed such a case. It seems to me that this is a case in which I should refuse the application for bail. I should refuse it both in respect of the first and the second set of charges. It seems to me that that is so for the reasons that I have provided at some significant length.