Smart v The State of Western Australia
[2018] WASC 336
•8 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SMART -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 336
CORAM: FIANNACA J
HEARD: 1 NOVEMBER 2018
DELIVERED : 5 NOVEMBER 2018
PUBLISHED : 8 OCTOBER 2020
FILE NO/S: MBA 50 of 2018
BETWEEN: ANDREW SMART
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Nil
Legislation:
Bail Act 1982 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Application refused
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr R Arndt |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Firkins v The Director of Public Prosecutions (2002) 132 A Crim R 321
Hedgeland v The State of Western Australia [2011] WASC
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jones v The State of Western Australia [2014] WASC 234
Magistro v The State of Western Australia [2016] WASC 268
Michael Wilson & Partners v Nicholls [2011] HCA 48 [67]; (2011) 244 CLR 427
Mikhail v The State of Western Australia [2010] WASC 238
Milenkovski v The State of Western Australia [2011] WASCA 99
Oates v The Commonwealth Director of Public Prosecutions [2003] WASCA 329
Outman v The Queen [2001] WASC 162
R v Judge Russell
Ex parte Reid (1984) 35 SASR 417
Rayney v Legal Profession Complaints Committee [2018] WASCA 73
Roberts v The State of Western Australia [2011] WASC 118
Saka v The State of Western Australia [2001] WASC 92
The State of Western Australia v Oats [2004] WASC 214
The State of Western Australia v Sturgeon [2005] WASC 256
Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303
Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79
Webb v The Queen (1994) 181 CLR 41
YSN v The State of Western Australia [2017] WASCA 155
FIANNACA J:
The application and its history
The applicant, Andrew Smart, who is representing himself in these proceedings, has applied for bail in respect of a number of charges that are pending in the Magistrates Court.
The application initially came before McGrath J on 9 October 2018, at which time there was uncertainty as to the charges to which the application related. In particular, his Honour was concerned to ensure that the application related to all charges in respect of which bail had been refused; otherwise, if bail were granted in the present application, the applicant would remain in custody if bail has been refused in respect of charges that are not the subject of the application.
The applicant faces a total of 13 charges in the Magistrates Court which are to be dealt with summarily ('the summary charges'). He is on bail for some of the charges and in custody (bail having been refused) on others. He faces a further five charges in the District Court, which were still proceeding through the Magistrates Court when bail was being considered for the summary charges. Because of the number of charges and the different dates on which the applicant was charged and was required to appear in the Magistrates Court for various charges, or groups of charges, the bail history is complicated.
On 9 October 2018, McGrath J made programming orders requiring the respondent, namely the State of Western Australia, to file and serve on the applicant 'submissions and all supporting materials outlining the charges which have [been preferred] against the applicant and stating whether bail has been granted or revoked on those charges, delineating the presiding magistrate and the date of the order'. Those submissions and materials were to be filed and served by Monday, 15 October 2018. His Honour further ordered that the applicant file and serve any response to the respondent's submissions in writing by Friday, 19 October 2018, following which the matter was to be relisted.
The respondent's submissions were filed on the date specified, but not received by the applicant until two days later. The supporting materials consist of prosecution notices (including the associated records of court proceedings) for all of the charges in respect of which the applicant has been remanded in custody and an arrest warrant dated 22 May 2018. The applicant then filed written submissions on 17 and 19 October 2018. Those submissions were partly responsive to the respondent's submissions, but also included a large amount of non‑responsive material, much of which is not relevant to the application. I will say more about that later.
After the materials from both parties had been filed and served, the matter was listed to be heard before me on 26 October 2018.
Application for recusal
At the commencement of the hearing on 26 October 2018, the applicant made a submission that I should disqualify myself from hearing the bail application on the basis of a reasonable apprehension of bias. The foundation for that apprehension was said by the applicant to be the fact that I had been employed in the Office of the Director of Public Prosecutions for Western Australia (the ODPP) and counsel representing the respondent was also employed by the ODPP. The applicant also purported to rely on my involvement as counsel on appeal in a matter that did not involve the applicant more than 10 years ago. The applicant did not articulate his argument in support of an application that I recuse myself beyond broad statements that my previous employment with the ODPP gave rise to a conflict of interest and that he could have no confidence that I would consider the application objectively in light of my involvement in the historical matter.
Legal principles
The legal principles in relation to apprehended bias were comprehensively reviewed by Le Miere J in Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd.[1] It is not necessary, for the purposes of this application, to revisit all of the principles referred to by his Honour in detail. I adopt his Honour's examination of the law. However, it is appropriate to summarise the key principles and to refer to some additional aspects of legal principle relevant to this case.[2]
[1] Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [2016] WASC 79 [8] - [16].
[2] The additional principles to which I will refer were collated, most helpfully, by Refshauge J in Eastman v Chief Executive Officer of the Department of Justice and Community Safety (No 2) [2010] ACTSC 13.
The legal test for determining when a judge will be disqualified on the basis of a reasonable apprehension of bias is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[3] The test requires an objective assessment of the connection between (a) the facts and circumstances said to give rise to the apprehension and (b) the conclusion that a judicial officer might not bring an impartial mind to the determination of the issues.[4]
[3] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344.
[4] Michael Wilson & Partners v Nicholls [2011] HCA 48 [67]; (2011) 244 CLR 427.
For the purposes of the test, a 'fair-minded lay observer' is one who is reasonable, considers the situation within 'the context of ordinary judicial practice',[5] and knows that the judge is a professional judge who is equipped by training and experience and guided by their judicial oath to decide the matters impartially upon the evidence.[6] However, as the test is concerned only with possibilities, it is not demanding.[7]
[5] Warwick Entertainment Centre PtyLtd v Earlmist Pty Ltd[2016] WASC 79 [10].
[6] Warwick Entertainment Centre Pty Ltd v Earlmist Pty Ltd [10]; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492-94 [12] - [14].
[7] Rayney v Legal Profession Complaints Committee [2018] WASCA 73 [2].
Nevertheless, the court should guard against any attempt by a party to manipulate the administration of justice on insubstantial grounds. As the plurality stated in Ebner v Official Trustee in Bankruptcy:[8]
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection was sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the Bench. That would be intolerable.
[8] Ebner v Official Trustee in Bankruptcy, 348 [19] - [20].
In Webb v The Queen,[9] Deane J identified four distinct, but sometimes overlapping, categories of case encompassed by 'the doctrine of disqualification by reason of the appearance of bias'.[10] The first concerned cases in which the judicial officer has a direct or indirect interest in the proceedings of such a nature as to give rise to a reasonable apprehension of prejudice, partiality or prejudgment. That category has no relevance in this case. The fourth category concerned cases in which the judicial officer has knowledge of some prejudicial but inadmissible fact or circumstance, and that situation gives rise to an apprehension of bias. Again, that circumstance has no relevance in this case. As for the other two categories, his Honour said:[11]
The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first … and consist of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings.
[9] Webb v The Queen (1994) 181 CLR 41.
[10] Webb v The Queen pp 74 - 75.
[11] Webb v The Queen p 74.
In R v Judge Russell: Ex parte Reid[12] the Supreme Court of South Australia considered the question of reasonable apprehension of bias in circumstances in which a judge of the Industrial Court was said to be 'associated' with a particular party. In the context of dealing with that argument, the Court made observations more generally about appointment of officers of the Crown to judicial office. Walters J, with whom King CJ and Mohr J agreed, said:[13]
For my part, I find it difficult to believe that a fair-minded observer would have reasonable grounds for apprehending that simply because a member of a small industrial Bar had identified himself, in his professional duties as a barrister, with the interests of a particular employer in matters of industrial disputation, he would, on his appointment to judicial office in an Industrial Court, be unable to bring a fair and unprejudiced mind to the decision of matters involving the party for whom he has formerly acted. To take the obverse position, I could scarcely believe that simply because a barrister practising in the field of industrial law had commonly acted on a professional capacity in the interests of employees, any reasonable observer would have grounds for apprehending that the appointment of that barrister to judicial office in the Industrial Court, he would be unable to bring a fair and unprejudiced mind to the resolution of matters arising before him. If I may take the matter one step further, I think it would be absurd to suggest that on the appointment of an officer of the Crown to a judgeship of the Supreme Court of this State, he would be unable, in matters in which the Crown was a party, to administer justice with an independent and impartial mind. No fair-minded citizen could reasonably apprehend or suspect that that judge would depart from his judicial oath.
Determination of the recusal application
[12] R v Judge Russell: Ex parte Reid (1984) 35 SASR 417.
[13] R v Judge Russell: Ex parte Reid, 422.
Prior to my appointment as a judge of the Supreme Court, I was the Deputy Director of Public Prosecutions. I had also acted as the Director of Public Prosecutions for a period and otherwise had been employed as a prosecutor at various levels in the ODPP from 1992.
Counsel representing the State put on record that he became an employee of the ODPP after my appointment as a judge, and he was never an employee of that office while I was there.
The applicant's first ground for his application that I disqualify myself relies on the category of 'association', referred to by Deane J in Webb v The Queen. Having regard to the principles I have outlined and the observations in R v Judge Russell: Ex parte Reid, to which I have referred, the ground is without merit. No reasonable fair-minded lay observer, considering the situation within the context of ordinary judicial practice, could reasonably apprehend, on the basis that I was the Deputy DPP or that I worked in the ODPP, that I might not bring an independent and impartial mind to the resolution of the questions I am required to decide in matters in which the State is a party or in which an employee of the ODPP is appearing as counsel. That would be so irrespective of whether counsel appearing in the present matter was employed at the ODPP while I held office there. The context of ordinary judicial practice includes the fact that judges who were practitioners in criminal law, whether prosecutors or defence lawyers, regularly and appropriately preside in the criminal jurisdiction of the court, in the knowledge that they are equipped by training and experience and guided by their judicial oath to perform their roles and decide matters impartially.
The second ground on which the applicant relies involves a spurious, subjective opinion, rather than any submission based on what a fair-minded lay observer might apprehend. Again, no fair-minded lay observer could reasonably apprehend, on the basis that I was counsel in a matter that did not involve the applicant but about which he has an opinion, that I might not bring an independent and impartial mind to the resolution of the questions I am required to decide in this application.
For these reasons I refused the application that I disqualify myself from hearing the bail application.
The bail application - background
Adjournment of hearing
The bail application was adjourned at the applicant's request on 26 October 2018, because he considered he had not had sufficient time to prepare his case. He indicated he would be able to proceed on Monday, 29 October 2018. The hearing proceeded on that day.
The summary charges for which the applicant is in custody on remand
The materials filed by the State confirm that, contrary to the applicant's belief that he was in custody in respect of only four of the summary charges, bail has been refused in the Magistrates Court in respect of nine charges.
Those charges and the particulars in each case of the date of the offence, the next appearance date and the type of appearance were set out in a table prepared by the respondent, the relevant parts of which are reproduced below:
Charge No.
Alleged date of offence
Description
Next appearance
Next appearance type
AR 379/16
9 Jan 2016
Assault occasioning bodily harm
Dangerous driving
27 Nov 2018
Trial allocation
AR 380/16
10 Jan 2016
Dangerous driving
27 Nov 2018
Trial allocation
PE 18862/16 20 Feb 2016 Dangerous Driving
27 Nov 2018 Trial allocation PE 18863/16
20 Feb 2016
Obstructing public officers
27 Nov 2018
Trial allocation
PE 2587/17
13 Jan 2017
Obstruct public officers
12 Nov 2018
Trial
PE 2589/17
13 Jan 2017
Disorderly behaviour in a police station or lockup
12 Nov 2018
Trial
PE 2590/17
13 Jan 2017
Assault public officer
12 Nov 2018
Trial
PE 2591/17
13 Jan 2017
Threats to injure, endanger or harm any person
12 Nov 2018
Trial
JO 14577/17
7 Nov 2017
Disorderly behaviour in a police station or lockup
27 Nov 2018
Trial allocation
The results of appearances in the Magistrates Court are entered by magistrates or court staff electronically into the Integrated Case Management System (ICMS) used by all of the State courts. The 'Record of Court Proceedings' is part of the electronic Prosecution Notice for each charge or group of charges.
The Record of Court Proceedings for AR 379 ‑ 380/16, PE 18862 ‑ 18863/16, PE 2587/17 and PE 2589 ‑ 2591/17 shows, in each case, that on 14 June 2018 bail was refused in respect of all of those charges and the applicant was remanded in custody until 21 June 2018 for legal advice. It shows that he has been remanded in custody for all of those charges at each appearance since then.
The refusal of bail on 14 June 2018 followed the applicant's failure to appear in the Perth Magistrates Court on 22 May 2018 in respect of each of the charges referred to in the preceding paragraph (as is recorded in the Record of Court Proceedings). A warrant for the applicant's arrest was issued on 22 May 2018 by the Deputy Chief Magistrate. The State has produced, in the materials filed on 17 October 2018, a copy of the arrest warrant. The relevant charges for which the warrant issued are those referred to in the preceding paragraph.
The applicant became aware of the warrant and handed himself in to the Perth Magistrates Court on 14 June 2018 and sought cancellation of the warrant. I will return in due course to what happened during the appearance on that day.
The Record of Court Proceedings for JO 14577/17, a charge in the Joondalup Magistrates Court, shows that the charge was listed for trial on 14 June 2018. The applicant failed to appear for that trial. As I have said, he surrendered himself to the Perth Magistrates Court instead, seeking cancellation of the warrant that had issued on 22 May 2018 in respect of the Perth charges. The Record of Court Proceedings for JO 14577/17 records (in short hand language) that, on the day of the Joondalup Court trial, the applicant handed himself in to the Perth Magistrates Court on an outstanding Perth arrest warrant. It records that he was remanded in custody by video-link. It further records that the Joondalup charge was adjourned to the Perth Magistrates Court for mention on 21 June 2018, and that the applicant has been remanded in custody in respect of that charge since then. Two bail applications in the Magistrates Court, on 6 July 2018 and 31 August 2018 respectively, were refused.
Therefore, in respect of all of the charges in the above table, the applicant has been refused bail and is remanded in custody.
Additional charges faced by the applicant
The additional summary charges the applicant is facing are as follows:
Charge No.
Alleged date of offence
Description
Next appearance
Next appearance type
AR 2747/16
24 Feb 2016
Possessed a prohibited weapon
31 Jan 2019
(Bail renewed)
Trial
PE 27043/17
23 April 2017
Criminal Damage and Destruction of Property
13 Dec 2018
(Bail renewed)
Trial
PE 24868/18
24 Jan 2018
Breached a Family VRO
10 Jan 2019
(Bail renewed)
Trial
PE 2847/18
8 Mar 2018
Failed to provide oral fluid for drug testing
23 Jan 2019
Trial
The charges in the District Court are PE 16882-16886/18. They allege offences committed in January 2016, January 2017, February 2017 and April 2017. The offences are against Commonwealth law. Four of the charges allege that the applicant used a carriage service to menace, harass or cause offence. The fifth charge alleges that the applicant used a carriage service to make a threat. ICMS shows that the applicant was granted bail in respect of those charges, but that he has been remanded in custody on the last two occasions he has appeared in the District Court, most recently on 12 October 2018. That would appear to have resulted because the applicant was in custody on remand for the matters in the Magistrates Court. He is to appear next in the District Court on 25 January 2019, for a hearing to list those charges for trial.
The nature of the application
The application is brought in this court under s 14(2) of the Bail Act 1982 (WA) (Bail Act). It invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Bail Act.
As will appear below, bail has been considered and refused on three occasions in the Magistrates Court. The present application is not an appeal from the magistrates' decisions refusing bail. However, it is relevant to consider, as part of the background against which the application is made, the submissions made by the applicant in the Magistrates Court, in particular his explanations for failing to appear on 22 May 2018, and the reasons given by the magistrates.
Materials before the Court
Apart from the materials filed by the parties, to which I referred in [5] above, the materials before the Court include the transcripts of proceedings in the Magistrates Court on 3 February 2017 (the relevance of which will be discussed later), 14 June 2018, 6 July 2018 and 31 August 2018. Those transcripts have been made available to the applicant.
Also before the court is an affidavit sworn by the applicant on 18 July 2018.
Attached to the submissions filed by the applicant on 17 October 2018 are Centrelink medical certificates dated 6 April 2018, 10 May 2018 and 13 June 2018. The certificate of 10 May 2018 refers to a condition of the applicant's eye. The certificate of 6 April 2018 refers to 'anxiety disorder' and describes the symptoms as 'classical symptoms of anxiety disorder'. It noted that treatment regime consisted of 'referral to Psychiatrist for assessment and treatment'. The certificate of 13 June 2018 refers to 'anxiety depression' and refers to symptoms of 'feeling stressed and unable to attend interviews'. The treatment regime is described as 'to have a mental health care plan and psychology counselling'. Each of the certificates includes an opinion from the certifying medical practitioner that the applicant is 'unfit for work/study' for a specified period. Clearly, as Centrelink documents, they were intended to deal with his fitness for work or study. They do not certify the applicant as unfit either to attend court or to stand trial.
Proceedings in the Magistrates Court
14 June 2018
On 14 June 2018, the applicant appeared before Magistrate Huston in the Perth Magistrates Court, having surrendered himself to the court in the knowledge that a warrant had issued for his arrest as a result of his failure to appear on 22 May 2018. He applied for the warrant to be cancelled. That was not opposed by the prosecutor, but bail was opposed.
The applicant's explanation for not appearing on 22 May 2018 relied on a number of matters. First, he said he had not been sent a reminder from the court by email; he claimed that for prior hearings he had been sent such reminders. Secondly, he said he had been having issues with an anxiety disorder, which he claimed had a bearing on missing the appearance (although he had appeared on other charges the previous day in the Armadale Magistrates Court). Thirdly, he said he had eyesight problems which meant he could not read computer screens or paperwork properly, and that had contributed to him missing the court date. Finally, he said that the court date for the Armadale charges had been altered to 21 May 2018, and that had contributed to him missing the appearance. Ultimately, his explanation was that he had forgotten about the requirement to attend on 22 May 2018.
In relation to his failure to attend the Joondalup Court for the trial that was listed to be heard there that day, 14 June 2018, the applicant claimed the trial was not going to proceed because of his medical condition, in respect of which he produced medical certificates. It is apparent from what the magistrate said, and a concession made by the applicant during that hearing, that the medical certificates did not relate to the applicant's capacity to attend court on 22 May 2018 or to stand trial in Joondalup on 14 June 2018. They were for earlier dates. Assuming they are the same certificates produced by the applicant in these proceedings, they do not speak specifically to his capacity to attend court or stand trial.
The applicant also said he had emailed and telephoned the Joondalup Magistrates Court to inform the court of what was occurring, and the registry of that court did not have a problem with it. The magistrate subsequently noted that the information he had received from the Joondalup Magistrates Court was to the contrary.
During the course of the hearing on 14 June 2018, the prosecutor appeared to suggest that previous trial dates had been vacated because of the applicant's failure to appear. The Record of Court Proceedings reveals that the applicant's failure to appear did result in a trial hearing being vacated in respect of charges PE 18862 - 3/16 on 19 April 2018. An arrest warrant issued and the applicant attended court on 24 April 2018, at which time he was released on bail. Otherwise, in relation to other occasions on which trial hearing dates were vacated, the Record of Court Proceedings indicates that the applicant attended court, but there were other reasons for the adjournment.
On 14 June 2018, Magistrate Huston asked the applicant why he could have confidence that the applicant would attend court on the next date. The applicant referred to his previous court attendances on numerous occasions. He also said he now had a mental health plan for psychological counselling.
The learned magistrate was not satisfied that the applicant had provided an adequate explanation for his failure to appear on 22 May 2018, noting that the documents on which the applicant sought to rely did not demonstrate that he had health issues that would his failure to attend on that day. His Honour also considered it significant that the applicant had frustrated the prospect of the trial proceeding in Joondalup on 14 June 2018 by appearing in Perth, when he could have attended for his trial in Joondalup and made his application to cancel the arrest warrant in that court. The applicant claimed he had been given advice to the contrary.
I note that the magistrate appears to have believed that the applicant was subject to a bail undertaking to appear for the Joondalup trial. That was not the case. That matter (a simple offence) had proceeded by summons and the applicant had endorsed a plea of not guilty without appearing at the first mention. It would have been open to the magistrate in Joondalup to hear and determine the charge in the applicant's absence, pursuant to s 55(2) and (4) of the Criminal Procedure Act 2004 (WA). That did not occur.
Returning to the reasons given by Magistrate Huston on 14 June 2018, his Honour also took into account that the probable method of dealing with the applicant for some of the charges, if he is convicted, is a term of imprisonment.
His Honour concluded that there were no conditions he could impose that the applicant would comply with to ensure he attended court as required. The applicant was remanded in custody to 21 June 2018 for the allocation of trial dates in respect of the eight charges on the arrest warrant.
I note that his Honour did not deal with the bail application on the basis that the applicant needed to establish an exceptional reason why he should not be kept in custody. However, a finding that bail is not appropriate, having regard to the considerations in clauses 1 and 3 of sch 1 pt C of the Bail Act,[14] which are the considerations to which his Honour had regard, will obviate the need to consider whether there are exceptional reasons.[15]
6 July 2018
[14] See [61] - [62] below.
[15] Milenkovski v The State of Western Australia [2011] WASCA 99 [37] (McLure P).
On 6 July 2018, the applicant applied again for bail in respect of the eight charges that had been considered by Magistrate Huston. The application was heard and determined by Magistrate Maughan. It is apparent from statements made by his Honour during discussion with the applicant and in his reasons that the applicant had appeared before his Honour on a number of previous occasions.
Magistrate Maughan first identified the need for the applicant to show new or changed circumstances, since the decision of Magistrate Huston, before he could be granted bail in respect of the eight charges. That was in accordance with s 7D of the Bail Act.[16]
[16] Section 7D provides that, where the duty to consider bail has already been discharged by a judicial officer of a court in respect of a charge faced by an accused, it is sufficient upon any subsequent consideration of bail in the same case for a judicial officer to enquire of the accused (a) whether any new fact has been discovered or new circumstance has arisen, or whether the circumstances have changed, since bail was previously granted or refused; and (b) whether the accused considers that the accused failed to adequately present the accused’s case for bail on a previous occasion. Subsection (3) provides that, unless the judicial officer is satisfied that there is any reason of the kind mentioned in those paragraphs for not doing so, the judicial officer may adopt the decision previously made in the case, but with power to make such variations of the terms and conditions of bail (obviously where bail has been granted) as the judicial officer thinks fit.
The applicant made detailed submissions that were largely identical to the submissions made in the present application. It is sufficient to refer to the summary provided by the magistrate and the reasons he gave for rejecting the submissions and finding there were no new or changed circumstances that justified a grant of bail.
First the applicant referred to his inability to obtain transcripts from previous hearings. Although his need for the transcripts was not clear from his submissions, the magistrate noted that the applicant had previously sought transcripts to establish that he had been told by a judicial officer that he was not required to attend on 22 May 2018.[17] Magistrate Maughan said he was subject to a direction not to issue transcripts to the parties, but that he had checked all the transcripts and there was nothing to support the applicant's claim that he had been told by a judicial officer that he did not have to attend on 22 May 2018.[18]
[17] ts 16 (6 July 2018).
[18] ts 16 - 17 (6 July 2018).
Secondly, the applicant relied on his inability to obtain a lawyer. The magistrate noted that this was a matter considered by Magistrate Huston and was not a matter he could review. However, he also noted that it was clear from the court record that the applicant had had access to lawyers, and expressed the view that the applicant may need to consider his own behaviour in assessing why his relationship with various lawyers had broken down.[19]
[19] ts 17 (6 July 2018).
Thirdly, the applicant relied on an argument that the prosecution case in respect of the offence of assault occasioning bodily harm (and perhaps in respect of other charges) was weak. He claimed to have photographs that would establish his innocence or at least would undermine aspects of the prosecution case. The magistrate said he did not have access to the prosecution case and was not in a position to make any assessment of the strength of that case. He also noted that the applicant had not produced the photographs he referred to.[20] The applicant had said that the photographs were among materials at his former residence to which he could not gain access while he was in custody. This was another aspect of his argument. Nevertheless, the magistrate's point was that the applicant's claims about the weakness of the prosecution case provided no basis for concluding that it was a weak case.
[20] ts 17 (6 July 2018).
Fourthly, the applicant referred to various medical conditions and claimed he was not able to obtain proper treatment in custody. Again, Magistrate Maughan noted that this was a matter already considered by Magistrate Huston. He also noted that the applicant had appeared before him two days earlier and, at that time, had been complaining to the authorities that he was suffering from lung infections. He said that it was apparent from the applicant's submissions on 6 July 2018 that he had received some treatment, and his Honour was not in any position to assess the appropriateness or otherwise of that treatment. There was no medical report to suggest that the applicant could not be treated in prison or that the treatment he was receiving was inappropriate.[21]
[21] ts 17 - 18 (6 July 2018).
Fifthly, the applicant relied on unfounded allegations of impropriety on the part of the Deputy Chief Magistrate, Magistrate Huston and Magistrate Maughan. Those submissions could be dismissed as spurious. Magistrate Maughan noted that he had endeavoured to assist the applicant with his bail application, going beyond what might have been expected of a judicial officer, including examining transcripts for the applicant, but had been met with disrespect and discourtesy.[22]
[22] ts 18 - 19 (6 July 2018).
Sixthly, the applicant raised a number of issues in relation to prison conditions. His Honour noted that these were factors affecting every prisoner who was in custody because of a refusal of bail; the fact the applicant has lost certain privileges or gratuities for a week did not warrant a grant of bail.[23]
[23] ts 19 (6 July 2018).
Finally, the applicant relied on delay in the charges proceeding to trial as a reason why he should not be kept in custody. Magistrate Maughan acknowledged there had been significant delays, but considered that much of the delay had been a consequence of the applicant's conduct in his dealings with his lawyers and the manner he had dealt with the charges. His Honour noted that, given the opportunity to fix trial dates on 6 July 2018 to finalise the matters, the applicant had declined to do so.[24] He concluded that the argument concerning delay lacked merit.
[24] ts 19 (6 July 2018).
Bail was refused and the applicant was remanded to the trial date in respect of matters for which a trial date had been set (which was 12 November 2018 for PE 2587/17, and 2589 - 91/17),[25] and to 17 August 2018 in respect of other matters for the allocation of trial dates.
31 August 2018
[25] That date had been set on 2 January 2018, although the matters were also adjourned to a status conference on 22 May 2018, for which the applicant did not appear.
On 31 August 2018, the applicant again applied for bail when he appeared before Magistrate Smith. Although the charge numbers were not referred to during the hearing, the magistrate said there were five matters before him. The transcript cover page shows that the charges on which the applicant appeared were AR 379 - 380/16, JO 14577/17 and PE 18862 - 3/16.
Again it was necessary for the applicant to show there were new facts or changed circumstances. The applicant relied on two matters. First, that he had not been charged with a breach of bail in respect of his non-appearance on 22 May 2018. Secondly, that he needed to attend his former residence to clear out and preserve evidence that was stored at the residence, including photographs. He said that people he had sent to retrieve the items had been 'threatened and hassled by the people that are squatting in the house'.[26]
[26] ts 4 - 5 (31 August 2018).
The magistrate did not consider that the matters raised by the applicant were new circumstances that justified revisiting the decisions of Magistrates Huston and Maughan.[27] He refused bail and remanded the applicant to 21 September 2018 for mention only.
[27] ts 7 (31 August 2018).
That was the last of the applicant's bail applications in the Magistrates Court in respect of the matters the subject of the present application.
Legislative provisions
As the court's jurisdiction to grant bail arises by the operation of s 13 of the Bail Act and sch 1 pt A of that Act, it must be exercised subject to and in accordance with pt III of the Act and the further provisions in pt B, C and D of sch 1.
Ordinarily, bail would be granted unless the court is satisfied that the accused should be kept in custody after considering the questions in cl 1 of pt C, having regard to the matters in cl 3 of pt C.[28] The questions in cl 1 include whether the accused may fail to appear in court as required by his bail undertaking, whether he may commit an offence, whether he may endanger the safety or welfare of any person and whether he may interfere with witnesses. The court is also required to consider whether there are conditions that could reasonably be imposed which would remove the possibility of the accused doing those things. In answering those questions, the matters the court must take into account under cl 3 include the nature and seriousness of the offence or offences; the accused's personal circumstances, including his character and antecedents, which include any previous convictions; the history of any grants of bail; and the strength of the evidence against him.
[28] Milenkovski v The State of Western Australia [2011] WASCA 99 [41].
However, the approach is different when the provisions of clauses 3A and 3B of pt C of sch 1 apply, as they do in this case.
Clause 3A provides relevantly that, notwithstanding cl 1 or any other provision of the Act, where ‑
(a)an accused is in custody ‑
(i)awaiting an appearance in court before conviction for a serious offence;
… and
(b)the serious offence is alleged to have been committed while the accused was ‑
(i)on bail for …
another serious offence,
the judicial officer … shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer ‑
(c)is satisfied that there are exceptional reasons why the accused should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; and
(d)is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 ...
'Serious offence' is defined in the Act to mean an offence described in sch 2.
In the present case, charges AR 379/2016, being an assault occasioning bodily harm, and PE 2590/17, being an assault on a public officer, are serious offence described in sch 2. The offence charged in PE 2590/17 is alleged to have been committed on 13 January 2017, while the applicant was on bail for the offence charged in AR 379/16. Bail for the latter charge had been renewed on 23 September 2016.
Therefore, cl 3A applies, and I must refuse bail unless I am satisfied there are exceptional reasons why the applicant should not be kept in custody. Even if I were satisfied exceptional reasons existed, before granting bail I would also have to be satisfied that bail could properly be granted having regard to the provisions of clauses 1 and 3.
To the extent that is necessary to have regard to the questions and considerations in clauses 1 and 3, the proper approach to those matters was set out in YSN v The State of Western Australia [2017] WASCA 155 at [15] ‑ [21].
Exceptional reasons
In Tieleman v The Queen, Murray J said:[29]
"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.
[29] Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303 [15].
There is no closed list of exceptional reasons.[30]
[30] Roberts v The State of Western Australia [2011] WASC 118 [9] (Murray J).
The policy behind the requirement for exceptional reasons where an accused is charged with committing a serious offence while on bail for another serious offence was discussed in The State of Western Australia v Sturgeon.[31] EM Heenan J noted that, although an accused is presumed innocent of any charge unless and until found guilty, there is obvious community concern when someone is charged with a serious offence or offences alleged to have been committed while on bail for one or more other serious offence, particularly if it happens repeatedly. The risk that the person may commit offences if released on bail is given prominence as a factor that tells against release on bail.
[31] The State of Western Australia v Sturgeon [2005] WASC 256 (EM Heenan J).
As will appear below, the applicant places significant reliance on the injustice that he will suffer because of the time he will have spent in custody on remand, given the likely delay in the charges proceeding to trial. However, his argument is that, even if delay alone is not an exceptional reason in this case, there are other reasons which, in combination with delay, amount to exceptional reasons.
Delay can be a basis for concluding there are exceptional reasons not to keep an accused in custody on remand when to do so would result in an injustice in the event he were to be acquitted or sentenced to a term that is significantly less than the time he has spent in custody.[32]
[32] I have previously outlined some of the relevant authorities and principles in Magistro v The State of Western Australia [2016] WASC 268 [42] - [45]. See Saka v The State of Western Australia [2001] WASC 92; Outman v The Queen [2001] WASC 162; Firkins v The Director of Public Prosecutions (2002) 132 A Crim R 321; Oates v The Commonwealth Director of Public Prosecutions [2003] WASCA 329; The State of Western Australia v Oats [2004] WASC 214. See also The State of Western Australia v Sturgeon [2005] WASC ; Hedgeland v The State of Western Australia [2011] WASC; Mikhail v The State of Western Australia [2010] WASC 238; and Jones v The State of Western Australia [2014] WASC 234.
Even where an individual factor may not, alone, constitute an exceptional reason for the grant of bail, a combination of factors might do so.
The applicant's arguments
Overview
The applicant's submissions in these proceedings largely repeated, and in some cases elaborated, submissions he had made in the Magistrates Court, particularly before Magistrate Maughan.
Many of the 'submissions' are not submissions at all, but unsubstantiated claims of corruption on the part of investigating authorities and court officers. Some of those concern the contents of the warrants authorising his remand in custody for various offences. The essence of his claim is that the failure of certain warrants to mention particular charges means that he is not lawfully in custody in relation to those charges and that bail that was previously granted in respect of those charges continues to apply, because there was no order made to revoke bail. The applicant's submission in that regard proceeds from the misapprehension that, before he can be remanded in custody for a charge, the court must revoke any bail that was granted in respect of the charge by stating that it is doing so.
Warrant of 22 May 2018
In the context of this submission, the applicant contends that the arrest warrant that issued on 22 May 2018 did not revoke his bail. That is correct. However, the assumption that he was still on bail, because bail was not revoked at the time the warrant was issued, is incorrect.
A preliminary point that was raised in the proceedings was that the warrant that issued on 22 May 2018 was under s 139 of the Criminal Procedure Act, which, by subsection (2), empowers the court to compel an accused to appear before the court if satisfied that the accused's presence is needed, and may do so by issuing a summons or an arrest warrant. Subsection (4) empowers the court to issue an arrest warrant when an accused absents himself during proceedings without leave. In the circumstances, it seems to me that the use of the power under s 139 for the issue of an arrest warrant was open, although it might be thought unusual, given that the applicant was in breach of his bail and there are powers for the issue of an arrest warrant in those circumstances in the Bail Act.
However, the appropriateness of the use of an arrest warrant under s 139 has no bearing on whether the applicant remained on bail in respect of any of the charges considered on 14 June 2018 after Magistrate Huston's refusal of bail.
A bail undertaking relates to a particular upcoming appearance, and requires an accused to appear at court on that day.[33] Where bail is extended without an accused having to sign a new undertaking, the extension is to a particular date and the bail that is effected by the extension is for that appearance. Bail does not extend beyond the appearance to which it relates unless bail is renewed or extended to another date.
[33] Relevantly for present purposes, s 28(2) of the Bail Act provides that a bail undertaking is 'an undertaking in writing by an accused in the prescribed form ‑ (a) that he will appear at a time and place specified, or deemed by section 31(3) to be specified, in the undertaking; and (b) that if the accused fails to appear at that time and place the accused will, as soon as is practicable, appear at the court at which the accused was required to appear, when that court is sitting.
When an accused is before the court, either in answer to his bail or as a result of a warrant for his arrest, whether he surrenders himself or is arrested, the judicial officer before whom he appears is required to consider bail in respect of the accused's next appearance, if any. If bail is refused for the next appearance and the accused is remanded in custody, there is no bail to revoke, as bail has not been renewed or extended.
The applicant appears to rely on the provisions of s 34 of the Bail Act, which sets out the circumstances in which a bail undertaking ceases to have effect. The first of those circumstances is where bail is revoked under s 55 (which concerns circumstances where it is suspected that an accused has been, is or will be in breach of his bail undertaking). Two other circumstances in which the undertaking will cease to have effect are:
(c)subject to section 31, upon the appearance in court by the accused as required by his bail undertaking;
and
(d)during any period before the time at which the accused is required to appear in court when he is in custody for any other offence or reason.
The provisions of s 34 need to be understood in the context of the definition of a bail undertaking in s 28(2), which includes, in par (b) that it is an undertaking that if the accused fails to appear at the time and place specified in the undertaking, or to which bail has been extended, the accused will, as soon as is practicable, appear at the court at which the accused was required to appear, when that court is sitting. That allows for the situation in which the applicant appeared on 14 June 2018, having failed to appear on 22 May 2018. Of course, the failure to appear on the date and at the place specified in the undertaking is nevertheless a breach of his undertaking, but the undertaking remains in effect to compel the accused to surrender himself to the court as soon as practicable. Having appeared in those circumstances, the effect of s 34(c) is that the bail undertaking ceases to have effect.
For these reasons, the applicant's argument that his bail continued unless it was revoked is misconceived. It does not matter that the warrant of 22 May 2018 was issued under s 139 of the Criminal Procedure Act, rather than under s 55 of the Bail Act. His status in respect of bail for the charges that were before Magistrate Huston on 14 June 2018 was determined by his Honour's decision refusing bail and remanding the applicant in custody.
Remand warrants
Not all of the remand warrants that relate to the various charges for which the applicant is to appear in the Magistrates Court were produced in these proceedings. The State, in its submissions, provided a detailed analysis of the proceedings and orders that have been made in respect of bail and remand in custody in respect of all of the charges that are the subject of this application. Having examined the records of court proceedings, to which I referred earlier, and the remand warrants that have been produced, I am satisfied that the applicant has been lawfully remanded in custody in respect of all of those charges.
The key issues
In discussion with the applicant during his submissions, I distilled the following key points on which he relies:
1.He submits that he does not have to demonstrate exceptional reasons for a grant of bail, because that was determined by Magistrate Wilson on 3 February 2017.
2.If he does have to demonstrate exceptional reasons, then the first matter on which he relies is delay in the charges proceeding to trial. In this context, he argues that the risk of an injustice arises because of the potential that he will serve more time on remand than any sentence that might be imposed, and because the prosecution case against him is weak in respect of all of the charges.
3.He has medical conditions for which he cannot obtain adequate treatment in custody.
4.While he is in custody, he cannot get access to materials that are necessary for him to prepare his defence in respect of the various charges.
5.While in custody, he cannot do what is necessary to identify and locate witnesses whom he may need to summon for the defence case in the trial of the assault occasioning bodily harm, and he is not able to issue summonses.
6.The prosecution have failed to comply with the disclosure order made by Magistrate Wilson in February 2017.
7.In relation to whether bail would otherwise be appropriate, the applicant addressed the matters that were raised by the State as risks that warranted the applicant being remanded in custody. Principal among his responses was that he had largely complied with his bail undertakings, and that a handful of breaches, in particular the failure to appear on 22 May 2017 were relatively minor and should not lead to the conclusion that he will fail to appear.
8.As for the alleged risk that he may commit an offence or interfere with witnesses, the applicant submitted that suitable conditions could be imposed to remove that risk to an acceptable extent.
Prior decision in respect of exceptional reasons
The applicant submitted that he had already overcome the hurdle of establishing there are exceptional reasons why he should not be kept in custody, in that on 3 February 2017, Magistrate Wilson was satisfied there were exceptional reasons, and granted the applicant bail in accordance with cl 3A.
As the present application requires this Court to consider bail afresh, the question of whether there are exceptional reasons why the applicant should not be kept in custody, in light of the application of cl 3A, must also be considered afresh. It is appropriate, nevertheless to have regard to the basis on which Magistrate Wilson concluded there were exceptional reasons, and to accord due respect to his Honour's reasons.
It is necessary to consider the context in which the bail decision was made on 3 February 2017. That context appears from the magistrate's explanation at the commencement of the proceedings.[34] The applicant was to face trial on 2 and 3 February 2017 for the charge of assault occasioning bodily harm (AR 379/16). His Honour vacated the trial on 2 February 2017 because he was not prepared to bring the applicant into the courthouse, having been provided with information that the applicant had made threats to assault officers of the court, and his Honour was not satisfied there was sufficient security in the court to deal with any misbehaviour that might occur.[35]
[34] ts 2 (3 February 2017).
[35] ts 2 (3 February 2017).
The hearing on 3 February 2017 was then used to deal with a number of issues the applicant had raised concerning disclosure, and to deal with his application for bail. In the course of giving reasons for various orders made by the magistrate, including his decision in respect of bail, his Honour explained that, notwithstanding the reasons for vacating the trial that he had expressed earlier, the reality was that the trial would have 'faltered in any event' because of witness statements that had been obtained the previous day and because of the need for further disclosure which had been requested by the applicant.[36] Further, his Honour noted that the trial in respect of AR 379/16 was now likely to take five days, the number of witnesses to be called being between 15 and upwards of 20.[37] His Honour indicated a trial of that duration could not be accommodated in the Armadale Magistrates Court.
[36] ts 63, 65 - 66 (3 February 17).
[37] ts 67 (3 February 17).
His Honour referred to the basis on which the applicant was in custody, namely that he was alleged to have committed the serious offence of assaulting a public officer while he was on bail for the serious offence of assault occasioning bodily harm, so that he needed to demonstrate exceptional reasons why he should not be kept in custody before bail could be granted.[38] The application related to those two charges (AR 379/16 and PE 2590/17) as well as charges AR 380/16 and PE 2587 - 89/17 and 2591 - 93/17, some of which have since been discontinued.
[38] ts 64 and 67 (3 February 17).
His Honour concluded there were exceptional reasons. The principal reason for that conclusion was the delay before the charges could proceed to trial, which his Honour considered to be very significant. His Honour took into account what he thought would be the probable manner in which the applicant would be dealt with if he were convicted of the charges. In respect of PE 2590/17 (the charge of assaulting a public officer), his Honour questioned whether a term of imprisonment would be imposed. In any event, he took the view that, if the applicant were sentenced to terms of imprisonment if convicted of the most serious offences, the time he would have spent in custody on remand may well exceed the penalty that would be imposed.
His Honour also had regard to the possibility that the applicant would not be able to properly prepare for any trial or, for that matter, any sentencing hearing, if he were held in custody for a very significant period of time before the matters could be dealt with. However, the foundation for the concern remained the likely delay in the matters proceeding to a hearing.
I am respectfully of the view that the basis on which Magistrate Wilson concluded there were exceptional reasons in February 2017 was sound, but it is clear that the decision was dependent on circumstances that existed at that time. Most importantly, trial dates could not be set at that time for the charge of assault occasioning bodily harm, in light of the need for further disclosure, and there was a real prospect that a trial could not be held until late in 2017. In fact, when trial dates came to be set on 21 March 2017, trial dates were set in September and October 2017 for all of the charges.[39] When those trial dates were vacated on 25 May 2017, for all except AR 380/16 (the date for which was vacated later), new dates were set in November 2017.
Developments since the decision of 3 February 2017
[39] 29 September 2017 for AR 380/16; 2 October 2017 for PE 2587 - 2590/17; 3 October for PE 2591 ‑ 2592/17; and 5 October 2017 for AR 379/16.
Since 3 February 2017, there have been many developments. The applicant has been charged with additional offences. Trial dates for various charges have been set and vacated on numerous occasions. On at least three occasions, that has been as a result of the applicant's failure to appear. On other occasions the applicant has sought adjournments on the basis that he was medically unfit to attend court. On other occasions, hearings have not been able to proceed because the applicant was unrepresented. His lack of representation has been, at least in part, the result of a break down in his relationship with his lawyers.
As a result of trial dates being vacated repeatedly, matters have proceeded at an inordinately slow pace for summary proceedings. The benefits of the summary jurisdiction, an objective of which is to have charges dealt with more expeditiously in cases involving simple offences and less serious examples of indictable offences, have been lost. There is a real risk that the interests of justice will be adversely affected in the trial for the charge of assault occasioning bodily harm, because of the potential adverse impact of the lapse of time on the memories of witnesses.
While I accept that some of the adjournments were for reasons which should not be viewed adversely to the applicant (especially when the court has accepted he was medically unfit to attend court, or has determined that he should not be required to proceed without legal representation), it is difficult to escape the conclusion that the applicant has shown little desire to bring matters to a conclusion by a trial hearing. The view reached by Magistrate Huston on 14 June 2018, that he could have no confidence the applicant would attend court for his trial in any of the matters that were listed for trial, was understandable.
The most significant difference between the circumstances that pertained on 3 February 2017 and the circumstances now, is that there are a number of charges listed for trial before the end of this year and in January and February 2019. Importantly, the trial for the offence of assaulting a public officer is listed two weeks from the hearing of this application, on 12 November 2018. It is that charge that gives rise to the situation whereby the applicant must demonstrate exceptional reasons. If the applicant were to be acquitted of that offence, the situation arising by virtue of sch 2 would no longer exist, and the applicant could apply for bail in respect of other charges on the basis that his circumstances had changed. If the applicant were convicted and were to receive a non-custodial penalty, that again would be a relevant consideration in relation to whether, at that time, there would be exceptional reasons why he should not be kept in custody.
The view I have expressed that the applicant has shown little desire to finalise matters by a trial hearing was reinforced by a statement made the applicant in his reply on 29 October 2018. He said that the State seemed to think the trial hearing of the charge of assaulting a public officer (PE 2590/17) will proceed on 12 November 2018. He said that, in his view, it was not going to proceed because of a lack of materials. He referred specifically to CCTV footage from the custody area, claiming he did not have that material. The materials before me provide no basis for me to be able to make an assessment of the applicant's claim. In any event, it is a matter one would have expected him to have pursued well before now, knowing the trial date is imminent, if it will affect his ability to present his defence.
At this stage, I must determine this application on the basis that the trial hearing listed for 12 November 2018 will proceed.
Applicant's argument in respect of delay
The argument concerning significant delay clearly has no application currently to the hearing of PE 2590/17.
The other serious offence, for the purposes of cl 3A, the assault occasioning bodily harm (AR 379/16), is not listed for trial at this stage. The matter is listed for the allocation of trial dates on 27 November 2018. The applicant submits that there is likely to be significant delay before that matter will come to trial. Although the previous allocations of trial dates would suggest that trial dates would be set in the order of six months from the allocation date, I do not have any specific information about the likely interval to trial for AR 379/16 at this stage, given the history of the matter.
The State submitted that, if the applicant is convicted of the offence of assault occasioning bodily harm, the circumstances of that offence would place it at the upper end of seriousness for cases of that kind dealt with in the Magistrates Court, so that the probable disposition could well be sentence of imprisonment approaching the jurisdictional limit in the Magistrates Court of two years. The offence involved the applicant striking the victim to the head several times, knocking him to the ground unconscious. There would be no significant mitigation, in light of the applicant's criminal history, which includes a number of previous convictions for violent offences. In my opinion, the submissions have merit. In any event, I am not satisfied at this stage that the time the applicant will have spent in custody on remand is likely to exceed any sentence that may be imposed for that offence if he were to be convicted after trial, within the timeframe in which trials have been listed for the applicant's matters previously.
The State also submitted that, in relation to the charge of assaulting a public officer, listed for trial on 12 November 2018, a custodial sentence is also the probable outcome, given the surrounding circumstances, which included threats to injure. Again, the State submits there would be no mitigation of any significance, in the event of a conviction after trial, given applicant's criminal history, which includes several convictions for assaulting public officers. Without consideration of the evidence, which is not before me, it is difficult to assess the weight of that argument. However, for the same reason, I am not able at to accept the applicant's argument, without more, that the offence is to be regarded as minor and would not attract a custodial sentence.
As for the applicant's argument in respect of the lack of strength of the prosecution case, I do not have any of the prosecution briefs. The applicant's claims, about the events that gave rise to the various charges, are not on oath and have not been tested. In relation to the charge of assaulting a public officer, the alleged facts are that the applicant kicked out at the officer, but did not make contact because the officer took evasive action. The applicant's statements during submissions suggest that there may not be a dispute about those basic facts, and that the issue will be whether the applicant was provoked. That claim of provocation involves the applicant's state of mind, about which it might be expected that he would give evidence.
Otherwise, a substantial part of the applicant's 'submissions' about the evidence and the circumstances of the alleged offences involve accusations (essentially attacks on character) against persons who may be witnesses (either for the prosecution or for the defence) in respect of the charge of assault occasioning bodily harm. The accusations supposedly go to the strength of the case against him, or his claim that he is compromised in his ability to defend the charge, but they provide no coherent basis for his arguments about those matters.
In short, there is no material before me upon which I can conclude that the case against the applicant in respect of the two serious offences is so weak that, either alone or in combination with other factors, it constitutes an exceptional reason why he should not be kept in custody.
Medical conditions - access to treatment
As he did in the Magistrates Court, the applicant referred to his medical conditions, in particular his anxiety, a problem he had with his eye, asthma and a lung infection, and asserted that there has been a failure to provide him with medical treatment whilst he is in prison. He has lodged grievances with the Health and Disability Services Complaints Office and with the Australian Human Rights Commission. I have not been provided with the applicant's medical records from prison.
There is no medical evidence before me that would establish that the applicant's health is compromised because he is in custody, to an extent that would constitute an exceptional reason why he should not be kept in custody. There is no suggestion that his life is at risk or that he is at imminent risk of serious or incapacitating illness. Nor is there medical evidence that his incarceration is exacerbating any medical condition. Further, while he may consider that the attention and treatment he has received for his conditions is inadequate, there is no evidence to support a conclusion that he is being denied medical treatment. Finally, he was able to appear in the hearing of this application and speak at length without any apparent difficulty. I appreciate that does not necessarily reflect his physical condition overall, but it does suggest that the fact he is in custody has not affected his capacity to appear in court, or to understand and follow the proceedings and conduct his defence.
Ultimately, the matters raised by the applicant in this context are properly dealt with by raising them with the prison authorities and oversight agencies, as he has done.
Inability to access materials to prepare his defence
The applicant submitted that in prison his access to resources, to enable him to prepare for his court appearances, is restricted. This issue is obviously linked with his current lack of representation in the Magistrate Court matters, although he informed me that one of his previous lawyers is applying again for a grant of Legal Aid in that regard. The applicant's difficulties in this respect are not unusual for persons who are remanded in custody.
Perhaps more significantly, the applicant continues to submit that he does not have access to the evidentiary materials that had been served on him in relation to the serious charges, or the photographs which he says he took that are relevant to the charge of assault occasioning bodily harm. His written submissions suggested that the materials were at his former residence, and that friends or associates he had sent to collect them had been prevented from doing so by persons who were squatting at the premises. In the hearing, the applicant said that his belongings had eventually been retrieved and were stored in a shipping container. The basis of his submission of prejudice now is that his friends or associates do not know what to look for, or where to look for the materials, among his belongings, and it is necessary for him to attend the shipping container to retrieve the relevant materials.
It seems extraordinary that the applicant would not have the capacity to explain to his friends or associates (in the absence of legal representation) the materials that he requires and where they might be found, if that was the only means by which he could come into possession of materials relevant to the charges. One would have thought that documents that were relevant to court proceedings should be obvious.
I have assumed for the purpose of dealing with this submission that the applicant has previously had materials provided or returned to him by lawyers who have ceased to act for him, so that he cannot obtain them from those lawyers.
In any event, I am not satisfied that the applicant is so bereft of means of obtaining the documentation relevant to his charges that there is thereby an exceptional reason why he should not be held in custody pending his trial. If he requires additional copies of materials previously served on him, it is a matter he should pursue with the prosecuting authorities. It would be expected by the court that the applicant's current circumstances would be taken into account by such authorities when considering such a request.
Inability to locate and summon witnesses
The applicant's argument that he cannot locate or summon witnesses while he remains in custody, and that those circumstances constitute an exceptional reason why he should not be kept in custody, is without merit.
This argument relates primarily to witnesses who may be able to give relevant evidence in relation to the charge of assault occasioning bodily harm. It must be noted that the applicant was charged with that offence in January 2016 and an order was made for disclosure of materials concerning additional witnesses on 3 February 2017. The applicant was subsequently on bail until 14 June 2018. If the prosecution failed to comply with the disclosure order made by the Magistrates Court, one would have expected the applicant or his legal representatives to have taken steps to ensure there was compliance. Again, it seems extraordinary that the applicant or his legal representatives would not have identified and located the witnesses considered necessary for the defence case during the time the applicant was on bail.
In any event, the need to summon witnesses in relation to the trial for the charge of assault occasioning bodily harm will not arise until that charge is set down for a trial hearing. If, and when, that need arises, the applicant can raise the matter with the Magistrates Court.
I am not satisfied that the applicant has established an exceptional reason in this respect.
Alleged failure of the prosecution to comply with disclosure orders
I have already dealt with the applicant's submission about disclosure. In any event, it is not apparent how his position in relation to enforcing the court's order, if indeed there has been non-compliance, would be improved by the applicant being on bail, given that, on his argument, he was not successful in doing so when he was on bail for a lengthy period previously.
This is a matter the applicant must pursue with the prosecution and with the Magistrates Court, which made the order.
Conclusion in relation to exceptional reasons
I am not satisfied that the applicant has established there are exceptional reasons why he should not be kept in custody in respect of the two serious offences, one of which is to proceed to trial on 12 November 2018. I have come to that conclusion considering each of the matters raised by the applicant individually and in combination with the other matters. Ultimately, I do not consider that the combined weight of the matters raised is sufficient to constitute exceptional reasons.
Whether bail would otherwise be appropriate
As I have concluded that the applicant has not established exceptional reasons why he should not be kept in custody, bail must be refused and it is strictly not necessary to consider whether bail would otherwise be appropriate, as required by cl 3A of sch 1 pt C of the Bail Act, having regard to cl 1, considered with cl 3 of sch 1 pt C.
However, I have considered the submissions made by the State about the appropriateness of bail, and the applicant's submissions in response. I am of the opinion that there are real concerns about whether the applicant would comply with a bail undertaking by appearing for his trial, and I have significant reservations about whether any conditions could be imposed that would reduce those concerns to an acceptable level.[40]
[40] YSN v The State of Western Australia [2017] WASCA 155.
First, for the reasons given at [95] - [97] above, there is a real risk that the applicant will fail to appear for his trial on 12 November 2018. There is no condition that can remove or reduce that risk. The concern is not that he will abscond, but that he will simply fail to attend court, frustrating the administration of justice, which requires the matter to proceed to trial on that day. As I noted earlier, the views he expressed during these proceedings about whether the trial will proceed tend to reinforce that concern.
The applicant submitted that his breaches of bail should be regarded as relatively minor, in light of his compliance over an extended period of time, during which he attended court as required. As for his failure to appear on 22 May 2018, he asserts that the prosecution and the Magistrates Court have blown the failure to appear out of proportion. He has persistently claimed that he had been excused from attending.[41] His explanations have varied. Among them is the claim that he was informed by the Magistrates Court on 9 May 2018 that he was not required to attend for his trial on 22 May 2018. However, he has failed to produce any record or other evidence that confirms his assertions.
[41] ts 8 (9 October 2018).
In my opinion, when considered in the context of a previous failure to appear for trial and his failure to attend the Joondalup Magistrates Court for the trial on 14 June 2018, which he expected would be adjourned, his failure to attend on 22 May 2018 was not a minor breach.
The second matter of concern is that, on a number of occasions in the proceedings in the Magistrates Court since 14 June 2018, and in this application, the applicant has behaved in an obstinate, disrespectful and at times aggressive manner, including the use of obscene and abusive language. Whatever the applicant's behaviour may have been like before 14 June 2018, such behaviour since then reveals a distinct lack of respect for the authority of the court and does not instil confidence that he will respect the orders of the court or its administration, in particular the setting of trial hearing dates.
The State also submitted that there is a risk that the applicant will commit offences, that he may endanger the safety, welfare or property of any person, and that he may interfered with witnesses. The foundations for those submissions are the offences alleged to have been committed by the applicant (which are included in the charges listed in the tables above) in the nature of criminal damage and using a carriage service in a menacing, harassing or offensive way; all of which are alleged to be related to the earlier offending in 2016. The submission is made against the background that the accused has a significant number of convictions for offending of a similar or analogous kind.
The difficulty with the State's submission is that the applicant was granted conditional bail previously, notwithstanding that history. Obviously, it was thought at an earlier time that there were conditions that could sufficiently alleviate the sorts of concerns raised now. While the applicant's behaviour during recent bail hearings may require a reconsideration of that question, I do not rule out at this stage the possibility of suitable conditions being formulated that would adequately ameliorate the risks identified by the State. However, it is not necessary to determine that issue in light of my other conclusions.
The applicant is self-represented
Before expressing my conclusions, I note that I have had regard to the fact that the applicant is unrepresented and is in custody. The hearings were conducted by video-link to the prison where he is held. In particular, I take into account that he has limited resources to prepare for court, although he filed lengthy handwritten submissions and on a number of occasions referred to legal authority. I also take into account that, to the extent that he has not produced evidence to support a number of his assertions, there may be limitations to his capacity to obtain that evidence. Nevertheless, there is a proper foundation, for reasons I have identified, to be cautious about accepting the applicant's bare assertions.
Despite the applicant's difficult behaviour at times, he was given ample opportunity to put his arguments. Although he was halted when he persisted with irrelevancies, due allowance was made for the fact that he is not legally trained. Counsel for the respondent put the State's submissions fairly, with due regard to the applicant's circumstances. As I noted earlier, the Court endeavoured to distil the key points of his argument that could properly be regarded as relevant. Ultimately, I have concluded his argument cannot be accepted.
Conclusion
For the reasons I have given, I am not satisfied that there are exceptional reasons why the applicant should not be kept in custody. Such exceptional reasons are necessary in the circumstances of this case before bail could be granted.
Therefore the application for bail is refused.
Non-publication order
As the applicant has charges pending in the District Court, which may be the subject of a jury trial, I make an order prohibiting the publication of the decision and my reasons in this application until further order, except that a copy of the decision and reasons may be provided to the Office of Commonwealth DPP, which has the conduct of the District Court matters, and to the applicant's legal representative in those proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BC
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE FIANNACA
2 NOVEMBER 2018
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