Parfitt v The State of Western Australia
[2015] WASC 498
•18 NOVEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PARFITT -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 498
CORAM: FIANNACA J
HEARD: 18 NOVEMBER 2015
DELIVERED : 18 NOVEMBER 2015
FILE NO/S: MBA 40 of 2015
BETWEEN: JOHN CRAIG PARFITT
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Jurisdictional issue
Legislation:
Bail Act 1982 (WA), s 13, s 14(1)(a), s 14(4)(a)(ii), s 27, s 54, s 54A, sch 1 pt A
Criminal Code (WA), s 371A, s 378, s 401(2)(a)
Criminal Procedure Act 2004 (WA), s 44
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Ms Z A V Gilders
Respondent: Mr L Hobson
Solicitors:
Applicant: Aboriginal Legal Service (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Ugle v The State of Western Australia [No 2] [2015] WASC 204
FIANNACA J:
(This judgment was delivered extemporaneously on 18 November 2015 and has been edited from the transcript.)
The application
This is an application for bail in respect of three charges on which the applicant has been committed to the District Court of Western Australia for trial. The charges are for offences alleged to have been committed on 5 February 2015, being an aggravated burglary on a home, an offence of stealing property belonging to the occupant of the home and an offence of stealing a motor vehicle.
The application was filed on 12 November 2015. It purports to invoke the jurisdiction of this court under s 14(1)(a) Bail Act 1982 (WA) (the Bail Act). For reasons which follow, this court does not have jurisdiction, and the application must be dismissed.
Previous court proceedings
The applicant was charged by a prosecution notice dated 18 March 2015. He was released on police bail, which included a condition imposing a curfew. His first appearance in the Magistrates Court was on 24 March 2015 in Armadale. The curfew condition was varied and the matters were adjourned to the Magistrates Court in Perth for committal mention. After that time, the applicant twice breached the curfew condition. After the second breach, the police applied to revoke bail. On 9 July 2015, at Perth, Magistrate Pontifex revoked the applicant's bail and remanded him in custody to his next appearance. Although I have not been provided with transcript of any appearance between that date and 23 September 2015, it appears from the affidavit of the applicant's solicitor filed in these proceedings that an application for bail was made on 9 September 2015, but was adjourned because the magistrate presiding on that day, Chief Magistrate Heath, did not have transcript from 9 July 2015. At that point in time, pursuant to s 7(1) of the Bail Act, his Honour was under a duty to consider the applicant's case for bail, but, by virtue of s 7D, he was entitled to adopt the decision previously made, unless satisfied that there was a new fact or circumstance, or changed circumstances, since the previous refusal of bail, or unless satisfied that the applicant had failed to adequately present his case for bail on the previous occasion. It was in that context that his Honour considered that transcript of the previous hearing was necessary.
On 23 September 2015, Chief Magistrate Heath was again asked to consider the applicant's bail. His Honour still did not have transcript from the proceedings of 9 July 2015, and was of the view that it was difficult, therefore, to ascertain whether there had been a change in circumstances. Further, there was no evidence before him in respect of a particular circumstance relied on, concerning the applicant's partner's pregnancy. In any event, his Honour refused bail on the basis that there would need to be a curfew condition, and it was difficult to have any confidence that the applicant would comply with such a condition, given his previous breaches. On the same day, the applicant was committed by his Honour on each of the charges to the District Court, to appear on 18 December 2015 for a first mention.
On 6 November 2015, the applicant again purported to apply for bail in the Magistrates Court, despite the fact that he had been committed to the District Court. Although I have not been provided with transcript of those proceedings, it appears from the affidavit of the applicant's solicitor that it was argued on his behalf that new facts and circumstances had arisen, namely that there was now before the court 'medical documentation in support of the applicant's partner's impending due date' and that the transcript of 9 July 2015 was now available. The applicant's solicitor has deposed that the application was heard by Magistrate Zempilas who 'determined no new facts and circumstances had arisen and thus she did not have jurisdiction to consider bail'. For reasons that I will come to, I am of the opinion that Magistrate Zempilas did not have jurisdiction to consider the application at all, because the applicant had been committed to the District Court.
Legislative framework and relevant principles
As I stated earlier, the applicant purports to invoke the jurisdiction of this court under s 14(1)(a) of the Bail Act, which is in the following terms:
(1)A judge may, in accordance with this Act -
(a)exercise a power to grant bail which is conferred upon any other judicial officer or any authorised officer by this Act.
Section 14(4) provides as follows:
(4)In this section -
(a)references to a judge are references -
(i)in the case of a child charged with an offence before the Children’s Court, to a judge of that Court; and
(ii)in the case of an accused committed for trial or sentence to the District Court, to a judge of that Court; and
(iii)in any other case, to a judge of the Supreme Court.
The issue of whether the Supreme Court has jurisdiction under s 14 to grant bail after an accused has been committed by a magistrate to the District Court was recently considered by Martino J in Ugle v The State of Western Australia [No 2] [2015] WASC 204. His Honour concluded that it did not, stating:
In the case of an accused committed for trial or sentence to the District Court, a judge of the District Court has jurisdiction. In any other case, apart from that case and the case of a child charged with an offence before the Children's Court, a judge of the Supreme Court has jurisdiction. There is nothing that I can see in s 14 of the Bail Act that gives a judge of the Supreme Court jurisdiction to grant bail after an accused has been committed to the District Court as has happened in this case.
In my view, that reading of the text is fortified by the legislative history. Section 14, in its present terms, was included in the Bail Act by the Bail Amendment Act 2008 (No 6 of 2008) (WA). Prior to those amendments, s 14 of the Bail Act very clearly provided that the Supreme Court had jurisdiction in all cases. It is my view those changes confirm that the intention of the legislature was to remove the jurisdiction of the Supreme Court in all case (sic) so that it no longer has jurisdiction in the case of a child charged with an offence before the Children's Court and in the case of an accused committed for trial or sentence to the District Court [10] ‑ [11].
I respectfully agree with those views. As his Honour pointed out, the starting point is that the provisions of the Bail Act must be construed by considering the statutory text in its context [7]: see Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ). That context includes the overall scheme of the Bail Act and its interaction with other legislation, in particular the Criminal Procedure Act 2004 (WA). As his Honour also pointed out, it was made clear in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [31] ‑ [32] (McLure P) that the Bail Act is intended to be a comprehensive code on the subject of bail and any common law or inherent power to grant bail has been abolished.
The applicant sought to distinguish Ugle [No 2] on the basis that in that case the accused had already appeared in the District Court. That fact had no bearing on Martino J's construction of s 14 and the conclusion he reached at [11], as set out above. In my opinion, the conclusion reached by Martino J in Ugle [No 2] gives effect to the ordinary meaning of the text of s 14(4). The conclusion is reinforced by the statutory scheme concerning the procedure in relation to the committal of charges to superior courts, and in relation to breaches of a bail undertaking after an accused has been committed to a superior court.
Section 44 of the Criminal Procedure Act provides that, as soon as practicable after committing the accused for sentence or trial to a superior court, the court of summary jurisdiction must, as well as giving the superior court the prosecution notice, witnesses' statements and certain other documents:
(b)if necessary, comply with the Bail Act 1982 section 27; and
(c)give the relevant authorised officer a copy of -
(i)all documents that it has sent to the superior court under paragraph (a); and
(ii) any bail documents for the accused.
Section 27 of the Bail Act provides:
(1)An authorised officer and a judicial officer who consider an accused’s case for bail for an appearance for an offence and a person before whom a bail undertaking or a surety undertaking is entered into shall ensure that the relevant papers are made available as soon as is practicable, to the court before which the accused is required to appear.
(2)In subsection (1) the relevant papers in relation to any particular officer or person means such papers as are prescribed to be made available by that officer or person.
In my view, it is clear that the legislature intended that, upon committal of an accused from the Magistrates Court, the superior court to which he has been committed will be seized of the matters the subject of the committal, and will require the materials necessary to consider any application for bail or for the purposes of proceedings under s 54 of the Bail Act (see below). Notably, in stipulating the time for compliance with the obligation under s 27(1), the provision does not refer to the accused's first appearance in the superior court, but requires that the papers are made available as soon as is practicable.
Section 51 to s 58 of the Bail Act deal with an accused's failure to comply with a bail undertaking. Section 54 empowers a 'relevant officer' to bring an accused before 'an appropriate judicial officer' to show cause why the accused's bail should not be varied or revoked. Putting aside parts of the definition not relevant to these proceedings, 'appropriate judicial officer' is defined in s 3 of the Bail Act to mean 'a judicial officer who is empowered to exercise jurisdiction in the court before which the accused is required to appear pursuant to his bail undertaking'. Where an accused has been committed to the District Court and has been released on bail, that is the court before which he will be required to appear pursuant to his bail undertaking.
Section 54(4) of the Bail Act provides that an accused arrested under that section (as a result of a breach or suspected breach of his bail undertaking) shall be taken as soon as is practicable before an appropriate judicial officer. Where an accused has been committed to the District Court, that judicial officer will obviously be a judge of the District Court, having regard to the definition to which I have already referred. In my opinion, the effect of s 54(4) is contrary to the premise of the applicant's argument in this case, namely that the jurisdiction in respect of bail after committal to the District Court remains with a magistrate until the accused has made his first appearance in the District Court on the date to which he was committed, and that a District Court judge does not have jurisdiction under s 14(4)(a)(ii) until the accused's first appearance in that court pursuant to the committal order. An accused can be brought before a judge of the District Court under s 54 at a time before that appearance date.
The statutory scheme does provide for an accused to be brought back before a magistrate to consider varying or revoking bail following a breach and pending the accused's first appearance in a superior court, but that is by way of an exception created by s 54A. That section provides, relevantly:
(1)This section applies to an accused -
(a)who has been released on bail following the accused’s committal to the District Court or the Supreme Court to be tried (otherwise than for murder) or sentenced or otherwise dealt with; and
(b)who has not made an appearance in that court on the committal; and
(c)who, in the opinion of the relevant officer under section 54, should be made to show cause in terms of subsection (1) of that section.
(2)The relevant officer may, under section 54, cause an accused to whom this section applies to appear before a judicial officer who is empowered to exercise jurisdiction in the court in which the committal order was made, instead of before an appropriate judicial officer.
(3)A judicial officer before whom an accused so appears is to be regarded as an appropriate judicial officer for the purposes of section 54(2).
(4)A judicial officer before whom an accused so appears is not obliged to exercise any power conferred by section 55 but may refuse to do so and direct the relevant officer to cause the accused to appear before an appropriate judicial officer.
(5)A relevant officer shall comply with a direction given to that officer under subsection (4).
Under s 55, the judicial officer in the breach proceedings, if satisfied that certain matters there specified have been established, may revoke bail and remand the accused in custody or revoke bail and grant fresh bail.
There would be no need for s 54A if the Magistrates Court retained jurisdiction in respect of an accused's bail after he was committed to a superior court.
The applicant contends that the Magistrates Court retains jurisdiction to consider bail in respect of an accused who has been committed to the District Court by virtue of cl 3 of sch 1 pt A of the Bail Act.
Counsel for the respondent in these proceedings has accepted that such jurisdiction may remain in a magistrate, although there is a question of whether it must be the magistrate who orders the committal or whether cl 3 is intended to vest jurisdiction in any magistrate of the court after committal.
It is necessary to consider cl 3 in context. Part A identifies, for the purposes of s 13 of the Bail Act, the judicial officer in whom jurisdiction is vested for any particular appearance by an accused. Section 13(1) is in the following terms:
(1)Jurisdiction to grant bail for any appearance described in the first column of Part A of Schedule 1 is vested in the judicial officer or authorised officer specified in the second column of that Part opposite thereto and shall be exercised subject to and in accordance with this Part and the further provisions in Parts B, C and D of Schedule 1.
Clause 3 of pt A provides:
3. Appearance on committal to Supreme Court or District Court
The initial appearance by an accused in the Supreme Court or District Court after he has been committed thereto under any Act to be tried or sentenced or otherwise dealt with.
The judicial officer who orders the committal.
So, cl 3 specifies that, in respect of the initial appearance by an accused in the Supreme Court or District Court after he has been committed to that court, whichever it is, jurisdiction vests in the judicial officer who orders the committal.
In the context of the statutory scheme outlined above, in my opinion, cl 3 vests jurisdiction in the magistrate who actually orders the committal, at the time the order is made. There is nothing in the terms of cl 3 that is inconsistent with that conclusion. If bail is refused by the magistrate, as it was by Chief Magistrate Heath in this case, the document that will be given to the superior court under s 44(2) of the Criminal Procedure Act will be the remand warrant for the accused, rather than any papers required under s 27 of the Bail Act by virtue of s 44(2)(b) of the Criminal Procedure Act.
In my view, when considered in the context of other provisions, in particular, s 54 and s 54A of the Bail Act, and also having regard to the procedure on committal provided for in s 44 of the Criminal Procedure Act, it does not follow from cl 3 that jurisdiction to consider bail continues to vest in a magistrate once committal has occurred, and after bail has been considered at the time of committal. However, the respondent, having conceded that such jurisdiction may continue to vest in a magistrate (although not to the exclusion of a District Court Judge), submitted that it was not necessary for me to express a final view on that issue. I agree it is not necessary to decide that issue, because, in any event, the applicant's reliance on cl 3 is misconceived. All that cl 3 would do is to provide, for the purposes of s 14(1)(a), identification of the 'other judicial officer' in whom the power to grant bail is conferred and whose power a judge may exercise instead pursuant to s 14(1)(a). It does not inform the question relevant for the purposes of these proceedings, namely how one is to interpret s 14(4)(a)(ii) of the Bail Act.
The construction of that provision, as I have already noted, was dealt with by Martino J in Ugle [No 2]. I agree with that construction and, for that reason, this court does not have jurisdiction to hear this application. In those circumstances, I consider that it is not appropriate to deal with the merits of the application or to express any view about those matters. It follows, in light of the reasons I have given, that the application must be dismissed.
Conclusion
In my opinion, for the reasons given by Martino J in Ugle [No 2], together with the further reasons I have elaborated, this court does not have jurisdiction to consider this bail application, since the accused has been committed to the District Court. Jurisdiction is now vested in a District Court judge.
The application is dismissed.
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