Smart v The State of Western Australia [No 6] - [2019] WASC 483

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SMART -v- THE STATE OF WESTERN AUSTRALIA [No 6] [2019] WASC 483
CORAM:   DERRICK J
HEARD:   24 DECEMBER 2019
DELIVERED          :   24 DECEMBER 2019
FILE NO/S:   MBA 50 of 2018
BETWEEN:   ANDREW JACOB SMART
Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Nil

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Act 1974 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr A Murad
Respondent	:	Mr R P Arndt

Solicitors:

Applicant	:	Legal Pathways
Respondent	:	Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Smart v The State of Western Australia [2018] WASC 336
Smart v The State of Western Australia [No 3] [2018] WASC 412
Smart v The State of Western Australia [No 4] [2018] WASC 413
Smart v The State of Western Australia [No 5] [2019] WASC 20
YSN v The State of Western Australia [2017] WASCA 155

DERRICK J:

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

Introduction

By an application dated 9 August 2019, filed on 12 August 2019, the applicant applies for bail on two Magistrates Court charges, charges AR 379/2016 and AR 380/2016 (the current charges). Charge AR 379/2016 is a charge of unlawful assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) (the Code) and charge AR 380/2016 is a charge of dangerous driving contrary to s 61(1) of the Road Traffic Act 1974 (WA). The application is made under s 14(1) of the Bail Act 1982 (WA) (the Act).
The applicant has filed in support of the application a handwritten affidavit sworn by him on 18 July 2018, a one‑page handwritten letter addressed to the 'Chief Judge/Criminal Listings' dated 15 August 2019 and a one‑page handwritten letter addressed to the 'Chief Justice' dated 12 December 2019. It is only in the letter dated 12 December 2019 that the applicant impliedly identifies the charges in respect of which he is applying for bail, that is, the current charges.
Since filing the application the applicant has sent a number of other letters to the court in addition to those specified in the previous paragraph.[1] However, these letters generally contain unfounded complaints relating to the delay in the listing of the application rather than material that can be construed as supporting the application.
[1] Letter addressed to the 'Chief Justice/Listings' dated 17 September 2019; Letter addressed to the Chief Justice dated 2 October 2019; Letter addressed to the Chief Justice dated 14 October 2019.
The delay in the listing of the application for hearing has been due to the applicant's failure and/or inability to ensure that the application and the material filed in support thereof complied with practice direction 5.9 of the court's Consolidated Practice Directions. Ultimately, the application was, at my direction, listed for hearing despite the fact that the applicant had not complied fully with practice direction 5.9.
I arranged for the application to come before me on 19 December 2019. The State requested an adjournment of the hearing of the application to 30 December 2019. The applicant, who on 19 December 2019 appeared in person, opposed the State's application for an adjournment. He wanted the application dealt with immediately.
At the hearing on 19 December 2019 I allowed the State's application to adjourn the hearing of the bail application to 30 December 2019. However, having had the opportunity to reflect further on the matter overnight I arranged for the parties to come back before me on the morning of 20 December 2019, revoked the orders I had made on the previous day and listed the hearing of the applicant's application for today. I did this so that the application could be heard as quickly as was reasonably possible.[2]
[2] Although at the hearing on 19 December 2019 the State had, for a number of reasons, sought an adjournment of the hearing of the application to 30 December 2019, I was informed that counsel for the State would be available to appear on 24 December 2019 if I decided to list the hearing of the application on that date.
At today's hearing the applicant was represented by counsel, Mr Murad. At the beginning of the hearing Mr Murad informed me, in substance and quite properly, that his office had only recently been contacted by Legal Aid (WA) to represent the applicant at his part heard trial on the current charges (referred to further below), that he had only become aware of the applicant's bail application in the previous week, that he had explained the position to the applicant, that he had raised with the applicant the possibility of seeking an adjournment of the application so that he could 'bring himself up to speed', that the applicant 'did not want that at all' and that the applicant's instructions were to proceed with the application today.[3] Mr Murad requested that in these circumstances the applicant be permitted to make oral submissions in support of the application to supplement any submissions that he made on the applicant's behalf.[4] I permitted this to occur with the agreement of counsel for the State. As things transpired the applicant made relatively lengthy submissions in support of his application by way of supplementation of the submissions that had been made on his behalf by Mr Murad.
[3] ts 267 ‑ 270, 24 December 2019.
[4] ts 269 ‑ 270, 24 December 2019.
The application is opposed by the State.

Previous applications for bail

The application is the sixth in a series of applications for bail made by the applicant to this court under s 14(1) of the Act in relation to the current charges and a number of other Magistrates Court charges. All of the applicant's five previous applications have been dismissed.
The first and second of the applicant's applications were heard by Fiannaca J. His Honour heard the first application on 26 and 29 October 2018, and the second application on 3 and 14 December 2018. In respect of each application his Honour provided written reasons for dismissing the application.[5]
[5] Smart v The State of Western Australia [2018] WASC 336; Smart v The State of Western Australia [No 3] [2018] WASC 412.
The third and fourth of the applicant's applications were heard by me. I heard the third application on 28 December 2018 and the fourth application on 31 January 2019. In respect of each application I delivered extempore reasons for dismissing the application which I subsequently produced in written form.[6]
[6] Smart v The State of Western Australia[No 4] [2018] WASC 413; Smart v The State of Western Australia [No 5] [2019] WASC 20.
The applicant's fifth application was heard by Curthoys J on 5 July 2019. His Honour dismissed the application and delivered extempore reasons for doing so.
The applicant applied for leave to appeal against the decisions of Fiannaca J dismissing the first and second of his bail applications.[7] The application for leave to appeal was heard by the Court of Appeal on 24 September 2019. On that date the Court of Appeal dismissed the appeals and indicated that it would publish reasons at a later date. The Court of Appeal's reasons for dismissing the appeals are yet to be published.
[7] CACR 233/2018 and CACR 247/2018.

The charges the subject of the previous applications

The Magistrates Court charges that were the subject of the applicant's first, third and fourth bail applications were, in addition to the current charges, as follows:
1.Charge PE 18862/2016 - dangerous driving;
2.Charge PE 18863/2016 - obstructing a public officer;
3.Charge PE 2587/2017 - obstructing a public officer;
4.Charge PE 2589/2017 - disorderly behaviour in a police station or lock up;
5.Charge PE 2590/2017 - assaulting a public officer;
6.Charge PE 2591/2017 - threatening to injure, endanger or harm any person; and
7.Charge JO 14577/2017 - disorderly behaviour in a police station or lock up.
The second of the bail applications was concerned only with charge PE 2587/2017 and charges PE 2589/2017-2591/2017.
After I dealt with the fourth application and prior to Curthoys J dealing with the fifth application, charge JO 14577/2017 was dismissed by the Magistrates Court for want of prosecution and the applicant was dealt with by the Magistrates Court for all of the remaining charges save for the current charges. The applicant was acquitted of charge PE 2589/2017 and was convicted of charges PE 18862/2016, PE 18863/2016, PE 2587/2017, PE 2590/2017 and PE 2591/2017. For all of the offences of which he was convicted the applicant was fined varying amounts. Consequently the fifth application made before Curthoys J related only to the current charges.

Status of the current charges

The applicant's trial on the current charges commenced in the Magistrates Court on 18 November 2019 and continued into 19 November 2019. On 19 November 2019 the trial was adjourned part heard to 11 May 2020. The applicant was remanded in custody to appear on that date.
I have had access to, and reviewed, the transcript of the applicant's part heard trial.[8]
[8] The applicant represented himself at his part heard trial.
It is apparent from the transcript of the trial that the magistrate has set aside the period 11 May 2020 to 15 May 2020 for the completion of the part heard trial.[9]
[9] ts 81, 19 November 2019.

Time in custody

The applicant was first remanded in custody on the current charges on 14 June 2018. However, since that date the applicant has been sentenced to terms of immediate imprisonment for other offences.[10] Accordingly, he has not been in custody on remand for the current charges for the entirety of the period since 14 June 2018. However, given that he has now served the terms of immediate imprisonment that have been imposed on him since 14 June 2018, the current charges are the only charges in respect of which the applicant is currently remanded in custody.[11]
[10] The offences which the applicant has been convicted of, and sentenced to terms of imprisonment for, since 14 June 2018 are as follows: 11 April 2019, two offences of wilfully insulting a magistrate - total of 4 months' imprisonment; 8 May 2019, wilfully misbehaving in front of a court - 2 months' imprisonment; 5 June 2019, one offence of using a carriage service to make a threat and one offence of using a carriage service to menace - total of 10 months' imprisonment.
[11] The applicant is currently charged on District Court indictment 893/2018 with a Commonwealth offence. He has pleaded not guilty to the charge and has been remanded on bail to appear at his trial on 27 and 28 February 2020. The applicant's District Court bail has been set at a $1,000 personal undertaking with a non-contact condition.
The sentences of imprisonment that have been imposed on the applicant since 14 June 2018 came to an end on 11 October 2019. Accordingly, as at today's date the applicant has spent approximately two and a half months remanded in custody for the current charges. Further, if the applicant is not granted bail he will, as at 11 May 2020, have spent approximately nine months remanded in custody for the current charges.

The application - analysis

Has there been a change in circumstances?

As I have already indicated, the applicant has previously invoked the jurisdiction of the court under s 14(1) in relation to the current charges. He last invoked the jurisdiction by making the fifth application before Curthoys J.[12] It follows that the 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.
[12] The applicant did not invoke the court's jurisdiction in relation to the current charges in making the second application because the second application was made only in relation to charges PE 2587/2017 and charges PE 2589/2017-2591/2017. Nor did the applicant invoke the court's jurisdiction in relation to the current charges in making the third and fourth applications because I decided that he had failed to establish either of the matters specified in s 14(2a) with the consequence that the court's jurisdiction to deal with the applications had not been invoked.
The applicant contends that circumstances have changed since he made the fifth application. He identifies the changed circumstances to be that he is no longer a sentenced prisoner and that his trial on the current charges has now been adjourned part heard to 11 May 2020 with the result that he faces a further significant additional period of time in custody as an unconvicted person.
The State concedes that there has been a change of circumstances for the purposes of s 14(2a).
I accept the applicant's contention. In my opinion the circumstances identified by the applicant do constitute a change in circumstances for the purposes of s 14(2a). I am therefore satisfied that I have jurisdiction to deal with the application.

Does the applicant need to establish exceptional reasons for not being kept in custody?

At the time that I dealt with the applicant's third and fourth applications for bail, the applicant was yet to be dealt with for charge PE 2590/2017, a charge of assaulting a public officer. He was alleged to have committed this offence on 13 January 2017 while on bail for charge AR 379/2016, the charge of assault occasioning bodily harm. The offences of assault occasioning bodily harm and assaulting a public officer are 'serious offences' within the meaning of cl 3A(1) of pt C of sch 1 of the Act. Accordingly, at the time of the third and fourth applications the applicant 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 schedule 2 offender. The net result was that when the applicant appeared before me at the hearing of the third and fourth applications he was required, in addition to establishing that I had jurisdiction to deal with the applications, to establish that there were exceptional reasons for not keeping him in custody on charge PE 2590/2017.
The applicant no longer falls within the terms of cl 3A(1) of pt C of sch 1 of the Act. He no longer does so because he has been dealt with for the 'serious offence' the subject of charge PE 2590/2017 which he was alleged to have committed while he was on bail for the 'serious offence' the subject of charge AR 379/2016.[13] In other words, he is no longer in custody 'awaiting an appearance in court before conviction' for the offence the subject of charge PE 2590/2017, or 'waiting to be sentenced or otherwise dealt with' for the offence the subject of charge PE 2590/2017.[14]
[13] The applicant was convicted of the offence the subject of charge PE 2590/2017 on 1 April 2019 and was fined $750 for the offence.
[14] Act, cl 3A(1)(a), pt C, sch 1.
It follows that the applicant does not, for the purposes of the application, need to establish that there are exceptional reasons for not keeping him in custody. Rather, the application falls to be determined in accordance with cl 1 of pt C of sch 1 of the Act.

Should bail be granted?

In determining the application I am required to have regard to the questions specified in cl 1 of pt C of sch 1 of the Act and also any other matters that I consider to be relevant. I propose to deal with each of the questions specified in cl 1 in turn. In dealing with the questions I will apply the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia[15] and YSN v The State of Western Australia.[16]

Clause 1(a)

The question

[15] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99[39] ‑ [44].

[16] YSN v The State of Western Australia [2017] WASCA 155 [14] ‑ [21].

The first question specified in cl 1(a) of pt C is whether, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence, or endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Further, by cl 3 of pt C I am required, in considering whether the applicant may do any of the things mentioned in cl 1(a), to have regard to a number of matters as well as to any other matters which I consider to be relevant. The matters that I am required by cl 3 to have regard to are as follows:
1.The nature and seriousness of the offences and the probable method of dealing with the applicant for them if he is convicted;
2.The character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant;
3.The history of any previous grants of bail to the applicant; and
4.The strength of the evidence against him.

Seriousness of offences and probable method of dealing with them if applicant is convicted

The allegations forming the basis of charge AR 379/2016, the assault occasioning bodily harm charge, as stated to the court by the prosecutor in opening the prosecution case at the applicant's part heard trial, are as follows.[17]
[17] ts 34, 18 November 2019.
At 8.00 pm on 9 January 2016 the applicant was at 40 Coops Avenue in Thornlie where he was residing as a boarder. A party was taking place at 27 Coops Avenue which was directly across the road from the applicant's residence. The applicant came out to the front of his residence and began yelling at a partygoer who had dropped a beer bottle. The applicant then crossed the road and verbally abused another partygoer. An altercation resulted.
The complainant, who was a guest at the party, came out to where the applicant was. The applicant punched the complainant multiple times to the head which rendered him unconscious. The complainant fell to the ground bleeding from his left eye.
The allegations forming the basis of charge AR 380/2016, the dangerous driving charge, as stated to the court by the prosecutor in opening the prosecution case at the applicant's part heard trial, are as follows.[18]
[18] ts 34 ‑ 35, 18 November 2019.
At 5.00 am on 10 January 2016 the applicant was at his residence at 40 Coops Avenue. His vehicle was parked in the driveway. He had a trailer attached to the vehicle.
The applicant was loading the vehicle and trailer with tools. As he was doing this he yelled abuse at one of the female occupants of 27 Coops Avenue who was on the other side of the road. The applicant then got into the driver's seat of his vehicle and revved the engine. He accelerated heavily and made a right-hand arc towards the female who he had yelled abuse at. He swerved at the last moment to avoid mounting the kerb. The female had to take evasive action. The force of the acceleration and sudden swerve destabilised the trailer which tipped onto its left wheel spilling tools onto the road. The trailer corrected itself, tipped onto its right wheel and became detached from the vehicle. The applicant continued driving down the road for approximately 20 m before stopping and reversing. Police subsequently attended the scene and the applicant was arrested.
So that is a summary of the allegations forming the basis of the current charges.

The maximum summary conviction penalty for the offence of assault occasioning bodily harm is 2 years imprisonment and a fine of $24,000.
The maximum penalty for the offence of dangerous driving is, in the circumstances of the applicant's case, a $6,000 fine and imprisonment for 9 months.
The two alleged offences are relatively serious examples of their type. In my opinion if the applicant is convicted of the offences it is inevitable, particularly when regard is had to his criminal record to which I will refer further shortly, that he will be sentenced to an immediate term of imprisonment. I do not accept the submission made on his behalf that there is a possibility of him being sentenced to a suspended term of imprisonment for the offences. Indeed, given the seriousness of the alleged assault occasioning bodily harm charge, it is my view that if the applicant is convicted of this offence it is highly likely that he will be sentenced to a term of immediate imprisonment towards the upper end of the range that the magistrate is able to impose. This is particularly so given that the applicant will not have the mitigatory benefit of a guilty plea.

Antecedents and history of previous grants of bail

I turn to the second and third of the matters specified in cl 3.
The applicant, who is 45 years old, has not put before the court a great deal of material relating to his personal circumstances. He has told me today, and I accept, that he was born in this State and has lived in this State all of his life. His counsel has told me, and I accept, that if he is released on bail he will reside at an address at 100 Hampton Road in Fremantle which is a hostel run by Centrecare.
The applicant is not a person of prior good character. He has a very lengthy and bad adult criminal record; his adult record runs for some 26 pages. It is not necessary for me to attempt to recite the applicant's criminal history in detail. It suffices to say the following.
The applicant has committed a wide variety of offences on a regular basis throughout his adult life. His prior offences include a significant number of offences of violence and a very significant number of offences that have involved him engaging in various forms of threatening conduct by a variety of means. The applicant's prior offences also include a significant number of offences that demonstrate a disregard for authority and the orders of the court. For example, he has prior convictions for breaching violence restraining orders, escaping legal custody, breaching suspended imprisonment orders and misbehaving before courts.
The applicant also has three prior convictions for breaching bail by failing to appear, although the last of these convictions was recorded in 2010. During today's hearing the applicant provided some sort of explanation for these offences, or at least one of them, and in effect submitted that he was unfairly convicted of the offences. However, I cannot go behind any of the convictions. The fact is, he has three prior convictions for breaching bail by failing to appear, although as I have noted the last of these convictions was recorded in 2010.
The applicant has been sentenced to terms of immediate imprisonment on a number of occasions.
When the applicant was first charged with the current charges and the other above referred to charges the subject of his previous applications for bail he was either granted bail by the Magistrates Court or simply released without bail being set. However, during this period, while the applicant was in the community, there were a number of occasions on which he failed to attend court as required. The details of these failures to appear are as follows:
1.On 4 May 2017 the applicant failed to appear for his trial on charges PE 18862/2016 and PE 18863/2016 (the 2016 Perth charges). The applicant was not on bail but was subject to a court hearing notice. As the applicant was represented by counsel the court did not proceed to determine the charges under s 55 of the Criminal Procedure Act 2004 (WA) but adjourned the matter and issued a summons to the applicant;
2.On 19 April 2018 the applicant again failed to appear for his trial on the 2016 Perth charges. A warrant was issued for his arrest. The warrant was later cancelled when the applicant appeared on 24 April 2018 at a trial allocation date hearing for the current charges;
3.On 22 May 2018 the applicant failed to appear at a trial allocation date hearing for the current charges, the 2016 Perth charges, and charges PE 2587/2017 and PE 2589/2017 - PE 2591/2017 (the 2017 Perth charges). A warrant was issued for his arrest.
4.On 14 June 2018 the applicant failed to appear for his trial in the Joondalup Magistrates Court on charge JO 14577/2017. Instead he presented himself at the Central Law Courts in Perth. He was arrested on the warrant that had been issued on 22 May 2018. The applicant claimed that he was medically unfit to appear at his trial on charge JO 14577/2017 although he did not present any evidence to support this claim.
Further, during the period that the applicant was on bail for the current charges he committed, and was subsequently convicted of, the following offences:
1.An offence of possessing a prohibited weapon (committed on 24 February 2016; convicted on 4 February 2019);
2.Three offences the subject of the 2017 Perth charges, specifically obstructing a public officer (PE 2587/2017), assaulting a public officer (PE 2590/2017) and making a threat to injure, endanger or harm (PE 2591/2017) (committed on 13 January 2017; convicted on 1 April 2019);
3.Two offences of disorderly behaviour (committed on 14 January 2017; convicted on 2 August 2018);
4.An offence of using a carriage service to make a threat and an offence of using a carriage service to menace (committed on 8 January 2017; convicted on 5 June 2019);
5.An offence of criminal damage (committed on 23 April 2017; convicted on 13 December 2018);
6.An offence of driving with false registration plates (committed on 7 October 2017; convicted 9 January 2018); and
7.An offence of failing to provide a sample of oral fluid for testing (committed on 8 March 2018; convicted on 6 February 2019).
Finally, while dealing with the antecedents of the applicant it is necessary to make reference to some statements made by him during the part heard trial on the current charges. Specifically, during the course of the trial the applicant made statements as follows:
1.He did not 'give a fuck anymore' and that 'these people' (being an apparent reference to the prosecution witnesses or people associated with them) were 'going to pay in the end whether [he did] eight years or 18 months' and that they were 'going to get fucked up' when he got out of prison;[19]
2.In response to a proposal that one of the prosecution witnesses be brought closer to him so that the witness could hear the questions being asked of him, that he did 'not want that piece of shit anywhere near [him]' and that he was not prepared for the witness to be brought closer to him because 'it would be too tempting to strangle' the witness;[20] and
3.After being told by the magistrate that she would not consider the question of bail because it had been refused by the Supreme Court, 'Well, I think you're an utter fucktard for not considering bail today … And I promise it will come to haunt you later on down the track'.[21]

Strength of evidence against applicant

[19] ts 126, 18 November 2019.

[20] ts 126, 19 November 2019.

[21] ts 131, 19 November 2019.

I turn now to the last of the matters specified in cl 3, namely the strength of the evidence against the applicant on the current charges.
In opening the prosecution case at the applicant's part heard trial, the prosecutor informed the magistrate that there were six civilian witnesses and eight police witnesses 'on the list'.[22] The prosecutor further informed the magistrate that the prosecution would not need to call all eight police witnesses as part of its case, but that it would make any police officer that the prosecution did not intend to adduce evidence from available for cross-examination.[23]
[22] ts 35, 18 November 2019.
[23] ts 35, 18 November 2019.
By the end of the second day of the applicant's part heard trial three of prosecution's civilian witnesses had completed giving their evidence and the fourth was in the process of doing so. One of the witnesses who had completed their evidence is the complainant named in charge AR 379/2016, the assault occasioning bodily harm charge.
It is apparent from reviewing the transcript that so far as charge AR 379/2016 is concerned, the applicant does not dispute that he assaulted the complainant. Rather, he asserts that his assault was not unlawful because it was carried out in self‑defence within the meaning of s 248(4) of the Code, or alternatively in order to protect himself from a home invader within the meaning of s 244(1) of the Code.[24]
[24] ts 66 ‑ 67, 19 November 2019.
The evidence given in relation to the circumstances of the assault forming the basis of charge AR 379/2016 by the complainant and the other civilian witnesses who have completed giving their evidence is not entirely consistent.
The evidence‑in‑chief of the complainant, Mr Kenneth Unsworth, was in substance that the applicant attacked him without reason, that he did not do anything to cause the applicant to assault him, that the applicant hit him a number of times to the head and face region, and that the applicant's assault rendered him unconscious.[25] In addition, during his evidence-in-chief the complainant gave evidence, which was not challenged in cross-examination, that as a result of the applicant's assault he suffered a number of injuries including a very swollen eye, a cut or 'split' above his eye, a cut to his ear, swelling, bruising and abrasions to his head and facial area and a dislocated jaw.[26]
[25] ts 9 ‑ 14, 19 November 2019.
[26] ts 14 ‑ 15, 19 November 2019. During the complainant's evidence photographs of some of the complainant's injuries taken after his arrival at hospital were tendered: ts 13 ‑ 15, 19 November 2019.
The evidence-in-chief given by one of the other civilian witnesses who completed her evidence, Ms Billie O'Grady-Errington, was in substance that the applicant approached the complainant aggressively, that the applicant pushed the complainant forcefully, that the applicant punched the complainant in the face twice, that the complainant then put his fists up and managed to hit the applicant twice, that the applicant then deliberately tripped the complainant so that the complainant fell to the ground, that once the complainant was on the ground the applicant kicked him in the face and head with his right foot five times while the complainant was just lying on the ground doing nothing, and that she at this point jumped on the applicant's back in order to stop him kicking the complainant.[27]
[27] ts 55 ‑ 59, 18 November 2019.
The evidence-in-chief given by the second of the civilian witnesses who completed her evidence, Ms Julie Della-Franca, was in substance that the applicant was angry, that the applicant and the complainant met in the middle of the road and started exchanging words, that there was pushing and shoving between the applicant and the complainant, that the applicant put the complainant in a headlock, that the complainant wriggled out of the headlock, that the applicant and the complainant then began to wrestle on the ground, that the applicant got up and kicked the complainant in the ribs two to four times, that the applicant then kicked the complainant in the head once, that the applicant then backed off because Ms O'Grady‑Errington had jumped on his back, that she went to render first aid to the complainant who was unconscious, and that the applicant was at the time wearing steel capped boots.[28]
[28] ts 32 ‑ 36, 19 November 2019. The civilian witness who has not completed giving his evidence but has completed his evidence‑in‑chief, Mr Eric Carwardine, did not give evidence relating to the alleged assault the subject of charge AR 379/2016. His evidence was confined to the incident the subject of charge AR 380/2016.
From my reading of the transcript the applicant's cross‑examination of the complainant, Ms O'Grady‑Errington and Ms Della‑Franca did not damage to any material extent the credibility of the version of events that each gave during their examination‑in‑chief. The complainant in particular firmly denied the propositions put to him that he had attacked the applicant before the applicant set upon him.
Clearly, the evidence thus far adduced at the applicant's part heard trial in relation to the alleged assault is incomplete. There are apparently at least two other civilian witnesses to be called by the prosecution who may give evidence of the alleged assault. The police witnesses are yet to be called with the result that the interview conducted with the applicant is yet to be adduced in evidence. Further the applicant may elect to give evidence in his own defence. Indeed, during his oral submissions today the applicant referred to his 'evidence' and gave a description of what he asserts occurred during the relevant incident, although he is, of course, yet to give evidence at his part heard trial.[29]
[29] ts 280 ‑ 281, 24 December 2019.
With respect to the interview conducted with the applicant, I am informed, without dispute by the applicant, that during the interview the applicant stated that the complainant had punched him on the nose, that he had retaliated by punching the complainant to the face three times, and that he then 'lost his tether' with the result that the complainant was 'knocked out cold'.[30]
[30] State's outline of submissions filed in relation to the applicant's fifth application dated 1 July 2019 [15].
While making full allowance for the fact that the evidence thus far adduced in relation to charge AR 379/2016 is incomplete, and in particular that the applicant may elect to himself give evidence, I am of the opinion that it is likely that the prosecution will ultimately satisfy the magistrate to the necessary standard that the applicant did punch the complainant to the face and head a number of times and, after forcing the complainant to the ground and while the complainant was in a defenceless position, kick him to the head on one or more occasions. I am of this opinion in light of the weight of the evidence that has already been adduced, the applicant's above referred to admission when interviewed, the extent of the injuries suffered by the complainant, and the absence of any injuries suffered by the applicant.
I am also of the opinion that if the magistrate does make findings to the effect specified in the previous paragraph, it is likely that her Honour will, even if she also finds that the applicant's assault on the complainant was not completely unprovoked as described by the complainant, be satisfied to the necessary standard that the assault went well beyond what was required for the purposes of self-defence within the meaning of s 248(4) of the Code, or for the purposes of protection from a home invader within the meaning of s 244(1) of the Code (even assuming she finds that the complainant was a 'home invader' which on the evidence adduced is extremely doubtful), and was therefore unlawful.
Further, if the applicant also seeks to ultimately rely on the defence provided for by s 254(2) of the Code, which up to this point in the part heard trial has not been mentioned, it is my opinion that if the magistrate makes the findings specified above it is likely that her Honour will, even if she accepts that the applicant was using force for one of the purposes specified in the section (which on the evidence adduced is extremely doubtful) find that the applicant's assault on the complainant went well beyond a 'reasonably necessary' use of force within the meaning of the section.
There is, of course, no question that the injuries suffered by the complainant constituted bodily harm.
In summary, and for the reasons I have given, I am satisfied on the basis of what is before me that the prosecution case against the applicant on charge AR 379/2016 is a strong one.
That leaves charge AR 380/2016, the dangerous driving charge.
During the part heard trial Ms O'Grady‑Errington, Ms Della‑Franca and Mr Eric Carwardine, the witness who has completed his evidence‑in‑chief but is yet to complete his evidence, all gave evidence that was substantially in accordance with the allegations forming the basis of charge AR 380/2016 as stated by the prosecutor in his opening address.[31] In cross‑examination Ms O'Grady‑Errington and Ms Della‑Franca rejected the proposition put to them to the effect that Ms O'Grady‑Errington had deliberately walked in front of the applicant's vehicle forcing the applicant to swerve violently in order to avoid hitting her.
[31] Evidence of O'Grady‑Errington: ts 64 ‑ 73, 120, 18 November 2019; evidence of Della‑Franca: ts 38 ‑ 42, 97 ‑ 102, 19 November 2019; evidence of Carwardine: ts 114 ‑ 117, 19 November 2019.
I have not been informed of the detail of any further evidence to be adduced by the prosecution in support of charge AR 380/2016. However, given that three witnesses have given substantially consistent accounts as to the nature of the applicant's driving on the occasion in question, and given that the nature of the driving as described was clearly dangerous within the meaning of s 61(1) of the Road Traffic Act, it is my opinion, even taking into account that the applicant may himself give evidence in relation to the relevant incident, that the prosecution case on charge AR 380/2016 is a strong one.

Conclusions

So that deals with the four matters specified in cl 3 which I am required, to the extent that I am able, to take into account in determining the question posed by cl 1(a).
I come back then, in light of the observations that I have made in relation to the matters specified in cl 3, to the question posed for determination by cl 1(a).
The State submits that there is a risk that if the applicant is not kept in custody he may fail to appear in court in answer to his bail undertaking, commit further offences, endanger the safety or welfare of any person, and interfere with witnesses or otherwise obstruct the course of justice. The applicant submits that these risks do not exist.
It necessarily follows from the strength of the prosecution case on both of the current charges that there are reasonable prospects of the applicant being convicted of the charges. Further, if the applicant is convicted of the current charges it is, in my view, for the reasons that I have already given, highly likely that he will be sentenced to a total term of immediate imprisonment of at least 18 months imprisonment (the likelihood being that any sentences imposed will be ordered to be served cumulatively). The reasonable prospects of the applicant being convicted of the current charges and the high likelihood of the applicant, in the event that he is convicted, being sentenced to a total term of imprisonment of at least 18 months, are factors that necessarily support the conclusion that there is a risk that the applicant will fail to appear at his part heard trial if he is not kept in custody.
The applicant's past behaviour while on bail as revealed by his prior, albeit reasonably old, convictions for breaching bail by failing to appear and by his above specified conduct in failing to appear in court as required in relation to the current charges, the 2016 Perth charges, the 2017 Perth charges and charge JO 14577/2017 also point to there being a risk of the applicant failing to appear in court at his part heard trial if he is not kept in custody.
Further, the applicant's large number of prior convictions which demonstrate his disregard for authority and the orders of the court also support the conclusion that there is a risk that he will not appear in court at his part heard trial if he is not kept in custody.

Ultimately, taking into account the matters to which I have referred, I am satisfied that there is a high risk of the applicant failing to appear in court at his part heard trial if released on bail pending the completion of his part heard trial.
I turn to the risk that the applicant, if not kept in custody, will commit further offences.
The applicant, as I have already stated, has a very significant criminal record. In addition, he has committed a number of offences while on bail for the current offences. Taking these matters into consideration, I am satisfied that there is a high risk of the applicant committing further offences if he is not kept in custody pending the completion of his part heard trial. In my view this conclusion is inescapable given the applicant's record.
I turn to the risk that the applicant, if not kept in custody, will endanger the safety or welfare of any person, and interfere with witnesses or otherwise obstruct the course of justice.
The applicant has, as I have already pointed out, over the years accumulated a very significant number of convictions for offences that have involved him engaging in various forms of threatening conduct by a variety of means. In addition, the above referred to statements made by the applicant during the course of the part heard trial constituted express threats of violence to prosecution witnesses or persons associated with them, and an implied threat of violence to the magistrate.
In relation to the statements made by the applicant during the course of the part heard trial, it is submitted on behalf of the applicant that the statements should be viewed as nothing more than expressions of frustration as a result of the trial process and the time that the applicant has spent in custody, and that the statements should not be construed as revealing any real intention on the applicant's part to inflict violence on the persons to whom the statements were directed.
The State submits that the applicant's statements must be taken at face value and viewed seriously.
In my view the applicant's statements should be taken at face value. I am not persuaded that the statements should be viewed merely as some sort of expression of frustration or as a means of letting off steam. In coming to this view I take into account the applicant's criminal record to which I have referred of committing numerous offences which have related to threatening forms of behaviour. I am satisfied that the statements made by the applicant to which I have referred do give rise to a real concern that the applicant will carry out what he has threatened.
In the circumstances, I am satisfied that there is a high risk that if the applicant is not kept in custody pending the completion of his part heard trial on the current charges he will endanger the safety or welfare of any person, interfere with witnesses and otherwise obstruct the course of justice.
That deals with the questions posed in cl 1(a).

Clause 1(b)

The question specified in cl 1(b) is whether the applicant needs to be held in custody for his own protection. There is nothing before me to suggest that the applicant does need to be held in custody for his own protection.

Clause 1(c)

The third question, specified in cl 1(c), is whether the prosecutor has put forward grounds for opposing the grant of bail.
I have already addressed the State's grounds for opposing bail in dealing with the questions posed by cl 1(a).

Clause 1(d)

The fourth question that I must consider, specified in cl 1(d), is whether, as regards to the period when the applicant is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial might be prejudiced. It necessarily follows from my above stated findings in relation to the risks, if the applicant is not kept in custody, of the applicant not appearing at his trial, endangering the safety or welfare of any person, and interfering with witnesses that I am satisfied that that there are grounds for believing that if the applicant is not kept in custody the proper conduct of his trial might be prejudiced.

Clause 1(e)

The fifth question for my consideration, specified in cl 1(e) is, so far as is relevant in the present context, whether there is any condition which could reasonably be imposed under pt D of sch 1 of the Act which would sufficiently remove the possibilities of the applicant failing to appear in answer to his bail, committing further offences, endangering the safety or welfare of any person, interfering with witnesses and otherwise obstructing the course of justice.
I will return to this question shortly.

Clause 1(g)

The final relevant question, which is specified in cl 1(g), is whether the alleged circumstances of the offences of which the applicant is charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. Neither of the alleged individual offences, nor the applicant's alleged conduct viewed overall, is of such a serious nature as to itself make a grant of bail inappropriate. I note that the State does not argue to the contrary.

Other relevant matters

As I have already pointed out I am required, in dealing with the application, to have regard not only to the questions specified in cl 1 but also any other matters that I consider to be relevant. One such other relevant matter is the amount of time that the applicant will spend in custody if he is not granted bail prior to being finally dealt with for the charges.
As I have already pointed out, given that the applicant's trial on the current charges has been adjourned to 11 May 2020 he will, if he is not granted bail, spend approximately nine months remanded in custody as an unconvicted person on the charges prior to being finally dealt with for them.[32] This is not an insignificant period of time.
[32] Assuming the applicant is not convicted of, and sentenced to a term of immediate imprisonment for, the offence the subject of his District Court trial on indictment 893/2018 listed for 27 and 28 February 2020.
If the applicant is kept in custody until the completion of his trial on the current charges but is ultimately acquitted of the charges he will, by reason of having spent approximately nine months in custody for the charges, suffer an injustice. However, the risk of him suffering such an injustice has to be assessed in light of the strength of the prosecution case and the likely length of sentence imposed on him if he is convicted. The stronger the prosecution case, and the consequential greater likelihood of conviction and imprisonment for the current charges, the less likely it is that the applicant will suffer an injustice by reason of having been kept in custody pending the completion of his part heard trial.
I have already stated my view that the prosecution case against the applicant on the current charges is a strong one. Accordingly, and bearing in mind what I have said about the likely length of any sentence of immediate imprisonment that will be imposed on the applicant if he is convicted of the current charges, or even only charge AR 379/2016, it is my opinion that the risk that the applicant will suffer an injustice by reason of being kept in custody pending his trial is not great.
In summary, in the particular circumstances of the applicant's case I do not consider that the time that the applicant will spend in custody as an unconvicted person prior to being finally dealt with for the current charges is a factor that weighs heavily in favour of a grant of bail. Rather, it is a factor that in my opinion provides only limited support for the application.
The applicant has also raised in support of the application his medical issues. During the course of his oral submissions he informed me that since he has been on remand in custody he has developed an anxiety disorder. He also informed me that he has an arm injury and that he suffers from plantar warts. He asserted that he has not received proper medical attention for any of these ailments and that he has not received a medical certificate for any of these ailments.
The applicant has not adduced any admissible evidence to support the assertions he has made in relation to his medical conditions. However, proceeding on the assumption, for the purposes of dealing with the application, that what the applicant has said in this regard is correct, the applicant's medical issues do not, in my view, provide any material support for the application. There is no suggestion that these conditions are making the applicant's time in custody materially more arduous than would otherwise be the case. Needless to say, the applicant should be receiving treatment while in custody for any particular ailments that he has.

The imposition of conditions

I come back now to the question whether there are any conditions which can reasonably be imposed which will sufficiently remove what I have found to be the high risk of the applicant failing to appear in court, committing further offences, endangering the safety or welfare of any person, interfering with witnesses and obstructing the course of justice if he is not kept in custody. I note that the question is not whether the imposition of conditions will completely remove the possibilities in question, but whether they will sufficiently remove these possibilities.
The possibilities or risks of the applicant, if he is not kept in custody, failing to appear in court, committing further offences, endangering the safety or welfare of any person, interfering with witnesses and obstructing the course of justice will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. As was stated by the court in YSN v The State of Western Australia[33] this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
[33] YSN v The State of Western Australia [20].
On behalf of the applicant it is submitted that the type of conditions that the applicant would be willing to submit himself to would be a residential condition requiring him to live at the Centrecare hostel in Fremantle, a reporting condition, a non‑contact condition and a curfew condition.
Conditions of the type that I have just referred to would on any view of the matter be stringent. However, when I take into account what I have found to be the high level of the risk of the applicant failing to appear in court, committing further offences, endangering the safety or welfare of any person, interfering with witnesses and obstructing the course of justice if he is not kept in custody, I am not satisfied that the imposition of any conditions would sufficiently remove the possibility of these risks eventuating. To put the matter another way, even when I take into account the length of time that the applicant will be required to spend in custody as an unconvicted person prior to being dealt with for the current charges if he is not granted bail, I am of the view that the risks of the applicant failing to appear in court, committing further offences, endangering the safety or welfare of any person, interfering with witnesses and obstructing the course of justice if he is not kept in custody will simply not be sufficiently removed by the imposition of even the most stringent of conditions, and that therefore the remaining risks constitute a proper ground for refusing bail.
I state to avoid any uncertainty, that I am also satisfied that the imposition of a home detention condition (even if the applicant's proposed residence was suitable for home detention) would not sufficiently remove the risks that I have found the applicant would pose if released on bail.

Conclusion

For the reasons that I have given the application is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
20 JANUARY 2020