Pinkstone v The Queen
[2000] WASC 321
•18 DECEMBER 2000
PINKSTONE -v- THE QUEEN [2000] WASC 321
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 321 | |
| Case No: | MCR:67/1999 | 14-15 DECEMBER 2000 | |
| Coram: | ROBERTS-SMITH J | 18/12/00 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| PDF Version |
| Parties: | ANTHONY JOHN PINKSTONE THE QUEEN |
Catchwords: | Criminal procedure Bail Serious offences Attempting to supply cocaine; supplying methylampehtamine Bail previously refused on two occasions by Supreme Court Whether change of cirumstances Exceptional circumstances Delay in being brought to trial Risk of applicant absconding |
Legislation: | Bail Act 1982 (WA), s 14(2a), Sch 1, Part C, cl 1 and cl 3 |
Case References: | Alexopoulos v R, unreported; SCt of Vic; BC 9800603; 23 February 1998 Christian v R, unreported; SCt of WA; Library No 9650095; 3 March 1995 Gillis v Gawned (1992) 8 WAR 211 Marotta v R [1999] HCA 4 Rechichi [1999] WASC 73 WCVB v R (1989) 1 WAR 279 Lim v Gregson [1989] WAR 1 R v Chan (1989) 38 A Crim R 337 R v Cookson (1989) 45 A Crim R 121 Gavin v The Queen (1991) 6 WAR 195 Bond v The Queen [2000] HCA 13 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal procedure - Bail - Serious offences - Attempting to supply cocaine; supplying methylampehtamine - Bail previously refused on two occasions by Supreme Court - Whether change of cirumstances - Exceptional circumstances - Delay in being brought to trial - Risk of applicant absconding
Legislation:
Bail Act 1982 (WA), s 14(2a), Sch 1, Part C, cl 1 and cl 3
Result:
Application refused
(Page 2)
Representation:
Counsel:
Applicant : Mr R Richter QC & Mr W B Harris
Respondent : Ms G A Archer
Solicitors:
Applicant : Andree Horrigan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Alexopoulos v R, unreported; SCt of Vic; BC 9800603; 23 February 1998
Christian v R, unreported; SCt of WA; Library No 9650095; 3 March 1995
Gillis v Gawned (1992) 8 WAR 211
Marotta v R [1999] HCA 4
Rechichi [1999] WASC 73
WCVB v R (1989) 1 WAR 279
Case(s) also cited:
Lim v Gregson [1989] WAR 1
R v Chan (1989) 38 A Crim R 337
R v Cookson (1989) 45 A Crim R 121
Gavin v The Queen (1991) 6 WAR 195
Bond v The Queen [2000] HCA 13
(Page 3)
1 ROBERTS-SMITH J: This is an application for bail by notice of motion filed on 8 December 2000 and which was heard on 14 and 15 December. It is supported by the following affidavits: (1) John Roger Nekvapil, dated 26 November 2000; (2) Regine Mikellides, dated 1 December 2000; (3) the applicant's affidavit dated and filed 14 December 2000; (4) Barry Michael Pinkstone's affidavit, sworn 11 and filed on 13 December 2000.
2 On the Crown side I have heard oral evidence from Acting Detective Sergeant Tuttle, Senior Detective McGee and Detective Senior Constable Baker. In addition there was other material tendered on behalf of both the applicant and respondent and to some of which I will refer later.
3 A brief history of the matter is as follows.
4 On 13 October 1999 the applicant was charged on two separate prosecution briefs in relation to drug offences. One was a charge of supplying cocaine and conspiracy to possess cocaine, the second involved a charge of supplying amphetamines.
5 There has been a preliminary hearing now in respect of each of these briefs. The charge of supplying cocaine was not successful on the committal hearing; however the applicant was committed for trial on a charge of attempting to supply cocaine. The charge of conspiracy to possess cocaine was dismissed. The charge of supplying amphetamine was replaced on committal with a charge of supplying methylamphetamine.
6 It is apparent that the two co-accused Michael Brazier and Paul Brazier in respect of the cocaine matter have both been released on bail pending their first appearance in the District Court. The co-accused Wayne Yanko, who has been charged in relation to the methylamphetamine matter, has apparently been released on bail pending his appearance in the District Court.
7 The applicant was initially granted bail on the original charges in the Perth Court of Petty Sessions on 20 October 1999. That bail was subsequently revoked on 20 October 1999 following an application by the prosecution to the Supreme Court for revocation of the bail. That revocation order was made by Parker J.
8 On 13 July 2000 the applicant applied for bail before Heenan J in this court and that application was subsequently refused. Both Parker and
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- Heenan JJ considered that the offences which the applicant then confronted were so serious that exceptional circumstances would have to be shown before bail could be granted. That approach derives from the decision of Ipp J in WCVB v R (1989) 1 WAR 279.
9 In that case his Honour noted that the Bail Act 1982 (WA) ("the Bail Act") is silent as to the approach that should be adopted where there are material disputes of fact and as to the onus of proof, if any, which either an applicant or the Crown has to bear on a bail application. His Honour concluded nonetheless that the common law position continued to apply and in short the situation, therefore, was that the onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. Where, however, the charge was properly to be described as a serious charge, then the circumstances would have to be shown to be extremely exceptional before bail would be granted, and the onus of demonstrating that is on the applicant. This approach was adopted and applied by White J in Gillis v Gawned (1992) 8 WAR 211.
10 The charges presently put against the applicant are one of supplying methylamphetamine and one of attempting to supply cocaine. It is alleged that 725 grams of methylamphetamine was supplied at more than 50 per cent purity, and that the quantity of cocaine involved was 499 grams at 79 per cent purity. The maximum statutory penalty in respect of each under the Misuse of Drugs Act 1981 (WA) is 25 years' imprisonment or a fine of $100,000 or both for the substantive offence and half that penalty for the attempt.
11 Heenan J anticipated that if convicted on either charge the applicant would be likely to be sentenced to a term in the order of possibly 10 years' imprisonment. I would respectfully agree that it would be likely to be at least that.
12 I did not understand Mr Richter QC who appeared for the applicant to be suggesting these charges not to fall into the category of serious offences, and so consequently the situation is that the onus is on the applicant to show exceptional circumstances why bail should be granted.
13 There is a threshold requirement in the circumstances of this case which the applicant must first pass before even getting to that. Because bail has already been considered on two occasions by a Judge of this Court, Mr Pinkstone's application is governed by s 14(2a) of the Bail Act which provides:
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- "After the jurisdiction under subsection (1) has been invoked once by a defendant in relation to an offence or group of offences for which he is required to appear, it may not be further invoked by that defendant in relation to that offence or group of offences unless the defendant satisfies a Judge of the Supreme Court that -
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or
(b) he failed to adequately present his case for bail on that occasion."
14 Thus the applicant here must satisfy two requirements. He must show (1) new facts have been discovered, new circumstances have arisen or the circumstances have changed since the hearing before Heenan J on 13 July this year; and (2) that there are exceptional circumstances here which justify a grant of bail.
15 In relation to the first requirement (which I will describe in a shorthand way simply as "new circumstances"), I accept Ms Archer's submission that the change to be demonstrated is a relevant change in relevant circumstances. Beyond that, the considerations to which regard must be had on this application for bail are those set out in Sch 1 Pt C cls 1 and 3 of the Bail Act.
16 I have read and had regard to the reasons for revoking or refusing bail given by Parker and Heenan JJ, respectively. Some of what was put to Parker J was that the applicant had sought to evade arrest both at an address in Cottesloe and later in Wembley in circumstances in which it appeared that he would have been aware that police officers were seeking to intercept and speak to him.
17 Evidence was given to me to similar effect. The situation at Cottesloe was that police officers wearing police vests, so marked, attempted to apprehend him as he approached his own vehicle. He got into the vehicle and drove across a kerb and escaped in circumstances of some excitement, the police calling out to him to stop and identifying themselves as police officers.
18 Parker J then referred to an occasion at Wembley later that day which involved the applicant no longer in a vehicle but riding a motorcycle dressed in riding gear with helmet and again seeking to avoid
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- an unmarked police vehicle, losing his balance, falling off and running, but being overtaken by pursuing police.
19 There was material before Parker J also that the applicant had used false names for travel within Australia and for the purpose of internal telephone services and that he had in his possession two false passports, one of which had recently been used for a trip to Hong Kong. He also had in his possession other identification documents in false names and other information but which bore photographic identity of the applicant.
20 Parker J pointed out that on the information before him the applicant was normally resident in New South Wales although there was rented accommodation in Perth, albeit in a false name and no indication of any other family or business link with this State. He noted that the applicant had previously been convicted of a serious narcotics offence and sentenced to a substantial term of imprisonment. That was a reference to him having been knowingly concerned in the importation of a very large amount of cannabis.
21 There was also further reference by Parker J to the use by the applicant of false names and identities. As to the circumstances of the offences to the extent that they had been put before him, he noted that the Crown case was that two parcels had been sent by air freight from New South Wales to Brazier and Yanko in Perth, who arranged for their collection. Each of the parcels was found to contain small safes within which there was respectively the package of cocaine and the package of amphetamines. It was indicated to Parker J that there had been telephone interceptions of telephone calls between the applicant and each of Brazier and Yanko in which the applicant demonstrated a knowledge of the dispatch of the parcels and various details about them.
22 His Honour described the position at that stage as being (as much as he could assess the evidence in the form then before him) that the evidence indicated on the face of it a clear case of some substance against the applicant.
23 It was argued by the applicant before Parker J as it was before me that there is a disparity argument in this case in that Brazier and Yanko have apparently been released to bail.
24 The Crown submitted before me that action was likely to be taken in relation to that but whether that is so, or not, is I think not something that I can take into account at present. It seems to me I am required to deal with the matter on the basis of the situation as it in fact currently is.
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25 On the question of the so-called disparity, Parker J reached the conclusion that the circumstances of the applicant differed materially from those of Brazier and Yanko. He considered that the applicant was shown on the face of it to be higher up the chain of supply, that the indications were of a commercially organised operation and the applicant had false passports and identification and used false names. He has only tenuous links to Western Australia which appears not to have been the case with either Brazier or Yanko. At page 5 of his reasons for decision Parker J noted in relation to an apparent job offer:
"I am conscious of an employment offer here, but it is an employment offer of a position that is to be created just for him to start something that does not yet exist, and it reveals in that employment offer no permanent or established business or operation or employment in the State and the employment does not, to my mind, serve to offer the prospect of any permanent or established connection with the State."
26 That was a reference to proposed employment from a company by the name of Asia Team Holdings of which Mr Nekvapil is apparently the principal. In short his Honour concluded there was a material distinction between the applicant, Brazier and Yanko. I agree. More to the point for present purposes, the so-called disparity argument raises no new fact or circumstance in the context of this application.
27 At page 8, his Honour described the "exceptional circumstances" put to him as being that bail had been granted to Brazier and Yanko, a long time to trial, the significant conditions set for bail and the fact that there are a number of sureties prepared to place their judgment of the applicant on the line. It was put that at least in combination all of those together should be regarded as exceptional circumstances. However, his Honour's own assessment of those was that together they did not constitute exceptional circumstances and that matters such as conditions for bail could hardly weigh in that consideration in any event.
28 When the second application was made and came before Heenan J on 13 July 2000 the preliminary hearing had been listed for hearing between 20 November and 1 December 2000. His Honour noted the trial itself was unlikely to begin until late 2001. In early February 2000 the applicant had pleaded guilty in the District Court to two charges arising out of his obtaining and using a false passport. Kennedy DCJ had sentenced him to a term of 12 months' imprisonment in respect of each charge to be served cumulatively and ordered that he be released after
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- 12 months on entering into a recognisance of $1,000 to be of good behaviour for two years. The sentence was to take effect from 13 October 1999, the date of his arrest.
29 As Heenan J observed, on the morning of 13 July 2000 the Court of Criminal Appeal had heard the applicant's application for leave to appeal against that sentence. That Court of course at that stage had not yet delivered its decision. In those circumstances his Honour assumed for the purposes of the bail application that the sentence would stand and that the applicant would not be released before 13 October 2000. In fact as events transpired the sentences were quashed apparently on the basis that the offences had been charged in the wrong jurisdiction.
30 Heenan J was satisfied on the material before him that the evidence gathered in the course of the police investigation tended to show the applicant was engaged in the supply of drugs on a well organised commercial basis. He described the circumstances of the applicant's arrest as "unusual" explaining (at par 7 of his decision) that having made some calls from a public telephone box in Marine Terrace, Cottesloe, the applicant went to his motor vehicle parked nearby and when approached by police 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 the 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 motorcycle in Wembley Downs and arrested him shortly afterwards although he endeavoured to evade them.
31 As to the strength of the case against the applicant Heenan J observed at [8]:
"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."
32 His Honour referred to some of the material put before him on behalf of the applicant and in particular a letter from Mr John Nekvapil in which Mr Nekvapil stated that he was the chairman of Asia Team Holdings Ltd which was, as he described it, a multifaceted manufacturing and investment company incorporated and based in Hong Kong with regional offices in Sydney, London, Los Angeles, Cebu and China.
(Page 9)
33 In his letter Mr Nekvapil stated that the applicant had been a consultant for the company since August 1998, that he was based in the company's small Sydney office, that his role was wide and varied, primarily advising on the company's research development and marketing operations within Australia and overseas when required. As Heenan J noted, Mr Nekvapil referred to the applicant's "rare innovative" and other skills and to various qualifications he held as a commercial pilot and seafaring skipper.
34 He also described how the applicant had travelled extensively both within Australia and overseas and stated that he was 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. I mention that specifically because essentially that same information was put before me in the form of an affidavit from Mr Nekvapil.
35 Mr Richter QC says that is a changed or new circumstances in that the information is now on affidavit. I do not accept that submission. It is clear that Heenan J had regard to the information notwithstanding its form. I do not consider its different form in these proceedings to be a relevant changed or new circumstance.
36 The principal matters raised by the applicant in his affidavit dated 14 December 2000 included first the affidavit of Regine Mikellides in support of his application setting out accommodation arrangements if and when released on bail. He also relied upon that affidavit in terms of the distress and other incidents of the relationship between himself and Ms Mikellides, in particular as a result of personal injury suffered by her in a motor vehicle accident and the need for him, as he put it broadly, to provide support and assistance to her.
37 As I have observed, he relies also upon the affidavit of Mr Nekvapil and has also attached to his affidavit a letter from Robinswood Pty Ltd indicating that if released on bail he would be employed by that firm as a coordinator of development projects in the metropolitan area.
38 He also refers to a report from a psychologist, Ms Robyn Marshner, in which she provides some detail as to his psychological condition whilst incarcerated. He also complains that since his arrest on 13 October 1999, during which he claims he received severe injuries, he has been under great pain and will only be able to obtain specialist treatment in the immediate future, some 20 months after the accident. He annexes to his affidavit various medical reports and documents in that regard.
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39 He asserts that whilst on community based work release for a prior offence he had previously been given authority to travel out of Western Australia to the eastern States which he says is a rare occurrence and that whilst on parole for that offence, likewise he had complied with all requirements made of him and had again been given permission to travel to various international destinations for work commitments. He says that he understands that the trial in the District Court will not occur until early to mid-2002 by which time he would have been in custody, as he puts it, for "an extraordinarily long period of time".
40 The significant changes in circumstances expressly relied upon by the applicant in his affidavit are that he would have to spend an "extraordinarily long period of time" on remand, that he has been suffering emotionally and psychologically, that he is unable to provide the necessary assistance to Ms Mikellides of which she is in urgent need, that he has been provided a number of job opportunities upon his release on bail, and he no longer has any of the four original Commonwealth passport offences for which he was originally charged (two charges having been dismissed prior to trial and the second two charges being quashed on appeal), that he now will face materially different State charges from those upon which he was originally charged and that the case against him is now different in context and nature, that the preliminary hearing has now been completed in relation to both sets of offences as charged and that a status conference has been listed in the District Court for 17 January 2001 and that no trial date will be obtained until early to mid-2002.
41 Before turning to the particular matters I should also deal with submissions developed by Mr Richter QC at the hearing, that the outcome of the preliminary hearing constitutes, as he described it, "A new circumstance of crucial weight".
42 There have apparently been two preliminary hearings. The first was on 21 November 1999 and the second was from 27 November to 1 December 2000. The outcome, as I have observed, was that the conspiracy charge was dismissed, the charge of supplying cocaine was dismissed, but the applicant was committed on the charge of attempting to supply cocaine, and instead of committal on a charge of supplying amphetamines he was committed on the charge of supplying methylamphetamines.
43 Ms Archer explained, however, that the Crown recognised at an early stage that the conspiracy charge ought not to have been laid at all. It was
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- an allegation apparently that the applicant conspired with Yanko to supply Yanko. It was made clear to Heenan J that that charge would not be proceeded with. Ms Archer says the Magistrate was told at the very beginning of the preliminary hearing that the prosecution would not seek a committal in respect of that charge. Why in those circumstances the charge was not simply withdrawn may be speculated upon. Be that as it may, what Ms Archer put to me in this regard was not disputed. She further submitted that notwithstanding the different charges the case against the applicant is still exactly the same. I accept that submission.
44 The next and significant factor which Mr Richter QC urged in his oral submissions, although not in the applicant's filed outline, was that his application must be considered in the context that he is a man no longer serving a sentence. This was a reference to the effective sentence of 12 months' imprisonment imposed in the District Court on the two passport offences in February 2000, that term running from 13 October 1999.
45 Heenan J had therefore proceeded on the assumption that the applicant would remain a sentenced prisoner until 13 October 2000. I accept that this is a relevant new circumstance. I shall deal with it when I come to the issue of the length of time the applicant would be incarcerated before trial if not released to bail.
46 At this point I deal first with the applicant's relationship with Ms Mikellides and her own situation. This was further elaborated in her affidavit. In summary she stated that she has known the applicant for a period of some four years and they have been in a relationship for three of those years. Prior to the applicant's arrest they were living together and had planned to marry after she completed her law degree at Southern Cross University. Although she worked she was largely dependent upon the applicant financially and certainly emotionally. When the applicant was arrested she relocated to an address in South Perth which is where she and the applicant would live should he be granted bail. She points out that address is approximately 1 kilometre from the South Perth police station which would obviously ensure that the applicant would be in a position to adhere to any reporting conditions that might be imposed. She now has maintained her university studies and has secured a position with some personal injury lawyers in Perth.
47 In July of this year she was involved in a concertina motor vehicle accident in which a bus smashed into her stationary car forcing it into two other cars. She says she sustained severe ligamentous injuries to her neck
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- and back, a protrusion at L5-S1 and extensive dental trauma. She says the current medical assessment suggests that she would remain significantly incapacitated for some months to come and is in need of assistance to facilitate her recovery. She refers to enduring chronic pain.
48 Because of her injuries she has been unable to recommence work and has been forced to postpone some of her exams. Nonetheless, she says that despite the difficulty and her ill health she attends the Remand Centre regularly to visit the applicant. She refers to the emotional anguish and distress caused by the applicant's continuing incarceration and the apprehension that he may remain so incarcerated before trial until some time in 2002.
49 Ms Mikellides' involvement in the motor vehicle accident on 21 July 2000 was after the date of hearing before Heenan J and so is a new circumstance. I accept their relationship and her situation insofar as it affects the applicant is relevant to this application. The Crown submits that Ms Mikellides is not a legal responsibility of the applicant's. Mr Richter QC disputes that. He says their de facto relationship does give rise to a legal responsibility but in event the applicant has at the very least a moral responsibility for her.
50 If it matters, I do not think it could properly be said that in any presently relevant sense the applicant has a legal responsibility for Ms Mikellides. I accept that he feels a moral responsibility and that the both of them are distressed and unhappy about the circumstances of their present separation and the consequences of that for their relationship.
51 As Ms Archer points out, however, her situation falls a long way short of that of Mr Craig Christian's father which was relied upon by Mr Christian in a bail application before Walsh J on 2 March 1995: see Christian v R, unreported; SCt of WA; Library No 9650095; 3 March 1995, another case in which Mr Richter QC appeared. Mr Christian's father had a rare condition requiring pain-killers, frequent injections and hospital visits out of hours. Walsh J said at page 13 that he was "far from convinced that he would be unable to obtain assistance to manage his illness in the absence of his son, notwithstanding the death of his de facto wife in Melbourne on 4 January 1994."
52 I note that there appear to be family members available to Ms Mikellides in the Eastern States and her need is clearly not life threatening. Ms Mikellides is obviously extremely distressed by her own situation and her concern about the applicant. No doubt the same applies
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- to him. No doubt his continued incarceration on remand and the need for her to visit the applicant occasions considerable physical difficulty and inconvenience. While these factors are obviously a relevant consideration I see nothing in them which would justify an order releasing the applicant to bail when weighed against the countervailing considerations referred to by Parker and Heenan JJ.
53 Furthermore, it is apparent from her own affidavit that Ms Mikellides herself, although now living and working in Perth, has no particular attachment to Western Australia. It was only after and as a result of the applicant's arrest that she came to Perth and remains here and there is no suggestion she has any property or other substantial connection to this State.
54 I turn now to the proposed employment arrangements. The applicant relies particularly on the affidavit of Mr Nekvapil sworn 26 November 2000. This affidavit appears to contain essentially the same information as was before Heenan J. It commences in much the same way as the letter which was put to his Honour, although it appears to contain rather more detail than was before him. Mr Nekvapil deposes that Mr Pinkstone had been associated with the company as both an employee and a consultant since early 1998, operating out of their small Sydney office in Double Bay.
55 He said the nature of this work involved extensive research, testing and travel. He referred to the production of two new water sport products developed by the applicant described as the "Manta Ray Fin System" and the "Advanced Fin Plug System". Samples of both of these were shown to me in the course of the hearing last week. Mr Nekvapil expresses concern that without the applicant's persistence patents in respect of these products are likely to expire and will not be able to be renewed unless he is able to contribute his expertise to the projects.
56 There is a further reference to another product range described as the "Monster Masher", apparently designed for children with psychological sleeping disorders. This is said to be another product range that needs the applicant's immediate attention. Mr Nekvapil concludes his affidavit by deposing that over the previous six months Asia Team Holdings has undergone major transitions in company structure all with the view to having the applicant back overseeing the completion and production of these various products from the Australian office. He says that the applicant's long period of incarceration has caused great difficulty and expense to the company over the past 13 months and is an issue that must
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- be resolved as soon as possible. There are a number of projects which may be completed only by the applicant himself.
57 Finally, Mr Nekvapil states that Asia Team Holdings is prepared to make a quite generous allowance to have the applicant back on staff including moving the Australian office from Sydney to Perth and minimising any travel that would usually be part of his job description. Although the affidavit of 26 November has more detail about some aspects, it is really no more than a repetition of what was before Heenan J. What the affidavit does do is reinforce the extensive nature of the applicant's international travel and connections and the surprising willingness of the company Asia Team Holdings to reorganise its international structure around Mr Pinkstone's situation by relocating its Australian office from Sydney to Perth.
58 As I have already said, in substance what is now put forward by Mr Nekvapil involves no relevant and certainly no more cogent change of circumstances such as to cause me to regard it as supporting a grant of bail. The same applies to the letter from the Robinswood group accountant, Annexure AJP2, to Mr Pinkstone's affidavit. That letter is simply addressed to whom it may concern and quite shortly states as follows:
"We have known Tony Pinkstone for quite some time. As a result we are prepared to offer him the full-time position of coordinator for our development projects in the metropolitan area. These projects are currently situated at Malaga, Langford, Bertram, and Banjup. Mr Pinkstone will be based at our Redcliff offices and will be required to travel between there and the above locations as required."
59 The letter does not say who the "we" referred to is nor how long they have known the applicant nor in what circumstances. It says nothing substantive about what the employment would entail. The prospect that the applicant has this employment opportunity available to him is, of course, a relevant consideration.
60 There were assurances given previously that he would have employment if released, and that was not a factor which weighed sufficiently in favour of the applicant. I also take that view, but in any event I would not consider there to be anything in this capable of characterisation as new or changed circumstances.
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61 I turn to the applicant's psychological and physical health. I accept he has pain and discomfort from a spinal injury. The circumstances and cause of that will no doubt be determined elsewhere. All that is relevant for present purposes is that he suffers from that condition. It does create obvious difficulties and whilst they are no doubt exacerbated by his confinement on remand, they will not by any means disappear should he be released.
62 So far as treatment is concerned, so long as he is on remand, the relevant custodial authority must be responsible for ensuring he is afforded all proper treatment which he requires.
63 The observations in the psychologist's report from Ms Robyn Marshner, Annexure AJP1, were founded entirely on an interview with the applicant at Hakea Prison on 23 November 2000. The report is no more than some observations of Ms Marshner about what she was told by the applicant. In particular I note that due to time constraints psychological testing was not conducted. She relates what she describes as Mr Pinkstone's relevant social history as told to her by him. She notes that he told her he is also a commercial pilot and has throughout his life flown commercial aircraft primarily in the tourism and agricultural sectors.
64 She refers to his current relationship and prior offending history and finally turns to what she describes as psychological issues. Her observations in this regard are, of course, necessarily based entirely on what she describes as her clinical impression of Mr Pinkstone's personality. As to that, she says it suggests:
"He has an admirable self-image. Individuals with these characteristics may display somewhat egocentric behaviour. A sense of entitlement underlies much of this behaviour. They act to counter any expectation of psychological pain from others by engaging in behaviour designed to maximise gain and minimise psychological pain.
Mr Pinkstone did show insight into his personality style, and how it may have affected his past offending behaviour."
65 He related to her the efforts that he says he was making to develop his personality and to deal with whatever perceived problems there were. In her conclusion Ms Marshner states:
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- "It would appear that the applicant would benefit from insight centred therapy, focussing on an increased understanding of causes and consequences of his emotional states and behaviour. His personality style would suggest that he does tend toward an optimistic and self-confident perception of himself. However at this time he presented as feeling very frustrated and angry at what he perceives is an unjust incarceration in Western Australia."
- Finally she concluded with the observation:
"He reported that he had previously undergone some mandatory counselling which he advised had had little positive effect, but at no time in his life has he felt so low physically and emotionally as at the present time."
67 That the applicant is distressed or depressed or physically and emotionally low, as it was put, in his present circumstances, although unfortunate, is hardly surprising and, one would think, not unusual for most people in that situation.
68 I turn to the observations in relation to the applicant's compliance with previous bail or parole conditions. It was initially put to me that the applicant had complied with bail conditions in the past. That submission was withdrawn. In fact he has never been on bail in the past.
69 His record of criminal convictions, exhibit R5, reveals a conviction for damage on 12 March 1993 in respect of which he was fined $100; a conviction in the Supreme Court on 28 July 1993 for knowingly being concerned in the importation of a prohibited import, that being the cannabis to which I referred earlier, and in respect of which he was sentenced to 7 years 4 months' imprisonment with a minimum term of 4 years; and in the District Court on 24 June 1995, a charge of stealing, on which he was sentenced to 4 months' imprisonment cumulative on the then present sentence.
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70 The submission comes to the proposition that once he had served his non-parole period on the cannabis conviction the applicant complied with all conditions of his work release regime and subsequent parole. However, as Ms Archer says, why would he not do so? He had served his term of imprisonment. In any event this is another matter which can in no way be described as a new or changed circumstance.
71 I turn now to what I think was probably the most significant factor raised on this application, and that is the time to trial. The submission on behalf of the applicant is that it is likely there will be no trial of these charges until late in 2001 or early to mid-2002 by which time he would have been in custody for "an extraordinarily long period of time" having originally been arrested on 13 October 1999.
72 It is submitted that if he is detained in custody until the proposed date of trial, it is apparent that most, if not all, of any custodial sentence will have been served by the time the trial concludes.
73 Reference is made to Marotta v R [1999] HCA 4. It is submitted that the length of time between initial incarceration and the conclusion of trial and/or conviction is an important factor when considering exceptional circumstances: see Alexopoulos v R, unreported; SCt of Vic; BC 9800603; 23 February 1998, and Rechichi[1999] WASC 73. Marotta was of course quite a different case to the present. That was an application to a single judge of the High Court pending appeal. The applicants had been convicted and sentenced to terms of imprisonment; special leave had been granted.
74 While Callinan J did take into account the fact that by the time the appeal came on for hearing and judgment was delivered the applicants would substantially, and in one case completely, have served the sentences of imprisonment, that was only one of many factors to which his Honour had regard, including the fact that the appeal was arguable and that if successful it would probably justify a retrial, that the applicants had been on bail pending appeal and there was no suggestion they were likely to abscond or offend while on bail, amongst others.
75 Be that as it may, I certainly accept that delay between the time an applicant is taken into custody and the date of trial is a most relevant consideration. In Alexopoulos, Hampel J granted bail to an accused charged with serious offences relating to a very substantial importation of heroin. The accused had been arrested in early August 1998. The
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- committal hearing was not likely to be held for another eight months and if committed the trial would not be expected until some time in 1999.
76 The Crown submitted that the delay was not unusual and did not provide exceptional circumstances. The argument was that to be exceptional the circumstances must be contrary to what is normal or usual and that the delay there, although substantial, was not in that category. However, as to that, his Honour's view was that (at p 2):
"In my opinion where exceptional circumstances which substantially depend on delay are raised, they cannot be measured simply by what is the normal or usual delay in any particular period of time. Judges of this court have, over the years, said that long delays are simply not acceptable, quite apart from what may be normal or usual. There was a time when senior judges in this court thought that anything over a year, as a rule of thumb, would be treated as being exceptional and inordinate. I think there must be some objective criteria which does not depend purely on what the position is at the particular time because of delays in the system or lack of resources. It must be objective criteria based on the concept that we are a humanitarian society which respects the presumption of innocence and finds abhorrent the idea that people are kept in custody for undue time without trial. The Bail Act, I think, must be interpreted in that context and not simply by reference to what happens to be the unhappy norm at this time.
As I said during argument, if at some time in the future the backlogs became such that it became the norm to have two or three year delays, it could not be said that that is not inordinate when one looks at fundamental principles and concerns with the liberty of the subject.
Of course, there cannot be arbitrary times and each case depends on its own circumstances. In my opinion, the delay in the circumstances of this accused does amount to exceptional circumstances and I think bail should be granted. Nor is this a case which is so overwhelming against the applicant that there is a clear risk that he will simply not face up to trial, quite apart from the exceptional circumstances issue."
- Then a little later (at page 3) his Honour continued:
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- "It is not good enough, I think, to say we will wait and see what happens. There have been cases recently where bail was granted after a year and a half or two years, because what was feared had actually occurred, namely an inordinate delay. But by then an accused who has not been tried had been in custody for an extraordinary time. That is unacceptable.
Having said all that, of course, the system must accept that some time will have to pass before accused are tried. One cannot bring cases on immediately. However, when there is tension between resources and systems on the one hand and fundamental principles which I have mentioned, fundamentals must prevail. The system has to change and more resources be made available."
77 With respect, I agree with what fell from his Honour there.
78 Alexopoulos was referred to by Scott J in R v Rechichi. There the accused had been in custody since February 1998. At that stage the trial was listed for October 1998. Bail had been refused by Miller J on 21 October 1998. There were other charges to be tried in the District Court in June 1999. Notwithstanding acceptance by Scott J of submissions on behalf of the accused that if the accused were detained in custody to trial in the Supreme Court it was likely a substantial portion of any custodial sentence would have been served and notwithstanding that was a significant factor to be taken into account his Honour concluded the considerations evident in the reasons of Miller J were unaltered and no further evidence had been called before him to indicate any relevant change. He therefore refused bail.
79 In the present case the applicant was arrested and has been in custody since 13 October 1999. The committal hearings have now been held and he has been committed for trial on two charges, albeit they are different to those with which he was originally charged. The applicant deposes to his belief the trial will not be held until late next year or early to mid-2002. A status conference has been scheduled in the District Court for late next month.
80 According to the Crown the District Court has now confirmed that the trial could be as early as June or as late as December 2001 and there is a prospect it could be heard in this court with an earlier trial date, possibly in May 2001. That is a matter for the Chief Judge of the District Court and the Chief Justice.
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81 If the trial were not held until late 2001 the applicant will have spent some one and a half or two years in custody on remand on these matters. If he is convicted, of course, it is to be expected that he would be given full credit for that. If sentenced to a term of 10 years or more, as could be expected, there would still be a significant portion to serve before eligibility for parole, assuming a parole eligibility order were to be made. Even so, the idea that an unconvicted person may be incarcerated for something in the order of two years pending trial is something which in almost all cases would mandate a grant of bail.
82 Whether or not it does so in this case depends on an examination of two further considerations. They are the prospect of conviction, that is, the strength of the Crown case, and the risk that the applicant will not attend for his trial if allowed to bail. Any assessment of the prospect of conviction or the strength of the Crown case must necessarily suffer from the difficulties adverted to by Mr Richter QC, in particular that the prosecution evidence has not been tested and the defence case is not known.
83 Difficult as it may be, however, the Bail Act itself requires that there be as best an assessment as can be made at this stage of the strength of the Crown case. With respect, I agree with the view expressed by Heenan J at [8] of his Honour's reasons, that an examination of the Crown brief shows what Parker J described as "a clear case of some substance," is indeed "an overwhelming case" against the applicant.
84 In addition I have read the transcripts of telephone intercepts, exhibit R3. They are clearly capable of giving rise to the inference that the applicant and his co-accused were engaged in organised drug dealing of a substantial kind and that the applicant's role in that was of a high level. They are certainly capable of affording cogent proof of the applicant's involvement of the delivery of the drugs in question.
85 In my view the applicant faces a very real prospect of conviction. That prospect is certainly so real as to be a powerful incentive for him to abscond, which brings me to the next consideration.
86 It is not disputed that the applicant has established at least 12 false identities. These are far more than the use of documents with false names. They are false identities with deep and extensive, well-documented false histories supported by, for example, false bank accounts, false telephone subscriptions, licences and certificates of various kinds, often with photographs of the accused. Ms Archer tendered a large chart, exhibit R2,
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- detailing the extensive establishment and interlinking of these many false identities. The telephone intercept product also confirms the use by the applicant of a number of these false identities. They record him having telephone conversations with banks about accounts in names other than his own. They record him making arrangements with airline staff for his travel to Perth, variously in the names of Freeman, Richmond, Phillips and Cannon - identities which he has also shown to be using for other purposes.
87 Notwithstanding that in early October 1999 Western Australian police were attempting to keep him under surveillance as best they could, the applicant was still able to travel to Perth and arrive undetected. He is known to have used disguises. Mr Richter QC says the use of these false identities can be explained. He says the applicant was afraid (for reasons I need not elaborate on here), of certain people he described as gangsters and that he needed these false identities to hide from them.
88 I express no view about that. No doubt it will be determined elsewhere in due course. What is important for present purposes is that the applicant has created these extraordinarily comprehensive and detailed fake identities and has demonstrated a capacity and inclination to use them.
89 There is also the evidence of his desperate attempt to escape apprehension by police and subsequently to evade them on 13 October 1999. Added to these is his use of false passports in the past, his expertise as an aircraft pilot, his seamanship qualifications, his previously extensive international travel and his international connections.
90 In my view the risk that he would abscond if granted bail must be so high as to be almost certain. I can envisage no conditions, no matter how strict, short of remanding him in custody, which would reduce that risk to any acceptable level.
91 That conclusion must in the end outweigh even the prospect that by the time the applicant comes to trial he may have spent something like two years in custody. The application is refused. Having said that, every effort must be made by all concerned to expedite the applicant's trial.
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