Smart v The State of Western Australia [No 3] - [2018] WASC 412

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SMART -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2018] WASC 412
CORAM:   FIANNACA J
HEARD:   3 & 14 DECEMBER 2018
DELIVERED          :   14 DECEMBER 2018
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)

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Mr R P Arndt (3 December 2018) & Mr A M Dungey (14 December 2018)

Solicitors:

Applicant	:	Not applicable
Respondent	:	Director of Public Prosecutions (WA)

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

Dietrich v The Queen (1992) 177 CLR 292
Donaldson v Western Australia [2010] WASC 264
Haigh v Oliver [2015] WASC 462
Smart v The State of Western Australia [2018] WASC 336
Stephens v The Queen [2004] WASCA 22
VJS v State of Western Australia [2017] WASCA 172

FIANNACA J:

The application and its history

This is an application for bail in respect of charges in the Magistrates Court in Perth. The application was heard on 3 and 14 December 2018. At the conclusion of the hearing, I dismissed the application and gave brief reasons, with detailed reasons to follow. These are my reasons in detail. They incorporate the brief reasons I gave on 14 December 2018.
The trial of the charges in the Magistrates Court proceeded before Magistrate Walton on 13 November 2018. It was adjourned part-heard until 18 March 2019 after the completion of the evidence of the first witness. The applicant applied for bail. The magistrate remanded him in custody. Although there was some confusion about whether his Honour considered the bail application, my understanding from the transcript of the proceedings is that he did not consider bail because he was uncertain whether he had jurisdiction, in light of the history of the matter, to which I will return shortly. His Honour indicated to the applicant that he would probably have to bring a bail application in this court. However, he also indicated that, if he had jurisdiction, his initial view was that he would not grant bail, having regard to the history of the matter.
The present application is not an appeal from the magistrate's order remanding the applicant in custody. It is an application under s 14(2) of the Bail Act 1982 (WA) (Bail Act), and invokes this court's jurisdiction to exercise afresh the power to grant bail conferred on a magistrate by s 13 and sch 1 pt A of the Bail Act.
As filed by the applicant, the application, which was dated 30 November 2018, failed to state properly the order he was seeking, namely his release on bail, and failed to identify the charges and the appearance for which he was seeking bail. With the court's assistance and leave (which was not opposed by the State), the application was amended on 3 December 2018 to seek bail in respect of the applicant's next appearance on 18 March 2019 in the Perth Magistrates Court on charges PE 2587, 2589, 2590 and 2591 of 2017.
I had previously denied the applicant bail in respect of those charges for his appearance in the Magistrates Court on 12 November 2018: see Smart v The State of Western Australia [2018] WASC 336 (Smart (No 1)). That decision also related to bail for other charges faced by the applicant in the Magistrates Court. In my reasons, published 5 November 2018, I examined in detail the factual circumstances concerning the charges and the applicant's bail history in respect of the charges until that point in time. The applicant had submitted that I should disqualify myself from hearing that bail application on the basis of apprehended bias. I had rejected that submission and published my reasons for doing so in the same decision.
The applicant has appealed against my decision refusing to disqualify myself and refusing bail in those earlier proceedings.
At the commencement of the present proceedings, on 3 December 2018, the applicant again submitted that I should disqualify myself on the basis of apprehended bias. On that occasion, he argued there was apprehended bias because of (a) my refusal of his earlier application for bail, (b) the fact he had appealed against my previous decision, and (c) the fact that the respondent had put before me information about his alleged behaviour in the Magistrates Court on 13 November 2018 that was prejudicial and would prevent me from bringing an independent and impartial mind to the determination of the issues in this application, or that there was a reasonable apprehension that I might not do so. I rejected that submission and declined to disqualify myself. I gave ex tempore reasons on 3 December 2018.
In the course of my reasons on 3 December 2018, I said that I would not have regard to the information that had been forwarded to the court by the respondent, which was read onto the record, concerning the applicant's alleged behaviour in the Magistrates Court, as it was not relevant to the bail application. The transcript of the proceedings on 13 November 2018 was not available at that time. The information that had been provided to the respondent by the police prosecutor who appeared on 13 November 2018 was that, after Magistrate Walton refused to grant bail -
[The applicant] went to pick up a chair from the dock. Believing that he intended to throw the chair at the Magistrate, the two security officers in the dock and the Court Orderly tackled [the applicant] and pinned him to the ground. [The applicant] has not been charged over this incident.
As I will explain later, new light is shed on that incident by the transcript that is now available from the proceedings on 13 November 2018. The applicant's conduct at the conclusion of proceedings on that day is a relevant consideration in deciding whether bail should be granted, in the event that the applicant otherwise satisfies the court that there are exceptional reasons why he should not be kept in custody, which, for reasons explained in Smart (No 1), remains a pre-condition to the grant of bail.
The fact that I now consider the applicant's behaviour on 13 November 2018 to be relevant does not alter my conclusion in respect of whether I should disqualify myself from hearing this application. It remains the case that I would not allow any impermissible prejudice that the conduct might create to influence my decision. I am satisfied that a fair-minded reasonable lay observer would not conclude that I might not bring an independent and impartial mind to my consideration of the application. In any event, the argument in respect of prejudice has less weight when the information is relevant.

The legal framework

As I noted earlier, the application comes under s 14(2) of the Bail Act. However, the application is brought after there has been a refusal of bail in the Supreme Court in relation to the same group of offences. Subsection (2a) provides:
(2a)After the jurisdiction under subsection (1) has been invoked once by an accused in relation to an offence or group of offences for which he is required to appear, it may not be further invoked by that accused in relation to that offence or group of offences unless the accused satisfies a judge that ‑
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or
(b)he failed to adequately present his case for bail on that occasion.
In essence, before I can exercise jurisdiction under s 14, the applicant must satisfy me that the circumstances have changed since my decision in Smart (No 1).
If I am satisfied that the circumstances have changed, I must exercise the jurisdiction, which is conferred by s 13 of the Bail Act, in a manner that is subject to and in accordance with pt III of the Act and the further provisions in pt B, C and D of sch 1.
As I explained in Smart (No 1),[1] because the applicant is alleged to have committed the offence of assaulting a public officer (PE 2590/17), which is the subject of this application, on 13 January 2017, while he was on bail for an offence of assault occasioning bodily harm (AR 379/16), cl 3A of sch 1 pt C of the Bail Act applies, and I must refuse bail unless I am satisfied there are exceptional reasons why the applicant should not be kept in custody. That is because both of those alleged offences are 'serious offences' for the purposes of the Bail Act.
[1] Smart v The State of Western Australia [2018] WASC 336 [62] ‑ [67].
In Smart (No 1), at [69] ‑ [71], [73] and [74], I outlined what is required for the applicant to establish exceptional reasons and some factors that may be relevant.
I also have regard to the observations of Murray J in Donaldson v Western Australia [2010] WASC 264 (referred to by the respondent):[2]
[T]he more compelling are the considerations which militate against the grant of bail, the more powerful must be the reasons why the accused should not be kept in custody. It is a matter of balance, weighing competing considerations in the interests of justice, and there is no closed category of considerations which may constitute exceptional reasons why the accused should not be kept in custody.
…
[Exceptional reasons] are not reasons different in character from the considerations which would ordinarily affect the exercise of the discretion to grant bail. They are the same considerations, but their exceptional nature lies in their power to overcome the considerations which tend towards a decision that bail should be refused.
[2] Donaldson v Western Australia [2010] WASC 264 [54] and [58].
Even if I were satisfied there has been a change of circumstances and that 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 cls 1 and 3 of sch 1 pt C.

The applicant's submissions

The applicant submits that the circumstances have changed since my decision in Smart (No 1) because the trial of the charge of assaulting a public officer, which was expected to be completed on the dates that had been allocated of 12 and 13 November 2018, has now been adjourned until 18 March 2019 for completion, which will result in the applicant being incarcerated on remand for a significantly greater period than had previously been expected. The applicant submits that his incarceration for that period, when he has not been convicted of an offence, will occasion an injustice. That is particularly so, he submits, because he will not receive a term of imprisonment if he is convicted of the offence of assaulting a public officer.
The applicant's argument that he will not receive a term of imprisonment relies on the proposition put previously that the nature of the offence is not sufficiently serious to warrant a term of immediate imprisonment, in that it involved him kicking out at an auxiliary officer who was trying to remove the applicant's pants in a police lock‑up when the applicant was under arrest, and he did not make contact with the officer. However, the applicant now relies on a further proposition, namely that Magistrate Walton has determined that the charge is not serious and will not warrant a term of imprisonment in the event that the applicant is convicted.
The applicant's argument in respect of the first proposition relies in part on factual assertions that have not been made by him on oath, and which, if given in evidence by him in the Magistrates Court trial, will require assessment by the magistrate. Moreover, as I indicated at [105] of Smart (No 1), the assertions relate to a defence of provocation, on which the applicant is relying in that trial. At the core of his defence is that he reacted to a blade, which was being used by the auxiliary officer to cut the string of the applicant's pants, coming into contact with his genitals. It is not a matter to which I can give any weight in these proceedings in considering the applicant's argument that he is not likely to be sentenced to a term of imprisonment if convicted, and that an injustice will occur if he is kept in custody pending the completion of the trial. It will be for the magistrate to determine what weight he places on the applicant's factual claims, if he gives evidence.
I will return later to the question of whether, objectively, the alleged offence might attract a term of imprisonment if the applicant is convicted.
Turning to the applicant's second proposition, it is true that there was a discussion between Magistrate Walton and the prosecutor on 13 November 2018 about the seriousness of the offending alleged by the prosecution and the likelihood of a sentence of imprisonment. The discussion concerned all of the charges.
The question of whether the charges were serious charges and whether the applicant was likely to be sentenced to a term of imprisonment if convicted arose in the context of an application by the applicant to adjourn the trial on 12 November 2018. It is necessary to consider that context in some detail.

The proceedings in the Magistrates Court

12 November 2018

The trial in the Magistrates Court was listed to commence on 12 November 2018. Before the commencement of the trial, the applicant objected to the trial proceeding on the basis that (a) he did not have access to the relevant disclosure material, including the CCTV footage from the lock-up that depicted the relevant incident, and (b) he was not represented by counsel.[3]
[3] ts 2. All transcript references are to the transcript of proceedings on 12 and 13 November 2018.
The disclosure issue was resolved by the prosecutor providing the applicant with a photocopy of the witness statements and other materials, and by the applicant being given an opportunity to view the CCTV footage within the courtroom by the use of the court's audio‑visual system.
The applicant then applied to adjourn the trial on the basis that he was suffering from an anxiety disorder.[4] The Magistrate reviewed the medical documents provided by the applicant and decided that there was insufficient evidence to adjourn the trial for medical reasons.[5]
[4] ts 25.
[5] ts 27.
The applicant then again applied to adjourn the trial on the basis that he did not have legal representation.[6] The magistrate indicated that the applicant could make that application again the following morning.

13 November 2018

[6] ts 37 ‑ 38.

On 13 November 2018, the applicant applied to adjourn the trial on the basis, in effect, that it was too complicated for him to conduct his defence having had only 24 hours to look at the materials, in circumstances in which there were 'issues related to mental health' and he was waiting for a grant of legal aid.[7]
[7] ts 41.
The Magistrate heard the accused's submissions and reviewed the history of the proceedings. His Honour treated the application to adjourn as one that relied on the principles in Dietrich v The Queen (1992) 177 CLR 292.[8] The essence of those principles was explained by Mazza JA (Martin CJ and Buss P agreeing) in VJS v State of Western Australia [2017] WASCA 172 at [155] (footnote omitted; italics added):
[H]aving regard to the fundamental nature of a fair trial in the Australian criminal justice system and to the serious disadvantages which flow to an unrepresented accused who is charged with a serious offence, a court has the power to stay or adjourn proceedings until legal representation is made available. The approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation, is to, in the absence of exceptional circumstances, adjourn, postpone or stay the proceedings until legal representation is available. If, in those circumstances, such an application is refused, the resulting trial is not fair and any conviction must be quashed on appeal.
[8] ts 44.
Magistrate Walton had regard to VJS and to the decision in Haigh v Oliver [2015] WASC 462. In the latter case, Tottle J, on an appeal from the Magistrates Court which included grounds concerning the application of the Dietrich principles, concluded that the 'principles did not apply to the appellant's case before the magistrate because the offence was not a serious offence and there was no prospect that the appellant was liable to be punished by a term of imprisonment.'[9]
[9] Haigh v Oliver [2015] WASC 462 [38]. Tottle J also found that the appellant adduced no evidence to support that he was unable to afford legal representation, but it appears it would have been sufficient to deny the application of the Dietrich principles that the offence was regarded as one that would not attract a term of imprisonment.
I note that Haigh v Oliver was a case in which the magistrate, before proceeding with the hearing, had 'assured the [accused] that there was no prospect of the imposition of a term of imprisonment in the event of a finding of guilt'.[10]
[10] Haigh v Oliver [21].
In VJS, some emphasis was placed on the fact that it could not be said it was through no fault of the appellant that he was without legal representation at trial.[11]
[11] VJS v State of Western Australia [156], [157] and [160].
As Tottle J noted in Haigh v Oliver, the fundamental concern that underlies the Dietrich principle is the right to a fair trial. In that context, the relative complexity of the charge and the circumstances in which the offence is alleged to have been committed, and the assistance that can be provided to the accused by the court to understand and follow procedure and evidence, are all relevant considerations.
Although this is a bail application, not an appeal against the magistrate's decision to refuse the adjournment application, the matters to which I have referred provide context for the discussion that then took place between the magistrate and the prosecutor.
Before considering the question of whether the offences were 'serious', in the sense used in the Dietrich principles, his Honour considered two separate issues: (1) the relative complexity of the charges faced by the accused; and (2) whether his lack of representation could be said to be through no fault of his own.
In relation to the issue of complexity, his Honour said:[12]
It would seem to me, from my observation of the charges, obstructing a police officer, disorderly behaviour in a police station, threat to injure, are not particularly difficult charges to comprehend or understand. Assault public officer can be complex, especially given now - which [the applicant] picked up on - is the allegation is a kicking out by [the applicant], with actual no connection [of] the foot or part of the leg with a particular officer…
That, again, appears to be not overly complicated.
[12] ts 44.
In relation to the question of 'fault', having considered the relevant passages in VJS, his Honour said:[13]
It seems to me that … there seems to be, on the face of it, some evidence that he is unrepresented, Mr Smart that is, through his own fault and the particular stance he has taken about alleged issues surrounding his representation and alleged behaviour by other parties, including Mr [R] and others and Legal Aid. From the material before me, I'm far from persuaded that Mr Smart has acted reasonably to obtain legal representation, and that the absence of legal representation was through no fault of his.
[13] ts 46.
The magistrate then said:[14]
The question needs to be determined as to whether these are serious charges.
[14] ts 46.
His Honour then referred to the passage in Haigh v Oliver which I quoted earlier. His Honour noted that, in the context of that decision, there 'seemed to be a connection between the possibility of a term of imprisonment and the classification of the matter as to whether it was serious or not.'[15] His Honour then said:[16]
The obstruct public officer, disorderly behaviour and arguably the threats to injure are not normally associated, if I can put it that way, with terms of imprisonment. The assault public officer, of course, is a serious matter, but there are degrees of seriousness in relation to it.
[15] ts 47.
[16] ts 47.

His Honour noted that the allegation was of a 'kick out' with no contact. His Honour continued:[17]
Now, I don't know anything about Mr Smart's record, but I'm left to determine whether these matters are serious, in combination with whether there's any actions or any fault on behalf of Mr Smart in failing to obtain legal representation.
[17] ts 47.
The applicant then stated that 'the seriousness was debated in the Supreme Court bail application'.[18] He submitted that it had been determined by the 'higher court' (a reference to my decision in Smart (No 1)) that the offence of assaulting a public officer was serious, and that he had been refused bail on that basis. He tendered the State's submissions dated 12 October 2018 which were filed in the previous bail application heard by me.
[18] ts 47.
The applicant's argument was, in effect, that because the offence of assaulting a public officer is a serious offence for the purposes of the Bail Act, it must also be a serious offence for the purposes of an application relying on the Dietrich principles (which, henceforth, I will refer to, for convenience, as a 'Dietrich application'). That argument was misconceived, and Magistrate Walton explained that to the applicant, saying:[19]
The assault public officer, as I said prior to Mr Smart's intervention, is arguably serious, but there's degrees of seriousness, especially when you unwrap the charge and look towards the alleged facts. It's declared a serious offence in respect of the schedule of the Bail Act. I'm looking at this in a different context, of course. That's one context; this is a different context.
[19] ts 49.
Of course, his Honour was correct in drawing the distinction. The fact that an offence is defined or listed as a 'serious offence' within the Bail Act is relevant only to the application of the provisions of that Act, in particular whether an applicant is required to show exceptional reasons why he should not be kept in custody when he is alleged to have committed such an offence while on bail for another such offence. As the State submitted at the bail hearing, there are many offences which would be regarded as serious offences for the purposes of a Dietrich application, including, for instance, sexual offences against a child (Criminal Code s 320 ‑ s 322), which are not 'serious offences' for the purposes of the Bail Act. Conversely, some offences that are serious offences for the purposes of the Bail Act may not be regarded as serious offences for the purpose of a Dietrich application, because of the particular circumstances of the case.
Haigh v Oliver is an example of a case involving an offence which is a serious offence for the purposes of the Bail Act (the breach of a violence restraining order), but which was not regarded as a serious offence for the purposes of the Dietrich application, having regard to the circumstances alleged in that case, so that it could not be said that the accused's trial would be unfair if he was unrepresented.
The applicant's conflation of the separate notions of 'serious offence' continued in the hearing before me, where he submitted that the offence of assaulting a public officer could no longer provide a foundation for the application of cl 3A of sch 1 pt C of the Bail Act, in light of the magistrate's decision in the Dietrich application. Putting that error to one side, the applicant's argument is that the offence was not determined to be a serious offence for the purposes of the Dietrich application, and that must inform the question of whether a term of imprisonment is likely to be imposed, which in turn informs the question whether there is an exceptional reason why he should not be kept in custody. Confined in that way, the argument is unobjectionable, although the view taken by the magistrate about the seriousness of the offence would not be determinative of the bail application.
However, the applicant's argument goes further, submitting that he was in effect given an assurance that he would not be imprisoned if convicted of the offence of assaulting a public officer, and that the assurance arose by way of an agreement between the magistrate and the prosecutor on 13 November 2018. His argument arises from the following exchanges.
Having drawn the distinction between the Bail Act and a Dietrich application, his Honour asked the prosecutor:[20]
[W]hat's the position in relation to ‑ what would be your submission in relation to sentence? This is an unusual process, I accept that. But if he was to be found guilty ‑ I don't want to have references to his record, anything like that, I'm just wondering standing alone, what's the position?
[20] ts 49.
Having looked at a document (which was not identified), which the prosecutor indicated would assist him 'to see what kind of sentencing submission [he] would make in relation to [the charges]',[21] the prosecutor said:
Well, it would most probably be ‑ I think fines would be appropriate for these matters, but notwithstanding, in terms of sentencing …
[21] ts 49.
He was then interrupted by a further enquiry by his Honour, who noted that the most serious charge was for the offence of assaulting a public officer. That prompted the prosecutor to say:[22]
It's open for a court to impose a term of imprisonment for assault public officer. So it's always on the cards.
[22] ts 50
The magistrate then said:[23]
But in this circumstance, the alleged circumstances – of course, he hasn't been convicted yet – there's no – it would be unlikely that I would go down that path, I would have thought. I'm not giving an indication, but it seems to me, based upon the facts you've presented to me … Alleged facts.
[23] ts 50.
That was as far as the magistrate went in terms of indicating that a term of imprisonment would be unlikely, qualified, of course, by the statement that he was 'not giving an indication'.
Notwithstanding his earlier indication that his submission would probably be that fines would be appropriate, the prosecutor did not express agreement with the proposition that a term of imprisonment would be unlikely. Instead, he went on to say that, regardless of the likelihood of immediate imprisonment, the matter had experienced significant delay and needed finality.[24]
[24] ts 50.
Regrettably, it cannot be said that the magistrate gave a cohesive and uninterrupted set of reasons for refusing the adjournment application. His Honour commenced to give reasons, but then engaged the applicant in discussion about various issues, including his lack of representation, in particular why Mr R was no longer acting for him. The reasons are interspersed with the applicant's submissions and assertions about factual matters, including the connection he claims to exist between the charges the subject of this application and other charges. What emerges, however, from my analysis of the transcript, is that the magistrate considered the applicant was engaging in a 'delaying tactic' which was 'self-evident from the record',[25] that he had had ample opportunity to obtain counsel for the matter,[26] and the matter had to proceed to avoid further substantial delay.[27] As I noted earlier, his Honour also considered that the allegations were not complex. Further, he was not satisfied that the applicant's lack of legal representation was through no fault of his own; indeed, he considered that the applicant's conduct towards his previous lawyers was relevant in explaining his lack of legal representation.
[25] ts 54
[26] ts 56
[27] ts 56.
Having regard to the matters outlined by the magistrate for refusing the application to adjourn, it could not be said, in my opinion, that the magistrate considered it necessary to reach any concluded view about the likely sentencing outcome for the offence of assaulting a public officer, in the event the applicant is convicted. His language was not conclusive, as I have already indicated.
The applicant contended in these proceedings that the magistrate would not have been able to proceed in the absence of an agreement that imprisonment would not be warranted if the applicant were convicted. The contention is wrong. There was at least one other ground on which the magistrate was entitled to refuse the adjournment application, having regard to the Dietrich principles, namely the applicant's lack of fault in respect of his being unrepresented. Further, the magistrate was of the view that the lack of complexity of the charges meant that the trial would not be unfair to the applicant.
At the end of proceedings on 13 November 2018, the applicant made an application for bail. He purported to rely on a change of circumstances, putting to the magistrate:[28]
You continued on the basis that it's not serious.
[28] ts 126.
The magistrate responded:
No, I didn't.
His Honour's response is consistent with the analysis outlined above that there were other bases on which his Honour refused the adjournment application, and the non-committal nature of his Honour's comments about the seriousness of the offence and the unlikelihood of a term of imprisonment.
On a proper analysis of the proceedings of 13 November 2018, there was no agreement between the magistrate and the prosecutor that a term of immediate imprisonment would be inappropriate for the offence of assaulting a public officer, and the magistrate did not give any definitive indication of the likely sentencing outcome. Even if either of those things had happened, that would not determine whether the applicant has established an exceptional reason why he should not be kept in custody or that bail is otherwise appropriate.

The trial proceeds on 13 November 2018

After refusing the application to adjourn on 13 November 2018, the trial proceeded. Evidence was given by the first witness, the investigating officer, Detective Senior Constable Callaghan. That evidence occupied the rest of hearing on 13 November 2018. It included the playing of a video of the arrest of the applicant and a video of footage from the CCTV cameras within the lock-up, which included vision of the incident in which the offence is alleged to have been committed. Detective Callaghan was cross-examined at length by the applicant.
At the conclusion of Detective Callaghan's evidence, it became apparent that there was no time for other evidence to be adduced that day, and the matter had to be adjourned to further trial dates when a number of other witnesses would be called. The matter was adjourned to 18 March 2019 and the applicant made his application for bail.

Application for bail on 13 November 2018

As I noted at the outset, although there was some confusion about whether the magistrate had jurisdiction to consider bail, ultimately he remanded the applicant in custody, without considering bail. His Honour indicated that he did not have transcript (or the reasons given by me, which were suppressed) from the bail application I had decided, so he could not be guided on the question of jurisdiction by that means. However, he noted that the only change in circumstance was that the trial had been adjourned and that he would not have been satisfied that bail should be granted in any event, putting aside the jurisdictional issue.[29]
[29] ts 132.
Even if his Honour had granted bail in relation to the appearance on 18 March 2019, the applicant would have remained in custody on remand for the other charges in respect of which bail was refused in Smart (No 1), including the serious offence of assault occasioning bodily harm. As the applicant is in custody in respect of other charges, s 10 of the Bail Act would operate to suspend his rights under s 5 of the Bail Act to have bail considered and the court's duty under s 7 to consider bail, if the court is satisfied he is likely to remain in custody in respect of the other charges until or beyond the time for his next appearance on the charges the subject of this application. However, as I understand his current status on the various other charges, I could not be satisfied that he is likely to remain in custody until 18 March 2019. Therefore, he was entitled to have bail considered by the magistrate.
If the other outstanding charges are concluded before 10 March 2019, and the applicant is not sentenced to any term of imprisonment for those, there would be a prospect that he could take advantage of bail for the present matters, if granted. I also recognise that if he is granted bail in respect of the present matters, it may enhance his prospects of obtaining bail in respect of other outstanding charges. On the other hand, the fact that he faces a large number of other charges and the bail history in respect of those charges are relevant considerations in determining the appropriateness of a grant of bail for the matters the subject of this application.
The applicant complains that, when he applied for bail on 13 November 2018, the investigating officer for the case informed the magistrate that the applicant did not have bail in respect of his charges in the District Court. I referred to those matters in Smart (No 1) at [3], [28] and [29]. Bail has been renewed on those charges, although the applicant has not been able to be released on bail because he has been remanded in custody in respect of the various charges in the Magistrates Court. However, there is no indication in the transcript that the erroneous information provided by the investigating officer had any bearing on the magistrate's decision to remand the applicant in custody. In any event, this is not an appeal from his decision. For the purposes of considering bail pursuant to s 14 of the Bail Act, I am properly informed of the applicant's bail status in respect of all outstanding matters.

Whether there are changed circumstances

In Stephens v The Queen [2004] WASCA 22, Roberts-Smith J explained what is a relevant change in circumstances (which is applicable in the context of s 14(2a) of the Bail Act) in the following terms, which I respectfully adopt:[30]
[O]ne must look for a relevant change in relevant circumstances and indeed a change or new facts which would be likely to weigh in the outcome of the application being different to what it had been on the earlier occasion.
[30] [10].
The change of circumstance in this case is essentially that the delay before the charge of assaulting a public officer is determined is now significantly greater than it was when I gave my decision in Smart (No 1), so that an exceptional reason for the purposes of cl 3A might now be established when it was not established at the previous hearing. As I have already said, it remains the case that the applicant must establish exceptional reasons.
I note that the applicant appears to have been under a misapprehension in the Magistrates Court about what I had said concerning changed circumstances in Smart (No 1). At [98] of that decision I said:
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.
Neither of those outcomes eventuated on 13 November 2018.
However, I accept (as the magistrate also appears to have done) that the adjournment of the trial for a lengthy period is a matter that would be likely to weigh in the outcome of the application being different to what it was on the earlier occasion. I am prepared to accept, therefore, that there has been a change in circumstances that enlivens the jurisdiction under s 14 of the Bail Act. Of course, the fact that a matter is likely to weigh in the outcome of the application dos not mean it will result in a different outcome.

Whether there is an exceptional reason

The period the applicant will spend in custody

If I were to be satisfied that an immediate term of imprisonment would not be the only appropriate sentence if the applicant is convicted of the offence of assaulting a public officer, which is the most serious of the charges the subject of this application, then the fact that the applicant will have spent a significant period of time in custody, pending the outcome of the trial, could well constitute an exceptional reason not to keep him in custody. The State acknowledged that 'as a general rule, the likelihood of a sentence of imprisonment, if convicted, and the relationship between the likely range of sentences and the time that would be served in custody awaiting trial or sentence, are relevant factors in determining whether or not an accused should be granted bail and, where applicable, whether or not the requirement to demonstrate exceptional reasons is satisfied'.
However, the State submitted, firstly, that the circumstances of this case may well justify the imposition of an immediate term of imprisonment, and, secondly, that, in any event, even if a term of imprisonment is not likely, that would not constitute an exceptional reason for the grant of bail in this case.
The State submitted that there are aggravating features of the alleged offence of assaulting a public officer which could result in a sentence of imprisonment, namely:
(1)the applicant was wearing boots at the time of the assault, increasing the risk that, had the kick connected, the complainant would have suffered an injury;
(2)the assault occurred after the applicant refused to remove his boots and told the complainant 'he would have to do it fucking himself';[31]
(3)the applicant continued to engage in threatening and aggressive behaviour towards Police after the assault and after being taken into the cell;[32]
(4)the incident occurred against the background of the applicant's behaviour towards police officers the subject of the charge of obstructing a public officer, including threatening other officers;[33] and
(5)the offence was committed while the applicant was on bail for an earlier serious offence.
[31] ts 68. Evidence of Detective Senior Constable Callaghan.
[32] ts 69. Evidence of Detective Senior Constable Callaghan.
[33] ts 66. Evidence of Detective Senior Constable Callaghan.
In response, the applicant relied on arguments he had put previously, that he was provoked and that he did not make contact with the auxiliary officer. In relation to the first argument, as I noted earlier, it is in essence the applicant's defence, which I cannot take into account in the context of considering what may be the sentencing disposition in the event he is convicted, his defence having been rejected. As for the second argument, the State submitted that the failure of the applicant to connect with the alleged victim when he kicked out at him was due to the victim's evasive actions, rather than any lack of intention of the applicant to strike him.
While the alleged offence is at the lower end of the scale of seriousness for such offending, I accept that the factors outlined by the State mean that a sentence of immediate imprisonment is at least on the cards (as the prosecutor submitted in the Magistrates Court). The relationship that any such term of imprisonment would bear to the time the applicant would have spent in custody is another matter.
However, even if the time spent by the applicant in custody on remand were to exceed any term that would be justified for the offence, it does not follow, in the circumstances of this case, that the applicant will have established exceptional reasons for the purposes of cl 3A. Of course, it is undesirable that any accused be remanded in custody in excess of any potential period of imprisonment, but it is not the only consideration relevant to the question of whether there are exceptional reasons and the appropriateness otherwise of release on bail.

As the State submitted, the application of cl 3A is not linked necessarily to whether the accused is likely to be imprisoned. There are a number of offences listed as serious offences in sch 2 of the Bail Act which would not attract immediate terms of imprisonment if committed in circumstances at the lower end of the scale of seriousness for such offending. They include offences of assault occasioning bodily harm, drug offences involving an intention to sell or supply where the quantity is low, and offences of breaching orders under the Restraining Orders Act 1997 (WA) where the breach is relatively minor. Nevertheless, cl 3A requires that bail be refused unless there are exceptional reasons why the accused should not be kept in custody. The objective of cl 3A is to give paramountcy to the protection of the community when it appears (notwithstanding the presumption of innocence) that an accused will offend in a serious manner if he is on bail.

Factors considered in previous decision continue to be relevant

Further, consistently with the observations of Murray J in Donaldson v Western Australia (referred to above), other factors that are relevant generally to the exercise of the discretion to grant bail will be relevant in determining whether there are exceptional reasons for the purposes of cl 3A. Such factors include the risk of an accused failing to attend court or otherwise frustrating the course of justice.
In relation to those other factors, I adopt the reasons I gave in Smart (No 1) at [95] ‑ [99] (concerning the delay in the various proceedings in the Magistrates Court and the applicant's role in that delay) and [124] ‑ [128] (concerning the risk that the applicant would fail to comply with his bail undertaking).
It is appropriate to repeat what I said at [97] of Smart (No 1):
[I]t 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.
Further, the following observations made by me at [128] of Smart (No 1) continue to be pertinent, particularly given the applicant's behaviour at the end of the proceedings on 13 November 2018 and in these proceedings, as I will outline below:
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 incident at the end of proceedings on 13 November 2018

At the point in time on 13 November 2018 when the magistrate was telling the applicant that he would need to make an application to the Supreme Court, the applicant continued to argue. When the magistrate told him that was enough, the applicant grabbed a chair and appeared to be about to throw it. This was placed on transcript by the magistrate after the incident.
Security officers, the prosecutor and Detective Senior Constable Callaghan perceived the threat from the applicant and tackled him. He was brought to ground and restrained. In these proceedings, the applicant claimed that he was injured in the process.
After the applicant was restrained, the magistrate reiterated that the matter was going to be adjourned to the dates in March 2019 and said: 'Make an application if you need to, especially given your behaviour'. While the meaning of the latter part of the statement is not clear to me, it prompted a statement from the applicant, which is recorded in the transcript as:[34]
ACCUSED: (indistinct) your house, Walton, you cunt.
[34] ts 131.
The magistrate then placed the incident on record as follows:
Just for the benefit of the transcript, as Mr Smart was leaving the courtroom, he said, 'I'm coming to your house, Walton, you cunt.' And I'm just going to describe for the transcript, just the benefit, Mr Smart went to ‑ before a melee ensued, a melee created and caused by Mr Smart clearly, is that he went to stand up, bend over, and I think throw the chair probably in my direction. He was then restrained by the guards, then he was taken to the ground and a struggle ensued.
… The discussion we were having is when I spoke to Mr Smart before he went to I think throw the chair at me. He ‑ I was speaking to him in a direct tone to stop the constant exchange between myself and Mr Smart in relation to bail and the issue of whether the Supreme Court had jurisdiction or this court.
In my opinion, the only reasonable construction that could be placed on the statement made by the applicant to the magistrate, as recorded by his Honour on transcript, is that it was a threat intended to intimidate the magistrate. The tone of the threat, and the context in which it was made, was capable of conveying that the applicant intended to cause harm to the magistrate or to his home.
The State had previously indicated that the applicant had not been charged, and there was no intention to charge him, in respect of the chair incident. Counsel representing the State on 14 December 2018 said he had no information to suggest the authorities intended to charge the applicant in respect of the threat made after the chair incident, and he assumed there was no such intention. I will proceed on the basis that the applicant is not to be charged. It is not necessary to consider why that might be so. It certainly cannot be assumed that the authorities do not regard the behaviour to be serious or of concern. The manner in which his conduct was dealt with on the day indicates that it was regarded with concern. Ultimately, I must make my own assessment from the transcript about the seriousness of the incident and the weight I should give to it as a consideration in determining whether a grant of bail would be appropriate.
On 14 December 2018, I raised the incident with the applicant, who had been provided with a copy of the transcript in the Magistrates Court. I indicated that I considered the apparent threat to be in a different category to the chair incident, which I had previously said I would disregard. I gave the applicant the opportunity to address the issue as follows:
[I]rrespective of whether you are charged, in light of what you said to the magistrate at the end of those proceedings, unless you are going to dispute that you said those things, why should I not regard that as a threat that might suggest that you would either endanger the welfare or property of Mr Walton or obstruct the course of justice, and, if it is a possibility of that kind, what conditions … could I impose on bail that would prevent that from happening?
The applicant's response was that:
(1)the chair was not thrown at anyone and he does not admit he intended to throw the chair at anyone;
(2)he had picked up the chair because he was angry that ‑
a.the magistrate had been misled by Detective Callaghan about whether the applicant had bail for the District Court matters, and
b.the police prosecutor had suggested the applicant had 'standalone' matters in the Supreme Court;
(3)he was therefore provoked by those officers;
(4)as for the 'alleged threats to Magistrate Walton', what he said had to be considered in light of the fact that he had been assaulted by court staff (a reference to the measures that were taken to restrain him when he picked up the chair) and was injured (bleeding from his face and genitals), in extreme pain and very upset;
(5)he did not make good decisions 'in that process';
(6)he denies that he made any serious threat;
(7)Magistrate Walton made an assumption that the chair was going to be thrown and a further assumption about what he said, as 'the transcript shows it as not being clear and you've got them trying to put a version of events that's not true and not backed up by the transcript'.
(8)he is 'very frustrated after spending seven months in jail when [he has] committed no crime, certainly not any worthy of a jail sentence … and so [his] behaviour while [he is] in custody and [as he sees it] unlawfully held in custody, is no reflection on how [he] would act in the community'.
In essence, then, the applicant submitted that I should not accept that he said the words attributed to him by the magistrate (some of which were in fact recorded on the transcript), and that, in any event, they were said in the heat of the moment when he was angry and in pain, and I should not regard them as amounting to a serious threat. Further, I should not regard his behaviour in custody as reflecting how he would conduct himself in the community if he were on bail.
The magistrate was clearly in a position to hear the words that were said by the applicant and to place them on record immediately. Moreover, that part of what the applicant said that was comprehensible to the transcribers and is recorded on transcript correlates with what the Magistrate said he had heard. I accept that the applicant said the words attributed to him by the magistrate. I am also satisfied from the context that the applicant intended his threat to be taken seriously. The fact that he was angry and in pain does not lessen the seriousness of the threat. It was the culmination of threatening behaviour that commenced with his grabbing the chair, at a time before he received any injury.
Further, the applicant made a statement at the conclusion of his submissions in the present proceedings (see [98] below) which, at the very least, could be described as a veiled threat at a time when there was no suggestion he was in any pain or distress. It may be accepted he was angry, but it is precisely his failure to control his anger that makes the applicant's threat to the magistrate a matter to be taken seriously.
In my opinion, the incident involving the threat to the magistrate gives rise to the possibility that the applicant would endanger the welfare or property of the magistrate or may obstruct the course of justice if he is not kept in custody, pending the finalisation of the trial before Magistrate Walton. These are considerations under cl 1(a) of sch 1 pt C of the Bail Act which may warrant the refusal of bail. In my opinion, in combination with the other factors to which I have referred, they do warrant the refusal of bail in the present case, unless conditions could be reasonably imposed to sufficiently remove the possibility of those risks being realised.
The applicant submitted that a protective bail condition could be imposed prohibiting the applicant from approaching the magistrate's house or the court where the magistrate is presiding, except when the applicant is required to appear. For reasons which follow, I am not satisfied that a protective bail condition would sufficiently remove the risk.
The adequacy of any condition would depend on the applicant's preparedness to comply. As the State submitted, aptly, an accused person is ordinarily thought to be on his best behaviour when appearing before a judicial officer. If the applicant is prepared to make a threat of the kind he made on 13 November 2018, knowing that he is being recorded and that the person to whom the threat is directed is the judicial officer who is determining the case in which he is appearing, then one could not expect him to respect and comply with any condition imposed by this court to prevent such behaviour.
The State's submission has significant force, especially when one also considers the applicant's behaviour towards the court in these proceedings. He has spoken in obscene and abusive terms towards me and has made obscene gestures when I have muted the video link in circumstances when he has continued to interrupt me. The fact that he has not been dealt with for contempt should not be mistaken as an indication that his behaviour is tolerated or will be ignored in assessing what confidence one can place in his assurances that he will behave himself in the community and comply with conditions of bail. That point was previously made by me in Smart (No 1) at [128]: see [81] above. I am satisfied that no weight can be placed on his assurances.
I raised the question of whether home detention might be an adequate measure to guard against the risk the applicant may pose to the magistrate. That would require a report to be obtained concerning the applicant's suitability for such a condition and the suitability of premises that would need to be specified. However, I am satisfied, for the reasons I have given generally concerning my lack of confidence that the applicant would comply with conditions of bail, that such a measure would not be adequate. In any event, the applicant indicated in emphatic terms that he did not want to pursue that option, in part at least because he does not have premises that he could nominate.

The applicant's behaviour at the end of the bail hearing in this court

As I noted earlier, at the conclusion of his submissions in the present proceedings, having dealt with the condition I could impose to protect the magistrate, and having reacted with disdain at the suggestion of home detention, the applicant made what may be regarded, at the very least, as a veiled threat in the following passage (italics added):
So I will be stuck in jail over Christmas and New Year's and you somehow think that as fucking funny. Well, I'm not going to be held in jail forever and all the people involved better get fucking that message through their fucking head because I'm getting pissed off.
Subsequently, as I was giving my brief reasons, the applicant stood up and started to pull down his pants, before the video link was terminated.
Both incidents tend to reinforce my conclusions, which I had reached before they occurred, that the applicant poses a risk to the welfare or property of the magistrate, and that no condition I could reasonably impose would sufficiently remove that risk.

Conclusions

While I accept there are changed circumstances that enliven this Court's jurisdiction under s 14 of the Bail Act, I am not satisfied that the applicant has established there are exceptional reasons why he should not be kept in custody.
In particular, I do not accept the proposition that there was an agreement in the Magistrates Court as to what sentence might be imposed in respect of the offences the subject of this application. Further, having regard to other factors that militate against the grant of bail, including those identified in Smart (No 1), which continue to be relevant, and the risk which I have found that the applicant now poses to the safety, welfare or property of the magistrate hearing the charge of assaulting a public officer, I am not satisfied that the likelihood of the applicant receiving a sentence other than an immediate term of imprisonment if he is convicted of the charges the subject of this application, or of receiving a sentence of imprisonment that is less than the time he will have spent in custody as a remand prisoner, would amount, in the circumstances of this case, to an exceptional reason why the applicant should not be kept in custody.
Even if I had come to the view that there were exceptional reasons, I would still need to be satisfied that the grant of bail would be appropriate, having regard to the provisions of the Bail Act, in particular, cl 1 of sch 1 pt C. For reasons I gave in Smart (No 1), there is a substantial concern that the applicant will not answer his bail or that he may commit an offence if not kept in custody. Further, for reasons I have given, I am satisfied there now exists the possibility that the applicant may endanger the safety, welfare or property of a person, namely, the magistrate hearing the charge of assaulting a public officer, or that he would otherwise obstruct the course of justice. In those circumstances, unless there is a condition that could be imposed that would sufficiently remove that possibility, it would not be appropriate to release the applicant on bail. I am not satisfied that there is any such condition that could be imposed.
Accordingly, 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, to the applicant's legal representative in those proceedings and to any judicial officer considering bail in respect of any of the applicant's outstanding matters in the Magistrates Court.
I amend the non-publication order made in the proceedings the subject of Smart (No 1)[35] to include the exception that my decision and reasons in that case may be provided to any judicial officer considering bail in respect of any of the applicant's outstanding matters in the Magistrates Court.
[35] At [135] of that decision.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Fiannaca
7 OCTOBER 2021