Smart v The State of Western Australia

[2010] WASCA 218

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SMART -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 218

CORAM:   McLURE P

PULLIN JA
MAZZA J

HEARD:   3 NOVEMBER 2010

DELIVERED          :   10 NOVEMBER 2010

FILE NO/S:   CACR 141 of 2010

BETWEEN:   ANDREW JACOB SMART

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :McKECHNIE J

File No  :MCS 18 of 2010

Catchwords:

Criminal law - Bail application - Application for extension of time within which to appeal - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 13(1), s 14, s 14(2a), s 15A, s 15B, sch 1

Result:

Application for leave to appeal dismissed
Application for extension of time to appeal dismissed
Application for bail pending appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

House v The King [1936] HCA 40; (1936) 55 CLR 499

Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78

1. THE COURT:    On 3 November 2010, this court heard the appellant's application for leave to appeal, application for an extension of time within which to appeal and an application for bail pending appeal.  The background is as follows.

2. On or about 3 June 2010, the appellant was charged with one count of stalking contrary to s 338E(1)(b) of the Criminal Code (WA) (Code) and one count of making a threat with intent to cause detriment contrary to s 338A(b) of the Code. At the time the appellant was charged with these two offences, he had a large number of other offences pending in Magistrates Courts in various places. He was also subject to a suspended imprisonment order. On 3 June 2010, a magistrate refused bail on the stalking and making a threat charges. Those charges are listed for hearing next month. The appellant then made an application for bail to a judge of this court pursuant to s 14 of the Bail Act 1982 (WA). The application was heard by McKechnie J on 23 June 2010. On 25 June 2010, his Honour dismissed the appellant's application. It is that decision which is the subject of the appeal to this court.

3. After McKechnie J dismissed the application for bail, the appellant applied to Hall J for bail pursuant to s 14(2a) of the Bail Act alleging that new facts and circumstances had arisen since McKechnie J's refusal of bail and that these facts and circumstances justified the making of a grant of bail.  On 12 August 2010, Hall J decided that none of the alleged changes of fact or circumstance were material.  As a result, his Honour dismissed the application.

4. On 10 September 2010, the appellant filed the appeal to this court in respect of McKechnie J's decision. 

The right to appeal to this court

1. The right of appeal against McKechnie J's decision is conferred by s 15A(2) of the Bail Act which reads:

   The prosecutor or the accused may appeal to the Court of Appeal against a bail decision of -

   …

   (c)a judge of the Supreme Court.

2. The expression 'bail decision' is defined in s 15A(1) to mean a decision, inter alia, to 'refuse bail'. Section 15A(3) states that the leave of the Court of Appeal is required for each ground of appeal.

3. Section 15A(4) of the Bail Act states that the Criminal Appeals Act 2004 (WA) s 27(2), (3) and (4) apply with necessary modifications as if the appeal under s 15A were an appeal under pt 3 of that Act. Section 27(2) of the Criminal Appeals Act states that:

   After an appeal is commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.

4. Section 27(3) states that unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.

5. Section 15A(5) of the Bail Act states that an appeal under s 15A 'shall be commenced and conducted in accordance with this section, section 15B and rules of court made by the Supreme Court'. Rule 26(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that an appeal must be commenced within 21 days after the date of the decision being appealed.

6. Section 15B(1) of the Bail Act confers jurisdiction on the Court of Appeal to hear and determine an appeal under s 15A. Section s 15B(2) reads:

   The Court of Appeal shall determine an appeal on the material and evidence that was before the judge whose decision is the subject of the appeal.

   This provision means that if there are new facts and circumstances which have arisen since the decision under review, the proper course is to make a fresh application under s 14(2a) of the Bail Act.

McKechnie J's conclusion that cl 3A of pt C in sch 1 to the Bail Act did not apply

1. McKechnie J's reasons opened with the following paragraphs:

   The applicant is a schedule 2 accused and applies for bail on the grounds that there are exceptional circumstances which justify his release. The applicant is facing a number of charges, although only one of the charges is a serious offence within the meaning of the Bail Act clause 3A of schedule 1. That is an offence of stalking allegedly occurring between 20 May and 2 June 2010, when the accused was arrested.

   The Bail Act clause 3A provides that when a serious offence is alleged to have been committed while the accused was on bail for another serious offence, bail should be refused unless there are exceptional circumstances why the accused should not be kept in custody. It appears that schedule 2 clause 3A does not apply. Although there was a time when the applicant was facing serious charges, those charges have been discontinued. The applicant's case for bail seems to me to fall to be considered on ordinary principles under the Bail Act part C.

2. Section 13(1) of the Bail Act provides that the jurisdiction to grant bail is to be exercised subject to and in accordance with pt 3 of the Bail Act and the further provisions in pt B, pt C and pt D of sch 1. Clause 3A of pt C in sch 1 provides that where an accused is in custody awaiting an appearance in court before conviction for a serious offence and the serious offence is alleged to have been committed while the accused was on bail for another serious offence, the judicial officer shall refuse to grant bail for the first‑mentioned serious offence unless the judicial officer 'is satisfied that there are exceptional reasons why the accused should not be kept in custody'. This imposes a greater hurdle for an applicant than the 'ordinary' principles to which McKechnie J referred.

3. In fact, cl 3A applied in relation to, and should have governed, the decision made by McKechnie J despite his conclusion to the contrary. This is because the offence of stalking contrary to s 338E of the Criminal Code was a serious offence in relation to which the appellant was in custody and at the time that that offence was alleged to have been committed, namely between 20 May 2010 and 2 June 2010, the appellant was on bail for other serious offences, namely four charges of breach of violence restraining orders contrary to s 61(1) of the Restraining Orders Act 1997 (WA). Unfortunately, these charges were not shown on a list of pending charges given to his Honour by the prosecution. However, there is no doubt that these charges were pending and that the appellant was on bail when the stalking charge was alleged to have been committed. The failure to apply cl 3A of pt C was therefore an error by McKechnie J, but it was an error which advantaged the appellant. That is because rather than determining whether there were exceptional reasons why the accused should not be kept in custody, his Honour dealt with the application under the more easily satisfied requirements in cl 1 of pt C in sch 1 of the Bail Act.

McKechnie J's reasons for refusing bail

1. McKechnie J's reasons record the appellant's submissions that the appellant needed to work to pay a private lawyer because he has disputes with Legal Aid and was not comfortable with Legal Aid solicitors and that he needed to be at liberty to locate persons to summons them to obtain telephone records as part of his defences.  The appellant also submitted to McKechnie J that it was difficult for him to do legal research in prison.  He submitted that the prosecution case was weak.

2. McKechnie J noted that the prosecution opposed bail; that if convicted a term of imprisonment was likely for the stalking offence; and that a suspended term of imprisonment would likely be activated if the appellant was convicted of the offences for which bail was denied.

3. His Honour referred to the appellant's long record.  His Honour noted that the appellant was 36 years old; that he has continually offended since he became an adult; that he had 11 convictions for resisting arrest, hindering police or assaulting police; and had six convictions for disorderly conduct, two convictions for threatening behaviour or threatening words, five convictions for using telephone communication facilities to harass, one conviction for stalking, two convictions for aggravated stalking, one conviction for threats to kill and one conviction for threats to harm.  His Honour also noted offences of breach of bail and escaping legal custody although he disregarded them because only fines were imposed.  His Honour then concluded:

   However, in view of all of the circumstances and the number and nature of convictions on the applicant's record, I do consider that the applicant may commit an offence and endanger the health, safety and welfare or property of other people, particularly police officers, if released on bail and notwithstanding the other matters which the applicant has raised, in my view this is an appropriate case for bail to be refused.

The appellant's grounds of appeal

1. The appellant's appeal is an appeal against an exercise of discretion.  It is not enough that the judge's composing the appellate court consider that if they had been in the position of the primary judge they would have taken a different course.  The primary judge's decision must reveal some error of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. Furthermore, any error must be material to the decision; that is, but for the error, the decision would have been, or might have been different: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353, 384.

2. The appellant 's grounds of appeal allege error on the part of McKechnie J in not referring to the breach of the violence restraining order charges. It is true that this was an error, but it was not a material error, because his Honour dealt with the application without the restraint imposed by cl 3A (requiring the judge to refuse bail unless satisfied there were exceptional reasons why the appellant should not have been kept in custody). If his Honour had not made the error, there were stronger grounds for refusing bail. In short, there would have been no different order.

3. There are then grounds alleging that because McKechnie J had once been the DPP, he was not impartial, unbiased or neutral.  The mere fact that McKechnie J was DPP before his appointment to the bench more than a decade ago is not sufficient to support a contention that his Honour was not impartial, unbiased or neutral:  Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78.

4. Other grounds assert that the appellant had no record of interference with witnesses and that he had no record of injuring anyone but these points do not demonstrate error because his Honour referred to the appellant's long criminal record to satisfy himself that the appellant may commit an offence and endanger the health, safety and welfare of other people.  Other grounds contend that McKechnie J erred because the appellant would be kept in custody causing restrictions on his ability to prepare his defence.  No error is shown because this factor was taken into account by the judge.  Finally, there are grounds contending, in effect, that the decision was manifestly unreasonable.  The ground does not rise above the level of assertion.  There is nothing to satisfy this court that there was any such error given the factors mentioned by his Honour.

5. There is no reasonable prospect of any of the grounds of appeal succeeding. As a result, there is no justification for extending the time in which to appeal. Because there is no reasonable prospect of any ground succeeding, the appeal is taken to have been dismissed by virtue of s 27(3) of the Criminal Appeals Act.  As a result, it is not necessary to deal with the appellant's application for bail pending appeal other than to formally dismiss that application. 

6. It is only necessary to say in conclusion that, during oral submissions, the appellant referred to dismissal of certain charges (which are other than the charges listed in December) against him a few days before the hearing in this court. The appellant was informed of the provisions of s 15B(2) of the Bail Act which prevented this court from considering  new material and evidence that had arisen after McKechnie J's refusal of bail.

7. The formal orders of the court are:

   (1)Application for leave to appeal dismissed.

   (2)Application for extension of time to appeal dismissed.

   (3)Application for bail pending appeal dismissed.

8. By virtue of s 27(3) of the Criminal Appeals Act, the appeal is dismissed.