Smart v The State of Western Australia [No 4] - [2018] WASC 413

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SMART -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2018] WASC 413
CORAM:   DERRICK J
HEARD:   28 DECEMBER 2018
DELIVERED          :   28 DECEMBER 2018
FILE NO/S:   MBA 50 of 2018
BETWEEN:   ANDREW SMART
Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application for bail - Jurisdiction to grant bail previously invoked - No material change in circumstances - Failure by the applicant to establish that jurisdiction should be further invoked

Legislation:

Bail Act 1982 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Mr R P Arndt

Solicitors:

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

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

Smart v The State of Western Australia [2018] WASC 336
Smart v The State of Western Australia [No 3] [2018] WASC 412
Stephens v The Queen [2004] WASCA 22

DERRICK J:

(These reasons for decision were delivered extemporaneously and have been edited from the transcript)

Background

The applicant accused has been charged with a number of offences in the Magistrates Court. The charges include, but are not limited to, the following:
Charge AR 379/2016 - assault occasioning bodily harm;
Charge AR 380/2016 - dangerous driving;
Charge PE 18862/2016 - dangerous driving;
Charge PE 18863/2016 – obstructing a public officer;
Charge PE 2587/2017 - obstructing a public officer;
Charge PE 2589/2017 - disorderly behaviour in a police station or lockup;
Charge PE 2590/2017 – assaulting a public officer;
Charge PE 2591/2017 - threatening to injure, endanger or harm any person; and
Charge JO 14577/2017 - disorderly behaviour in a police station or lockup.
The accused has been in custody on remand in respect of the above charges since 14 June 2017.
The accused's trial on charges PE 2587 of 2017 and PE 2589 ‑ 2591 of 2017 is part heard. The trial commenced in the Magistrates Court on 12 November 2018 and continued through to 13 November 2018. On 13 November 2018 the trial was adjourned for a further three days of hearing on 18, 19 and 20 March 2019.
On 18 December 2018 the accused appeared in the Magistrates Court before Magistrate Young in relation to charges AR 379/2016, AR 380/2016, PE 18862/2016, PE 18863/2016 and JO 14577/2017, that is, the remaining five charges that are not the subject of the part heard trial. I have obtained a copy of the transcript of the hearing that took place before Magistrate Young on 18 December 2018.
In relation to charges AR 379/2016 and AR 380/2016 the accused was remanded in custody to appear at a trial allocation date on 8 January 2019. During the course of the hearing Magistrate Young questioned whether five days would be needed for the trial of these two charges. His Honour apparently had some note before him that suggested that five days would be required.[1] His Honour also indicated during the course of the hearing that the accused was unlikely to obtain trial dates for these two charges until about April 2019.[2]
[1] ts 22.
[2] ts 21.
In relation to charges PE 18862/2016 and 18863/2016 the accused was remanded in custody to appear for his trial on 2 May 2019.
In relation to charge JO 14577/2017 the accused was remanded to appear on 21 December 2018.
On 21 December 2018 the accused, in relation to charge JO 14577/2017, was remanded to appear for his trial on 2 May 2019.
Therefore the only charges for which the accused is yet to be allocated trial dates are AR 379/2016 and AR 380/2016.
Charge AR 379/2016, being a charge of assault occasioning bodily harm, and charge PE 2590/2017, being a charge of assaulting a public officer, are 'serious offences' listed in sch 2 of the Bail Act 1982 (WA) (the Act). The offence charged in PE 2590/2017 is alleged to have been committed on 13 January 2017, while the accused was on bail for the offence charged in AR 379/2016, bail for this latter charge having been renewed on 23 September 2016. The result is that when the accused was charged with the offence the subject of charge PE 2590/2017 he fell within the terms of cl 3A(1) of pt C of sch 1 of the Act. That is, he was what is commonly referred to as a sch 2 offender.
On 1 November 2018 the accused applied to this court for bail in respect of all of the above referred to charges. The application was heard by Fiannaca J on that date. Given that the accused was, for the above stated reasons, a sch 2 offender his application needed to be determined by Fiannaca J on the basis that bail should not be granted to him unless his Honour was satisfied that there were exceptional reasons why the accused should not be kept in custody.[3]
[3] Act, cl 3A(1)(c) of pt C of sch 1.
Fiannaca J refused the accused's application for bail. His Honour delivered written reasons for his decision.[4] The accused has apparently appealed against his Honour's decision.
[4] Smart v The State of Western Australia [2018] WASC 336.
I have read his Honour's reasons for decision. His Honour found that the accused had not established that there were exceptional reasons why he should not be kept in custody in respect of the two serious offences, one of which at that time, namely PE 2590/2017, was to proceed to trial on 12 November 2018.[5] His Honour also made some comments in relation to whether, even if the accused had managed to show exceptional reasons for not being kept in custody, it would otherwise be appropriate to grant the accused bail having regard to cl 1 and cl 3 of pt C of sch 1 of the Act. However, his Honour did not express a concluded view in this regard. [6]
[5] Smart v The State of Western Australia [101] ‑ [122].
[6] Smart v The State of Western Australia [123] ‑ [130.
At the time of making his decision refusing the application Fiannaca J did not have any information before him as to the period of time for which the accused would likely be required to wait before his trial on charge AR 379/16 could take place. However, his Honour considered that previous allocations of trial dates in the Magistrates Court would suggest that trial dates would be set in the order of six months from the allocation date.[7] At the time that his Honour determined the application the accused was due to appear at a trial allocation date for charge AR 379/16 on 27 November 2018.
[7] Smart v The State of Western Australia [102].
On 14 December 2018 Fiannaca J heard a further application for bail by the accused in respect of charge numbers PE 2587/2017 and PE 2589 ‑ 2591/2017. The application was brought in light of the fact that since the hearing of the earlier application the trial on these charges had been adjourned part heard through to the dates that I have already mentioned, that is, 18, 19 and 20 March 2019.
Fiannaca J refused the application. His Honour delivered brief oral reasons for his decision and indicated that he would produce written reasons in due course. His Honour issued his written reasons on 27 December 2018.[8] I have read the transcript of the proceedings that took place before his Honour on 14 December 2018. I have also read his Honour's written reasons for decision.
[8] Smart v The State of Western Australia[No 3] [2018] WASC 412.
In dealing with and refusing the application Fiannaca J was prepared to accept that the adjournment of the trial on the charges part heard did constitute a change in circumstances within the meaning of s 14(2a) of the Act that enlivened the court's jurisdiction under s 14 of the Act (that is, justified a reconsideration of the question whether the accused should be granted bail).[9] However, his Honour concluded, for substantially the same reasons as he had given in dismissing the accused's first application for bail, that the accused had not established exceptional reasons for not being kept in custody. [10] His Honour also considered that in any event he was not satisfied that bail should be granted to the accused having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act.[11] In this regard his Honour made the following findings:
1.There was a 'substantial concern' that if the accused was not kept in custody he would not answer his bail and/or commit an offence;[12]
2.There was a 'possibility' that if the accused was not kept in custody he would endanger the safety, welfare or property of the magistrate who is presiding over the part heard trial or otherwise obstruct the course of justice;[13] and
3.He was not satisfied that a protective bail condition (or any other condition) would remove the risk that the accused would, if he was not kept in custody, endanger the safety, welfare or property of the magistrate.[14]
[9] Smart v The State of Western Australia [No 3] [11] ‑ [13], [66] ‑ [70], [101].
[10] Smart v The State of Western Australia [No 3] [71] ‑ [81 [102].
[11] Smart v The State of Western Australia [No 3] [82] ‑ [100], [103].
[12] Smart v The State of Western Australia [No 3] [103].
[13] Smart v The State of Western Australia [No 3] [103].
[14] Smart v The State of Western Australia [No 3] [94] ‑ [100], [103].
His Honour based his finding that there was a risk that the accused would endanger the safety, welfare or property of the magistrate on the fact, as found by his Honour, that the accused had made a threat to the magistrate at the end of the proceedings on 13 November 2018. [15]
[15] Smart v The State of Western Australia [No 3] [82] ‑ [91].

The present application

The accused has now by an application dated 20 December 2018 made a further application for bail. The application is made under s 14(1) and s 14(2) of the Act.
The accused has not, by the terms of his application or any of the material that he has filed in support thereof, clearly specified the charges faced by him to which the application relates. However, I will to the benefit of the accused treat the application as having been made in respect of all of the above referred to charges.
The accused has filed in support of his application two letters to the 'Clerk/Chief Justice' dated 20 December 2018 and 21 December 2018, a one‑page affidavit sworn on 19 December 2018, a copy of the prosecution notice for charge AR 379/2016, and some other documents relating to the accused's requests made of the prosecution for disclosure of certain materials relating to the charges, that is, charges AR 379/16 and AR 380/16.
The current application must be considered in light of s 14(2a) of the Act. Section 14(2a) provides that after the jurisdiction under s 14(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 the accused in relation to that offence or group of offences unless the accused satisfies a judge that:
1.new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or
2.he failed to adequately present his case for bail on that occasion.
The accused has previously invoked the jurisdiction of the court under s 14(1) in relation to the charges the subject of the current application. He invoked that jurisdiction in relation to all of the charges when he made the application which was heard and dismissed by Fiannaca J on 1 November 2018. He invoked the jurisdiction in relation to some of the charges when he made the application which was heard and dismissed by Fiannaca J on 14 December 2018. Therefore, he cannot again invoke the jurisdiction unless he satisfies me that new facts have been discovered, new circumstances have arisen or the circumstances have changed since the jurisdiction was invoked, or that he failed to adequately present his case for bail on the prior occasion.
For the purposes of s 14(2a) it is necessary for the accused to show a relevant change, that is, a change which is likely to weigh in the outcome of the application being different to what it had been on the earlier occasion.[16]
[16] Stephens v The Queen [2004] WASCA 22 [10].
The accused contends that there has been a change in circumstances since he invoked the jurisdiction on the prior occasions. It would appear, doing the best I can to understand the accused's arguments from the materials he has provided in support of his application and his oral submissions, that the changes in circumstances that he contends have occurred are as follows:
1.When he last appeared on 18 December 2018 in relation to charges AR 379/16 and AR 380/16 the magistrate did not set trial dates, whereas at the time that Fiannaca J dismissed his application on 1 November 2018 his Honour was envisaging that trial dates would be set on 27 November 2018; and
2.Information has come to light which reveals that previous claims by the prosecution that it has, in accordance with an order made by Magistrate Wilson on 3 February 2017, disclosed certain information in relation to charges AR 379/16 and AR 380/16 to his previously engaged legal representative are false.
The accused's argument that the alleged making of false claims by the prosecution in relation to the issue of disclosure constitutes a change in circumstances for the purpose of s 14(2a) is misconceived. This issue has nothing to do with the question of bail, a point that Fiannaca J in effect made in dismissing the first of the accused's previous applications. As Fiannaca J stated, this is a matter that the accused must pursue with the prosecution and the Magistrates Court. [17]
[17] Smart v The State of Western Australia [121].
As to the accused's argument that a change in circumstances has occurred by reason of trial dates not having been set for charges AR 379/16 and AR 380/16, the accused has not put before me any information as to when his trial on these charges is likely to occur. More specifically, the accused has not put before me any information to suggest that his trial on these charges will not occur within the six month period from 27 November 2018 that was envisaged by Fiannaca J when he dismissed the application for bail made on 1 November 2018. In fact, and as I have already noted, when the accused appeared before Magistrate Young on 18 December 2018, the magistrate expressed the view that the trial will take place around April 2019 which is broadly within the six month period envisaged by Fiannaca J. [18] This being the case, the accused has failed to satisfy me that relevant new facts have been discovered, or that relevant new circumstances have arisen or that the circumstances have relevantly changed since the jurisdiction was invoked before Fiannaca J.
[18] I note in this context that in the 'record of court proceedings' attached to the prosecution notices for charges AR 379/2016 and AR 380/2016 the entry made by the magistrate in relation to the hearing that took place on 18 December 2018 includes a statement that 'charges are 3 years old and need to be listed'.
There is no suggestion that the accused failed to adequately present his case for bail before Fiannaca J on either of the prior two occasions. I am satisfied that he did.
For the reasons I have stated the accused has not established that he should be permitted to again invoke the jurisdiction of the court under s 14(1).
Even if, contrary to my above expressed conclusion the accused has established that new facts have been discovered, or that new circumstances have arisen or that the circumstances have changed since the jurisdiction was invoked before Fiannaca J on the two prior occasions, and that consequently he should be permitted to invoke the jurisdiction again, I would still dismiss the application. I would do so on the basis that the accused has not put before the court any material or any argument, additional to that which he put before Fiannaca J, which demonstrates that there are, for the purposes of cl 3A(1)(c) of pt C of sch 1, exceptional reasons why he should not be kept in custody. The fact that the accused has not been allocated trial dates for charges AR 379/16 and AR 380/16 does not, for the reasons given by Fiannaca J in dismissing the two previous applications, constitute an exceptional reason for not keeping him in custody in respect of those two charges or the remaining charges faced by him (that is, the four charges the subject of his part heard trial and charge numbers PE 18862/2016, PE 18863/2016 and JO 14577/2017 for which he has been allocated a trial date of 2 May 2019).
For the reasons I have given the application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Secretary
12 OCTOBER 2021