R v Yanko
[2001] WASC 1
•10 JANUARY 2001
R -v- YANKO [2001] WASC 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 1 | |
| 10/01/2001 | |||
| Case No: | MCS:83/2000 | 19 DECEMBER 2000 | |
| Coram: | SCOTT J | 19/12/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Bail revoked | ||
| PDF Version |
| Parties: | THE QUEEN WAYNE JOHN YANKO |
Catchwords: | Criminal law Bail revocation Onus of proof upon Crown Respondent on remand for serious drug offences Further serious charges pending Previous history of absconding whilst on bail Bail revoked |
Legislation: | Bail Act 1982, s 3, s 14(1)(b), s 54, s 55, s 55(1)(a) |
Case References: | Yanko v R, unreported; SCt of WA; Library No 960030; 23 January 1996 Lim v Gregson [1989] WAR 1 WCVB v The Queen (1989) 1 WAR 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
WAYNE JOHN YANKO
Respondent
Catchwords:
Criminal law - Bail revocation - Onus of proof upon Crown - Respondent on remand for serious drug offences - Further serious charges pending - Previous history of absconding whilst on bail - Bail revoked
Legislation:
Bail Act 1982, s 3, s 14(1)(b), s 54, s 55, s 55(1)(a)
Result:
Bail revoked
(Page 2)
Representation:
Counsel:
Applicant : Ms G A Archer
Respondent : Ms V Amidzic
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Amidzic & Co
Case(s) referred to in judgment(s):
Yanko v R, unreported; SCt of WA; Library No 960030; 23 January 1996
Case(s) also cited:
Lim v Gregson [1989] WAR 1
WCVB v The Queen (1989) 1 WAR 279
(Page 3)
1 SCOTT J: In this matter the Director of Public Prosecutions applied to revoke the respondent's bail, which had been granted in the Court of Petty Sessions on 7 October 1999 and renewed following a preliminary hearing which concluded on 21 November 2000 when a committal order was made. Bail was revoked on 19 December 2000 with reasons to be published later. These are those reasons.
2 The respondent had been arrested and charged with possession of amphetamines with intent to sell or supply to another and bail was fixed in the sum of $300,000 with a surety in like amount and a cash deposit of $75,000. There were various reporting and residential conditions.
3 Following the committal order, on 28 November 2000, further charges were preferred against the respondent. Those charges were:
"(a) that between 31 January 2000 and 24 May 2000 the respondent conspired to manufacture amphetamines;
(b) that on 8 May 2000 the respondent possessed an unlicensed firearm;
(c) that on 9 August 2000 the respondent possessed amphetamine with intent to sell or supply; and
(d) that on 28 November 2000 the respondent possessed an unlicensed firearm."
4 The two drug charges were serious offences as defined in s 3 of the Bail Act 1982.
5 At the time of hearing this application to revoke bail on 19 December 2000, bail had not been fixed in relation to those subsequent charges. I am advised by counsel that the application for bail was listed for determination in the Court of Petty Sessions on 20 December 2000, the day after this application was determined. In relation to those charges an election date has been fixed for 2 February 2001.
6 In relation, therefore, to the second group of charges, no determination had been made on the question of bail prior to this matter being determined.
7 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
(Page 4)
- 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.
(Page 5)
- (2) For the purpose of causing a defendant to appear before an appropriate judicial officer as provided in subsection (1) a police officer may -
(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
(Page 6)
- (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."
8 As can be seen from s 55(1)(a) the first consideration for revocation of bail is that the defendant is not likely to comply with a requirement of his bail undertaking. In that respect counsel for the applicant relied upon the risk that the respondent may not answer his bail. In particular, reference was made to an earlier appeal involving the appellant following an earlier conviction and sentence. The appellant had not complied with bail terms and had absconded to England whilst on bail. The appeal Yanko v R, unreported; SCt of WA; Library No 960030; 23 January 1996 was heard by a court comprising, Kennedy, Wallwork and Murray JJ and both Wallwork and Murray JJ reflected upon the history of the applicant. In particular, Wallwork J said at 3:
"Prior to the pleas of guilty to the relevant charges, and after he had been charged, the applicant had absconded and gone to England whilst he was on bail. While in England he was charged in connection with supplying steroids in that country. He had served a total of 18 months' imprisonment in the United Kingdom in connection with those offences.
The learned sentencing Judge noted that after he had served his sentences in the UK, the applicant had been deported from England. He had then been apprehended in Brisbane and extradited to this State."
(Page 7)
9 Wallwork J went on to say at 7:
"It was submitted that the material before the Court had established that when the applicant had returned to Australia he was a substantially changed individual. He was no longer obsessed with bodybuilding and was no longer using steroids. He had voluntarily returned to Australia. He had been offered bail in Queensland but had agreed to be extradited from Queensland to Western Australia because he had wanted to face the charges on which he was sentenced on 25 August 1995."
10 Murray J noted that both the applicant and his co-accused had been granted bail following their arrest in January 1992 and were to appear in the Court of Petty Sessions on 1 April 1992. On 14 February 1992 both had absconded by air to London.
11 Murray J went on to say at 9, after referring to the sentence that the appellant received in the United Kingdom, which was varied on appeal and referring to the fact that the applicant had remained in custody following the termination of his sentence awaiting extradition and had applied for habeas corpus:
"He [the applicant] then remained in custody, presumably for the purpose of the application for his extradition, but after some time, when that was not proceeded with, he successfully applied by habeas corpus for his release. As a result he had remained in custody in England from 1 May until 30 June 1995, a period of some two months. He then remained in custody from 30 June to the date of sentencing on 25 August 1995, a further period of two months for which the learned sentencing Judge allowed a direct credit of three months by the ordinary scaling up process.
It appears that upon the issue of the Writ of habeas corpus the English authorities suggested to the applicant that he could await the processing of the extradition proceedings upon his arrest on a provisional warrant, a process which might take some time and which would presumably involve a further period in custody, or he could accept immediate deportation at his own expense. This was the option he chose and so by that means he was returned to Australia, ultimately being arrested in Queensland to which State he travelled to make contact with family members.
(Page 8)
- He was extradited from Queensland to Western Australia, coming before the Court of Petty Sessions here on 13 July 1995 …"
12 From those facts as revealed in that judgment, it is quite apparent, in my view, that the respondent is a considerable risk whilst on bail. In saying that I am mindful of the fact that substantial bail was fixed by the Court of Petty Sessions in relation to the charges presently under consideration. In determining this application, however, it was equally important to take into account that further and serious charges had been preferred against the applicant. The applicant has much at stake, and in my view the risk of his absconding has been greatly increased by reason of the additional charges that have now been preferred against him.
13 Counsel for the applicant emphasised the many and positive personal matters about the respondent and his family, which she contended justified the court rejecting this application. In particular, she emphasised that there was nothing said in the course of these proceedings that impugned the original decision to grant bail and there was nothing in the bail bond or the Bail Act that required the respondent to abide by the law whilst on bail. In addition, it was emphasised that the respondent denied the charges and intended to go to trial in relation to all matters. In that respect, the presumption of innocence ran with him.
14 Counsel for the respondent emphasised that the respondent had honoured his terms of bail whilst he was at liberty and maintained that the respondent had a strong and arguable defence in relation to all of the charges. In addition, it was said that the respondent's difficulties had arisen out of his obsession with bodybuilding, which had led him into involvement with steroids. That was the matter that caused him difficulties in the United Kingdom.
15 In addition, it was argued that the respondent had twice been overseas since he was granted bail on the first group of charges and had not absconded. Of course in that respect, at that time, the respondent was not aware of the subsequent charges that were to be preferred against him.
16 It was pointed out that the respondent is aged 39 years, is now a married man and that his elderly parents are coming from Queensland to spend Christmas in Perth. It was pointed out that the respondent is a businessman who is the proprietor of two businesses, one a gymnasium and the other a trade discount business, both of which are substantial businesses requiring his attention. It was contended that the businesses
(Page 9)
- are at a critical stage in their development and require the attention of the respondent, particularly at this time.
17 Other factors personal to the respondent were brought to the court's attention as significant factors in opposing the application.
18 In addition, and importantly, it was pointed out that the respondent was unlikely to obtain trial dates until either late 2001 or early 2002, particularly in relation to the subsequent group of charges.
19 Counsel for the applicant pointed out that many of the charges faced by the respondent were extremely serious and that other Justices of this Court had concluded that the case against a co-accused was overwhelming. That, however, in my view, was not a significant factor. Whether the case against the co-accused was strong or not, had little bearing upon the strength of the case against the respondent.
20 All that needs to be said in relation to the subsequent group of charges is that there is evidence which, if accepted by a jury, could enable a jury to conclude that the respondent was involved in a very substantial conspiracy to manufacture amphetamines from Sudafed. The amphetamines would have had a substantial street value and been produced on a significant scale.
21 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.
22 Taking all matters into account I concluded that the applicant's case was made out because of the substantial risk that the respondent may not answer his bail. I did, however, indicate to counsel for the respondent that once the subsequent group of charges had reached the stage of either a hand-up brief or a committal order, the matter could be reconsidered. At that stage the strength of the prosecution's case on the subsequent charges would be capable of evaluation so that the question of bail could be revisited in the event of the court concluding that the subsequent charges were not particularly strong. That, however, is a matter for another day.
23 In the end result, the respondent's bail was revoked and counsel for the respondent was granted liberty to have the matter reconsidered at a later stage.
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