Rafidi v The State of Western Australia
[2011] WASC 95
•13 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RAFIDI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 95
CORAM: MURRAY J
HEARD: 7 APRIL 2011
DELIVERED : 7 APRIL 2011
PUBLISHED : 13 APRIL 2011
FILE NO/S: MCS 9 of 2011
BETWEEN: RAJAI RAFIDI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Application for bail for serious offences - Applicant on bail for other serious offences - 'Exceptional reasons'
Legislation:
Bail Act 1982 (WA), Sch 1 Pt C cl 3A
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Ms A S Rogers
Respondent: Mr M Hunter
Solicitors:
Applicant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
McGibbon v The Queen [2003] WASC 14
Rayney v The State of Western Australia [2011] WASC 3
Stalker v The Queen [2002] WASCA 364
Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285
MURRAY J:
The proceedings
This was an application for bail, brought before this court pursuant to s 14 of the Bail Act 1982 (WA). Having heard the matter argued, I refused the grant of bail. The applicant therefore remains in custody pending his appearances in both the Magistrates Court and the District Court.
On 10 June 2010, on Canning Highway, East Victoria Park, the applicant was stopped for a random breath and drug test. A mobile breath and drug testing bus was in place. It is alleged that the applicant was in possession of about 24 grams of methylamphetamine hidden in the roof of his motor vehicle, a Toyota LandCruiser. The time was about 10 pm.
The police evidence is that a search of the vehicle revealed a set of digital scales, some unused clipseal bags, handwritten notes referring to amounts of money (perhaps drug‑related debts) and about $5,130 in money. A small amount of amphetamine is said to have been found in a clipseal bag located in a packet of cigarettes. The police say the applicant had a stun‑gun disguised as a mobile phone in the pocket of his jacket, and a glass smoking implement was found in an inner pocket of the jacket.
The applicant was charged with:
(1)the possession of a prohibited drug with intent to sell or supply, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a);
(2)having access to both a weapon and the prohibited drugs, contrary to s 68E(2) of the Criminal Code (WA);
(3)the possession of stolen or unlawfully obtained property (the $5,130), contrary to s 428(1) of the Criminal Code;
(4)the possession of a prohibited weapon (the stun‑gun), contrary to s 6(1)(b) of the Weapons Act 1999 (WA); and
(5)possession of the smoking utensil, contrary to s 5(1)(d)(i) of the Misuse of Drugs Act.
Following the arrest of the applicant on 17 June 2010, he was admitted to bail upon his own undertaking in the sum of $10,000, with a surety in a like amount, and a condition that he report to a local police station weekly.
The charges of possession of the methylamphetamine with intent to sell or supply, and having access to both the prohibited weapon and the drugs at the same time, have been committed for trial to the District Court. The applicant is to appear in that court on 29 April 2011. He is to appear in the Magistrates Court, Perth, on the other charges, also on 29 April 2011.
At 6.50 am on 22 December 2010, police officers executed a Misuse of Drugs Act search warrant at the home address of the applicant, a unit in Matheson Road, Applecross. The applicant was present. He was wearing a bag, secured around his waist. The police allege that in the bag they found about 9.5 grams of methylamphetamine and $12,310 in money.
The police say that in a bedside drawer in the applicant's bedroom they found a .38 calibre revolver, fully loaded with six .38 calibre rounds of ammunition. The applicant is not licensed to possess such a weapon. The police also say that, in a motor vehicle parked in the driveway, a clipseal bag containing just under 4 grams of cannabis was found. The applicant admitted to the police that the cannabis was his. Their evidence will be that he said that this drug was for his personal use.
The applicant was arrested and charged with:
(1)possession of the methylamphetamine with intent to sell or supply, contrary to the Misuse of Drugs Act 1981, s 6(1)(a);
(2)possession of the cannabis, contrary to s 6(2) of the Misuse of Drugs Act;
(3)the unlawful possession of the firearm in the circumstance of aggravation that it was loaded, contrary to s 19(1)(c) of the Firearms Act 1973;
(4)having access to both the prohibited weapon and illegal drugs, contrary to s 68E(2) of the Criminal Code; and
(5)the possession of stolen or unlawfully obtained property (the $12,310), contrary to s 428(1) of the Criminal Code.
Following the arrest of the applicant upon those charges, bail was refused and the bail which he had obtained, and which had been in force since 17 June 2010, was revoked. He was remanded in custody to appear in the Magistrates Court on 6 April 2011 in relation to the offences of possession of the methylamphetamine with intent to sell or supply, the aggravated possession of the firearm, and the offence of having access to both that weapon and the drugs.
On 6 April 2011, as I understand it, he was committed for trial in relation to those matters, and his next appearance will be in the District Court on 15 July 2011. The applicant was remanded in custody to appear then. The other two charges, the unlawful possession of the $12,310 and the simple possession of the cannabis, were adjourned to the Magistrates Court, and the applicant was remanded in custody to appear there on 29 July 2011.
In those circumstances, the application to this court was for the grant of bail in respect of the offences the subject of the original grant of bail, which was revoked on 22 December 2010, and for the grant of bail in respect of the offences charged following the execution of the search warrant on 22 December 2010.
The law
The offence of possession of a prohibited drug with intent to sell or supply is a 'serious offence', as defined in s 3(1) of the Bail Act, in that it is an offence described in Sch 2 to the Act. It is therefore the case that the applicant is charged with the commission of such an offence on 22 December 2010, while he was on bail for another such offence allegedly committed on 17 June 2010.
In those circumstances, Sch 1 Pt C cl 3A of the Bail Act requires me to refuse to grant bail for the second offence of possession of methylamphetamine with intent to sell or supply, unless I am satisfied, 'that there are exceptional reasons why the accused should not be kept in custody'. The onus is cast upon the applicant for bail to show that there are exceptional reasons why he should not be kept in custody. If he cannot do that, then the court is required to refuse to grant bail.
In a case such as this, that would necessarily mean that bail would be refused in relation to all of the charges brought against the accused because it would be quite pointless to consider the grant or refusal of bail in relation to those matters which are not serious offences, as defined by the Bail Act, when the applicant would necessarily remain in custody because of his incapacity to obtain the grant of bail in relation to the serious offences.
If the applicant was able to satisfy me that there are exceptional reasons why he should not be kept in custody, then the question of the grant or refusal of bail falls to be determined by the application of the ordinary criteria for the grant or refusal of bail before conviction, pursuant to cl 1 and 3 of Pt C of Sch 1 to the Act. In other words, a discretionary judgment is to be made. The conclusion that there are exceptional reasons why the accused should not be kept in custody is a conclusion that he need not be kept in custody, not a conclusion that he must be released.
If I got to the point of the exercise of that discretion, it would seem to me that the relevant portions of cl 1 are that I should have regard to:
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
…
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
…
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)…
(iii)remove the grounds for opposition referred to in paragraph (c);
…
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
In relation to the relevant portions of cl 1(a), cl 3 of the Schedule applies:
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant -
(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;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
In relation to the provisions of cl 3A, there has been some debate in the cases over what may be 'exceptional reasons', within the meaning of the clause. It is not a term which is defined by the Act, and I think it is fair to say that the courts have avoided attempting a judicial definition, because to do so may unduly restrict the considerations to which the court should have regard in determining whether or not there are exceptional reasons why the accused should not be kept in custody.
In this case, as will be seen, the accused relies particularly upon his commitment to the care of his aged parents, and the hardship which would be occasioned to them if he were in custody and not able to discharge that familial obligation. Simply put, he relies upon the hardship which his detention in custody would cause his parents.
Initially, I think it is fair to say, it was doubted whether the hardship to another or others which might result from the proper detention in custody of the applicant could be an exceptional reason why he should not be kept in custody.
In Stalker v The Queen [2002] WASCA 364, Roberts‑Smith J considered an application for bail pending appeal to the Court of Criminal Appeal, against both conviction and sentence. In regard to an application for bail in those circumstances, cl 4 of Pt C of Sch 1 then required the judge to consider whether there were exceptional reasons why the accused should not be kept in custody, and directed the judge to grant bail only if satisfied that exceptional reasons exist, and that it is otherwise proper to do so, having regard to the provisions of cls 1 and 3 of the Schedule. In other words, in that situation, the legislative provisions governing the exercise of the power to grant or refuse bail are, in substance, the same as those applicable to this case.
In Stalker, the applicant for bail relied upon what was argued to be a high probability that the appeal would succeed, combined with the hardship to third parties, notably the 40 employees of the applicant's family business, who would be unable to continue in remunerative employment if the applicant continued to be incarcerated. At [17], Roberts‑Smith J said firmly that he would not consider hardship to innocent third parties to constitute exceptional reasons unless it was also the case that there was a high prospect of success in the appeal.
McGibbon v The Queen [2003] WASC 14 was a case such as this, where the applicant for bail had allegedly committed a serious offence while on bail for another serious offence and was required, for that reason, to show exceptional reasons why the applicant should not be kept in custody.
Hasluck J was prepared to consider that a combination of an allegedly weak prosecution case, a lengthy period before the case could come to trial, and evidence about the applicant's role as the carer for her father, who had medical problems of some substance, and her daughter, who had a serious heart condition and the responsibility to look after a small child, could together constitute exceptional reasons why the applicant should not be kept in custody. However, ultimately, his Honour held that the evidence relied upon was not sufficiently persuasive in that regard.
Most recently, in Rayney v The State of Western Australia [2011] WASC 3, Anderson AuJ had to apply the phrase 'exceptional reasons why the applicant should not be kept in custody' in cl 3C of Pt C of Sch 1 of the Act, which deals with the grant or refusal of bail in murder cases. His Honour found exceptional reasons permitting him to go on to consider the applicant's case for bail, arising out of delay in the time likely to be taken before the case might come to trial, the difficulty for the applicant in preparing his defence if he remained in custody, and the difficulty in arranging proper care for his two teenage daughters.
Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285 was a case of an application for bail pending appeal, in which exceptional reasons had to be shown, pursuant to the provisions of cl 4 of Pt C of Sch 1 to the Act, the forerunner of the present cl 4A in relation to bail after conviction and pending appeal. The applicants relied upon their prospects of success in the appeal, the delay which might be anticipated in the appeal being heard, with the consequence that a substantial portion of an 18‑month sentence of imprisonment would have to be served, as well as business and personal circumstances.
In the case of the applicant, Tieleman, who was a chartered accountant, reference was made to the possible loss of the jobs of two of his employees and grave financial harm being suffered by others with interests in the accounting practice. His children's education, in its present form, would be jeopardised. He would be unable to care for the children or care for his elderly parents, both of whom were in ill health, and his wife relied heavily upon him for her emotional and psychological health.
The appeal from the decision of Roberts‑Smith J to refuse the grant of bail was dismissed. That was a decision which resulted from consideration of the particular circumstances of the case, but in the course of so deciding, the Full Court endeavoured to articulate the principles to be applied in considering the grant or refusal of bail after conviction and pending appeal, where exceptional reasons why the applicant should not be kept in custody were to be shown. Some of the observations made by members of the court relate particularly to the principles to be applied in that context, but there are statements of principle relating to the need to find exceptional reasons in the context generally of the consideration of bail.
In giving reasons with which the other members of the court, Steytler and Templeman JJ agreed, at 306 [14], I said:
The question then is, what may constitute the exceptional reasons of which the clause speaks? They must be reasons concerned with why the convicted appellant should be released from custody pending the appeal, although he or she has been convicted and is a sentenced prisoner. The wording of the clause suggests that where exceptional reasons exist, there will generally be more than one of them although, of course, one exceptional reason would obviously suffice.
At 306 [15], I said:
'Exceptional' is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.
Finally, at 311 [42], I concluded:
The circumstances in which the discretion may be exercised to grant bail are therefore closely circumscribed by the requirement to demonstrate exceptional reasons why the defendant should not be kept in custody pending the hearing and determination of his or her appeal. Those exceptional reasons will be matters of fact demonstrated or established by the applicant for bail. There is no closed list of what circumstances may constitute exceptional reasons, but it will be necessary for the judge hearing the application to evaluate their strength or persuasive power alone, or individually and, if necessary, in their combination.
In my view, those remarks are apposite in this context.
The application
The evidence relied upon by the applicant is concerned with the hardship which would be suffered by the applicant's parents if he remained in custody. The applicant is a 33‑year‑old man. Although, as has been seen, a group of charges resulted from the execution of a search warrant early in the morning at a unit in Applecross, the applicant says that that is not his home address. He agrees that he leases the unit, but, he says, it is primarily occupied by his girlfriend. He says that he lives with his parents at their unit in East Victoria Park.
His father is aged 63. He has ischaemic heart disease. In February 2010, he had a four‑graft bypass performed. His doctor informs the court that he also suffers from chronic obstructive airways disease. It is clear that he is not a well man. In a letter he wrote to the court, he said that he is fully disabled and needs, 'the most care and attention'.
The applicant's mother is aged 61. Her doctor informs the court that she has a history of meningioma, operatively treated, and facial deformity due to long‑standing facial nerve palsy which has resulted also in a partially occluded right eye.
The letter written to the court by the applicant's father is also signed by his mother. The operation and treatments she has had, for what Mr Rafidi senior describes as a 'brain tumour', is said to have left her with impaired speech because her mouth and face are not normal. Further, Mrs Rafidi, the applicant's mother, is said to be 'out of balance, mentally and physically'. She needs 'full care and attention', Mr Rafidi senior says. He adds that the person who is looking after all his needs and those of his wife is their son, the applicant. He provides transport to medical appointments for them, their shopping, their outings, 'house duties' and care and love.
It is very clear that the applicant's mother and father have come to rely upon him for their daily care and needs. But the medical reports by their general practitioner do not establish that those needs may not be provided in any other way, or by any other person. What is said is that if his mother does not see the applicant, her mental state 'deteriorates'. I gather from the doctor's report that she becomes depressed.
The applicant's affidavit confirms that he provides care and attention to his parents. He transports them to doctors' appointments. He prepares meals. He administers their medication. He pays the household bills and undertakes household chores. He helps her mother dress herself, because she has a chronic shoulder problem, and he relieves her mental instability. In that way, he says, he lifts the burden from other family members, who all work full time.
But again, his affidavit does not establish that he his uniquely required to perform that assistance, and that without his support his parents would be unable to cope or utilise support from any other source or agency.
The affidavit sworn by the applicant's solicitor confirms her instructions about those facts, and advises the court that the applicant tells her that his sister is unable to care for their parents as she works on a full‑time basis. The solicitor adds that she is instructed that the health of the applicant's parents, 'is deteriorating substantially whilst the applicant is in custody'.
There is no evidence to support the accuracy of that statement. It is not confirmed by the applicant in his affidavit or by the reports provided by the general practitioner who has the care of the applicant's parents. Again, I note that the applicant has been in custody since 22 December. The evidence before the court makes no reference to how his parents have been cared for and supported in the 3 months which has elapsed since then.
I concluded that the applicant had failed to satisfy me that there are exceptional reasons why the applicant should not be kept in custody.
Further, the applicant's case for bail is weak, having regard to the ordinary considerations which inform the exercise of the discretion, as they are derived from the relevant parts of cls 1 and 3 of Pt C of Sch 1 to the Act. It was put to me that, if bail was granted with a substantial surety and subject to conditions such as the imposition of a curfew or home detention, I could be satisfied that this was a proper case for the grant of bail.
I was not so persuaded. In the first place, if the applicant was to be released so that he could perform duties as the full‑time carer of his parents, it is clear that he would need to be able to leave the house to transport his parents to appointments and to shop so as to provide the ordinary needs of the household. In those circumstances, a home detention condition would appear to be impracticable.
Further, a curfew which required him to remain at home at night, would not, if he was able to leave the residence during the day, prevent him from, yet again, dealing in drugs, as it is alleged that he has been doing on occasions related to the alleged possession of amphetamines with intent to sell or supply, possession of weapons and possession of funds which are said to be the proceeds of his drug dealing activities.
It is having regard to those considerations that the respondent opposes the grant of bail in this case.
In short, having regard to the ordinary considerations which would inform the exercise of the discretion to grant or refuse bail, I was not able to be satisfied that, if the accused was not kept in custody, he would not commit an offence, endanger the welfare of those to whom he might deal drugs, and that he would not abscond. I do not think it could be said that, despite his commitment to his parents' care, he would not be a significant flight risk. I was unable to be satisfied that the conditions suggested might sufficiently remove the possibilities to which I have referred, and the grounds for opposition advanced by the respondent.
The applicant faces a substantial series of serious offences (without confining that term to the offences identified in the bail legislation). Having regard to the evidence apparently available to the prosecution, it would seem to me that the prosecution case, in relation to both groups of offences, can by no means be described as weak.
I was not able to be satisfied that the reasons why the accused should not be kept in custody were so exceptional, in the ordinary meaning of that word, as to overcome what would otherwise be serious concerns militating against the grant of bail. It was for those reasons that the application was dismissed and bail was refused.
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