The State of Western Australia v Langford - [2010] WASC 412

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- LANGFORD [2010] WASC 412

CORAM: SIMMONDS J

HEARD: 20 & 23 DECEMBER 2010

DELIVERED : 23 DECEMBER 2010

FILE NO/S: INS 151 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DANIEL MATTHEW LANGFORD
Defence

Catchwords:

Criminal law and procedure - Bail application - Relevant considerations other than risk of flight

Legislation:

Bail Act 1982 (WA), s 14, s 22, sch 1 pt C cl 1, cl 3, cl 3A, sch 2
Criminal Code (WA), s 338E, s 401, s 444
Criminal Procedure Act 2004 (WA)

Result:

Bail refused

Category: B

Representation:

Counsel:

Prosecution : Mr A M Dungey
Defence: Ms M M In De Braekt

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: Megan In De Braekt

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

Dabag v The State of Western Australia [2005] WASC 22
KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988)
Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd [2008] WASC 282
Sabau v The State of Western Australia [2007] WASC 183
Saka v The Queen [2001] WASC 92
The State of Western Australia v Oates [2004] WASC 214
The State of Western Australia v Sturgeon [2005] WASC 256

SIMMONDS J: This matter requires to be resolved now, and therefore I will deal with it now. It is an application of some difficulty; however I have determined on the difficult balancing enterprise that this court must undertake that I will refuse the application for bail and these will be my reasons. These reasons are being delivered orally so that the parties are aware of them. The reasons will be edited in due course. Any publication of the decision however, will have to be after the relevant trial.
This is an application for bail. The applicant faces nine charges, which I was told will be reduced shortly to five charges, on an indictment that is yet to be preferred. I will have more to say about that in a minute. I now recite the charges expected: one of aggravated stalking with intent contrary to the Criminal Code (WA) s 338E(1)(a); one of burglary in the place of another with intent to commit an offence, Code s 401(2)(c); and three of wilful damage or destruction by fire, Code s 444(1)(a). The prosecution opposes the grant of bail.
On 27 July 2010, the applicant was arrested and taken into custody; and on 1 September 2010, a magistrate refused the applicant's application for bail. The applicant has been in custody continuously since his arrest.
Bail Act 1982 (WA) s 14(1), read with (2) and (4)(b)(i), makes it plain that I have the jurisdiction to grant bail for an appearance notwithstanding that another judicial officer whose jurisdiction was inferior to mine, such as a magistrate, refused to grant bail for that appearance. It is well established that my jurisdiction to grant bail is an original jurisdiction and the discretion to grant or refuse bail, that I will shortly reach, is to be exercised without regard to the prior refusal of bail. To make the point even clearer, I am not sitting in review of the magistrate's refusal in any sense. However, such is the breadth of my jurisdiction to receive information under Bail Act s 22, that I can receive information - subject of course to concerns expressed to me by the relevant party - that may have been described only in the transcript of proceedings before the magistrate. However, there does not appear to be any material of that kind in this case.
I turn then to the approach to the jurisdiction to grant bail. I refer here to the relevant provisions of the Bail Act, which are set out in sch 1, pt C, cl 1(a), (c) ‑ (e) and (g), as well as cl 3, as follows:
1.Bail before conviction to be at discretion of bail authority, except for a child
Subject to clause 3A, the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant ‑
(a)whether, if the accused is not kept in custody, he may ‑
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person; (c) whether the prosecutor has put forward grounds for opposing the grant of bail;
(b)…;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would ‑
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
…
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
...
3.Matters relevant to consideration of clause 1(a)
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant ‑
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
As to the opening words of cl 1, I note that cl 3A, has no application here.
As to cl 1(g), it appears to be established that the paragraph should be understood as if it read, 'whether the alleged circumstances of the offence or offences amount to wrongdoing of a serious nature': Sabau v The State of Western Australia [2007] WASC 183 [53] (Johnson J) referring to The State of Western Australia v Sturgeon [2005] WASC 256 [37] (EM Heenan J).
Each of the offences with which the applicant has been charged is a 'serious offence' within sch 2 to the Bail Act, except for the offence of aggravated stalking with intent. That, however, does not go very far in respect of cl 1(g), as I will explain.
The general principles applicable to a grant of bail on an application like this one were not put in contest before me, and I have therefore taken them to be those as I reviewed them, in Dabag vThe State of Western Australia [2005] WASC 22 [13]:
The general approach to the grant of bail under the Act, except to the extent it expressly modifies that approach, is set out in a frequently cited passage from the judgment of Nicholson J in KM v The Queen, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988 (on applications for bail under the Code s 573) ... [as it was at the time of my reasons]
I refer in Dabag to Saka v The Queen [2001] WASC 92 [16] ‑ 17] (McKechnie J); I should also refer to Sturgeon [31] ‑ [32] (EM Heenan J).
Nicholson J in KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988) as quoted in Dabag [13] said this:
It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The Court is therefore called upon to balance the interests of the accused and the public interest in the trial proceeding. The onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it. This position is well established; R v Fraser (1892) 13 LR (NSW) 150; R v Lythgoe (1950) QSR 5; R v Watson (1947) 24 WN (NSW) 100; R v Light [1954] VLR 152; R v Fisher [1964] Tas SR NC 7; R v Appleby 83 WN (PT1) (NSW) 300; Reg v Wakefield [(1969) 89 WN (Pt 1) (NSW) 325] and Burton v R (1974) 3 ACTR 77. Those decisions discuss factors which are relevant to the exercise of the Court's discretion, attention to which is directed in the sub-headings which follow in these reasons.
I note the presumption or a prima facie position in favour of the liberty of the applicant for bail to be so that the preparation for his case can be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood the accused will be present at the hearing of the charge and I would add, any other considerations that might count against bail of the kind referred to in cl 1, as I have indicated.
I turn then to the circumstances of this case, relying here on the statement of material facts.
The applicant and the complainant were in a de facto relationship, living together in an address in Pingelly for about two years in a relationship which ended in about March 2010. The applicant purchased another property in Pingelly, and lived there.
It is alleged that over the period, from roughly mid June 2010 to mid August 2010, there was a series of incidents in which, on a number of occasions, the applicant loosened the wheel nuts on the complainant's vehicle on the property at which she and the appellant had lived together; air was let out of its tyres; solvent was spread on its roof; a fire was lit under the front verandah of the house on the property shortly after the applicant had visited the house and told the complainant that someone was planning to harm her; the applicant cut the lock from the rear shed of the property, entered it and poured blood over the rear seats of the vehicle; the applicant slashed the trampoline on the property; the applicant sought to set fire to the shed on the property; and the applicant ultimately set fire to the front of the vehicle with the result, the shed, its contents and the vehicle were all destroyed. And after his arrest, while in prison, by letters, the applicant continued to seek to communicate with the complainant. It is most important that I add, as will have been apparent from the outset, that all of these, of course, are allegations that have not yet been proven to the relevant standard.
I turn to the applicant's personal circumstances. The applicant is presently 45 years of age. He was a farm worker, involving, I was told by him, his cutting firewood and building houses and sheds with his brother, to pay the bills. And indeed, if released on bail, he would return to work of that kind to enable him to meet the payment obligations on his house in Pingelly.
I note the applicant's criminal record comprises traffic offences for the most part but also includes two traffic offences for which in each case he received a sentence of imprisonment (no motor driver's licence offences, committed 9 December 2005 and 12 May 2006, for each of which he received a sentence of 6 months 1 day of immediate imprisonment).
His other offences included firearms offences, stealing, receiving, assaulting a public officer and assault occasioning bodily harm, for some of which he received sentences of suspended imprisonment, but for the bulk of which he did not receive a custodial sentence. He also received sentences of imprisonment as a result of breaching suspended imprisonment orders on three occasions. Further, he received sentences of suspended imprisonment for each of the two offences of breaching protective bail conditions (on 11 February 2007 and 5 May 2007), for which on the statement of material facts, I have for each, the person affected was not the complainant but rather, as I understood it, a person with whom the applicant had had a prior relationship; and a fine was previously imposed on the applicant for breaching bail conditions (apparently on 25 April 2002).
The applicant also admits that there is a violence restraining order in effect currently as against him naming, as the protected persons, the complainant and her son. The applicant has freely admitted that he accepted that violence restraining order but of course contests the factual assertions contained in it.
I turn then to the likely dispositions in the prosecution if convictions are obtained. The charges the offender faces carry serious maximum penalties:
•for the wilful damage or destruction of property by fire, in respect of what appears to be the period 25 ‑ 26 July 2010, possibly late into the early morning of the 27 July, for the fire lit at the complainant's shed, for the fire lit at the complainant's house and for the destruction by fire of the shed, its contents and the vehicle: life imprisonment under the Code provision;
•for the burglary with commission of offence, in respect it appears of 26 July 2010, by entering the shed with the intention of setting fire to it and the vehicle: 14 years is the maximum penalty under the relevant Code provision;
•for the aggravated stalking, which is in respect as I understand it of the period, 14 June ‑ 14 August 2010, covering the warning of the complainant that someone planned to harm her, loosening the wheel nuts on her vehicle, slashing the trampoline, setting fire to the front verandah of the house, breaking into her shed to smear blood and solvent over her vehicle, and then after arrest, writing letters to her from prison, including telling a prison officer he would continue to do so and making a gesture of a threatening kind: the maximum penalty is imprisonment for a maximum of 8 years under the relevant Code provision.
On 20 October 2010, the applicant appeared in the Magistrates Court and pleaded not guilty. He was committed for trial to this court. I appreciate, however, that there is still an indictment to come and therefore of course a fresh plea to be expected. On 1 December 2010, a matter I believe it is important that I note, Hall J of this court heard an application for additional prosecution disclosure which he adjourned sine die to permit affidavit evidence or other material to be put on concerning conferral between the parties with respect to non‑disclosure.
The applicant last appeared in this court before Blaxell J on 20 December 2010, that is to say three days ago. He was remanded to a status conference for 10 February 2011. A provisional trial date of 7 February 2011 was vacated and the new provisional trial date was set for 9 May 2011, for five days. The matter of the setting to a later date of the provisional trial date is one I will to return to.
The present bail application as sought is one by which the applicant has clearly indicated his intention to submit to a residential condition that would have him return to his house in Pingelly. This house would be near his father's residence in the same town and his father would go surety in a substantial sum for his son. The applicant has also clearly indicated that he would submit to reporting to a police facility on a frequent basis, up to indeed twice a day, including weekends, and that other conditions would also be submitted to, including protective bail conditions in respect of the complainant and, I presume, her son.
As to the hearing of the present application, to which I turn, the respondent opposes bail on the basis of the seriousness of the offences, the strength of its case, and the need to protect the complainant from the applicant, particularly given his actions while in custody to which I previously referred. The counsel for the respondent put to me the circumstances of the offences are serious in nature: I rely particularly here on the written submissions that have been put to me. As alleged, they involve repeated action directed at the complainant involving the commission of offences carrying a maximum penalty up to life imprisonment. The offences were committed at the complainant's home, at least some of them or parts of them at night, in a town with only a volunteer fire brigade and a small police service.
Counsel for the respondent at the hearing also pointed to the evidence supporting the charges and in particular the surveillance camera material from the shed, which captured a person entering it, disappearing off camera, then reappearing and exiting the shed and shortly afterwards flickering light appearing on the shed door followed by the shrouding of the shed in smoke. This surveillance footage was shown to me. The person in it is wearing head gear as well as a camouflage jacket. I was told that there is similar head gear and a similar jacket that has been seized from the applicant. There is presently work to identify whether or not there is a degree of resemblance between them which rises to a high level. However, I simply put the matter aside, beyond the general resemblance point, because there is simply no further material available to me or to anyone indeed at this point.
I have looked at the video. The features of the person in the video, their build and their gait, which involves some shuffling, is certainly consistent with that of the applicant while not being identical with the applicant, but in ways that might be explained by differences in the context in which I viewed him presently, by video link from Hakea. The surveillance video, the counsel for the respondent freely conceded, is critical to the case of the prosecution. Without it that case, the counsel for the respondent indicated, on present material at least, would not be regarded as strong; but with it, counsel for the respondent pressed on me, it should be seen as strong.
In my view, although I might not go so far as to say it is 'overwhelming' (which was the proposition put to me by counsel for the respondent, in respect of the offences occurring towards the end of the relevant period involving the burning of the shed), there is a sufficient resemblance that the case for the prosecution is one which appears to be a strong one - and this of course is before efforts are taken to counter that case, including matters having to do with the camera to which I will return. I have also noted that the person in the video has tattoos and those tattoos visible on his fingers, I am told, resemble those on the applicant's fingers.
I also viewed a video which showed the applicant entering the video record of interview room, which both confirmed a gait similar to that shown in the surveillance video, and gave some indication, although not a very clear one, I must say, of tattoos on the same hand of the person shown in the video. I have also noted, as the counsel of the respondent required me to note, the proximity in time, about 24 hours, of the four offences of wilful damage by fire and burglary with intent.
I have also looked at the applicant's letters from prison.
In my exchange with counsel for the respondent, counsel for the respondent accepted my characterisation of those letters as ones written by a person with what appeared on the face of them to be a conflicted attitude towards the person to whom the letters were being sent, the complainant. On the one hand, in one of the early letters, he indicated that he was no longer in love with the person concerned, while in a later letter he appears to indicate those feelings continued.

There is some material in the letters which might indicate a preparedness to pursue a relationship, or the exploration of a possibility of a relationship, with the person to whom the letters were to be sent, beyond what might at least be initial resistance to such pursuit. I cannot put the matter any higher than that on those letters.
However, there are as well, letters which were seized from the cell of the applicant, identified with the applicant, which rather more strongly indicate a preparedness to proceed over objections from the complainant. As well there was a gesture, explained by the applicant as he does, as one directed at himself rather than at the complainant, but which nonetheless gives rise to concern that the applicant has a strong emotional investment that has not yet been, in his own view, properly addressed with respect to the complainant.
Now, all of these matters, it seems to me, need to be assessed together and they also need to be assessed with the prior offences, of breach of protective bail conditions. Now, those breaches, it was explained to me, were consensual breaches, mutually consensual breaches in which the person with whom the applicant had the prior relationship had indeed consented to the events in question. I have carefully taken that into account but it seems to me that material represents reason to think that the applicant may well persist, over what he might interpret as initial but not likely to be continuously confirmed objections to his wish to explore the possibility of the relationship with the complainant.
There is, however, the further matter that counsel for the respondent quite properly and strongly pressed on me, that all of the material that I have referred to thus far precedes the violence restraining order taken out against the applicant and other indications from prison authorities that the applicant was to desist in his attempts to communicate with the complainant. I accept that goes to the weight that I should give to the relevant evidence; but I do not believe it goes further than that. It seems to me there is still reason for concern when all of the material is put together.
On all of the matters I have referred to thus far, counsel for the respondent submits that:
•where the applicant has never faced trial in a superior court before and is facing a substantial term of imprisonment, the applicant has every incentive to flee the jurisdiction: I accept that there is such an incentive; however, I am not convinced that if that were the sole basis for resisting the grant of bail, that would have been sufficient on the material I have before me for that purpose;
•on the strength of the state's case, the statements to the prison officer as to his conduct and the letters, the applicant is likely to continue to pursue the complainant: I consider that there is indeed substance in relation to that concern - the applicant's gesture at the prison officer and his propensity to breach protective bail conditions as indicated by his previous convictions for such offences give reason to consider he may endanger the safety and welfare of the property of the complainant; it seems to me that while the applicant may well have no intention in that regard, there is material before me that gives rise to concern along those lines;
•the strength of the state's case and the likelihood of a sentence of immediate imprisonment upon conviction count strongly against bail: it seems to me they do indeed count against bail, in giving the applicant perhaps additional incentive to see whether, by virtue of the expiration of the relationship with the complainant, the concern she has about him might be ameliorated and therefore matters of evidence she might give reduced;
•the applicant's apparent knowledge of the complainant's whereabouts (a location that state neither confirms nor denies, and indeed the counsel for the state, who is the file manager in this matter, has indicated it is something that he himself believes he does not know), an indication of such apparent knowledge being in the affidavit of the applicant in support of his bail application, where those whereabouts as so known are only 80 km by road, at least on other evidence as to those whereabouts, from where the applicant would reside: that does indeed give rise to some concern in my view - the applicant has no driver's licence; on the other hand, as counsel for the state reminds me, the applicant has a history, a not insignificant one, of driving notwithstanding the lack of licence; and
•finally, the circumstances of the offending amount to wrongdoing of a serious nature: I agree, on the material that is before me - although they are allegations, and I repeat again, they have not been proven or subjected to proof - they do indeed amount to wrongdoing of a serious nature.
I have also considered the matter of the likely period the applicant will spend in custody if not released to bail. Substantial delay in custody before trial in the order of over one year is a factor that weighs heavily in favour of the grant of bail on the authorities that I have been able to review: see Saka v The Queen [38] ‑ [40] (McKechnie J); and see The State of Western Australia v Oates [2004] WASC 214, from which I reproduce [21] ‑ [31] and [38] ‑ [40]:
In Mokbel v Director of Public Prosecutions (No 2) (2002) 132 A Crim R 290, delivered on 9 August 2002, Kellam J in the Supreme Court of Victoria considered that the factor of unacceptable risk that the applicant if released on bail would fail to answer the charges or would commit an offence on bail or would interfere with witnesses or otherwise obstruct the course of justice falls to be judged according to proper criteria, one of which is the length of delay before trial. On the question whether delay could constitute exceptional circumstances for the purpose of bail, his Honour said at [18] to [20]:
'It is clear that the delay between arrest and final disposition can of itself constitute an exceptional circumstance. A civilised society, as we profess to be, cannot tolerate its citizens being detained for inordinate periods without the allegations made being determined by the process of trial.
Vincent J, as he then was, said in R v Mantase, (unreported) SC Vic 21 September 2000:
"… if our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of 18 months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represent the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice".'
Kellam J went on to say:
'It is true, of course, that the question of what is a reasonable delay will vary with the circumstances of the alleged offence or offences, and the complexity of the matter the subject of the charges, and no doubt the seriousness of the matters in question including the likely range of potential sentence.'
I respectfully agree with all that is contained in those three paragraphs. His Honour then referred to a number of Victorian cases which he thought provided some guidance. They included Director of Public Prosecutions (Cth) v Tang & Ors (1995) 83 A Crim R 593 at 596 (12 to 14 months' delay between arrest and trial being not exceptional nor unusual); R v Kantzides, unreported; SCt of Vic; 9 August 1996 (a period of at least 20 to 21 months was in the circumstances of that case exceptional); In the Matter of an Application for Bail by Alexopoulos, unreported; SCt of Vic; 23 February 1998 (a delay of at least one and a half years from arrest to trial held to be inordinate and an exceptional circumstance); R v Medici, unreported; SCt of Vic; 27 September 1993 (two years in custody between arrest and conclusion of trial said to be 'simply unacceptable and must be regarded as exceptional'); and R v Mantase, unreported; SCt of Vic; 21 September 2000, referred to above (a period of 18 months between the bail application and trial together with other circumstances amount to exceptional circumstances).
Kellam J then turned to the circumstances of the case before him and concluded that despite the anticipated delay the unacceptable risk constituted by the applicant was so great bail ought not be granted, but his Honour went on to say (at [42]) that if there was further delay beyond that then anticipated the question whether the risk continued to be unacceptable might well have to be re examined in light of the circumstances then obtaining.
In fact, that did eventuate. On 4 September 2002, his Honour granted bail to that applicant because it had become apparent that the pre trial delay would be considerably longer than previously thought and indeed was likely to be indefinite (see Mokbel v Director of Public Prosecutions (No 3) (2002) 133 A Crim R 141).
In my view it must be accepted that the degree of unacceptable risk of flight as well as the other factors pertinent to a consideration of an application for bail is to be weighed against the other relevant criteria including that of delay before trial. I respectfully agree with what his Honour said at [10] of his reasons in Mokbel (No 3):
'The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay.'
In Outman v R [2001] WASC 162, I granted bail where the applicant would have spent 18 months in custody before his trial was brought on and concluded. That would have been equivalent to the non-parole portion of a sentence of 4-1/2 years' imprisonment. His co-accused had already been convicted and sentenced to a term of 18 months' imprisonment. I accepted in that case that there can be a point in which delay in bringing an accused to trial can be an exceptional circumstance or reason for granting bail and at [44] to [46] made mention of what I had said in Pinkstone v R (2000) 119 A Crim R 462 about Alexopoulos, already referred to.
As I observed in Outman at [45], Hampel J said at 2 of Alexopoulos:
'In my opinion, where exceptional circumstance which substantially depend on delay are raised, they cannot be measured simply by what may be normal or usual. There was a time when senior judges in this court thought that anything over a year, as a rule of thumb, would be treated as being exceptional and inordinate. I think there must be some objective criteria which does not depend purely on what the position is at the particular time because of delays in the system or lack of resources. It must be objective criteria based on the concept that we are a humanitarian society which respects the presumption of innocence and finds abhorrent the idea that people are kept in custody for undue time without trial. The Bail Act, I think, must be interpreted in that context and not simply by reference to what happens to be the unhappy norm at this time.'
His Honour went on to say:
'As I said during argument, if at some time in the future the backlogs became such that it became the norm to have two or three year delays, it could not be said that that is not inordinate when one looks at fundamental principles and concerns with the liberty of the subject.
Of course, there cannot be arbitrary times and each case depends on its own circumstances. …'
His Honour then went on at 3 to continue:
'It is not good enough, I think, to say we will wait and see what happens. There have been cases recently where bail was granted after a year and a half or two years, because what was feared had actually occurred, namely an inordinate delay. But by then an accused who has not been tried had been in custody for an extraordinary time. That is unacceptable.
Having said all that, of course, the system must accept that some time will have to pass before accused are tried. One cannot bring cases on immediately. However, when there is tension between resources and systems on the one hand and fundamental principles which I have mentioned, fundamentals must prevail. The system has to change and more resources be made available.'
At [46] of my reasons in Outman, I then made the observation that similar sentiments were expressed in this State by McKechnie J in Saka v R [2001] WASC 92. His Honour was there concerned about the prospect of the applicant being in custody for over a year before he could be brought to trial. At [38] to [40] his Honour said:
'38The detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.
39A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice.
40The State, using this term in its widest sense, brings the charge against an accused person and the State, in consequence, bears the burden of providing sufficient resources to enable the trial of a person to take place with reasonable expedition. Where, as here, the State objects to the release of an applicant on bail on the ground that the administration of justice may thereby be imperilled, it is incumbent on the State to provide the resources necessary to minimise the consequent injustice of a continued detention of a person who is at law presumed innocent of the charge. Consequently, where there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention.'
...
What is apparent from the passages I have just quoted from the judgment of Miller J in December last year is that the accused had lived in Poland since 1991 where his wife is, and his family links in Australia are not sufficient to require him to remain in Australia should he feel pressured otherwise to avoid trial by remaining out of the country.
In my view, that remains the position. Furthermore, I accept the submission of Mr Hall that there is now a very powerful incentive for the accused to abscond from Australia and return to Poland, and that is because the extradition agreement between Australia and Poland contains certain limitation provisions which, applied to the circumstances of this case, would mean that the relevant limitation periods in Poland would have expired so as to render it impossible for him to be extradited from Poland back to Australia now should he leave this country and return there.
Despite that though, for the reasons I have already expressed, I consider the factor of delay before the accused's retrial with the unacceptably long period of time he would have served in custody by then to outweigh those factors militating against the grant of bail. Whilst I accept that if the flight risk is so great as to be unacceptable or is, to use Mr Hall's expression, 'real and unanswerable', delay can never prevail over it, that proposition must be considered in the context to which I have already referred as articulated in Mokbel.
The applicant in this case is not facing a period in custody to trial (in early May) of that order; however, it would be nearing that order. It seems to me that his time in custody would not, assuming trial as listed, be a factor that would strongly count in favour of bail; but I did not understand counsel for the applicant to contend this.
Rather, counsel for the applicant pressed upon me that delays have already ensued in terms of the assembly of material of a disclosure kind, provided to the applicant's legal representatives, with the delay in the presentation of an indictment where nine charges have been distilled or are proposed to be distilled to five, but that distillation in the form of a formal indictment properly preferred has not yet occurred and therefore there remains a residual uncertainty as to precisely what it is that the defence has to face. However, I would add that the matter, it seems to me, should not be overstated, in view, as it were, of the factual boundaries within which both the nine charges and the proposed five charges would seem to fit.
But there is also a further matter. There is outstanding a contest between the applicant and the state as to compliance by the state with its disclosure obligations under the Criminal Procedure Act 2004 (WA). There is a sharp disagreement as to whether the state is entitled to claim a public interest immunity. The state has taken the position that the disclosure is subject to a claim for public interest immunity in respect of the procedure for installing and the operational characteristics, if I can call them that, by way of model number, brand and so forth, of the surveillance video equipment. I have already referred to the importance of the surveillance video to the state's case. But subject to that reservation, the state has provided all information that is relevant as well as all other information asked for by the applicant that it has presently in its possession. It anticipates there will be additional material and it will present that material to the applicant subject to any question of public interest immunity.
I do not infer from this exchange that the state has embarked on an enterprise of what might be called restricted disclosure of a kind which may cause further delays in the listing of the matter for trial. However, counsel for the applicant indicated to me that at the most recent vacating of the trial date, the one on 20 December last, Blaxell J noted the delay in the preferment of the indictment; and it might be inferred that at least related matters of a disclosure kind were ones that account for the need to vacate the earlier trial date and list it afresh.
All of that, it seems to me, is indeed cautionary matter because, to the extent that there are further delays in the listing of the trial, these would represent, it seems to me, new circumstances which would justify a return to consider again whether bail should be granted to the applicant, notwithstanding the other matters to which I have referred. Those matters, it seems to me, of further delay, will loom large if they supervene.
Counsel for the respondent of course, takes the position that the indictment will shortly be preferred; and there is pending before the court, as I indicated by reference to the hearing on 1 December 2010, before his Honour, Hall J, an application on behalf of the applicant for orders which might be a suitable vehicle by which to test the immunity in question.
However, the applicant further strongly insists - and there is I must admit some support for the insistence but I simply say that in passing - that there is in the decision of Blaxell J, in Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd [2008] WASC 282, particularly at [21], when read with [23], some support for the view of the applicant that, where an impasse is reached on an immunity question, it is for the state to resolve that impasse promptly by bringing the matter before the court as a limitation on its disclosure obligation. I simply note that in passing because it seems to me that there is presently a procedural vehicle which may permit this matter to be resolved. If it does not, and if further delays supervene, I have already indicated what might be the consequence for a further application.

There is, however, a still further matter that I need to address; and this further matter is one that, it seems to me, goes to other relevant circumstances of the kind referred to in the opening words of cl 1, quoted above.
The applicant has a prosthetic, or partial limb at least, which requires the regular installation of new fixtures. New fixtures are presently due I was informed, and were sent to the prison. However, the prison did not allow those new fixtures to be installed and they were returned to the person who sent them, the applicant's father. Unless those fixtures are replaced relatively soon, I was informed, the applicant would be reduced to living in a wheel chair with the difficulties that would pose for him in the prison environment. The applicant has also suffered from, in the past, alcohol abuse issues which his time in custody has enabled him to address and which he would anticipate further addressing were he to be released from custody through attendance at Alcoholics Anonymous meetings in a nearby town. Furthermore, there is surgery to be done to a hand injured some time ago, which I interpret as before these incidents or at least all of them, surgery which cannot be conducted upon him or can only be conducted on him with great difficulty while he is in custody.
Those matters, it seems to me, in combination are indeed matters which bear on the grant of bail and are in favour of the grant of bail; however, they have to be balanced with all of the matters that I have referred to.
When I do balance all of the matters that I have referred to, taking account of the prima facie position to which His Honour, Nicholson J, referred in KM v The Queen. I arrive at the conclusion that I indicated at the commencement of these reasons, namely, that the present application must be refused.
I should add that when I finished delivering these reasons the applicant raised with me his concern for his hand and his leg. I indicated to him that my reasons should be provided to the prison authorities as well so that they are aware that the court is aware of his concerns with respect to that fixture, and with respect to that surgery, so that to the extent that the court's reasons can add weight to those matters being dealt with, notwithstanding he is in custody, those matters can be addressed.