R v Singh
[2013] WASC 478
•21 NOVEMBER 2013
R -v- SINGH [2013] WASC 478
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 478 | |
| Case No: | MBA:34/2013 | 20 NOVEMBER 2013 | |
| Coram: | SIMMONDS J | 21/11/13 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Bail revoked | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN HARJEET SINGH |
Catchwords: | Criminal law and procedure Bail Application for revocation of bail under Bail Act 1982 (WA) s 14(1)(b) Proper approach to be adopted to application for such revocation Relevance of approach to grant or refusal of bail under Bail Act s 14(1)(a) Answers to questions in sch 1 pt C cl 1(a)(i) and (iv) read with cl 3, in cl 1(g) and in cl 1(e) Answer to any other questions considered relevant from cl 1 Exercise of discretion after mandatory questions answered |
Legislation: | Bail Act 1982 (WA), s 14(1)(a), 14(1)(b), s 14(2)(b), s 22, s 54, s 55(1), sch 1 pt C cl 1(a), sch 1 pt C cl 1(e), sch 1 pt C cl 1(g), sch 1 pt C cl 3 Criminal Code Act 1995 (Cth), s 11.1, s 11.5, s 302.3, s 307.2 |
Case References: | Margjini v The State of Western Australia [2013] WASC 193 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Quaid v The State of Western Australia [2013] WASC 228 R v Ng [2012] WASCA 180 R v Yanko [2001] WASC 1 Re York Street Mezzanine Pty Ltd (in liq) (2007) 162 FCR 358; (2007) 240 ALR 567 Rock v The State of Western Australia [2013] WASC 295 Tran v The State of Western Australia [2012] WASC 480 Tulloh v The Queen [2004] WASCA 169 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
HARJEET SINGH
Respondent
Catchwords:
Criminal law and procedure - Bail - Application for revocation of bail under Bail Act 1982 (WA) s 14(1)(b) - Proper approach to be adopted to application for such revocation - Relevance of approach to grant or refusal of bail under Bail Act s 14(1)(a) - Answers to questions in sch 1 pt C cl 1(a)(i) and (iv) read with cl 3, in cl 1(g) and in cl 1(e) - Answer to any other questions considered relevant from cl 1 - Exercise of discretion after mandatory questions answered
Legislation:
Bail Act 1982 (WA), s 14(1)(a), 14(1)(b), s 14(2)(b), s 22, s 54, s 55(1), sch 1 pt C cl 1(a), sch 1 pt C cl 1(e), sch 1 pt C cl 1(g), sch 1 pt C cl 3
Criminal Code Act 1995 (Cth), s 11.1, s 11.5, s 302.3, s 307.2
Result:
Bail revoked
Category: A
Representation:
Counsel:
Applicant : Mr A L Troy
Respondent : Mr H C Quail
Solicitors:
Applicant : Director of Public Prosecutions (Cth)
Respondent : D G Price & Co
Case(s) referred to in judgment(s):
Margjini v The State of Western Australia [2013] WASC 193
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
R v Ng [2012] WASCA 180
R v Yanko [2001] WASC 1
Re York Street Mezzanine Pty Ltd (in liq) (2007) 162 FCR 358; (2007) 240 ALR 567
Rock v The State of Western Australia [2013] WASC 295
Tran v The State of Western Australia [2012] WASC 480
Tulloh v The Queen [2004] WASCA 169
- SIMMONDS J:
(A summary of this judgment was extemporaneously delivered on 21 November 2013. These are the full written reasons.)
Introduction
1 This is an application for orders for the revocation of bail and the remanding of the accused in custody pending determination of his charges.
2 The application is described as 'pursuant to section 14 of the Bail Act 1982 (WA)'.
3 That section provides both a power to grant bail and a power to revoke it as follows:
14. Judges, jurisdiction of
(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; and
(b) revoke or vary any bail previously granted by any other such officer; ...
5 It will be seen that there are no criteria in Bail Act s 14 for the disposition of such applications.
6 As I will indicate below the power to grant bail under Bail Act s 14, in s 14(1)(a), is well understood to be an original power, to be exercised in accordance with the criteria in sch 1 pt C, most notably cl 1 and cl 3.
7 However, there is no equivalent understanding either counsel or I were able to identify for the power to revoke bail under Bail Act s 14(1)(b).
8 I will return below to how I understand the criteria for the disposition of the present application.
Background
9 On 4 August 2013 the respondent was arrested and remanded in custody until 31 October 2013 on matters which subsequently became the subject of the prosecution notices I reach next.
10 By prosecution notices PE 33921/2013, PE 33922/2013 and PE 33923/2013, all dated 5 August 2013, the respondent was charged with the following three offences, respectively:
1. On 4 August 2013 at Perth the respondent trafficked in a substance, the substance being a controlled drug, namely methamphetamine, and the quantity trafficked being a marketable quantity, contrary to s 302.3 of the Criminal Code Act 1995 (Cth);
2. On 4 August 2013 at Perth the respondent imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a marketable quantity, contrary to s 307.2 of the Criminal Code; and
3. On 28 December 2012 at Perth the respondent imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a marketable quantity, contrary to s 307.2 of the Criminal Code.
11 Subsequently, by prosecution notices PE 51926/2013 and PE 51927/2013, both dated 5 September 2013, the respondent was charged with the following further two offences, excluding a further charge that was later discontinued:
4. From on or about 9 July 2013 to on or about 23 July 2013, the respondent conspired to import a marketable quantity of a border controlled drug, namely methamphetamine, into Perth, Western Australia, by virtue of s 11.5 and contrary to s 307.2 of the Criminal Code; and
5. From on or about 9 July 2013 to on or about 24 July 2013, the respondent conspired to import a marketable quantity of a border controlled drug, namely methamphetamine, into Perth, Western Australia, by virtue of s 11.5 and contrary to s 307.2 of the Criminal Code.
12 The maximum penalties for these offences were in each case 25 years' imprisonment or 5,000 penalty units or both.
13 On 31 October 2013 in the Perth Magistrates Court Magistrate Malone granted the respondent bail on all five of these charges. That grant of bail had been opposed.
14 The terms of the grant of bail were the following:
1. Personal undertaking: a $200,000 personal undertaking;
2. Surety: a $200,000 surety;
3. Residential condition: to reside at 3 Seddon Way, Canning Vale, to be at that address between 9.00 pm - 6.00 am and to present on demand of any police officer at that address within those curfew times;
4. Reporting condition: to report to the Officer in Charge of Cannington Police Station daily;
5. International departure: not to approach any point of international departure;
6. Passport: not to attempt to regain possession of his passport then in the possession of the Australian Federal Police and not to apply for a new passport; and
7. Protective bail condition (being a condition imposed for a purpose mentioned in cl 2(2)(c) or (d) of pt D of sch 1 of the Bail Act): not to communicate in any way with, directly or indirectly, Steven Narina, Amir Bin Ariffin or Sachmukh Singh Chanan Singh.
15 On 8 November 2013 in the Perth Magistrates Court before Magistrate Malley the prosecution sought to replace those five charges (the old charges) with six other charges (the new charges). I was told the first of these listed below in date order represented the additional charge.
16 Magistrate Malley called for a fresh prosecution notice to be prepared and indicated that once it had been filed the old charges could be discontinued.
17 As at the hearing before me that further filing had not occurred. However, counsel for the applicant confirmed that, as I understood him, that filing was imminent.
18 The new charges are the following:
• On 3 April 2012, importing a marketable quantity of a border controlled drug, namely methamphetamine, contrary to section 307.2(1) of the Criminal Code;
• On 28 December 2012, importing a marketable quantity of a border controlled drug, namely methamphetamine, contrary to section 307.2(1) of the Criminal Code;
• From 9 July 2013 to 23 July 2013, attempting to import a marketable quantity of a border controlled drug, namely methamphetamine, contrary to section 11.1(1) and 307.2(1) of the Criminal Code;
• From 9 July 2013 to 24 July 2013, attempting to import a marketable quantity of a border controlled drug, namely methamphetamine, contrary to section 11.1(1) and 307.2(1) of the Criminal Code;
• On 4 August 2013, importing a marketable quantity of a border controlled drug, namely methamphetamine, contrary to section 307.2(1) of the Criminal Code; and
• On 4 August 2013, trafficking a marketable quantity of a border controlled drug, namely methamphetamine, contrary to section 302.3(1) of the Criminal Code.
19 There appears to be no change resulting from the new charges in the maximum penalties which the respondent faces.
The basis for the application before me
20 The present application was supported by two affidavits of Katherine Anne Gregory, one sworn 11 November 2013 and the other sworn 19 November 2013, in each case with an annexure or annexures. Ms Gregory deposes in each case she is a Principal Legal Officer employed by the Perth Office of the Director of Public Prosecutions (Cth) and subject to the direction of the Director is the case officer responsible for the conduct of the prosecution against the respondent.
21 I also have an outline of written submissions in support of the application to revoke bail dated 19 November 2013 (the written submissions).
22 The written submissions appear to put the basis for the application in the approach the court should take were it to be considering whether or not to grant bail in the present matter.
23 The authorities cited in the written submissions in support of the application are all concerned with an application under Bail Act s 14(1)(a). They are:
• Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, particularly [39] - [43] (McLure P, Pullin JA & Hall J agreeing);
• Tran v The State of Western Australia [2012] WASC 480 (EM Heenan J);
• Margjini v The State of Western Australia [2013] WASC 193 [19] - [23] (Simmonds J);
• Quaid v The State of Western Australia [2013] WASC 228 [13] (Edelman J); and
• Rock v The State of Western Australia [2013] WASC 295 [17] - [20] (Simmonds J).
24 I take the general understanding of the approach to an application to grant bail under Bail Act s 14(1)(a) to be as I indicated in Rock as follows:
The approach to the decision as to bail was not in contest and it cannot be contested in my view. My jurisdiction is original. It is not affected by any prior determination of a judicial officer with a jurisdiction inferior to my own, like Magistrate Heaney or Chief Magistrate Heath, and is not in any sense an appeal from or review of either decision. I put them aside. Indeed, nothing about those decisions was addressed in the submissions of either counsel to me.
The general approach is determined by the Bail Act … (the Act), sch 1 pt C cl 1 read with cl 3 and of course the analysis in Milenkovski ...
On a number of occasions I have indicated what I extract from Milenkovski. There are 10 principles. Those 10 principles are these:
(1) there is no expressed statutory presumption for or against the grant of bail;
(2) the court has a discretion whether to grant bail, which involves a weighing or balancing process that may only commence after considering and answering the relevant questions in sch 1 pt C cl 1(a) - (g);
(3) all of those questions, save for cl 1(e), are directed to whether there are positive grounds for refusing bail: cl 1(e) goes to the question whether it is possible to neutralise, wholly or sufficiently, the positive grounds to refuse bail;
(4) the word 'may' in cl 1(a) and (d) means the possibility of the events occurring;
(5) in answering the questions in cl 1(a) the court must have regard to all the matters in cl 3(a) - (d);
(6) the seriousness of the offence with or without regard to the maximum penalty for it does not produce under the Act the common law result of requiring the applicant to establish exceptional reasons or circumstances for the grant of bail;
(7) it may be, having regard to all of the relevant factors in cl 3, that the nature and seriousness of the offence with or without the method of dealing with the applicant for it if convicted, are sufficient to enable the court to conclude the applicant may fail to appear in accordance with their bail undertaking, and the existence and the extent of that possibility may, having regard to the answers to all of the other mandatory questions in cl 1, require or justify the refusal of bail: I should immediately add that it has not been put to me that there is a flight risk in this case, and so I can put that aspect of it to one side;
(8) the court may make a decision to refuse bail solely because of the answer to the question in cl 1(g): I particularly refer to Milenkovski [29]. There appear to be some difficulties in understanding the application of cl 1(g), not least because there does not appear to be any authority in which the court has determined that bail should be refused simply because of the answer to the question in cl 1(g), albeit in the exercise of the general discretion that I have identified;
(9) the court is required to consider, in addition to the mandatory questions in cl 1 and the answers to them, the answers to any other questions it considers relevant; and
(10) in cases where the bail application is determined under cl 1, bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail.
Milenkovski is clearly the principal reference point in relation to the grant of bail, such that the so-called common law approach referred to by other cases, including, I have to admit, several cases of my own prior to Milenkovski, on the Act simply must now be regarded as no longer good law [17] - [20].
25 None of those authorities addressed, and in particular Milenkovski did not clearly address, the question whether the same or a similar approach is appropriate to an application under Bail Act s 14(1)(b).
26 The only authority which either counsel or I was able to find addressing the question of the approach a court should take to the exercise of its jurisdiction to revoke bail under Bail Act s 14(1)(b) was R v Yanko [2001] WASC 1, particularly [7] (Scott J), as follows:
An application for revocation of bail may be determined by a Supreme Court Judge under the provisions of s 14(1)(b) of Part 3 of the Bail Act 1982. It is to be noted that there is no criteria in that section to indicate the basis of the court's discretion to revoke bail. The matter is, however, governed by s 54 and s 55 of the Bail Act 1982:
'54 Defendant on bail may be taken before a judicial officer for variation or revocation of bail
(1) A police officer may cause a defendant who has been released on bail to appear before an appropriate judicial officer to show cause why his bail should not be varied or revoked if the police officer -
(a) has reasonable grounds to believe, or is notified in writing by a surety for the defendant that the surety has reasonable grounds to believe, that the defendant -
(i) is not likely to comply with any requirement of his bail undertaking mentioned in section 28(2)(a) or (b);
(ii) is, or has been, or is likely to be in breach of any condition of his bail undertaking mentioned in section 28(2)(c); or
(iii) is, or has been, in breach of a home detention condition mentioned in section 28(2)(d);
(b) has reasonable grounds to believe that -
(i) any surety for the defendant's appearance is no longer suitable under section 39 to be a surety, or is dead;
(ii) for any reason any security required under Part D of Schedule 1 is no longer sufficient; or
(iii) in a case where the defendant has been granted bail for the purposes of an appeal, the defendant had discontinued the appeal or has not prosecuted it with all due diligence.
(a) arrest the defendant without warrant and bring him before an appropriate judicial officer; or
(b) make a complaint to an appropriate judicial officer as to any ground specified in subsection (1).
(3) A judicial officer to whom a complaint is made under subsection (2)(b) may issue a summons to the defendant to appear, or a warrant to have him brought, before the court in which the judicial officer exercises jurisdiction.
(4) A defendant arrested under this section shall be taken as soon as is practicable before an appropriate judicial officer unless he is arrested less than 24 hours before the time at which he is due to appear in accordance with his bail undertaking, in which case he shall be held in custody and brought before an appropriate judicial officer at that time.
(5) The Justices Act 1902, shall, with all necessary modifications, apply to a complaint made under this section and a summons or warrant issued thereon as if they were respectively a complaint for an offence and a summons or warrant issued thereon.
55 Powers of judicial officer to revoke or vary bail
(1) If the judicial officer before whom a defendant appears under section 54 is satisfied that -
(a) the defendant is not likely to comply with any requirement of his bail undertaking mentioned in section 28(2)(a) or (b);
(b) he is, or has been, or is likely to be, in breach of any condition of his bail undertaking mentioned in section 28(2)(c);
(ba) he is, or has been, in breach of a home detention condition mentioned in section 28(2)(d); or
(c) any of the grounds set out in section 54(1)(b) has been established,
he may -
(d) revoke the bail and remand the defendant in custody to appear at the time and place specified, or deemed by section 31(3) to be specified, in his bail undertaking; or
(e) revoke the bail and grant fresh bail to the defendant in accordance with this Act, other than clause 2 of Part B of Schedule 1.
(2) If the judicial officer before whom the defendant so appears is not satisfied as to any of the matters mentioned in subsection (1)(a), (b), or (c) he shall release the defendant on his existing bail undertaking and, with the consent in writing of the surety, on any existing surety undertaking.'
28 In the course of his reasons, Scott J also said this:
It is also important to note that in reaching a conclusion on this matter, I took into account the onus of proof which, in my opinion, squarely lies upon the applicant to establish that this is an appropriate case for bail to be revoked. The revocation of bail is of course a very different matter to the granting of it and it is only where the court is satisfied that revocation of bail is appropriate, that such an order should be made [21].
29 Of course Yanko was decided over a decade before Milenkovski.
30 However, I consider that I should not depart from the approach in Yanko unless I am satisfied it is plainly wrong. See Re York Street Mezzanine Pty Ltd (in liq) (2007) 162 FCR 358; (2007) 240 ALR 567 [22] (Finkelstein J).
31 With regret, I am, despite my initial reflections on the matter shared with counsel at the commencement of the hearing, so satisfied. I arrived at that position after both counsel had used the opportunity I afforded them to make submissions to me on the matter.
32 In my view, there is no warrant from the structure of the Bail Act to conclude that on an application under s 14(1)(b) the judicial officer is directed into a different part of the Bail Act in which a procedure of a show cause type is prescribed: see for that procedure s 54. It is possible that the application in Yanko was in fact one in accordance with that procedure and so the decision should be treated as one not under s 14(1)(b) but under that procedure. However, that is not apparent to me from the decision; and in any event [7] appears clearly to acknowledge that the application in that case fell to be dealt with under the former provision by reference to if not directly under the latter procedure.
33 Both counsel before me also directed my attention to Bail Act s 14(2)(b) which reads as follows:
(2) Subject to subsection (2a), the jurisdiction of a judge under subsection (1) in respect of an appearance by an accused may be invoked by application made by either the prosecutor or the accused, and whether or not any other judicial officer has -
(a) …; or
(b) exercised any power conferred on him by section 55,
in respect of that appearance.
35 Further, in my view that provision indicates that the power to revoke bail in Bail Act s 14(1)(b) is one that is in no sense a review or reconsideration of the decision to grant the bail sought to be revoked. In my view this then makes it unnecessary for a court to which an application under that provision is made to consider the hearing at which the grant of bail was made, other than for matters of evidence upon which one or other of the parties seeks to rely. There was no such reliance on this case. As I confirmed with the parties at the end of the hearing, by which time the transcript of the hearing before Magistrate Malone had been made available to this court, I would not resort to that transcript in the absence of a request from either of them. No such request was made. Therefore I made no such resort.
36 I am left in the difficult position of determining, without the benefit of any authority directly on point, what approach I should adopt to the present application.
37 For the purposes of that application, both counsel were content that I should find that approach in the language of Bail Act sch 1 pt C cl 1 read with cl 3 and the authorities on those provisions to which I have referred. This is notwithstanding that those clauses apply in their terms to 'the grant or refusal' of bail, which in my view are to be distinguished from its revocation. That is also to make relevant to an application under s 14(1)(b) the distinction between an application for the grant of bail and an application for the revocation of bail previously granted.
38 Both counsel also were content that I should recognise that distinction by requiring of the applicant that it put forward reasons why bail previously granted should be revoked. However, as they both indicated, this is not to place an onus on the applicant, or at least not a final onus.
39 Milenkovski is of course authority there is no onus the Bail Act places in terms: see [41]. That is, in my respectful view, clearly expressed for applications under Bail Act s 14(1)(a) for the grant of bail, but at the least not so expressed for applications under s 14(1)(b) for its revocation.
40 However, the requirement I have described might be said to recognise that the decision I am called upon to make is not whether or not to grant bail but whether or not to revoke or refuse to revoke bail. Absent the putting forward of a reason or reasons to revoke bail, it might be said, that bail should be allowed to continue. To that extent, but without agreeing that the language of 'onus' is appropriate, there might be agreement with the observations in Yanko [21].
41 I do not consider I need to reach a final determination in respect of this matter. That is because, resolving it as the parties have indicated, I have concluded that bail in this case should be revoked.
42 I turn now to my reasons for that conclusion. Those reasons involve my consideration of the respective reasons for revocation put forward by the applicant, among other matters.
Reasons to revoke: introduction
43 The applicant put forward three reasons why I should revoke the bail granted by Magistrate Malone.
44 The first reason was that, if the respondent were not kept in custody, he might fail to appear in court in accordance with his bail undertaking. I understood this reason to draw on Bail Act sch 1 pt C cl 1(a)(i).
45 The second reason was that, if the respondent were not kept in custody, he might interfere with witnesses or otherwise obstruct the course of justice. I understood this reason to draw on Bail Act sch 1 pt C cl 1(a)(iv). I further understood, from the course of oral submissions by counsel for the applicant, that there was no reliance on 'otherwise obstruct the course of justice'.
46 The third reason was that the alleged circumstances of the body of offending with which the respondent had been and would be charged amounted to wrongdoing of such a serious nature as to make a grant of bail inappropriate. I understood this reason to draw on Bail Act sch 1 pt C cl 1(g). I further understood, from the course of oral submissions by counsel for the applicant that, while this reason was not abandoned, it was not pressed as strongly as either of the first two reasons.
47 I turn to consider each of these three reasons in that order.
48 I will also take account of the answers to the other mandatory questions in Bail Act sch 1 pt C cl 1 to the extent those questions are relevant in this case.
49 This will involve me considering the answer to the question in Bail Act sch 1 pt C cl 1(e).
50 This will also involve me considering whether there are any other questions which I consider relevant: see Bail Act sch 1 pt C cl 1, end of opening words.
51 Finally, with those answers I will proceed to exercise my discretion whether to revoke bail, which exercise involves a weighing or balancing process that may only commence after considering and answering the relevant questions in sch 1 pt C cl 1(a) - (g). See on the exercise of the discretion whether to grant or refuse bail Rock [19(2)].
Reasons to revoke bail: risk of failure to appear
52 It was not in contest, as I understood the positions of the parties, that this matter must be considered with the four matters listed in Bail Act sch 1 pt C cl 3(a) - (d), 'as well as to any others which [the judicial officer or authorised officer] considers relevant'. See Quaid [52].
53 As I will indicate there are other matters which might be considered to be ones for the purposes of Bail Act sch 1 pt C cl 3 and which were pressed on me by the applicant. I will reach them shortly.
54 The four matters under Bail Act sch 1 pt C cl 3(a) - (d) are:
(a) the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c) the history of any previous grants of bail to him; and
(d) the strength of the evidence against him.
55 It was not in contest that the nature and seriousness of the present offending was such that the respondent was facing as the probable method of dealing with him if he were convicted of that offending a substantial term of immediate imprisonment. See R v Ng [2012] WASCA 180 on sentencing for offending of the present type.
56 I accept that some added seriousness will come from the additional charge among the new charges.
57 I consider that the offences here, considered together, are of a nature and seriousness which, when taken with the probable method of dealing with them, and with the strength of the evidence against the respondent, are such that, other things being equal, the respondent is more likely to abscond. See Quaid [54] - [56]. However, as those paragraphs indicate, and as Bail Act sch 1 pt C cl 3(b) makes a mandatory consideration in any event (see also [57]), it is also necessary to attend to the matters of the individual circumstances of the respondent to which his counsel drew my attention, to which I would add, by reference to the opening words of cl 3, the further consideration of the specific indications of a risk of absconding here to which for his part counsel for the applicant drew my attention.
58 I turn now to the matters in the previous paragraph.
59 I consider the following to be matters going to the nature and seriousness of the alleged offences.
60 The total alleged quantity of pure methamphetamine the subject of the alleged offending is at least 623 g. I note as counsel for the respondent put to me without objection from counsel for the applicant that there is as yet no certificate of quantity or purity of the kind that would be expected at the completion of the disclosure process. That completion is due by 31 January 2014, at present. However, I consider that I am entitled to act upon the information I presently have: see Bail Act s 22. I acknowledge that determining the weight of that information is not easy. However, I consider I can give it at least some weight, given the source of the information, the Commonwealth authorities involved here.
61 The alleged offending has extended over a significant period of time indicating a not insignificant alleged persistence.
62 I note that the alleged offending involved a number of persons acting in concert.
63 In assessing the nature and seriousness of the alleged offending, I consider that I can take account of the concerns the courts have expressed about offending involving the distribution of methamphetamine. A commonly cited authority in this regard is Tulloh v The Queen [2004] WASCA 169 [14] (Miller J), a sentencing appeal. This of course is relevant to the probable method of dealing with the respondent were he to be convicted. See also Ng on a not dissimilar quantity of pure methamphetamine.
64 As to the strength of the evidence against the respondent, counsel for the applicant directed my attention in particular to what could be seen as direct evidence of the respondent's involvement in the offending, or at least some of it, in two forms. One form was expected evidence from two of his alleged co-offenders, both of whom have been convicted and sentenced for their offending. Neither has received any sentence reduction for an undertaking concerning future cooperation, although one did have his sentence reduced for assistance with the investigation.
65 The other form of direct evidence was evidence of the monitoring of an exchange between the respondent and one of his co-offenders at the end of which the co-offender was found to be in possession of what is alleged to be a significant quantity of pure methamphetamine.
66 As counsel for the respondent reminded me, disclosure in this matter is at a relatively early stage, and the evidence from the alleged co-offenders in particular has not been disclosed in detail; while certificates of the composition of the substance alleged to be the subject of the respondent's offending have not yet been provided. Counsel for the respondent did acknowledge that the monitoring and possession evidence in relation to the alleged offence to which that evidence related was on its face strong.
67 Counsel for the applicant also directed my attention to circumstantial evidence in the form of telephone intercepts, evidence of the respondent's movements to and from Kuala Lumpur and Perth and evidence of movements of the respondent and his alleged co-offenders while in Perth. Counsel for the respondent for his part reminded me that the conversations on the telephone intercepts were in a language requiring translation and that so far translation or other rendering had come from a source or sources within the Australian Federal Police other than National Accreditation Authority for Translators and Interpreters (NAATI) accredited persons.
68 I consider that on the combination of matters referred to by counsel for the applicant, even after allowing for the matters drawn to my attention by counsel for the respondent, the evidence against the respondent at this stage in the prosecution must be considered to be strong at least.
69 However, as counsel for the respondent indicated to me, in assessing the risk that an accused will not answer his bail his personal circumstances, including at least his criminal history or lack thereof, his connections to the jurisdiction, his place of residence, his financial position and his record under any previous grant of bail to him, such as the bail in this case, are also relevant in this case.
70 The respondent's criminal history on the only material available to the prosecution at present, being his record in this country, is one of no significant offences. The only offending is of the traffic kind.
71 His counsel described his connections to this state as residence here since 2000; having been educated and married in Australia previously; having worked in this state until the severe illnesses of his parents in Malaysia led to his having to give up his employment; having been in a relationship with a woman since his divorce who lives with him at the residence for the purposes of his bail and whom he plans to marry here; and having a nephew who also lives with the respondent and whose school fees the respondent would be seeking to pay from income he would not be able to earn while in custody.
72 However, I note in respect of his partner that she is also from Malaysia and a visitor to this country, albeit one for some considerable period most recently. It is not evident to me that she would not be in a position readily to return.
73 His counsel also indicated to me that the respondent, while having significant family ties to Malaysia, with his surviving father, very ill, and a sister living there, does not have any other citizenship than Australian, and is not in a position to take out Malaysian citizenship because he is an undischarged bankrupt there. His passport is, as previously indicated, now in the possession of the Australian Federal Police, and his bail conditions provide he is not to apply for a new one. He has sought to assist his parents by visiting them in Malaysia in the past, but is now providing assistance to his surviving parent by telephone and Skype.
74 Further, his partner living with him recently suffered medical problems and as indicated by a letter from a medical practitioner, which with the consent of the applicant the respondent provided me after the hearing, is in a position where she will benefit from the support of the respondent. I understood this to be emotional support of the kind he would not be able to provide from custody.
75 The respondent's place of residence is a property in the name of his mother.
76 His financial position as described by his counsel is one of no house or shares, with his car in his father's name and a banking position in debit, and thus no means of his own to flee or establish life elsewhere.
77 Finally, as his counsel stressed, he has been complying with the rigorous conditions of his bail. No suggestion is made that he has breached or attempted to breach any of those conditions.
78 At the same time, I must note that the respondent has only been on bail for less than one month.
79 Counsel for the applicant drew my attention to further matters of the kind for which Bail Act sch 1 pt C cl 3 allows as 'any others [the judicial officer or other authorised officer] considers relevant'. Those further matters were, in a conversation on 23 August 2013 that had been monitored, the respondent's discussion with visitors to him while he was in custody that he was considering the possibility of not answering any bail, and discussing with the visitors also the means for the acquisition of a false passport.
80 As counsel for the respondent reminded me, the understanding of the conversation came from an officer of the Australian Federal Police said to have sufficient understanding of the language of the conversation for the purpose, but who was not a NAATI accredited interpreter. It was also the case that the parties to the conversation, including the respondent, had noted the strong possibility the conversation was being monitored. At the same time, counsel for the respondent disclaimed any suggestion that the conversation was a jocular one.
81 Counsel for the respondent, as I understood his submissions, stressed that there was no indication the respondent had acted on any of the matters indicated in the conversation. Further, the seizure of his passport meant that the means for the acquisition of a false passport he discussed would not have been, on their face, achievable.
82 However, I consider, as put to me by counsel for the applicant, that there is in that material a clear indication of a possibility of failure to answer bail in the contemplation of the respondent, one indicated notwithstanding the possibility he understood that his conversation was being monitored, and with some indication of thought having been given to how to achieve his aim.
83 Overall, I would assess the possibility of the respondent if not in custody failing to appear in court in accordance with his bail undertaking, after taking account of all of the matters I have referred to, as significant.
84 I turn now to the next reason advanced by the applicant.
Reasons to revoke bail: interference with witnesses
85 As I understood the positions of the parties, the factors described above by reference to Bail Act sch 1 pt C cl 3(a) - (d) were relevant here in much the same way. I do not consider it necessary to discuss them again, save to note, as counsel for the respondent reminded me, there is no suggestion here that the respondent had while he was on bail attempted to interfere with any witnesses. There is of course a protective bail condition in that regard.
86 Counsel for the applicant drew my attention in the present connection to further matters of the kind for which Bail Act sch 1 pt C cl 3 allows as 'any others [the judicial officer or other authorised officer] considers relevant'. Those matters in this context might be seen in a monitored conversation on 24 August 2013 between the respondent and two others. In that conversation the respondent is heard indicating the need to approach a person also in custody to convince him he has made a mistake in his statement about the respondent's involvement in matters related to the charges he faced. That person was one of the two who will give direct evidence to whom I have already referred.
87 As counsel for the respondent reminded me, the understanding of the conversation came from an officer of the Australian Federal Police said to have sufficient understanding of the language of the conversation for the purpose, but who was not a NAATI accredited interpreter. Further, the conversation was characterised as an 'idle' one, of the kind that might, so counsel for the respondent put to me, reasonably be expected of persons in custody. In addition, achieving the interference, directly or indirectly, while the person seeking it was in custody, with another person also in custody, might, so counsel for the respondent put to me, reasonably be expected to be easier while both were in custody rather than when the latter was but the former was not. Counsel for the respondent in this last respect reminded me of the words qualifying Bail Act sch 1 pt C cl 1(a)(ii), 'if the accused is not kept in custody'.
88 I should indicate that it is not obvious to me from the conversation taken as a whole that the respondent's reference to an approach to the person referred to was an 'idle one', even assuming such references might be expected from persons in custody. Nor is it obvious to me that there would not be more possibilities for indirect approaches organised from outside custody than those capable of being organised from within custody which would more than offset any reduced possibilities of approaches, direct or indirect, the result of no longer being in custody.
89 I further note, however, as counsel for the respondent stressed to me, there was no indication the respondent had sought to organise any approaches to any witness while he had been on bail. At the same time, I note again the relatively short time he has been on bail.
90 Overall, I would assess the possibility if the respondent is not in custody he might interfere with witnesses, after taking account of all of the matters I have referred to, as being significant.
91 I turn now to the next reason advanced by counsel for the applicant.
Reasons to revoke bail: alleged circumstances of the offending
92 The approach a court should take to Bail Act sch 1 pt C cl 1(g) is not altogether easy to determine. However, the following principles appear to be clear:
(1) The mere existence of extremely serious charges can never be sufficient for the denial of bail under this or any other heading: at the very least, the present subclause requires attention to the circumstances of the offending as alleged, being the involvement of the accused in it. See Quaid [18].
(2) The answer to the question posed by the present subclause is, like the answers to the other questions posed by the other subclauses, for the purpose of informing the final decision in relation to, in this case, the revocation of bail, which is an exercise of discretion. See Rock [54]; Quaid [18].
93 There are a number of questions which appear to be unresolved in relation to the present subclause. Those questions include what if any is the significance of Bail Act sch 1 pt C cl 1(e) in relation to the answer to the question posed by cl 1(g). See Rock [53] - [56].
94 I do not consider I need to resolve that last matter. That is because it does not appear to me that I have been shown the 'alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate'. I need to remind myself in that regard of principle (1) above.
95 I accept for present purposes that the direct evidence from the alleged co-offenders is said to be to the effect the respondent was the principal or one of the principal offenders. At same time, it is not suggested to me that the offences and their circumstances in this case represents circumstances of the most serious kind imaginable for offending of these sorts.
96 I should add that the question posed by the present subclause does not it appears to me admit of an answer expressed as a matter of degree. That is, the answer is either, yes, it is inappropriate, or, no, it has not been shown that it is inappropriate.
97 At the same time, it might be that one of the questions a judicial officer or authorised officer might pose to himself or herself as allowed for by Bail Act sch 1 pt C cl 1, end of opening words, is the extent to which the alleged circumstances of the offending are of a particularly serious kind.
98 However, in this case at least it is not evident to me that that question is appropriately so posed, given the significance of the matter of the nature and seriousness of the offence or offences of which I have taken account for the purposes of Bail Act sch 1 pt C cl 3(a), as above.
Further mandatory questions: any further bail conditions
99 This is the question posed by Bail Act sch 1 pt C cl 1(e) to which I have already referred.
100 Counsel for the respondent reminded me of the stringency of the present bail conditions, which he contended were sufficient to address the possibilities addressed by counsel for the applicant to the extent these had any justification.
101 Counsel for the respondent added that, were my conclusion otherwise, further bail conditions in the form of an enhanced surety amount; more frequent reporting; and a tracking bracelet might appropriately be considered. However, counsel for the respondent, as I understood him, was not suggesting either that these were necessarily appropriate, or that they were the only further conditions that might be considered.
102 In my view, given my assessment of the answers to the questions posed by Bail Act sch 1 pt C cl 1(a)(i) and (iv), I do not consider that I have been shown and do not myself see that there is 'any condition which could reasonably be imposed under Part D which would … sufficiently remove the possibility referred to'.
The exercise of my discretion
103 I have reached that point at which with the answers to the questions applicable in this case from Bail Act sch 1 pt C cl 1, read as indicated with cl 3, I am in a position to engage in the weighing or balancing process which my discretion whether or not to revoke bail involves: cf Rock [19(2)].
104 In that process I consider I should take account of the matter pressed on me by counsel for the respondent, namely, the period of time that at a minimum the respondent would be in custody were his bail to be revoked. Prior to the grant of bail he had spent approximately 3 months in custody; and, assuming an early committal for trial in the District Court, the court in which the trial is expected to take place, he would spend from today a minimum of about 7 - 8 months, being the period to a trial some time in July 2014, the earliest time at which the trial could be expected.
105 I have taken account of that total period of 10 - 11 months, which is indeed in total a not insignificant one. At the same time, it is not a duration of more than 12 months being the sort of duration that has engaged the concern of the courts.
106 Of course, that period might be longer depending on when disclosure by the prosecution completes, and the lists in the District Court. At present, however, I consider the period of 10 - 11 months is the one I should use. See Rock [60].
107 I have also taken account of the matter on which counsel for the respondent addressed me, namely, the financial hardship the respondent would suffer in custody relative to his financial position on bail when he would have Centrelink benefits and have some employment. I refer again to the respondent as the source of the school fees for his nephew. At same time, it is not apparent to me that at present at least the difference, while not insignificant, is sufficiently substantial in the circumstances to weigh heavily in the balance.
108 I have also taken account of the matter put to me by counsel for the respondent in terms of the benefit the partner of the respondent would derive from the support the respondent could provide her only if he were not in custody.
109 Having weighed and balanced all of the matters to which I have referred and the time in custody were bail to be revoked, I consider that in view of the reasons put forward by counsel for the applicant I should revoke the bail in this case.
110 I will hear from the parties as to the orders I should make in view of that conclusion, including the parties' consideration of whether I should consider the suppression of any parts of this judgment, or its entirety.
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