Rauch v The State of Western Australia
[2005] WASC 241
•3 NOVEMBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RAUCH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 241
CORAM: MCKECHNIE J
HEARD: 18 OCTOBER 2005
DELIVERED : 3 NOVEMBER 2005
FILE NO/S: MCS 39 of 2005
BETWEEN: MARCEL CHRISTIAAN RAUCH
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Principles to be applied - Whether necessary to show exceptional circumstances - WCVB v The Queen not followed - Whether possibility of suicide a factor to be taken into account
Legislation:
Bail Act 1982 (WA), Sch 1 Pt C
Result:
Bail granted on strict conditions
Category: B
Representation:
Counsel:
Applicant: Mr P A Dunn QC & Mr M R Gunning
Respondent: Ms A L Forrester
Solicitors:
Applicant: Gunning Young
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lim v Gregson [1989] WAR 1
Pinkstone (2000) 119 A Crim R 462
Ribot‑Cabrera & Ors v The Queen [2004] WASCA 101
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Nil
MCKECHNIE J: There are pending in the Magistrates Court 54 charges against the applicant as follows:
•18 charges of committing indecent practices between males in public: Criminal Code s 184;
•2 charges of inciting a child under 14 years to unlawfully and indecently deal: Criminal Code s 183;
•6 charges of indecent treatment of a child under 14: Criminal Code s 183;
•3 charges of permitting a male person to have carnal knowledge of him against the order of nature: Criminal Code s 181(3);
•1 charge of carnal knowledge against nature: Criminal Code s 181(1);
•1 charge of aggravated indecent assault: Criminal Code s 324C;
•1 charge of aggravated sexual assault: Criminal Code s 324E;
•2 charges of unlawfully and indecently assaulting another person: Criminal Code s 324B;
•2 charges of sexually penetrating another person without consent: Criminal Code s 324D;
•2 charges of stupefying in order to commit an indictable offence: Criminal Code s 293;
•7 charges of sexual penetration without consent: Criminal Code s 325;
•3 charges of indecent assault: Criminal Code s 323;
•2 charges of sexually penetrating a child over 13 and under 16: Criminal Code s 321(2);
•1 charge of manslaughter: Criminal Code s 280; and
•3 charges of supplying a prohibited drug: Misuse of Drugs Act s 6(1)(c).
The matters are set for committal mention in the Perth Magistrate's Court on 15 December 2005. The charges allege offences against nine males between 1981 and 2000. Some of these charges relate to offences now repealed. The applicant twice applied for bail in the Magistrates Court and each time was refused. He now makes an application for bail in this Court. The applications for bail were opposed in the Magistrates Court and are opposed before me. The reasons for opposing bail as advanced in an affidavit from an investigating officer are:
"… because there is no condition that could be imposed that would satisfactorily address the following concerns:
(1)the unacceptable risk of failing to answer his bail
(2)the unacceptable risk to State witnesses and therefore the integrity of the court process
(3)the unacceptable risk of self‑harm."
The applicant relies upon his own affidavit, an affidavit of Mrs Mary Moore, and an affidavit of his solicitor. The prosecution has provided a number of witness statements and reports of experts.
The principles
It is common ground that the principles governing the grant or refusal of bail are set out in the Bail Act 1982 (WA) Sch 1 Pt C ("Pt C") cl 1 and cl 3.
A grant of bail is not automatic. An accused's right under the Bail Act is a right to have the question of bail considered at an early stage and a further right to apply to the Supreme Court for the consideration of bail regardless of whether there has been a previous grant or refusal of bail. A grant of bail is a matter of discretion.
Is it necessary to show exceptional circumstances to justify bail?
The grant or refusal of bail in the Supreme Court is exercised by single Judges and very rarely has the Full Court (now the Court of Appeal) been called upon to review such decisions.
Although the Bail Act was enacted in 1981, it did not commence until 6 February 1989. WCVB v The Queen (1989) 1 WAR 279 is an early consideration of its provisions. Ipp J considered Pt C cl 1 did not alter the common law. He therefore concluded at 282 – 284:
"In my view, the principles applicable to such a case require the applicant to show extremely exceptional circumstances to justify bail."
Ipp J reached that conclusion from an analysis of authority from other jurisdictions. WCVB v The Queen has been followed generally by single Judges. As far as I can ascertain the only case where WCVB v The Queen has been considered on appeal is Ribot‑Cabrera & Ors v The Queen [2004] WASCA 101. There E M Heenan J (with whom Steytler and Le Miere JJ agreed on this point) after referring to WCVB v The Queen, Lim v Gregson [1989] WAR 1 and Pinkstone (2000) 119 A Crim R 462 said:
"50.… However, it must still be recognised that these are illustrations of the wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial.
51.In cases where the consequences of conviction are likely to involve very long terms of imprisonment then the more obvious is this need for the applicant to show special or exceptional circumstances justifying the grant of bail so that, in the absence of such circumstances, bail may be refused and the person charged may have to remain in custody pending trial …"
In my opinion, a focus on exceptional circumstances in serious cases may from time to time direct attention away from the wider principle just set out.
Furthermore, I respectfully doubt whether the Bail Act simply reproduces the common law, contrary to the view expressed by Ipp J. In particular, I have concerns whether an onus is cast upon an applicant to show exceptional circumstances before the grant of bail in serious cases. I note that in WCVB v The Queen, a decision delivered apparently extempore, just before the passage to which I have already made reference, Ipp J said:
"I have mentioned that counsel for the applicant submitted that the primary question is whether the applicant would attend trial. Under the Bail Act, however, no particular factor is given primacy. All the matters referred to in CL1 of pt C to the Schedule are to be taken into account. The court is required to consider all the factors stipulated in CL1 before exercising its discretion. No particular factor should rigidly be given more importance than another. All relevant factors should be considered as a whole. The circumstances of each particular case will determine the weight to be attributed to each factor. Often, as I have mentioned, the likelihood of the applicant standing trial will be most important."
I respectfully agree. The consequence is that if the discretion to grant or refuse bail is at large, and to be exercised in accordance with the principles set out in the Bail Act, it is wrong to encrust upon the words of the statute a so‑called common law principle that an applicant must show exceptional or, in the words of Ipp J, "extremely exceptional circumstances to justify bail". It is significant that in contrast with Pt C cl 1, in Pt C cl 3A Parliament expressly provides for exceptionality of reasons when an accused satisfies the criteria in cl 3A(1).
An onus on an applicant to establish exceptional circumstances in alleged serious offences is a judicial gloss on the plain words of Pt C cl 1 which in my very respectful opinion cannot be sustained.
It is obvious that the circumstances of the charges faced by the applicant are extremely serious. The charge of manslaughter alone carries an effective maximum penalty, after adjustments made by reason of the Sentencing Act Transitional Provisions, of imprisonment for a term of 13 years and 4 months. The other offences are to a considerable extent also serious offences. However, none of them are offences which would almost inevitably cause bail to be refused. On the contrary, bail is often granted for such alleged offences. It is the nature and number of the offences which enliven the consideration as to whether they amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate because the potential consequences of conviction are such that there is a greater incentive for a person to abscond or interfere with witnesses. I will consider the serious nature of the offences and Pt C cl 1(g) as part of the wider principle enunciated by E M Heenan J, not on the need to find exceptional circumstances to grant bail.
The Bail Act is not a code for the grant of bail because a central legal principle is absent. There is the presumption that a person is innocent of any charge unless they either admit it or the charge is proved against them. Leaving aside considerations under Pt C cl 3(a), any consideration of bail is founded on a legal presumption that the applicant is innocent. Therefore a decision to refuse bail is an imposition on the liberty of the subject. That is why a submission made by the respondent in this case, and sometimes made in other cases - that if the applicant is convicted, the time spent in custody can be taken into account in setting a proper sentence - carries little weight. That is true but entirely ignores the obverse, namely that if a person is not granted bail and is subsequently acquitted they will have been imprisoned perhaps for a considerable time without any remedy.
Background of the applicant
The applicant deposes that he is 57 years of age, having been born on 5 July 1948, and has resided continuously in Western Australia for 30 years. In 1989 he commenced a practice as a veterinary surgeon and has worked in that capacity continuously ever since in the Roleystone area. He has no convictions.
He has a brother who lives in New South Wales and no other living relatives.
The strength of the evidence against the applicant
One David Spry died at the applicant's premises in 1999. There does not appear to have been any sustained police investigation at that time or until 2005 when the State Coroner commenced the hearing of an inquest into the death of David Spry who had died at the Robinson Road, Roleystone property. Then the police got busy.
It is difficult to make an assessment of the strength of the evidence against the applicant beyond a broad judgment that there would appear to be reasonable prospects of conviction in respect of a number of charges that carry significant terms of imprisonment.
Risk of flight
(a) Past travel
The applicant has sworn that he has no property either real or personal overseas. In particular, and in response to a prosecution suggestion, he does not have any interests in China. He has no ongoing business in that country and no investments there. He last went to China approximately 16 years ago for about 1 week.
The prosecution tendered details of the applicant's travel in the last few years. The applicant concedes that he has travelled to Singapore, Hong Kong and parts of Indonesia on a regular basis over the past 15 years or so. He deposes that he has only ever gone for holidays and recreational purposes. He has no property investments or other business interests in the area.
The duration and destination of the travel tends to confirm that it was for holiday purposes and there is nothing in the travel which would excite a suspicion that the applicant is planning to leave.
(b) Recent property dealing
The assessment of this aspect of the application requires, in part, an analysis of some of the recent property transactions undertaken by the applicant. There are disturbing matters disclosed in the applicant's recent property dealing but whether they indicate that he is a flight risk is another matter.
The applicant's properties were described in the hearing as "the Robinson Road property and Hillside Drive [Hill Road] property" Roleystone. They are adjacent properties owned by the applicant. The Robinson Road property is used by the applicant as his veterinary surgery . The applicant also owned (until recently) a number of motor vehicles. The reason for disposing of property is advanced by the applicant in his affidavit as follows:
"11.In May 2005, a coronial inquest was conducted in to the death of David Spry, who died in 1999 at my property in Robinson Road, Roleystone.
12.I had to arrange legal fees for my representation at the coronial enquiry and also together with tax liability in the sum of approximately $30,000.00.
13.The coronial enquiry received a great deal of media attention and as a result of that publicity, there was a distinct downturn in my veterinary business.
14.I had a mortgage against the Hill Street property which represented a serious outgoing against falling income and I had to place myself in funds and reduce my outgoings. To this end, I started selling my shares and making enquiries about the sale of my motor vehicles."
A Freezing Notice was placed on the Robinson Road property on 14 July 2005 as it was alleged to be crime used property. The applicant deposes that his solicitor advised that in the light of the Freezing Notice it was highly likely that he would be charged with a criminal offence or offences in the near future. The applicant was concerned as to how he was going to meet ongoing legal expenses, living expenses and pay his debts, "most notably a mortgage over a property at Roleystone", 89 Hill Road, in the sum of $288,000 with the Bendigo Bank. The applicant deposes that "most of the proceeds of the sale of my vehicle and some shares went to clear the mortgage and the mortgage was paid off in total". The applicant also entered into what is, by any measure, a very strange transaction with Mary Moore - the purported sale to her of the Hill Road property.
Based on the intercepted telephone calls the applicant appears to have been disposing of his property, particularly his cars from a time considerably earlier than the issue of the Freezing Notice. However, this activity took place after the Coronial Inquest where it would have been obvious to the applicant that he was at least a person of interest in the death of David Spry. Furthermore, there was intense media interest which may well have had a detrimental effect on his veterinary practice.
The applicant paid out the mortgage on Hill Road and also has paid a quarterly tax return in the sum of $30,000. It is obvious that he will need significant funds in order to fund his legal defence for what will be a lengthy trial.
The manner in which the applicant has gone about disposing of his assets is irregular but from the circumstances surrounding the disposal of his assets I cannot draw a firm conclusion that he is doing so in order to prepare to abscond. The inference is equally available that he is doing so in order to get his affairs in order and to prepare for a protracted legal battle.
(c) The circumstances of the applicant's apprehension
When police arrived to arrest the applicant on 8 August 2005 the applicant left his property. A telephone intercept indicates that a woman admitted that when the police arrived she told the applicant: "The police are here, you need to be gone". The best that can be said of this statement is that it was terrible advice.
The applicant had previously secreted his passport with a friend - a fact arousing suspicion. The applicant did not however abscond. He contacted his solicitor and the next day he surrendered himself to police at his solicitor's office.
His solicitor had approached the police on 4 August 2005 about arrangements should the applicant be arrested. He was told by a detective that the detective "did not deal through lawyers". On previous occasions when police had attended at the applicant's address they had been accompanied by a contingent of media. The applicant has deposed that he was concerned on 8 August 2005 that the media had been notified and did not wish to be filmed or photographed being arrested or in police custody with handcuffs.
In the circumstances I cannot read an intention to abscond into the applicant's behaviour on 8 August 2005.
The protection of the applicant: the possibility of suicide
Part C cl 1(b) requires a court to consider "whether the accused needs to be held in custody for his own protection". The prosecution argues that a further reason to refuse bail is that the applicant contemplated suicide in the context of being apprehended as a result of David Spry's death.
There is some evidence to support this submission. There might also have been an attempt at suicide on 25 July 2005. The applicant deposes that he voluntarily spoke to a psychiatric consultant on 25 July 2005 after admission to hospital. He was assessed and the hospital was happy to discharge him.
There are statements in the evidence supplied by the prosecution which support the view that the applicant has considered seriously the possibility of suicide. This possibility may continue.
The grounds of objection, however, raise an important point. What is the proper meaning to be ascribed to Pt C cl 1(b)? It is at first glance an odd construction that the prosecution could argue that a person should be held in custody for their own protection against themselves. Suicide is not an offence. If there are concerns about any person's mental condition, or the possibility of self‑harm, the Mental Health Act 1996 (WA) provides a regime for dealing with such matters including, if necessary, involuntary detention in an appropriate facility.
A judicial officer is obliged to consider the grant or refusal of bail and the principles under Pt C therefore apply whether or not an accused person formally makes application. There may be circumstances where an accused is at considerable risk from outside harm because of the nature or perceived nature and circumstances of the offence. It would, I suspect, be a rare case where an accused is held in protective custody but nevertheless such a possibility is opened by Pt C cl 1(b).
Where the supposed danger is not external but internal, and where there is, as I have said, a regime under the Mental Health Act, it would be a rarer case indeed that an accused would be held in custody on the basis of the possibility of suicide. In the present case I attribute little weight to this factor.
Possible interference with witnesses
There is some evidence that at a time in the past the applicant had threatened one of the complainants. There is no evidence of recent threatening behaviour. The complainants who have made recent statements are all adults ranging in age from the mid‑twenties. The other witnesses are adults.
Character
The applicant has filed some 15 references attesting to his character. Counsel told me from the Bar table that he had another 40 or 50 references received by his instructing solicitor. On the hearing of this application, Court 6 was over‑filled with supporters of the applicant. The references speak highly of the applicant's competence and care as a veterinarian, a matter not in issue. Some of the referees also speak of their impression of the applicant's character. These impressions are certainly relevant. On the other side, and equally relevant, are the statements from many male complainants which paint a different and darker picture. The exploration of the true nature of the applicant's character will have to wait until trial. The fact that there are many women and some mature men who are obviously supporters of the applicant is not a factor to which much weight can be given when the charges against the applicant relate exclusively to his dealings with young male adolescents on his property.
The prosecution grounds of opposition
I do not dismiss the grounds for opposing the grant of bail put forward by the prosecution. They are matters of concern and are significant.
Conclusion
As is common with many applications for bail, the Court must balance the rights of an accused person who enjoys a presumption of innocence with the need to ensure the integrity of the trial process, including the need to ensure that the accused is present at the trial.
If there is to be a trial then it is unlikely that the trial will take place before 2007. This is of considerable importance as the applicant will be detained for 18 months at least before trial. He will be unable to earn income. The trial will be lengthy and, for the applicant, expensive. The combination and number of charges alleging sexual depravity, deliberate administration of a stupefying substance and homicide are undoubtedly serious. If convicted of some or all of the offences with which he is presently charged, he will face a very lengthy term of imprisonment. However, that fact and the consequent risk that he may abscond or interfere with the trial process in some way does not, in this case, outweigh my view that it is appropriate to grant bail to the applicant with conditions. I will not impose a curfew condition. The applicant's alleged offences are all said to have occurred on his premises and I see little point. I propose to grant bail on the following conditions:
1.Bail on the applicant's recognisance of $100,000 together with a surety or sureties in the sum of $100,000 to be approved by a Justice of the Peace.
2.The applicant to report daily to the Armadale Police Station at times as directed by the Officer‑in‑Charge.
3.The applicant not to leave Western Australia.
4.The applicant to reside at his principal place of residence in Robinson Road, Roleystone, Western Australia.
5.The applicant surrender any passport/s to the Director of Public Prosecutions prior to his release on bail.
6.The applicant not to go within 1 kilometre of the Perth International or Domestic Airports or any Western Australian interstate railway station, or within 400 kilometres of Eucla.
7.The applicant not to contact directly or indirectly any person whom the prosecution has advised him may be a witness in this case. This condition does not affect the right of the applicant's legal advisers to make contact with the prosecution's proposed witnesses.
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