Panic v The State of Western Australia - [2010] WASC 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PANIC -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 162

CORAM: BLAXELL J

HEARD: 9, 14 & 23 JUNE 2010

DELIVERED : 1 JULY 2010

FILE NO/S: MCS 17 of 2010

MATTER :An application for bail pursuant to the Bail Act 1982 (WA)

BETWEEN: DRAGAN PANIC
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail pending trial - Serious offence alleged to have been committed while on bail for serious offence - Illness of applicant's father said to require 24hour care by applicant - Whether exceptional reasons for a grant of bail

Legislation:

Bail Act 1982 (WA), sch 1, pt C, cl 3A

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr L A Margaretic
Respondent: Mr J C Whalley (9 & 14 June), Ms K Robinson (23 June)

Solicitors:

Applicant: Alana Padmanabham
Respondent: Director of Public Prosecutions (WA)

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

Nil

BLAXELL J: The applicant applies for bail on a charge that on 11 May 2010, he was in possession of 10 g of methylamphetamine with intent to sell or supply to another. When arrested for that matter, he was already on bail on another charge alleging that in June 2009 he conspired with two other persons to supply to one of them 224 g of methylamphetamine.
Each charge is for a serious offence as defined by the Bail Act 1982 (WA), and cl 3A of sch 1 accordingly requires that the applicant demonstrate 'exceptional reasons' before he can be granted bail. It is submitted that there are exceptional reasons because of the poor health of the applicant's father who needs '24‑hour care', and the lack of any available carer other than his son, the applicant.
The applicant has sworn two affidavits in support of the application and lodged further affidavits by his solicitor and his father's general practitioner. In order to address some inherent contradictions in these materials, he has also called oral evidence from the general practitioner and from his father.

The facts alleged in respect of the most recent charge

At 8.00 pm on 11 May 2010, police attended outside the applicant's home in Kalamunda. While they were there, a car pulled up in which the applicant was a passenger. As the police approached the car, he got out of the vehicle and quickly walked away to a position where he was briefly out of sight behind a rear gate of the premises.
The police quickly apprehended the applicant and brought him back to the vehicle where he was searched. In the pockets of his jeans, they found 0.8 g of methylamphetamine in a small clip‑seal bag as well as $2,640 in cash. The police then searched behind the gate and found a mobile phone case, inside of which were three small clip‑seal bags each containing 3 g of methylamphetamine. Each of these bags and the bag found in the applicant's pocket were similar in appearance with three red lines marked along the seal.
The police also found a key ring with a key in one of the applicant's pockets. When they later executed a search warrant in the house, the key fitted a bedroom door. Inside the bedroom were numerous items associated with drug dealing. There was a set of electronic scales with traces of drugs on the surface, numerous clip‑seal bags (which were not the same as those containing the methylamphetamines), and 368 g of a substance known as MSM which is commonly used as a cutting agent for methylamphetamine.

The previous application for bail

On 20 May 2010, the applicant applied for bail in the Magistrates Court, and the application was refused by Magistrate Bayly. For the purpose of assessing the credibility of the evidence presently before me, it is relevant to note the assertions made on behalf of the applicant in the Magistrates Court.
The magistrate was told that the applicant's 66‑year‑old father (Janko Panic) was seriously ill with alcoholic psoriasis and an associated heart condition. He was in need of 24‑hour care and the applicant was his sole carer. In this regard, it was said that the applicant's father 'can't go to the toilet by himself, he can't shower by himself, he can't wash'.
The magistrate was also informed that as a result of the applicant's arrest, his younger brother (Milan Panic) who worked 'up north' had flown down to Perth to take care of his father. The brother was unable to remain in Perth and had to return to his employment. The magistrate was also told that it was not possible for the father to be cared for by the Silver Chain organisation because he could not speak English, and Silver Chain did not in any event provide a 24‑hour service.

The evidence in support of the present application

In an affidavit sworn on 27 May 2010, the applicant stated that he was informed by his family and believed that 'my father's condition has deteriorated whilst I have been in custody and he is now considered near death by his treating practitioners'. The affidavit also attached extensive medical records and reports relating to Mr Janko Panic's condition.
These medical records confirmed that Mr Janko Panic had a history of chronic alcohol abuse resulting in liver disease and cardiomyopathy. Mr Panic had been treated with various medications, but had not always been compliant with the same. However, he had abstained from alcohol since May 2009 and as at 28 April 2010 was 'feeling quite well and … maintaining compliance with the current medications'. As from that date he was discharged from further treatment by the Swan Kalamunda Health Service and referred back to his general practitioner, Dr Samanta Subrata. There was nothing in the records to indicate any deterioration in Mr Panic's condition after 28 April.
Also attached to the applicant's affidavit was a letter from his father, setting out the latter's personal circumstances. Mr Janko Panic stated that he had emigrated to Australia in 1967 and gained work as a carpenter. Despite difficulties with the English language, he became self‑employed working as a carpenter in remote locations. As a result he and his wife grew apart and became divorced in 1983. His youngest son Milan was based at Karratha and he had no one else he could rely on for support apart from the applicant. He was totally reliant upon receiving permanent care and assistance from the applicant.
A further attachment to the applicant's affidavit of 27 May was a letter dated 16 May 2010 from his employer Coulta Management Pty Ltd. This stated that the applicant was employed as a plastering contractor on a 77‑unit project in Kelmscott. He had been assigned to the project since January and it had a predicted completion date in December. The letter went on to state that it was the employer's view that 'if Dragan remains incarcerated, this could affect us to fulfil our obligation we have with our builder, as this contract could be terminated'.
On the initial hearing of the application, the applicant's counsel handed up a letter dated 11 June 2010 from Dr Subrata. The letter was in response to 'itemised comments' from the applicant's solicitor and stated that Mr Janko Panic needed 24‑hour care, and 'given his ethnic background and language barrier and not trusting outsiders, I think this will be best provided by his son where he will feel secure and comfortable'. Dr Subrata's letter made no reference to his patient being 'near death'.
I was also informed by the applicant's counsel that the father had been in need of 24‑hour care 'for several weeks prior to the alleged offence' and that the applicant had been providing that care. I then pointed out that there appeared to be some anomalies in the materials before me because the applicant had worked full‑time as a plasterer at Kelmscott during that period, and the father lived at a different address from the applicant's alleged home address where he had been arrested on 11 May 2010. (This latter address was also the applicant's bail address in respect of the first charge he was facing.)
In response to these queries, I was informed that the address where the applicant was arrested was that of his mother, and although he lived with his father, he sometimes stayed with his mother. Furthermore, while working at Kelmscott he had been 'on 24‑hour call with his mobile telephone'. If the father called, the applicant was able to go home to Kalamunda and look after him. When I asked counsel how often the applicant had had to leave work to look after his father, I was told 'I don't have those instructions'.
I also pointed out the apparent anomaly in the assertion that Mr Janko Panic was unable to obtain care from Silver Chain because of language problems, given that he had survived in an English‑speaking community for many years as a self‑employed carpenter. I did not receive any satisfactory answer to this query, and in the end counsel requested an adjournment for the purpose of adducing further evidence to address the matters raised.
An adjournment was granted and ultimately I heard oral evidence from Mr Janko Panic, and from his general practitioner, Dr Subrata. In the meantime, the applicant's solicitor had sworn an affidavit (dated 16 June 2010) to the effect that Dr Subrata's letter of 11 June had been received in response to an email she had sent to Mr Milan Panic. That email had outlined 'the material required to be outlined by Dr Subrata in the form of a letter … on the proviso, and only if, Dr Subrata was in agreement that the matters raised were correct'. This affidavit did not annex the email which had been sent to the applicant's brother because it contained privileged material. However, the affidavit did set out the matters which the brother had been asked to put to Dr Subrata, and it is fair to describe them as leading questions which closely corresponded to the answers that the doctor later provided. None of the questions had sought any confirmation from Dr Subrata that his patient was 'near death'.
The applicant had also lodged a second affidavit sworn 15 June 2010 in which he withdrew the assertion that his father was considered to be 'near death' by his treating practitioners. According to the applicant, he had been given this information by his brother Milan who 'feels upset that the care of my father has been forced on to him'. In the applicant's opinion, his brother had exaggerated the state of the father's health in order 'to facilitate me resuming care of my father'.
The applicant's second affidavit also deposed that throughout his father's illness, he had 'constantly cared for him, arranged for his wellbeing, medicated him, accompanied him to medical appointments, cooked for him, cleaned his house, washed him, assisted with toilet needs and very importantly kept him company'.
I was also provided with a letter dated 10 June 2010 from a client liaison officer with Silver Chain Nursing Association Inc. This stated that Mr Janko Panic was not receiving services from Silver Chain. In this regard, it was the liaison officer's understanding that 'Mr Panic will not allow services into his home to assist with his personal care or domestic needs'.
It was Dr Subrata's evidence that Mr Panic had been his patient for about 13 months. He used to see him regularly almost every month or two, but had not seen him for 'over a couple of months'. Dr Subrata had not seen Mr Panic since receiving the letter from Swan Kalamunda Health Service dated 28 April 2010, and was unaware of any change in his condition since then.
When stating in his letter of 11 June that Mr Panic needed '24‑hour care', Dr Subrata had been referring to the need for supervision of medications, as well as 'some help' with daily activities such as toileting and showering. The doctor had asserted that Mr Dragan Panic should provide that care because he understood that 'he is the only one available around'. Dr Subrata was familiar with the services provided by the Silver Chain Association. Silver Chain will visit a patient at home once or twice a day and also provide '24‑hour call emergency assistance'. If Silver Chain was able to visit Mr Panic 'a couple of times a day and also provide 24‑hour assistance in terms of emergency calls' that would be adequate to meet his needs. In that regard, if Mr Panic takes his medications, his condition should be stable.
Mr Janko Panic testified via an interpreter. He used a walking stick to limp into the witness box, but did not impress me as being exceedingly frail. It was his evidence that the assistance he currently required was 'mainly looking after house, look after me, shower, clean up; that's all'.
Following the applicant's arrest, Mr Panic has not received any care from his younger son because Milan is not in Perth and is 'looking after' his job up north. Mr Panic has instead received assistance from two of Dragan's friends 'Gus and Liz', and another person named 'Doug'. They have been 'cleaning the house and taking me to the shops so I can buy some food'.
Mr Panic cooks for himself and has not received any assistance with showering because it's 'embarrassing'. He instead puts 'the toilet seat in the shower, so I'm trying to manage by myself'. Mr Panic does not want help from Silver Chain because he would find that embarrassing. Furthermore, he has not been to see Dr Subrata for some time because he has not required any renewal of prescriptions for his medications.

Whether bail should be granted

I have set out the evidence in some detail to highlight the unreliability of the applicant's affidavits and of some of the assertions made on his behalf by counsel. It is self‑evident that the magistrate and this court were misled by the assertions as to Mr Janko Panic's state of health, the extent of the care he required, and the fact that Milan Panic was providing that care following the applicant's arrest on 11 May 2010.
It is unacceptable that an affidavit should have been filed by the applicant asserting that his father was 'near death' when his solicitor made no attempt to verify that information with the treating practitioner. It is also unacceptable that Dr Subrata was asked to provide specific information to the court by way of leading questions and without any direct communication from the applicant's solicitor.
In the end, the evidence shows that Mr Janko Panic presently receives adequate care to the extent that he is unable to look after himself. In that regard, he is able to cook his own meals, and to shower himself utilising a portable toilet seat. If Mr Panic chooses to do so, he is in the position to obtain more intensive care from the Silver Chain Association.
I can well understand that Mr Panic would prefer to be cared for by his son, and that he does not wish to experience the embarrassment of being showered by strangers. However, this is the fate which ultimately befalls the great majority of elderly people in the community, and it is simply one of the unfortunate exigencies of life.
The evidence does not satisfy me that there are any exceptional reasons why the applicant should not be kept in custody. It follows that I must refuse the application for bail.