Suppressed
[2025] WASCA 66
•2 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MCLEOD -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 66
CORAM: BUSS P
MAZZA JA
ARCHER JA
HEARD: 16 APRIL 2025
DELIVERED : 16 APRIL 2025
PUBLISHED : 2 MAY 2025
FILE NO/S: CACR 38 of 2025
BETWEEN: TRAVIS JAMES MCLEOD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARONE DCJ
File Number : IND 661 of 2015
Catchwords:
Criminal law - Appeal against refusal to grant bail - Appellant fled overseas before trial - Risk of flight
Legislation:
Bail Act 1982 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Apkarian v The State of Western Australia [2015] WASCA 67
Aung v The State of Western Australia [2022] WASCA 175
Barnes v The State of Western Australia [2014] WASCA 49
Bees v The State of Western Australia [2017] WASCA 202
Frigger v The State of Western Australia [2024] WASCA 159
Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342
Hoang v The State of Western Australia [2015] WASCA 130
House v The King (1936) 55 CLR 499
Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197
KJL v The State of Western Australia [2021] WASCA 65
Kobeissi v The State of Western Australia [2016] WASCA 188
KWLD v The State of Western Australia [2020] WASCA 94
Lear v The State of Western Australia [2015] WASCA 90
Ly v The State of Western Australia [2015] WASCA 18
North v The State of Western Australia [2020] WASCA 6
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386
Separovic v The State of Western Australia [2018] WASCA 36
The State of Western Australia v Gholizadeh [2024] WASCA 45
The State of Western Australia v Wilson [2015] WASCA 119
Trajkoski v The State of Western Australia [2018] WASCA 176
Tran v The State of Western Australia [2016] WASCA 37
YSN v The State of Western Australia [2017] WASCA 155
Zheng v The State of Western Australia [2016] WASCA 224
REASONS OF THE COURT:
In 2014, the appellant was charged with offences under the Misuse of Drugs Act 1981 (WA). He was due to stand trial in December 2015, but fled overseas shortly before the trial commenced. More than eight years later, in February 2024, the appellant was arrested in New South Wales and extradited to Western Australia. The trial on the 2014 charges is listed to be heard in June 2025.
In November 2024, the appellant applied for bail. On 18 December 2024, the learned primary judge dismissed the application.
The appellant appealed against the primary judge's decision. Although the appellant was legally represented at the bail application and will be legally represented at his upcoming trial, he was self‑represented on this appeal.
At the conclusion of the hearing, the court made orders dismissing the appellant's application for an extension of time, refusing leave to appeal, and dismissing the appeal. When making those orders, we said that reasons would be published at a later date. These are our reasons.
Background
Alleged offending
In March 2014, the appellant was charged with five drug offences alleged to have been committed earlier that month. The alleged offences are that the appellant:[1]
(1)On 6 March 2014, sold 0.4 g of heroin contrary to s 6(1)(c) Misuse of Drugs Act;
(2)On 7 March 2014, sold 0.95 g of methylamphetamine contrary to s 6(1)(c) Misuse of Drugs Act;
(3)On 25 March 2014, sold 45 g of heroin contrary to s 6(1)(c) Misuse of Drugs Act;
(4)On 25 March 2014, possessed 9.1 g of heroin with intent to sell or supply contrary to s 6(1)(a) Misuse of Drugs Act; and
(5)On 25 March 2014, possessed 4.7 g of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) Misuse of Drugs Act.
[1] See PER/IND/661/2015, statement of material facts dated 26 March 2014; primary court ts 76 ‑ 77.
The purported 'purchaser' of the drugs alleged to have been sold in counts 1 to 3 was an undercover police officer. The alleged sales were covertly recorded. The drugs in count 3 were allegedly sold for $24,000.
The drugs the subject of counts 4 and 5 were allegedly discovered by police during a search of a commercial unit leased by the appellant.
The appellant's failure to attend court and extradition
The trial on these charges was listed to commence in the District Court on 8 December 2015. The appellant did not attend court on that date and a bench warrant was issued.[2]
[2] Primary court ts 26 - 27.
It is now known that, shortly before his trial date, the appellant fled Australia with his young son, travelling in Spain, Borneo and Indonesia. The appellant explained to the primary judge why he had fled as follows:[3]
Well, first I went to Ibiza. I left because I needed to raise my son. There was no one left to - to raise him and I didn't believe I had any chance of defending the charges when the … audio tapes had been edited. But since I've done legal research and I've realised that I can run an entrapment case and I can fight it on the grounds that the audio has been edited, so now I realise I have a realistic chance of beating it even though the … prosecution has not given me proper disclosure and they've edited the audio tapes. I can use that ground as well to beat the charges.
… I left [because] I needed to raise my son. There was no one else to look after him and my son's … now 16 years of age so it's not so important that I be there for him as he's with my brother.
[3] Primary court ts 52.
In early 2023, the appellant contacted the Office of the Director of Public Prosecutions (WA) to indicate that he wished to negotiate. He was told, by email, that the office would not enter into negotiations unless he handed himself in to authorities.[4] The State told the primary judge that the email also informed the appellant that there was a warrant against him. The appellant said that he was not sure that the email said that.[5]
[4] Primary court ts 49 - 50, 56, 85, 98.
[5] Primary court ts 56 - 57, 85, 88 - 89, 91, 98.
While in Indonesia, the appellant was imprisoned for a short period in relation to a drug offence.[6]
[6] Primary court ts 92, 97.
On 7 February 2024, the Indonesian authorities put the appellant on a flight to Darwin. The primary judge accepted, for the purposes of the bail application, the appellant's version of what led to this. The appellant's version was that he had been at the airport intending to fly to Perth to deal with the Australian charges, but was arrested by Indonesian officials for overstaying his visa, held in immigration detention for a month, and then put on a plane to Darwin.[7]
[7] Primary court ts 32, 50, 91, 97 - 98.
On 17 February 2024, the appellant was arrested at Sydney Airport while attempting to fly to Malaysia with his son.[8] He has been in custody since that time. On 20 February 2024, he was extradited to Western Australia.[9]
[8] Primary court ts 99.
[9] Primary court ts 33.
The appellant asserts that, when he arrived at Darwin Airport, he attempted to hand himself in to Australian Border Force (ABF) officers, but was told there were no warrants outstanding.[10] The State did not concede that he was told this, but did concede that there could have been some confusion by the ABF. This was in circumstances where there were incomplete extradition proceedings on foot in Western Australia, but no Northern Territory warrants relating to the appellant.[11]
[10] Primary court ts 48, 91.
[11] Respondent's submissions [12]; Primary court ts 98. See also Affidavit of Detective Senior Constable Benjamin Alexander Lawson sworn 18 December 2024 [10] ‑ [12].
The primary judge did not make a finding as to what the appellant was told in Darwin.
The appellant asserts that, because of what he was told by the ABF at Darwin Airport, he then believed that there were no warrants for him in Western Australia. Although the primary judge did not expressly reject this claim, it appears that her Honour did not accept it.
Her Honour found that, when the appellant entered the country in February 2024, he knew there was a warrant in existence and nothing had been said to him which could have led him to believe the charges were not going to proceed.[12]
[12] Primary court ts 97 - 98.
The primary judge further found, in effect, that in the 10‑day period between his arrival in Darwin and his attempt to fly out of Sydney, the appellant did not try to contact the prosecution, the police, or any authority in Western Australia.[13] Her Honour found that, if he had been given information in Darwin that there was no Western Australian warrant, he made no attempt to confirm that, when he could have easily done so.[14]
[13] Primary court ts 98 - 99.
[14] Primary court ts 99.
These findings are not challenged in the appeal.
The charges against the appellant have been listed for a nine‑day trial in the District Court commencing on 16 June 2025.[15]
Bail application before the primary judge
[15] Primary court ts 41.
On 22 November 2024, the appellant's counsel filed two applications.
The first was an application for a hearing to determine the admissibility of the evidence of the undercover police officer relating to counts 1 to 3.[16]
[16] See primary court ts 78 - 80.
The second application sought that the appellant be released on bail.
The primary judge heard the applications on 12 and 18 December 2024.
In relation to the first application, the appellant's counsel told the primary judge that the appellant alleged that the undercover officer made threats to harm the appellant and his family if he did not sell drugs to the undercover officer, and that the threats did not appear on the covert recordings. The appellant alleged that the recordings had been edited to remove the threats.[17]
[17] See primary court ts 52 - 53, 78 - 80.
In relation to the bail application, the appellant proposed strict bail conditions including surrendering his passport, a significant surety, and home detention.[18] The State opposed bail on the basis that the appellant was a flight risk and there was a risk the appellant would re‑offend if on bail.[19]
[18] Primary court ts 100.
[19] Primary court ts 96.
On 18 December 2024, the primary judge refused bail.[20] Ultimately, her Honour was not satisfied that any conditions could be put in place to alleviate the concern that the appellant would commit an offence or fail to appear.[21] However, her Honour said that, if the undercover evidence was ruled inadmissible and count 3 was discontinued, home detention bail would have been appropriate on the remaining, much less serious, charges.[22] It was clear from her Honour's reasons that this was because count 3 is the most serious charge against the appellant. If count 3 is discontinued, the sentence he would receive if convicted of the other charges would be significantly less than a sentence for offences which included count 3.
[20] Primary court ts 101.
[21] Primary court ts 100.
[22] Primary court ts 100.
The hearing to determine the admissibility of the undercover evidence was initially listed for 13 February 2025.[23] However, the day before that hearing, it was postponed to 14 May 2025.[24] It appears that, by letter dated 11 February 2025, the appellant's lawyer told the State that he had decided that, given the appellant was alleging that the recordings had been edited, it would be necessary for the State to prove continuity of the recordings made by the undercover officer. Both parties sought an adjournment of the hearing to enable that evidence to be obtained.[25]
[23] Primary court ts 101.
[24] Primary court ts 107.
[25] Letter from Mr Bates, counsel for the appellant, to the associate to Prior DCJ, dated 12 February 2025; letter from Mr Mactaggart, prosecutor, to the associate to Prior DCJ, dated 11 February 2025.
On 21 March 2025, the appellant appealed the primary judge's refusal to grant bail and sought leave to appeal out of time.
Nature of the appeal
Under s 15A(2)(b) of the Bail Act 1982 (WA), the appellant has the right to appeal against the primary judge's decision to refuse to grant bail. Such an appeal is an appeal against a discretionary decision, to which the well‑known principles in House v The King[26] apply.[27]
[26] House v The King (1936) 55 CLR 499, 504 ‑ 505.
[27] Frigger v The State of Western Australia [2024] WASCA 159 [53]; KWLD v The State of Western Australia [2020] WASCA 94 [47] ‑ [48].
The primary judge's decision
The primary judge noted that, if released on bail, the appellant would be able to stay with his brother, and his brother would provide a $200,000 surety. The primary judge said that that was 'a significant surety and would put some impetus on the accused to remain as would the conditions of home detention'.[28] Her Honour observed, however, that the accused was subject to a surety (albeit in the much lower amount of $10,000), at the time he fled the jurisdiction.
[28] Primary court ts 100.
The appellant claimed to have significant ties to Western Australia, including that his son lives here now. The primary judge noted that the appellant had earlier said that, as his son was now 16 years old, any 'holding force' that his son would have had diminished. The appellant challenges this finding (see ground 2).
The primary judge considered the prosecution case to be 'relatively strong'.[29] The appellant disputes this, and contends that it is 'indisputable' that the recordings have been edited (see ground 5).[30]
[29] Primary court ts 100.
[30] Appellant's grounds of appeal [7].
The primary judge considered the length of time the appellant would spend in custody prior to his trial, if not granted bail. Her Honour estimated that period as 20 months,[31] but it was actually 18 months, an error in the appellant's favour. Her Honour accepted that that was a significant period of time to be in custody prior to a trial. While her Honour observed that it was largely caused by the appellant's decision to flee, she acknowledged that time in custody is always of concern to the court.[32]
[31] Primary court ts 99.
[32] Primary court ts 99.
The primary judge noted that count 3 was the most significant charge on the indictment (involving, as it did, 45 g of heroin). Her Honour said that, if the appellant was convicted on count 3, he was likely to receive a term of imprisonment well in excess of 20 months.[33] The appellant challenges this finding (see ground 1).
[33] Primary court ts 100.
Ultimately, her Honour was not satisfied that any conditions could be put in place to alleviate the concern that the appellant would commit an offence or fail to appear, and refused bail.
Grounds of appeal
In the appellant's case, he sets out under the heading 'Grounds of Appeal' what are, in essence, submissions. Having regard to that document as a whole, we agree with the respondent that the matters the appellant wishes to raise in this appeal can be framed as follows:
1The primary judge erred in concluding that the period of time that the appellant would spend in custody if bail was refused would not exceed the actual time the appellant would serve if convicted; such a conclusion not being reasonably open on the evidence.
2The primary judge erred in finding that the 'holding force' (that is, the motivation for the appellant to appear at his trial in answer to bail) of the fact that his son is in Western Australia had 'diminished' relative to such 'holding force' as may have applied to the appellant when his son was younger; such a finding not being reasonably open on the evidence.
3The appellant forgot to raise a relevant matter when making his bail application; specifically, that, when he was in immigration detention in Indonesia, he asked the consulate if he had any warrants in Australia and was told that he did not.
4Since the decision under appeal, new circumstances have arisen; specifically, that the directions hearing that was previously listed for 13 February 2025 has been adjourned by the consent of the parties to 14 ‑ 16 May 2025, such that bail is now appropriate and should now be granted.
5The primary judge erred in concluding that there were no conditions which could reasonably be imposed to sufficiently remove the possibility that, if not kept in custody, the appellant might fail to appear in court or that he might commit an offence; such a conclusion not being reasonably open on the evidence.
Ground 1 - time on remand would not exceed likely sentence
The likelihood that time spent on remand will exceed any term of imprisonment which would be imposed if an accused is convicted is relevant to the exercise of the bail discretion.
The nature of the alleged offending
The appellant is charged with five offences, alleged to have been committed on three separate dates. He is alleged to have sold both heroin and methylamphetamine. It is alleged that indicia of drug dealing, multiple mobile phones, and multiple identification documents were found in premises he had leased.[34]
Relevant sentencing factors
[34] Primary court ts 82.
If convicted after trial, none of the mitigating factors of good antecedents, youth, or pleas of guilty would be available to the appellant.
The appellant would get credit for his time in custody on remand. This will be 18 months by the time of his trial (being 2 months from before his flight[35] plus 16 months from his arrest in February 2024 to his trial in June 2025).
[35] Primary court ts 83 - 84.
Deterrence, both specific and general, will be significant factors. The appellant has a long history of drug offences, including commercial drug dealing.
Comparable cases
The appellant cited 13 cases which he said showed that, if he were convicted, the likely sentence would be 2 ‑ 3 years' imprisonment: Seeto v The State of Western Australia;[36] Ly v The State of Western Australia;[37] Lear v The State of Western Australia;[38] The State of Western Australia v Wilson;[39] Hoang v The State of Western Australia;[40] Sathitpittayayudh v The State of Western Australia;[41] Hughes v The State of Western Australia;[42] Kobeissi v The State of Western Australia;[43] Bees v The State of Western Australia;[44] Separovic v The State of Western Australia;[45] Trajkoski v The State of Western Australia;[46] Higgins v The State of Western Australia;[47] and KJL v The State of Western Australia.[48]
[36] Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386.
[37] Ly v The State of Western Australia [2015] WASCA 18.
[38] Lear v The State of Western Australia [2015] WASCA 90.
[39] The State of Western Australia v Wilson [2015] WASCA 119.
[40] Hoang v The State of Western Australia [2015] WASCA 130.
[41] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152.
[42] Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197.
[43] Kobeissi v The State of Western Australia [2016] WASCA 188.
[44] Bees v The State of Western Australia [2017] WASCA 202.
[45] Separovic v The State of Western Australia [2018] WASCA 36.
[46] Trajkoski v The State of Western Australia [2018] WASCA 176.
[47] Higgins v The State of Western Australia [2019] WASCA 78; (2019) 54 WAR 342.
[48] KJL v The State of Western Australia [2021] WASCA 65.
In relation to each case, the appellant set out a sentence that had been imposed for a single offence.
In all but one of these cases, the selected individual sentence was not challenged in the appeal and questions of totality were involved. In those circumstances, the individual sentences do not provide any yardstick against which to assess what the likely sentence would be in this case if the appellant is convicted after trial.
The case in which the selected individual sentence was challenged in the appeal is Sathitpittayayudh.
In Sathitpittayayudh, the appellant had been sentenced to a total effective sentence of 11 years' imprisonment in relation to four offences. On one count, the possession of 71.6 g of MDMA (count 4), he had been sentenced to 3 years' imprisonment. The court found the sentencing judge had erred in applying a 10% discount to that count for the appellant's guilty plea, and that an appropriate discount was 20%. In resentencing, the court reduced the sentence for count 4 to 2 years 6 months' imprisonment, and structured the sentences so that the total effective sentence was also reduced by 6 months. As this sentence was part of a lengthy total effective sentence, and as a significant reduction was given for the plea of guilty, this case is of limited assistance.
The respondent cited three additional cases, namely Apkarian v The State of Western Australia;[49] Tran v The State of Western Australia;[50] and North v The State of Western Australia.[51]
[49] Apkarian v The State of Western Australia [2015] WASCA 67.
[50] Tran v The State of Western Australia [2016] WASCA 37.
[51] North v The State of Western Australia [2020] WASCA 6.
The first two cases were cited to demonstrate that even charges involving smaller quantities of drugs (such as counts 1, 2, 4 and 5 in this case) can warrant significant sentences.
In the third case, North, the appellant was sentenced to a total effective sentence of 7 years' imprisonment in relation to four counts of possession of heroin (totalling 74.66 g) with intent to sell or supply, and one count of possession of $4,700 cash reasonably suspected to be unlawfully obtained. Each of counts 1 and 3 involved approximately 28 g of heroin. He was sentenced to 2 years 6 months' imprisonment for each of counts 1 and 3, with the sentence imposed in relation to count 3 to be served cumulatively on the sentence imposed in relation to count 1. The remaining sentences, which related to smaller amounts of heroin and the cash, were ordered to be served concurrently. The sentences were imposed following a 10% discount for pleas of guilty.
The offender in North had a significant criminal record, worse than the present appellant. Further, the offences were committed while he was on home detention bail. The offender had been granted home detention bail to reside with his partner, who was seriously ill. He decided that, because he had no money for Christmas, he would make some quick money by selling drugs. He hoped to have enough money to send his partner on a cruise and purchase Christmas presents for his children. By the time of the sentencing, his partner had died.[52]
[52] North [5], [17].
This court held that the challenges to the individual sentences and the total effective sentence were not reasonably arguable.
We have had regard to two other cases, not cited by the parties - Zheng v The State of Western Australia[53] and Barnes v The State of Western Australia.[54] Both involved sentences imposed relatively proximate to the date on which the appellant would have been sentenced if convicted after trial in 2015. The sentences in both were imposed for the possession of methylamphetamine with intent to sell or supply. The fact that these cases involve methylamphetamine rather than heroin does not deprive them of utility. Heroin and methylamphetamine are comparable in terms of seriousness.[55]
[53] Zheng v The State of Western Australia [2016] WASCA 224.
[54] Barnes v The State of Western Australia [2014] WASCA 49.
[55] The State of Western Australia v Gholizadeh [2024] WASCA 45 [51].
In Zheng, the offender was sentenced (in 2016) to 4 years 3 months' immediate imprisonment for the possession of 49.85 g of methylamphetamine with intent to sell or supply (she was also found in possession of $10,345). The offender was said to be 'in contact with those close to the upper levels of the chain of distribution'.[56] The offender was convicted after trial, and showed no remorse or insight into the seriousness of the offending. However, she had no relevant criminal history and was the mother of a 2‑month‑old baby. The court held that it was not reasonably arguable that the sentence was manifestly excessive. Given this finding, this case does not establish any upper limit.[57] It merely illustrates that the sentence, for that offender, in those circumstances, was not manifestly excessive.
[56] Zheng [6].
[57] Aung v The State of Western Australia [2022] WASCA 175 [45].
In Barnes, the offender was convicted in 2011 of two counts of possessing methylamphetamine with intent to sell or supply, following two separate trials. The first trial dealt with his alleged possession of 54.6 g, and the second trial with his alleged possession of 51.23 g. He was sentenced to 6 years' imprisonment after the first trial, and 6 years 6 months' imprisonment (reduced from 7 years to account for time in custody) after the second trial.
The conviction in relation to the first offence was quashed, and he entered a plea of guilty shortly before the retrial in 2013. On 11 June 2013, he was sentenced to 4 years 10 months' imprisonment for this offence. The sentence was less than the original sentence for that offence because of the appellant's conduct since he had originally been sentenced for that offence in 2011, being his late plea of guilty and significant steps towards rehabilitation.[58]
[58] Barnes [13].
His appeal related to the interrelationship of the sentences. The court observed, however, that each of the 2011 sentences was appropriate viewed from a standalone perspective.[59]
Conclusion on ground 1
[59] Barnes [13].
It was well open to her Honour to conclude that the time the appellant would have spent in remand if bail was refused was unlikely to exceed the term of immediate imprisonment to which the appellant was likely to be sentenced if convicted.
In our view, this ground is not reasonably arguable, and we would not grant leave to appeal on this ground.
Ground 2 - the appellant's son
The appellant alleges that the primary judge erred in saying that his son's 'holding power' over him was diminished. He submits:[60]
I would never voluntarily leave my son, he is my world and I miss him and love him more than life itself. He is enrolled in school in WA now and needs me as much as ever. I have been his sole parent everyday of his life except whilst I [have] been in prison.
[60] Appellant's grounds of appeal [8].
The primary judge said:[61]
[The appellant], on his own words, on the last occasion, said to me that his son's now 16 and any concern about time away from his son has diminished, which would indicate that any holding force that his son would have, as his son is settled in Western Australia, on Mr McLeod, by his own words, has diminished.
[61] Primary court ts 100.
The primary judge's reference to what the appellant had said 'on the last occasion' was plainly a reference to the first day of the bail application, 12 December 2024, in which the appellant had said:[62]
Well, first I went to Ibiza. I left because I needed to raise my son. There was no one left to - to raise him and I didn't believe I had any chance of defending the charges ... But … now I realise I have a realistic chance of beating it …
… I left [because] I needed to raise my son. There was no one else to look after him and my son's now 16 years of age so it's not so important that I be there for him as he's with my brother.
[62] Primary court ts 52.
The appellant's 16‑year‑old son now lives with the appellant's brother in a suburb of Mandurah and attends the local high school. When the appellant fled the country in late 2015, his son would have been 6 or 7 years old. The purpose of the appellant's submission to the primary judge can only have been to assert that, because his son needs him less now, there was less need for him to avoid going to prison.
It was well open to the primary judge to conclude that, for the same reason the appellant said he was now less reluctant to be separated from his son by reason of being imprisoned, the appellant would be less reluctant to be separated from his son by reason of flight. In any event, when the appellant fled the country in 2015, he took his son with him.
In our view, this ground is not reasonably arguable, and we would not grant leave to appeal on this ground.
Ground 3 - additional material
The appellant claims that, when he was in immigration detention in Indonesia, he asked the consulate if he had any warrants in Australia and was told that he did not. He says that he forgot to mention this in his bail application.[63] As this was not put before the primary judge, it cannot support an allegation that her Honour erred. As noted by the respondent, to the extent that this is a submission that the appellant failed to adequately present his case for bail before the primary judge, the proper course would be to make a fresh bail application under s 14(2a)(b) of the Bail Act.
[63] Appellant's grounds of appeal [3].
Ground 4 - new circumstances
The appellant also seeks to rely on the fact that the hearing to determine the admissibility of the undercover evidence has been postponed to 14 May 2025. The appellant notes that the primary judge's decision to refuse bail was influenced by the fact that, at that time, the hearing was listed for 13 February 2025.[64]
[64] Appellant's grounds of appeal [7].
This appeal is to be determined on the material and evidence that was before the primary judge.[65] The date of the hearing was changed after the primary judge's decision and cannot, therefore, support an allegation that she erred. Again as noted by the respondent, if there are new facts and circumstances which have arisen since the decision under review, the proper course is to make a fresh bail application to the District Court under s 14(2a)(a) of the Bail Act.
[65] Bail Act, s 15B(2).
Ground 5 - no conditions could be imposed
The appellant alleges that the primary judge erred in concluding that there were no conditions which could reasonably be imposed to sufficiently remove the possibility that, if not kept in custody, the appellant might fail to appear in court or that he might commit an offence; such a conclusion not being reasonably open on the evidence.
The general principles governing the exercise of the discretion to grant or refuse bail prior to trial were summarised in YSN v The State of Western Australia,[66] and need not be repeated here.
[66] YSN v The State of Western Australia [2017] WASCA 155 [14] ‑ [21].
The primary judge considered the prosecution case to be 'relatively strong'.[67] This was an understatement.
[67] Primary court ts 100.
The alleged offences in counts 1 to 3 involved sales to an undercover officer, which were audio‑taped.
Counts 4 and 5 allege that the appellant had possession of drugs. The drugs were found in premises leased by the appellant for his company. The police also found drug dealing indicia, multiple mobile phones, and multiple identification documents in the premises.[68]
[68] Primary court ts 82.
Before the appellant fled the country, a judge of the District Court had ruled that the State could adduce into evidence 29 of the appellant's prior drug convictions as propensity evidence, under s 31A of the Evidence Act 1906 (WA).
The appellant contends he only made the sales the subject of counts 1 to 3 after he had been threatened. He says that it is 'indisputable' that the recordings have been edited.[69]
[69] Appellant's grounds of appeal [7].
Having regard to the circumstances of the alleged offences (including what was allegedly found in the premises) and the propensity evidence, and on the materials before her Honour, the appellant's contention appears to be highly implausible. In our view, it was well open to her Honour to find that the prosecution case was 'relatively strong'.
Further, as discussed in relation to ground 1, it was also well open to her Honour to conclude that the time the appellant would have spent on remand if bail was refused was unlikely to exceed the term of immediate imprisonment to which the appellant was likely to be sentenced if convicted.
Her Honour considered that there was a real risk that the appellant would fail to appear at his trial or commit an offence, and that there were no conditions which could reasonably be imposed to alleviate those risks.
The appellant contends that this was an error. He contends, in effect, that the risks would be sufficiently reduced if he was given bail on conditions of surrendering his passport, a $200,000 surety, reporting conditions, and home detention. He says he was on bail for 19 months between 2014 ‑ 2015 and did not commit any further offences, and that he has no breaches of bail on his record.[70]
[70] Appellant's grounds of appeal [5].
However, the appellant breached a District Court bail undertaking in 2015 by failing to appear at his trial, and going overseas. In addition, his criminal history records that in May 2024 he was convicted in the Magistrates Court for two offences of breaching a bail undertaking, on 18 December 2015 and 12 January 2016. It appears these relate to summary charges.[71]
[71] See primary court ts 82 - 83.
In addition, while the appellant's criminal history does not record any drug offending during the time he was on bail in 2014 ‑ 2015, he has a lengthy history of drug offending. Further, it appears he was imprisoned in Indonesia for a drug offence.
The appellant was also convicted in 2013 of escaping lawful custody (an offence that was committed on the same day as an offence of failing to comply with a driver's identity request.)
As for the risk of flight, that risk is not limited to the risk of flight overseas. Even without a passport, an accused can fail to appear at trial.
In our view, it was well open to the primary judge to have found, despite the lengthy period the appellant has spent, and will spend, on remand, that there existed an unacceptable risk that, if not kept in custody, the appellant may flee the jurisdiction or commit an offence and that no reasonable conditions could be imposed which would sufficiently reduce that risk.
The primary judge has not been shown to have made any error of principle in determining the appellant's bail application. The decision to refuse bail was not, in all the circumstances, unreasonable or plainly unjust. The appellant has not established appealable error in the exercise of the primary judge's discretion under the Bail Act.
In our view, this ground is not reasonably arguable, and we would not grant leave to appeal on this ground.
Conclusion
For the above reasons, we made orders to dismiss the application for an extension of time, refuse leave to appeal, and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ADR
Associate to the Honourable Justice Archer
2 MAY 2025
0
22
1