The State of Western Australia v Langford [No 2] - [2011] WASC 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- LANGFORD [No 2] [2011] WASC 203

CORAM: SIMMONDS J

HEARD: 6 JULY 2011

DELIVERED : 6 JULY 2011

FILE NO/S: INS 151 of 2010

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

Catchwords:

Criminal law - Application for bail

Legislation:

Nil

Result:

Bail refused

Category: B

Representation:

Counsel:

Prosecution : Mr A M Dungey
Defence: In person

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: In person

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

The State of Western Australia v Langford [2010] WASC 412
The State of Western Australia v Oates [2004] WASC 214

SIMMONDS J:
(This judgment was delivered extemporaneously on 6 July 2011 and has been edited from the transcript.)

This is an application for bail to be granted to the applicant who, as I understand it, presently faces trial commencing on 25 July 2011. This trial is listed for four days in this court on three charges, one of aggravated stalking, one of burglary with intent on a place, and one of criminal damage by fire; that is to say, arson.
The last offence carries with it a maximum penalty of life imprisonment and is, I would expect, the reason why the trial is in this court. This is the applicant's third application for bail in relation to offences of that kind. On 23 December 2010, I decided, for reasons which have been suppressed in view of the proximity of the trial until further order, reasons under the name The State of Western Australia v Langford [2010] WASC 412, to refuse the application for bail which was then in relation to nine charges including arson, burglary and aggravated stalking.
At the time, those reasons indicated it was anticipated that, as indeed transpired, the charges would be reduced in number. Subsequently, on 5 May 2011, her Honour Jenkins J heard a further application for bail from the applicant. She refused the application.
The applicant applied subsequently, by an application dated 17 May 2011 but only filed on 3 June 2011. It is that application for bail which is before me now. The applicant, at a status conference held on 19 May 2011, following the vacating of the trial date previously assigned 9 May 2011, went into some little detail on at least one of the bases upon which the application was being made.
Jenkins J, at that time, set the current listed trial date and indicated she was unable to go into the bail application as it had not, on what she had before her, then been filed, as indeed was the case. The applicant, who is self‑represented, first came, on the present application, before me on 21 June 2011, appearing via video‑link from Casuarina Prison.
At that hearing, at his request, I adjourned the hearing after he said that lawyers who had indicated they were quite prepared to take on the trial and the application for bail had advised him to seek the adjournment until the lawyer from the firm could consult with him.
Subsequently, the applicant sought the hearing of his application on 4 July 2011 at which he indicated to me that the lawyer he had spoken with would not proceed with that bail application, at least not without funds, to which the applicant did not have, he said, ready access.
Also at that hearing the applicant went into the bases for his application. Counsel for the State, who was also counsel at the 21 June 2011 hearing and is also the counsel before me today, went into the reasons why the State opposed a grant of bail.
I concluded at the hearing on 4 July 2011 that I could not properly assess the application without further information, which I asked counsel for the State to seek from prison authorities, while also asking the applicant to bring with him the letter from his solicitor - or the solicitor he consulted with respect to the bail application and other matters and to which he referred, as I have indicated.
I should say that on the bail applications determined on 23 December 2010 and 5 May 2011, the applicant was in fact legally represented. I should further indicate that, as is evident from the file, the applicant has, on a number of occasions, changed his legal representation. The trial on 9 May 2011 was indeed vacated because he had not been, in his view, able properly to instruct the lawyer he had at that time in respect of whom he had no longer a wish to be represented by.
The legal representation position the applicant has faced in relation to the present application for bail caused me to proceed as I have indicated I have done, to ensure that, to the largest extent reasonably possible, the applicant was able to properly support his application for bail.
That application, as I indicated at the hearing on 21 June 2011, and as would, I believe, have been apparent to the applicant from the way in which Jenkins J proceeded in the application before her, which she determined on 5 May 2011, was required by provisions of the Bail Act 1982 (WA) applicable to an application of the present kind. This is not only to enable me to address the general requirements in relation to an application for bail appearing in sch 1 pt C cl (1) read with cl (3), but in order for that consideration to be undertaken as a preliminary matter satisfying me in the terms of the Bail Act s 14(2)(a); which appears to be that part upon which the applicant was relying in the present application, namely:
New facts have been discovered, new circumstances have arisen, or the circumstances have changed since the occasion when the jurisdiction was invoked.
The reference to 'occasion' is, in my view, to the occasion upon which Jenkins J delivered her decision on 5 May 2011. In my view, for reasons I will shortly explain, the applicant has satisfied me that new circumstances have arisen. Those circumstances are ones which also have some bearing on whether the general requirements have been addressed in a way which would enable me to exercise my discretion whether to grant or refuse bail.
The new circumstances are, in my view, the vacating of the trial on 9 May 2011. I appreciate in relation to that that there is at least an arguable case that the applicant himself must bear the responsibility for that, as well as the applicant's difficulties in securing legal representation after that time.
I note in the transcript of the hearing of 9 May 2011 that the presiding trial judge, his Honour Murray J, laid considerable stress on the desirability of Mr Langford obtaining legal representation. However, the fact that new circumstances have arisen does not determine the case for bail and that case must be examined.
The reference I have made to Bail Act, sch 1, pt C, cl 1(a) to (g) and cl 3, takes me to a range of matters, most of which I canvassed in my decision in 2010. In that decision I referred to the matters of the possible commission of an offence, the endangerment of property and interference with witnesses, when considered with the seriousness of all of the offending with which the applicant had then been charged. I note that the most serious of that offending continues to represent the charges which he faces, and the strength of the prosecution case and the possible sentencing disposition if the applicant were found guilty. I refer to my decision in Langford at [22] and [26] ‑ [31].
As I noted in that decision, those matters needed to be considered in the context of the expected time in custody, taking account of the delay until the expected trial in May 2011. See Langford [39]. There is of course now a further two months of delay which, with previous time in custody, represents a total expected period of time in custody before trial of almost 1 year. A delay of that kind tends, all other things being equal, to weigh heavily in favour of bail: see The State of Western Australia v Oates [2004] WASC 214 [21] ‑ [31] and [38] ‑ [40], in which other authorities are reviewed.
It seems to me that relevant circumstances when considering delay include the reasons why delay has supervened. In this case, as I have indicated, it is at least arguable that the applicant has been responsible for the further two month delay. However, whether that responsibility is of a kind which would remove concern in respect of delay would depend upon an evaluation of the basis upon which the applicant had lost confidence in his then legal representation. Murray J at the hearing on 9 May 2011 did not go into the matter, and it would be difficult, it seems to me, in the context of an application for bail for a court to do so.
I am left then with what I believe is the undoubted fact that the applicant did consider he was unable to continue with that solicitor. However, there is also the undoubted fact that he had changed solicitor previously on more than one occasion. In those circumstances, it seems to me, there is rather less to be made of delay than in circumstances in which, for example, an accused had unexpectedly lost the one legal representative that accused had had in the lead up to trial.
This takes me to the two matters which were relied upon for the purposes of the application for bail before me today and in respect of which I asked Mr Dungey for the State to make the inquiries that he did. Those two matters are referred to in the application for bail dated 17 May 2011 as:
So I can get myself proper legal representation and medical services done.
In relation to proper legal representation, the matter was put to me at the hearing in terms of access the applicant believed he needed to funding so that he could pay for the legal representation he wished for. Evaluating this ground is made more difficult by the content of the letter which the applicant produced for the hearing today and to which I have previously referred.
The content of that letter indicated that the lawyer there, who I assume is the one that the applicant had in mind, is unable to act for the applicant in the trial and that that lawyer has referred the matter on to another lawyer, Mr John Bougher, a specialist criminal practitioner, in respect of whom Mr Langford could expect relatively early contact. Inquiries by the court itself today indicated that Mr Bougher had applied to Legal Aid for a transfer of legal aid and that today Legal Aid had approved the transfer.
In those circumstances it seems to me that there is in fact no substantial basis left for the proper legal representation basis put for the present application. Mr Langford said to me that he had not spoken with Mr Bougher before, he had not been contacted by Mr Bougher, and added, as I understood him, that he had had no role or no significant role in choosing Mr Bougher. Nonetheless, Mr Bougher has been identified and funding for his work has been secured.
In those circumstances I am unable to conclude that a case for bail on the first basis, at least if it has to do with the funding of a legal representative, has been made out. If it had been necessary to go further into that ground, it would appear that, in any event, the ground could not readily be sustained. That is because access to the funds, which the applicant indicated were the funds he would be relying upon, has not been shown to be possible even if the applicant were released from custody. Furthermore, it has not been made evident that the applicant would be unable to take whatever steps he could to gain access to those funds while in custody.
As to the former, there are the restrictions on access to superannuation funds, which Mr Dungey explained to me. Those restrictions are ones that the applicant, it seems to me, would at the very least have very considerable difficulty meeting. As to the latter matter, that of accessing the funds by communication with a financial institution from custody, there would not appear to be any significant barrier to that. It seems to me that were such communication possible, it has not been made clear to me why there could not be such approach made as would give the applicant the best opportunity to access the funds.
I am also minded of the fact that the time within which those funds could be accessed is now necessarily very limited. Indeed, at its greatest extent, it was only slightly over one month back, on 21 June 2011, when the applicant had sought the adjournment that he had obtained. I am mindful of the fact that at the hearing on 19 May 2011 before Jenkins J to which I have referred, Mr Langford, in explaining what he anticipated would be his case for bail, referred to the difficulties that he would have were he to be kept in custody in two other ways related to his legal representation. One was the opportunity readily to meet with and discuss with his legal representative the issues relevant to his trial. The other was to do such work as it was necessary he personally do, rather than have his legal representative do, to secure the information he believed he needed to put before the court at his trial, subject to the advice of his legal representative.
In both respects I accept that there are restrictions that apply to an incarcerated person in preparing a case for trial. However, the applicant, notwithstanding his custody, has been able to identify and, as he showed me this afternoon, secure summonses addressed to persons he believes it would be necessary for him to have give evidence at the trial, although he needed to be reminded that at least one of them is already to be called as a prosecution witness. It is not altogether evident to me then that the applicant's custodial arrangements have imposed on him impediments to properly preparing for his case, which would tend to offset significantly the matters tending against the grant of bail to which I referred in my reasons of 23 December 2010.
As to the ability to readily meet with and discuss matters with his legal representatives, it does not seem to me that there is - from the nature of the case that the prosecution expect to mount or, as I understand it, from the nature of the case that the defence proposes to put against it - a need for consultations of the kind that release from custody would permit such as to sufficiently offset the matters referred to in the 23 December 2010 reasons.
That takes me then to the other basis upon which the application for bail is made, namely, medical services. Here it appears that there were two matters as they emerged from the submissions made on 4 July and today. The first of these was the replacement of a prosthetic limb. This is an undertaking which has been ongoing for some little time, at least since 5 May, at the hearing before Jenkins J, where a prison officer was able to explain to her Honour that Mr Langford was due that day to meet with a clinic which would attend to that replacement.
Mr Langford acknowledged that the clinic has since embarked on the process of preparing the replacement limb, that that process has about a month to go - I am assuming on the basis of the optimum availability of Mr Langford for fitting and the like - and that Mr Langford has made all of this known to the prison authorities. Mr Langford informed me, and I have no reason to doubt that this is so, that the prison authorities made known to Mr Langford the resource limitations under which they work, limiting how frequently, if at all in the near future, they can facilitate a visit by Mr Langford to the clinic as the clinic requires.
However, mindful of the proximity of trial and mindful of the fact that prison authorities have on at least one other occasion made a visit possible, I would not be satisfied without more information than I presently have that the applicant's difficulties in respect of his replacement prosthetic limb are of such a character as to sufficiently outweigh the matters I referred to in my 23 December 2010 reasons, at least on the present information that I have.
The applicant's other medically related basis for his application for bail before me, apart from the replacement prosthetic limb, had to do with the pain and discomfort he reported he was suffering in relation to his hand and his shoulder and the apparent inability of the prison authorities to properly deal with those matters. The applicant indicated to me that those difficulties have affected him - or at least I have understood from his remarks that they have affected him in his ability to prepare for the trial as he would wish. However, as counsel for the State reminded me, prison authorities are subject to guidelines in respect of medical treatment that require them to provide health services comparable to those which are available in the general community.
I was not provided with any medical information that would indicate to me that management in respect of the hand and the shoulder was not being conducted in accordance with the guidelines. If, as that state of affairs might be taken by me to indicate, the hand difficulties and the shoulder difficulties are being managed in that form, it would not become evident to me how release into the community would materially improve Mr Langford's position. That is to say, the position he has to face may be one that, in any event, he would find himself suffering.
I note as well what I previously noted as to what Mr Langford has been able to achieve thus far with respect to his preparation for trial in any event. It is undoubtedly the case, on the authorities that I have been able to consult, that difficulties in preparation for trial and health problems which are created by prison conditions and would be removed were prison conditions no longer applicable are relevant, if not necessarily determinative of bail. However, in this case I do not consider that it has been shown to me, or that it is otherwise evident that the removal of such prison conditions will have material effects in the two respects I have indicated. I must also bear steadily in mind the other matters I have repeatedly referred to from my reasons of 23 December 2010.
For all of these reasons I would refuse the present application for bail. I will hear from the parties, Mr Langford and Mr Dungey, as to matters having to do with suppression of these reasons. However, as with the previous sets of reasons, both of Jenkins J and my own reasons of 23 December 2010, it seems to me that the present reasons should be made available to the prison authorities so that they are familiar, to the extent that they are not already, with the concerns that Mr Langford has expressed to me and so that any steps that they are presently taking or might be minded to take would be enlivened accordingly.