Pinkstone v The Queen
[2000] WASC 199
•4 AUGUST 2000
PINKSTONE -v- THE QUEEN [2000] WASC 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 199 | |
| Case No: | MCR:67/1999 | 13 JULY 2000 | |
| Coram: | HEENAN J | 4/08/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | ANTHONY JOHN PINKSTONE THE QUEEN |
Catchwords: | Criminal procedure Bail Serious offences Supply of amphetamine and cocaine Conspiracy to supply Change of circumstances since bail revoked by Supreme Court Delay in being brought to trial |
Legislation: | Bail Act 1982, Sch 1 Part C cl 1 and cl 3 |
Case References: | Nil Alexopoulos v The Queen, SCt of Vic (Hampel J); BC9800603; 23 February 1998 Greenham v The Queen (1988) 103 A Crim R 185 Haddad v The Queen, unreported; SCt of NSW (Sully J); Library No 73112/199; 4 November 1999 Lim v Gregson [1989] WAR 1 Marotta v The Queen [1999] HCA 4 Rechichi v The Queen [1999] WASC 73 R v Votano [2000] WASCA 144 WCVB v The Queen (1989) 1 WAR 279 Yanko v The Queen, unreported; CCA SCt of WA; Library No 31615; 23 January 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal procedure - Bail - Serious offences - Supply of amphetamine and cocaine - Conspiracy to supply - Change of circumstances since bail revoked by Supreme Court - Delay in being brought to trial
Legislation:
Bail Act 1982, Sch 1 Part C cl 1 and cl 3
Result:
Application refused
(Page 2)
Representation:
Counsel:
Applicant : Mr C Steirn SC & Mr M J Bowden
Respondent : Ms G A Archer
Solicitors:
Applicant : Cannon Bowden & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Alexopoulos v The Queen, SCt of Vic (Hampel J); BC9800603; 23 February 1998
Greenham v The Queen (1988) 103 A Crim R 185
Haddad v The Queen, unreported; SCt of NSW (Sully J); Library No 73112/199; 4 November 1999
Lim v Gregson [1989] WAR 1
Marotta v The Queen [1999] HCA 4
Rechichi v The Queen [1999] WASC 73
R v Votano [2000] WASCA 144
WCVB v The Queen (1989) 1 WAR 279
Yanko v The Queen, unreported; CCA SCt of WA; Library No 31615; 23 January 1996
(Page 3)
1 HEENAN J: The applicant seeks bail in respect of offences with which he is charged under the Misuse of Drugs Act 1981 and to which he intends to plead not guilty. There are, it seems, three charges: one of supplying 805 gm of amphetamine, one of supplying or attempting to supply 505 gm of cocaine and one of conspiring to supply the cocaine.
2 When he came before the Court of Petty Sessions at Perth on the morning of 20 October the applicant was granted bail, despite opposition by the prosecutor. The terms included a cash deposit of $100,000, undertakings by the applicant in the sum of $400,000 and by a surety or sureties in the sum of $500,000, requirements as to residence and reporting and prohibitions against applying for a passport or attending at any airport. Later that day, on the motion of the Crown, Parker J revoked the order for bail. The applicant has been in custody ever since.
3 There is to be a preliminary hearing which is listed to take place between 20 November and 1 December 2000. The trial itself, at which a large number of Crown witnesses probably will be called, is unlikely to begin until late in the year 2001.
4 In early February 2000 the applicant pleaded guilty in the District Court to two charges arising out of his obtaining and using a false passport. Her Honour Judge Kennedy sentenced him to a term of 12 months imprisonment in respect of each charge, directed that the terms take effect cumulatively upon each other and ordered that he be released after 12 months upon entering into a recognizance of $1000 to be of good behaviour for two years. The sentence, it seems, takes effect from 13 October 1999, the date of his arrest. On the morning of 13 July 2000 the Court of Criminal Appeal heard his application for leave to appeal against the sentence. I heard the present application that afternoon. As the Court of Criminal Appeal has not yet delivered its decision, for present purposes I shall assume that the sentence will stand and that the applicant will not be released before 13 October 2000.
5 The prosecution brief was tendered in the course of the present application. The papers are voluminous and I have not studied them in detail, but my superficial reading of them shows that the applicant and other persons charged were the subject of an intensive investigation by police officers in New South Wales and in Western Australia for more than two months before his arrest. The evidence gathered in the course of that investigation tends to show that the applicant was engaged in the supply of drugs on a well organised commercial basis.
(Page 4)
6 The prosecution case is that in or about September 1999 the applicant agreed to supply cocaine to Michael Brazier, a 48 year old man living in Mount Lawley, and to supply amphetamines to Wayne John Yanko, a 38 year old man living in Como. On the afternoon of 7 October 1999 two packages were delivered to the Ansett Australia cargo office at Mascot Airport to be flown to Perth that night. Brazier had arranged for one of the packages to be collected as soon as the flight arrived, but police officers seized it. Inside the package they found a safe containing the cocaine. Yanko was arrested shortly after he had collected the second package. Inside that package police found another safe containing the amphetamine. Brazier and the applicant were arrested six days later. There is direct evidence that the applicant consigned the two packages to Perth, and there are recordings of telephone conversations between him and each of Brazier and Yanko tending to show that the applicant was well aware of the contents of the packages when he consigned them.
7 According to the brief, the circumstances of the applicant's arrest were unusual. At about 8.30 am on 13 October 1999 police officers approached him after he had made some calls from a public telephone box in Marine Terrace, Cottesloe. Having gone to his motor vehicle which was parked nearby he drove it across the kerb and footpath separating the parking area from the roadway and sped off along Marine Terrace. Police officers pursued him but lost sight of him. He abandoned his vehicle but telephoned a female acquaintance who gave him a lift, provided him with a change of clothing and drove him to his residence. Later that day police officers in an unmarked motor vehicle saw him riding a motor cycle in Wembley Downs. They arrested him shortly afterwards.
8 Counsel for the applicant argues that the subsequent sentencing of his client by Kennedy J and the provision of the prosecution brief are circumstances of a kind which should persuade the Court now to review the revocation of bail by Parker J. He argues also that the information now available justifies the grant of bail. In my opinion, for present purposes the only relevance of the sentencing by Kennedy J is that since his arrest the applicant has been serving a term of imprisonment instead of awaiting trial on remand. Provision of the prosecution brief has amplified the Crown case and, in my opinion, it shows that what Parker J described as "a clear case of some substance" now is an overwhelming case against the applicant. The main ground, the only arguable ground, upon which the present application is based is that if the applicant is detained in custody until trial it is likely that he will have served 14 months or more while on remand.
(Page 5)
9 The courts acknowledge that an accused person has a fundamental right to a speedy trial and they make strenuous efforts to protect that right. Despite those efforts, and despite the cooperation of the profession in the vast majority of cases, delay in bringing cases to trial is a troublesome feature of the administration of justice in this country. More than 12 years ago, in his paper Criminal Law andJustice (1988) 62 ALJ 160 at 163, Paul Byrne said:
"Taking into account the relevant social circumstances, it should not be unreasonable to expect that, unless there is a valid explanation for exceeding the limits, the trial of an accused person held in custody should take place within six months of the time of his or her arrest. For an accused person on bail, the trial should take place within eighteen months of the time of arrest."
- The limits proposed by Paul Byrne have not been achieved in this State for more than a decade. With the resources presently available they will not be achievable in the near future. Meanwhile, the present situation is unacceptable and it is a source of grave concern on the part of those who work within or who come into contact with the criminal justice system.
10 Of course, circumstances vary from case to case and the decision whether or not to grant bail often will depend upon careful weighing of the presumption of innocence against the need to protect the public. In that respect Schedule 1 Part C cl 1 and cl 3 of the Bail Act 1982 provide helpful guidance.
11 The charges faced by the applicant are very serious. Upon conviction of the conspiracy offence he would be liable to a fine not exceeding $75,000 or to imprisonment for a term not exceeding 20 years or both. In relation to each of the other offences with which he is charged the fine would not exceed $100,000 and the imprisonment 25 years (Misuse of Drugs Act, s 34(1)). On 28 July 1993 in this Court the applicant was sentenced to imprisonment for seven years and four months for being knowingly concerned in the importation of two tonnes of cannabis resin. In light of that history, if he were convicted on any one of the present charges it is likely that he would be imprisoned for ten years or thereabouts.
12 The applicant is 32 years old. His supporting affidavit provides no information as to his home environment, background, associations or financial position, but his counsel has tendered two documents dated 1 February and 8 July 2000 respectively which purport to set out some of
(Page 6)
- his qualifications and experience. Counsel described the documents as affidavits but they are letters, both signed by Mr John Nekvapil and witnessed by a solicitor. In the letters Mr Nekvapil states that he is the chairman of Asia Team Holdings Ltd which he describes as "a multifaceted manufacturing and investment company … both incorporated and based in Hong Kong with regional offices in Sydney, London, Los Angeles, Cebu and China". He states that the applicant has been a consultant to the company since August 1998, that he is based in the company's small Sydney office and that his role is wide and varied, primarily advising on the company's research, development and marketing operations within Australia and overseas when required. Mr Nekvapil refers to the applicant's "rare innovative" and other skills and to his qualifications as a commercial pilot and "master class - v skipper". In the course of the letters Mr Nekvapil describes how the applicant has travelled extensively both within Australia and overseas, representing the company in Okinawa, Taiwan, the Philippines and Indonesia, and states that he is willing to open an office in Perth in order that the applicant might conduct the company's business by way of computer video conferencing from here.
13 The seriousness of the present charges, the past history of offending, the strength of the prosecution case, the evidence as to his efforts to evade apprehension, his proven ability to obtain and use false passports, his international mobility and his tenuous links to Western Australia point to a real likelihood that, if he is not kept in custody, the applicant will fail to appear in court in accordance with his bail undertaking. There is a real possibility also, in that event, that he will commit further offences or obstruct the course of justice in some way. With such considerations in mind I have concluded that despite the long time to trial, it would be inappropriate to grant bail in this case.
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