The State of Western Australia v Hinton
[2015] WASC 288
•7 AUGUST 2015
THE STATE OF WESTERN AUSTRALIA -v- HINTON [2015] WASC 288
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 288 | |
| 07/08/2015 | |||
| Case No: | INS:96/2015 | 7 & 8 JULY 2015 | |
| Coram: | SIMMONDS J | 8/07/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Fresh bail not granted | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA JOSHUA LUKE HINTON |
Catchwords: | Revocation of bail Arrest warrant Application for fresh bail Court not informed of previous bail revocations |
Legislation: | Bail Act 1982 (WA), s 50F, s 50G |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99, [2011] 42 WAR 99 Quaid v The State of Western Australia [2013] WASC 228 Va v The State of Western Australia [2014] WASC 74 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
JOSHUA LUKE HINTON
Accused
Catchwords:
Revocation of bail - Arrest warrant - Application for fresh bail - Court not informed of previous bail revocations
Legislation:
Bail Act 1982 (WA), s 50F, s 50G
Result:
Fresh bail not granted
Category: B
Representation:
Counsel:
Prosecution : Mr B Standish
Accused : Mr G C Christou
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Legal Aid (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99, [2011] 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
Va v The State of Western Australia [2014] WASC 74
- SIMMONDS J:
Introduction
1 This is the return on an arrest warrant for an accused who had been on home detention bail.
2 The matter showed in the list for the hearing on both of its days as an application to revoke bail. However, as will become apparent, I consider the matter is not to be so viewed.
Background
3 The background to the matter is somewhat complex.
4 By prosecution notice PE110357 of 2014 dated 2 November 2014, the accused was charged with the offence of aggravated armed assault with intent to rob. The offence was further described as that the accused, with intent to steal, used violence to Huan Zhang in order to obtain money which he so intended to steal and was armed with a dangerous weapon, namely pepper spray, and was in company with another. That other was Joel Robert Roe.
5 On 8 April 2015 in the Stirling Gardens Magistrates Court, Magistrate Davies committed the accused for the Supreme Court to appear on 25 May 2015. His bail, previously granted on 25 March 2015, was renewed on the same, or broadly the same, terms as the previous bail. Those terms, as they appear in the bail undertaking executed by the accused on 8 April 2015, provided for the following conditions of bail:
Bail $1000. To attend substance abuse counselling and submit to random urinalysis as directed by his community corrections officer. To be released upon availability of electronic monitoring equipment. Not to contact directly or indirectly Joel Robert Roe, Isaiah Ward or Neil Henry Girardi. To comply with all home detention bail conditions. To reside at Unit 3/134 Peninsula Road, Maylands.
6 On 21 April 2015, a person, apparently a delegate of the Chief Executive Officer of the Department of the Community of Corrections, ordered the revocation of the bail for the accused, which I take to be the bail of 8 April 2015. This was pursuant, it would also appear, to Bail Act 1982 (WA) s 50F(1). The basis for the revocation was the accused cutting off his electronic monitoring device, an anklet, and absconding.
7 Also, on 21 April 2015, an arrest warrant was issued on that revocation. At a first appearance hearing on 25 May 2015 before Hall J of this court, the accused failed to appear, although his legal representative did appear. An arrest warrant for the failure of the accused to appear was issued at that hearing and allowed to lie until the end of the day. It was subsequently executed, resulting in the accused being brought before me on 29 May 2015.
8 There is no reference in the transcript of the hearing on 25 May 2015 to the revocation at 21 April 2015 or to the arrest warrant issued on it.
9 On 29 May 2015, the accused appeared unrepresented at the return of the arrest warrant on the failure to appear on 25 May 2015. The Director of Public Prosecutions (DPP) was represented by counsel other than the counsel who appeared before me both yesterday and today. Counsel for the accused explained at today's hearing that he was unaware of the hearing on 29 May 2015 as Legal Aid was moving offices on that date and its phone lines and email were offline.
10 As I have indicated, the appearance was before me on 29 May. At that hearing, counsel indicated that the DPP did not oppose bail being renewed on the same terms and conditions as the bail of 8 April 2015, to an appearance on 29 June 2015.
11 After hearing from the accused, I confirmed such bail. He had explained to me that at a time when there were many things to occupy his mind, and he did not have access to his diary in which the appearance had been entered, he had simply forgotten the appearance. There is a further aspect of the exchange between myself and Mr Hinton that I will need to refer to later.
12 There was no reference in the hearing before me on 29 May 2015 to the revocation of 21 April 2015 or to the arrest warrant issued on it. Nor was there any reference to any difficulty with the availability of the electronic monitoring equipment as required by the terms of the bail that was confirmed by me. Such a difficulty might have existed given the basis for the revocation of 21 April 2015.
13 On 13 June 2015, a delegate of the Chief Executive Officer of the Department of Corrective Services ordered the revocation of the bail confirmed on 29 May 2015. This was pursuant to Bail Act s 50F(1), as with the previous revocation. The basis for the revocation on 13 June 2015, as stated in the instrument cancelling the bail required by s 50F(3), was:
Failure to abide by home detention condition having left the bail address 3/134 Peninsula Road, Maylands, on 13 June 2015 at approximately 2155 hours without prior approval.
14 Also on 13 June 2015, an arrest warrant was issued on that revocation.
15 The indictment of the accused and Mr Roe for a modified form of the offence of aggravated armed assault with intent to rob was issued dated 28 June 2015. Mr Roe was separately charged by that indictment for another offence. The modification of the offence of aggravated armed assault with intent to rob was the addition of an allegation that the accused had done bodily harm to Mr Zhang. I note that the trial in this matter of the indictment has been provisionally listed for five days from 17 November 2015.
16 On 29 June 2015, the accused appeared, represented by the same counsel who appeared before me today, at a first appearance before Hall J. The accused's bail was extended on the same conditions as those of my bail confirmation on 29 May 2015. There is no reference in the transcript of the hearing on 29 June 2015 to the revocation of 21 April 2015 or the arrest warrant on that revocation. Nor is there any reference in that transcript to the revocation of 13 June 2015 or to the arrest warrant on that revocation.
17 Subsequent to the hearing of 29 June 2015, the accused was arrested, on 6 July 2015, on the arrest warrant issued on the revocation of 13 June 2015. At the hearing before me on 7 and 8 July culminating today, the accused, who was represented by the counsel I have referred to, and on 7 July 2015 in the absence of that counsel by another counsel from the Legal Aid office, appeared before me.
18 It was common ground before me that this appearance was on the return of the arrest warrant on the revocation of 13 June 2015. There was no challenge to the revocation of 21 April 2015 or to the revocation of 13 June 2015. However, as will be seen, the accused, through his counsel, proffered accounts of the circumstances that represented the bases of the revocations of 21 April 2015 and 13 June 2015. As I understood his counsel's submissions, those accounts were put to me as going to reduce what, adverse to him, might otherwise be drawn from those bases.
Lessons to be learned from this background
19 It causes some discomfort that two sets of bail revocations and consequential arrest warrants were not made known to judicial officers at the time they were concerned with the matter of bail for the accused, or his failure to appear to previous bail.
20 It must be admitted that the revocation of 21 April 2015, including its basis and the arrest warrant issued on it, was drawn to the attention of my associate by an email on 4 June 2015 from an officer of the Department of Corrective Services. This email was received after the file had been returned following the hearing on 29 May 2015. However, the email was not directed to that file, nor was it, or the information it contained, otherwise drawn to the attention of Hall J for the purposes of the hearing on 29 June 2015.
21 There is no indication that the revocation of 13 June 2015, let alone its basis and the arrest warrant issued on it, were communicated to the court by the time of the hearing on 29 June 2015.
22 The two revocations and the bases for them would appear to be significant elements of the bail history of the accused in relation to this matter for the purposes of the hearing before me for fresh bail.
23 It is of concern that information as to the issue of revocations and arrest warrants under Bail Act s 50F(1) was not available to courts considering the renewal of bail or the grant of new bail for him until the present hearing. Further, it is of concern that the revocations under Bail Act s 50F(1), and subsequent arrest warrants, were not promptly communicated to those involved in the conduct of the prosecution in respect of which the bail revoked had been granted or before which that prosecution was proceeding. That is to say, respectively, the Office of Director of Public Prosecutions and the court.
24 I should add that counsel for Mr Hinton was not, at any stage, informed of the revocations, let alone the consequential arrest warrants.
Application for return of the arrest warrant
25 I note it was not in contest before me that the present was not an application for revocation of bail, but rather, as I have already indicated, an application for fresh bail. This was under the provisions of the Bail Act s 50G I now reach. I consider those provisions do, indeed, apply here.
26 Bail Act s 50G(2)(a) and (b) provides that a judicial officer before whom an accused arrested pursuant to a warrant issued under s 50F appears may do one or other of two things. They are:
(a) remand the accused in custody to appear at the time and placed specified, or deemed by section 31(3) to be specified, in his bail undertaking, or
(b) grant fresh bail to the accused in accordance with this Act, other than clause 2 of Part B of Schedule 1.
27 It may be noted from the language of Bail Act s 50G(2)(b) that 'fresh bail' reflects the revocation of previous bail pursuant to s 50F(1). It may be further noted that the accused has been arrested on the warrant on the revocation of bail of 13 June 2015 and is now before me in relation to that warrant, as I have indicated.
28 It might be contended that in any event there was no bail to renew on 29 May 2015, the bail of 8 April 2015 having been revoked on 21 April 2015. It is clear that Bail Act s 50G had no application at that time as the accused had not, at that time, been under arrest pursuant to the warrant on the revocation of 21 April 2015. This is a view to which I was attracted at the time of the hearing on 7 July 2015. On that view, it might be contended that the only bail that could have been granted on 29 May 2015 was fresh bail. I do not consider I granted fresh bail at that hearing. In any event, no application in that regard had been made to me.
29 However, as against that view, I note that the only reference in Bail Act s 34 to the cessation of a bail undertaking on revocation is in s 34(a) to revocation under s 55. Having regard to those provisions it might be contended that the revocation under s 50F is only made effectual as a result of the hearing under s 50G. However, in my view, it is unnecessary for me to express a final view as to those matters as Hall J, on 29 June 2015, purported only to extend the bail of 29 May 2015, and the present is a hearing under s 50G in respect of the revocation of 13 June 2015 of the bail of 29 May 2015.
30 At the hearing before me, the applicant, through his counsel, applied orally for fresh bail. There was no affidavit or documentary or other evidence in support. At the hearing, counsel for the DPP provided me with a criminal history for the applicant dated 12 October 2014 at 11:47:52. I understood, from counsel for Mr Hinton, that there is a more recent criminal history, one of November 2014, but it contains no additional material. Counsel for the DPP also provided me with an email from an officer of the Department of Community Corrections, which I refer to below.
31 In respect of the application for fresh bail, I should note the following two matters before I reach the general approach, which I consider applies to that application, and before I consider the parties submissions to me.
32 The first matter is that it was common ground before me the accused was not required to satisfy me in the terms of Bail Act s 14(2a). I agree. It seems to me that the concluding words to s 50G(2)(b) have the effect, when the provision referred to in them is considered, of excluding s 14(2a).
33 The second matter is that it was common ground before me the accused was not required to show exceptional reasons for the grant of bail. I agree. There is no provision in the Bail Act which requires this for the present application for fresh bail.
34 In particular, as it was common ground before me, sch 1 pt C cl 3A does not have any such effect. Any such effect would be with respect to an application for bail on the charge of steal motor vehicle. No such application was before me. Had it been before me I would have had to consider the effect of the revocation of 21 April 2015. I express no opinion on that effect.
35 The general approach to the present application for fresh bail, in respect of the offence of aggravated armed assault with intent to rob, is determined, as was common ground before me, in by Bail Act sch 1 pt C cl 1 read with cl 3. For how those provisions are to be approached, see Milenkovski v The State of Western Australia [2011] WASCA 99, [2011] 42 WAR 99 [31] - [45] (McLure P, Pullen JA & Hall JJ agreeing); and on Milenkovski, Va v The State of Western Australia [2014] WASC 74 [27] - [29] (EM Heenan J). I follow the approach in those authorities.
36 I further note that in determining the present application I may receive and take into account such information as I see fit 'whether or not the same would normally be admissible in a court of law': Bail Act s 22. The weight of such information is a distinct consideration. This allows for me to receive and take into account material and oral submissions at the bail hearing itself. However, such matter, when not supported by any evidentiary foundation would likely be of diminished, sometimes substantially diminished, weight: see Quaid v The State of Western Australia [2013] WASC 228 [21] (Edelman J). Having said that, there does not appear to me in this case to be any material before me for which there is no evidentiary foundation.
37 Counsel for the accused put the case for bail on the basis that, on the information which I may take into account, the answers to the applicable questions in Bail Act sch 1 pt C cl 1 read with cl 3 all either point towards the grant of bail or do not sufficiently point away from it.
38 The grant of bail contended for would be on the same terms and conditions as the bail of 8 April 2015, renewing the bail of 25 March 2015 with modifications, and as itself purportedly renewed on 29 May 2015 and 29 June 2015. In respect of the possibility under Bail Act sch 1 pt C cl 1(a)(i), counsel for the accused conceded that his instructions were it was the accused's own fault he acted in the ways he did which represented the basis for the revocation on 21 April 2015.
39 However, he was intoxicated at the time, and as I understood the submissions to me, he had otherwise, before and since, been in substantial compliance with the terms of his bail with the exceptions to be noted, and could be expected to comply in the future. In those respects, counsel for the accused informed me that the accused had not returned anything other than urinalysis results without adverse test results.
40 He had participated in substance abuse counselling despite difficulties he had experienced with that participation. He had enrolled in a panel-beating course for which it was common ground he could expect to receive approval from a Community Corrections Officer: see Bail Act sch 1 pt D cl 3(3)(vi). This enrolment was to enable him to address, among other things, his dissatisfaction with being on home detention bail.
41 I also note that it was common ground there was a lack of any significant indications in his criminal record that he would abscond. Counsel for the accused referred me to the fact that the accused had only failed to appear, to what he believed was his bail, on one occasion, 25 May 2015, in respect of which his bail was purportedly renewed on 29 May 2015.
42 I should note, in respect of that renewal, however, that it is not altogether plain to me that the decision would have been to renew, assuming it was otherwise open, had the basis for the revocation of 21 April 2015 been known at that hearing.
43 I will return to the matter of the criminal record of the accused in the context of the matters forming the basis of the two revocations.
44 As to the accused having acted in the way which represented the basis for the revocation of 13 June 2015, counsel for the accused indicated his instructions were that the accused had left the house to avoid a potentially dangerous confrontation with the intoxicated father of his girlfriend who had been armed.
45 The accused had explained these matters to a Community Corrections Officer the following day. That officer had told him to explain to the matter to the judge at the accused's next appearance.
46 The next appearance was, of course, that on 29 June 2015. I should note, however, the accused did not, through his counsel or otherwise, refer to any such matter before Hall J at that hearing.
47 Following the hearing on 7 July 2015 counsel for the DPP made inquiries of the Department of Community Corrections.
48 An email from an officer of the Department provided to the court by counsel for the DPP informs me as follows. I should indicate that is not altogether easy to extract what follows from that email. Doing the best I can with the assistance of counsel, what that email indicates is that an officer of the contractor who monitored or was to monitor the electronic monitoring devices had gone to the home location for the home detention bail when the anklet had provided an alert. The accused's girlfriend had said to that officer that the accused's dog had chewed off the accused's anklet and that the accused had left because he owed drug money and was in fear for his safety. Either she or, subsequently, the accused had informed the Department of the explanation in terms of drug money and fear for safety, and that the accused was residing with friends in Beechboro, although he would not disclose his exact whereabouts.
49 It appears that there was not any disclosure to the accused at that time of the revocation of bail, which I would have to assume, on the material I have available to me, had occurred before any such explanation by or for the accused. Counsel for the accused, at the hearing before me today, indicated his instructions were that the father of the accused's girlfriend was, in fact, the drug dealer referred to and that the accused had left the premises in fear for his safety in respect of the position of the father.
50 I have heard that explanation. It is in some tension, even if it can be squared, with the explanation provided on the previous day when there was, it seems to me, the same opportunity as today for the more detailed explanation to be provided. Further, counsel for the DPP drew my attention to the allegations of further offending by the accused on 28 June 2015 the subject of charges which have recently been laid against him together with charges of alleged further offending on 8 May 2015.
51 I refer to this body of alleged offending below. For now I note that the allegations of offending on 28 June 2015 were of two offences, one of being armed in a way to cause fear and the other of attempt to steal motor vehicle, both arising from an incident at around 1.00 am on 28 June 2015 on Curtin Avenue in Cottesloe.
52 I accept that, if proven, those two offences would be apparent breaches of the home detention condition as to remaining at the home location.
53 However, without more I must treat those matters as simply allegations as to offending. I cannot, in my view, give significant weight to them.
54 However, I do note, from the applicant's criminal history, that there is a significant number of offences of actions contrary to lawful authority. There are offences in November 2013, when he was 18 years and 3 months old, of escape from lawful custody and obstruction of public officers. There are also offences, as a juvenile, of breaches of IYSO, obstructing public officers, breach of bond, give false personal details to police, escapes from lawful custody, breaches of conditional release order and breaches of YCBO committed over the period December 2010 to July 2013.
55 It seems to me that when considered in conjunction with the basis of the two revocations together with what was subsequently disclosed in respect of the accused's conduct in relation to the basis of the revocation of 13 June 2015 emerging from the email to which I have referred, there does, indeed, seem to me to be a significance to that criminal record in that context.
56 I rehearsed this matter with counsel for the accused today. Otherwise, in respect of cl 1(a)(i), I understood counsel for the DPP to rely on the same matters as for cl 1(a)(ii) below. In respect of the possibility under Bail Act sch 1 pt C cl 1(a)(ii) on which, together with cl 1(a)(iv), counsel for the DPP put greater weight than on cl 1(a)(i), counsel for the accused, as I understood him, relied on the same matters as for cl 1(a)(i).
57 Counsel for the DPP, for his part, as I understood, then directed my attention to the admitted prior breaches of bail representing the basis of the revocations of 21 April 2015 and 13 June 2015.
58 The accused's admitted dissatisfaction with his bail conditions and a further matter in respect of the alleged offence on 8 May 2015. That alleged offence was one of steal motor vehicle. Evidence of the offence includes matters arising from discoveries made by the police when, on 6 July 2015, they arrested a friend of the accused. On that friend's mobile telephone police discovered a video of the accused driving the stolen vehicle and of the accused and his friend laughing and talking about how, moments earlier, they had been in a police pursuit and avoided apprehension. These are the terms in which this matter is referred to in material provided to counsel for the DPP. The stolen vehicle was later found abandoned, and it was recovered by police.
59 This evidence, on its face, if borne out, would appear to represent strong evidence of the commission of offending of a serious kind, steal motor vehicle, at a time when the accused would have believed he was on bail for the offence of aggravated armed assault with intent to rob. Counsel for the accused informed me that his instructions were that the accused did not in fact behave as indicated in the video, and that the person said to be the accused in the video is not in fact the accused. Neither counsel for the accused nor I, nor so far as it appears counsel for the DPP, has viewed the video. At this point then all that can be said is there is evidence of the kind represented by the video which may have the effect described.
60 In respect of Bail Act sch 1 pt C cl 1 (a)(iv), I understood counsel for the accused to rely on the same matters as for cl 1(a)(i). In respect of cl 1(a)(iv) counsel for the DPP for his part directed my attention to the fact that the girlfriend of the accused would likely be a significant witness in relation to the offending on 28 June 2015 at which it is alleged she was present. I understood counsel's submission in this respect to be one to be considered with matters on which he relied for the purposes of cl 1(a)(ii).
61 In respect of Bail Act sch 1 pt C cl 1(a)(iv), I did not understand counsel for the accused to be putting to me in respect of the material on which counsel for the DPP relied anything other than that the concern expressed was simply a matter at present of speculation.
62 In respect of Bail Act sch 1 pt C cl 1(e), counsel for the accused put to me that the possibilities under cl 1(a) above would be sufficiently removed by conditions on bail on the same terms as those for the bail 29 May 2015. Counsel for the DPP put to me, for his part, neither those conditions nor any others that could reasonably be imposed under sch 1 pt D would sufficiently remove those possibilities.
63 For their respective purposes I understood both counsel to rely on their respective submissions as to the accused's history under the bail of 8 April 2015, as well as the materials adduced in respect of that.
64 It was not put to me that any other questions in Bail Act sch 1 pt C cl 1, were applicable in this case.
Conclusions
65 I have now considered and answered the questions applicable in this case in Bail Act sch 1 pt C cl 1(a) - (g), as well the matter of any further questions.
66 In determining how I would exercise my discretion I must now engage in the weighing or balancing process referred to in Milenkovski. Having regard to the conditions I have considered under Bail Act sch 1 pt C cl 1(e) above, being those on the bail of 29 May 2015, having regard in particular to the bases of the two revocations in the context of the criminal history as I have described it and the additional material and the email referred to me today, as well as matter that emerged at the hearing on 29 May 2015 I will shortly refer to, I have arrived at the conclusion that it is not appropriate to grant bail in this case.
67 In respect of what happened at the hearing of 29 May 2015 to which I have just referred, I should note that at that hearing, when I was about to rehearse the conditions of the bail that I was about to confirm, the accused indicated he wished to say something to me about the address. I indicated to him that he should not do so until I had rehearsed the conditions of the bail of 8 April 2015. When I had done that, emphasising the address for which home detention bail had been granted, I then asked him to indicate what it was that he wished to say to me. At that point he indicated that he would wish to change the address. I indicated to him, following what I had had submitted to me by then counsel for the DPP, that any such change would have to await a further report on the suitability of the premises. The accused responded that in those circumstances he would adhere to the bail in the terms originally granted in respect of that original address.
68 I view that in the context of the other material that I referred to, the two revocations and the bases for them, and the criminal history as I have described it, as contributing strongly to the conclusion that I have arrived at, being the one I have just described.
69 The option then that I have chosen, under s 50G(2)(a) is to remand the accused in custody, to appear on 29 September 2015 at 10.00 am for a directions hearing on an application for severance of the indictment.
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