Vander WAIDE v Western Australian Police - [2015] WASC 497

No judgment structure available for this case.

JURISDICTION : <Jurisdiction>SUPREME COURT OF WESTERN AUSTRALIA</Jurisdiction>
<HeldIn>IN CRIMINAL</HeldIn>

CITATION: <Citation>VANDER WAIDE -v- WESTERN AUSTRALIAN POLICE [2015] WASC 497</Citation>

CORAM: <Coram>SIMMONDS J</Coram>

HEARD: <Heard>17, 21 & 22 DECEMBER 2015</Heard>

DELIVERED : <Delivered>22 DECEMBER 2015</Delivered>

PUBLISHED : <Published>29 DECEMBER 2015</Published>
<CaseNo>SJA 1084 of 2015</CaseNo>

FILE NO/S: <FileNo>SJA 1084 of 2015</FileNo>

BETWEEN: <Between>CHRISTINE VANDER WAIDE
Applicant
AND
WESTERN AUSTRALIAN POLICE
Respondent</Between>
<Party Name1="CHRISTINE VANDER WAIDE", Type1="Applicant", Name2="WESTERN AUSTRALIAN POLICE", Type2="Respondent",>

<LCdetails>
ON APPEAL FROM:
Jurisdiction : <LCJurisdiction>MAGISTRATES COURT OF WESTERN AUSTRALIA</LCJurisdiction>
Coram :<LCCoram>MAGISTRATE G A BENN</LCCoram>
File No :<LCFileNoNo>AM 1013 of 2008</LCFileNo>
</LCdetails>

Catchwords:

<Catchword>Bail - Charges of unlawful damage, bodily harm and failure to render assistance - Prior refusal of bail by magistrate - Nature of Supreme Court's jurisdiction - Serious offending - Extensive criminal record including prior breaches of bail and of court and police orders - Risk of flight, of future offences and of interference with witnesses - No conditions to suitably remove possibilities - Whether circumstances amount to wrongdoing of such a serious nature as to make grant of bail inappropriate</Catchword>

Legislation:

<LR>Bail Act 1982 (WA), s 14, s 22, sch 1 pt C cl 1, sch 1 pt C cl 3
Criminal Appeals Act 2004 (WA), s 7
Criminal Code (WA), s 304
Magistrates Court Act 2004 (WA), s 36</LR>

Result:

<Order>Bail refused
</Order>

Category: <Category>B</Category>

Representation:

Counsel:

<Counsel>Applicant : In person
Respondent: Mr J G Nicholls</Counsel>

Solicitors:

<Solicitors>Applicant : In person
Respondent: Director of Public Prosecutions (WA)</Solicitors>
<SolicitorList Name1="In person", Type1="Applicant", Name2="Director of Public Prosecutions (WA)", Type2="Respondent",>
<CounselList Name1="In person", Type1="Applicant", Name2="Mr J G Nicholls", Type2="Respondent",>

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

<CRJ>
Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
Rauch v The State of Western Australia [2005] WASC 241
Rayney v AW [2009] WASCA 203
Thompson v Lane [2005] WASC 281
Va v The State of Western Australia [2014] WASC 74
</CRJ>
<Judge>SIMMONDS J</Judge>:
(This judgment was delivered extemporaneously on 22 December 2015 and has been edited from the transcript.)

Introduction

1 This application, which I call the present application, is in respect of a decision not to grant bail in respect of three charges, which I call the present charges. The decision was made by Magistrate Benn of the Magistrates Court in Midland, which I call Magistrate Benn's decision.
2 The respondent is a Detective First Class Constable employed by the Western Australian Police, which has been variously referred to at a number of points as the respondent in this matter, with the officer in charge of the investigation of matters the subject of the present charges.
3 The applicant is self‑represented at the hearing before me, as I understood also was the case at the hearing that resulted in Magistrate Benn's decision, it was understood on all hands that the applicant was at the time of the alleged offending known as Adam Vander Weide. It was common ground before me that the applicant has since changed his name to Christine Vander Waide.
4 The applicant lodged papers in respect of Magistrate Benn's decision on the basis the present application was one by way of an appeal.
5 There is an immediate difficulty with my consideration of the present application on such a basis. It is Criminal Appeals Act 2004 (WA), s (7)(3)(c), a provision that states that a decision of courts of summary jurisdiction, such as the Magistrates Court, cannot be the subject of an appeal under p 2 of the Criminal Appeals Act if it is 'a decision as to bail'.
6 The only other legislative provision which might apply to permit this court to review a decision to grant bail appears to be Magistrates Court Act 2004 (WA), s 36(1)(c). That provision is strictly not one for appeal, but rather for review. I refer to Thompson v Lane [2005] WASC 281 and Rayney v AW [2009] WASCA 203, which make that point clear.
7 It may well be that Magistrates Court Act s 36(1)(c) is capable of application to a decision as to bail. In the short time available to me I was not able to confirm this from the authorities, but in my view the point seems to be relatively unexceptionable. However, the grounds of appeal, which I call the grounds, submitted by the applicant, setting out four grounds, do not, it seems to me, state matters which at least at first blush fall within s 36(1)(c).
8 However, I do not need to go further into that matter. As I will explain, the applicant is in a position to apply for bail under the original jurisdiction of this court under Bail Act 1982 (WA), s 14, that is to say, to have this court determine whether to grant him bail in accordance with the approach I will set out. I consider that I am in a position to treat the present application, notwithstanding its form, as an application of that sort. Both the applicant and the respondent, through the respondent's counsel, indicated they were content to have me so proceed.
9 So treated, the present application is one for bail in relation to the present charges. In accordance with the practice of the court in making a decision of the kind that I am now about to describe, the reasons for this decision are being suppressed until conclusion of the trial of the present charges or further order. This is subject to some points I will shortly make.
10 I should now indicate where the remainder of these reasons will go. In that remainder I first set out the background to the present application in greater detail. I next describe the present application and the information before me. I then set out what I consider to be the well understood approach to the decision as to bail I am called upon to make. I then apply that approach. The final section of these reasons is my conclusion and orders.

Background

11 On 12 October 2015, the applicant appeared before Magistrate Benn on the present charges, MI 10304 of 2015, MI 10305 of 2015 and MI 10306 of 2015, for, respectively, wilful and unlawful damage of a Harley Davidson motorcycle, the property of Mr TJ; unlawfully doing of an act, namely, driving over the victim, which resulted in bodily harm caused to Mr MB (and I insert that that charge is expected in due course to be amended to allege an intent, which of course is part of the relevant provision of the Criminal Code (WA) s 304(2)(a), to which the prosecution notice, MI 10305 of 2015, refers); and finally that the applicant, being the driver of a vehicle on a road involved in an accident causing grievous bodily harm to another person, failed to ensure that each victim of that incident received all the assistance, including medical aid, that was necessary and practicable in the circumstances.
12 The statement of material facts dated 24 September 2015 in relation to the present charges, which I call that the statements of material facts for the present charges, are to the following effects. I clearly understand the applicant to contest a number of the allegations in those statements, including in each case that he was the person who committed the acts constituting the alleged offences.
13 At about 3.15 pm on Sunday, 20 September 2015 the applicant was driving a vehicle (which I call the Prado vehicle, the applicant's vehicle, or his vehicle at various points) along Mundaring Weir Road towards Kalamunda. His vehicle was behind those of a group of four motorcycle riders. The applicant was driving in an erratic manner that caused Mr TJ concern.
14 I note again at this point that what I have just described, as well as what I will be describing from this point forward in respect of the statements, are of course all allegations.
15 The applicant was following very closely behind Mr TJ.
16 At one point, Mr TJ moved to the incorrect side of the road and tried to wave the applicant past him. Instead, the applicant's vehicle followed behind Mr TJ in the incorrect lane. Mr TJ pulled his motorcycle over on that side and parked it, so its wheels were off the road on the gravel but the stand was on the road.
17 The applicant stopped his vehicle in the middle of the lane on the incorrect side of the road and approximately 50 m away, facing towards Mr TJ.
18 Mr TJ attempted to communicate with the applicant but received no response. The applicant then drove his vehicle towards Mr TJ and intentionally swiped his motorcycle, knocking that motorcycle to the ground. The impact from the motorcycle falling over damaged the pod filter and exhaust and caused cosmetic damage to the right side of the motorcycle.
19 The applicant sped off, leaving the scene and making no attempt to stop.
20 The applicant continued along Mundaring Weir Road until he caught up with Mr MB on this motorcycle. The applicant approached Mr MB from behind while Mr MB was riding his motorcycle and struck its rear with the front of the applicant's vehicle. At that time Mr MB was travelling at approximately 60 ‑ 70 km per hour.
21 The impact caused Mr MB and his motorcycle to go underneath the applicant's vehicle and to be dragged approximately 30 m along the road. The applicant's motor vehicle then mounted a raised embankment which launched the left side of the applicant's vehicle into the air, releasing Mr MB and his motorcycle.
22 The applicant's vehicle then continued along Mundaring Weir Road without attempting to stop.
23 The second incident was witnessed by three others including Mr MB's wife.
24 A witness followed the applicant's vehicle along Mundaring Weir Road and then onto Asher Road in Paulls Valley. After about 2 km, the applicant was seen to drive his vehicle over an embankment and then flee on foot into bushland. The applicant's vehicle ended up about 30 m into thick bush.
25 As a result of the second incident, Mr MB suffered a fractured vertebra (C2), a fractured right thumb, a fractured left wrist and broken ribs. He was kept in hospital for three days and was immobile due to his neck, or back, injuries, for a period of some weeks.
26 Mr MB's motorcycle, valued at approximately $30,000, was completely destroyed.
27 The applicant was arrested on suspicion on Thursday, 24 September 2015 in Maylands, where he was interviewed but denied any involvement.
28 At the hearing on 12 September 2015, Magistrate Benn heard submissions from a police prosecutor and counsel for the applicant and provided short reasons for his decision to refuse bail.

The present application and information before me

29 The application is one I should approach as one for bail under Bail Act, s 14.
30 There is no affidavit of the applicant, or of others, in support of the present application. However, the applicant has provided the court with four statutory declarations of others (the statutory declarations) accompanying a notice of self‑representation (the notice) dated 26 October 2015.
31 The court received that material, it would appear, on or about 2 December 2015.
32 The statutory declarations include three by persons who state that they had or might have provided witness statements to police in relation to matters the subject of the present charges (the witness statutory declaration). I call the remaining statutory declaration the fourth of the statutory declarations. It was by the applicant's mother, Mrs TG.
33 The applicant's mother made a further statutory declaration which was provided to me at the hearing on 21 December 2015. It was made 18 December 2015 (the further statutory declaration). The grounds were provided with the notice.
34 The applicant further provided, with the notice, a copy of the statements of material facts for the present charges, which carried annotations made by the applicant showing points of disagreement by him with a number of the allegations in them.
35 The applicant still further provided a copy of the transcript of the hearing before Magistrate Benn on 12 October 2015 and the prosecution notices for the present charges.
36 From the respondent I have a criminal record for the applicant compiled 16 December 2015 at 5.20 pm (the applicant's criminal history). The applicant indicated he had a copy of an earlier version of this document which it would appear had no material differences from the later one.
37 I have the grounds previously referred to, but no other written submissions for the applicant.
38 The respondent provided an affidavit of Steven John Carter sworn 17 December 2015 with annexures 'A' through 'X' (the affidavit of Detective Carter of 17 December 2015). Mr Carter is a Detective Sergeant employed by the WA Police and the supervising officer of the respondent. The affidavit of Detective Carter of 17 December 2015 with its annexures runs to 173 pages. The annexures include statements of material facts for the present charges as well as statements of material facts, also dated 24 December 2015, for six further charges against the applicant (respectively, the further charges and the statements of material facts for the further charges). Three of the further charges appear to have arisen out of the incidents alleged in the statements of material facts for the present charges.
39 Another of the further charges is in respect of the alleged stealing of the Prado vehicle. The remaining two charges are in respect of incidents in the arrest of the applicant on 24 September 2015 (the incidents of 24 September 2015).
40 The annexures further include prosecution notices for both the present charges and the further charges.
41 I was informed that the prosecution intends to request the joinder of the further charges with the present charges. I was further informed that with or without the joinder, the prosecution will seek to have the present charges removed to the District Court for trial.
42 The annexures to the affidavit of Detective Carter of 17 December 2015 for the most part are witness statements and certain forensic evidence in relation to the matters the subject of the present charges. Those annexures also include a witness statement in relation to the incidents of 24 September 2015.
43 The respondent also provided written submissions dated 17 December 2015 (the respondent's written submissions of 17 December 2015).
44 At the hearing before me on 17 December 2015, it was common ground the applicant had not seen any of the material provided by the respondent to the court, although the respondent had made efforts to provide those materials to the applicant in the facility (Hakea) in which the applicant was a remand prisoner.
45 The applicant applied for an adjournment to permit him to receive and consider that material, and the respondent did not oppose the application, I granted it.
46 I further note that the respondent at the hearing on 22 December 2015 produced some additional papers with respect to the renting of a Prado vehicle. I will describe the effect of those papers in due course. The applicant did not contest what I will describe as matter I had drawn from those papers. I therefore accepted the papers to that extent, and that extent only, for my purposes.

Approach to the decision as to bail

47 There can be no contest as to the principles applicable to the present application treated as I have indicated. The Bail Act, s 14 regulates it. By that provision, my jurisdiction to grant bail is an original one. By that I mean I am not engaged in an appeal from, or review of, Magistrate Benn's decision. I am not required to find, and do not attempt to find, any matter of error or otherwise in respect of that decision. I am not bound or persuaded in any way by it. The decision as to bail is mine and mine alone, at least at this point.
48 The general approach to the exercise of the jurisdiction in s 14 is determined by Bail Act, sch 1, pt C, cl 1 read with cl 3. No other clauses of that part apply, as the applicant himself reminded me. Those provisions are to be approached as has been stated in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [43] (McLure P, Pullin JA & Hall J agreeing), on which see Va v The State of Western Australia [2014] WASC 74 [27] ‑ [29] (EM Heenan J), adopting the summary in Quaid v The State of Western Australia [2013] WASC 228 [13]ff (Edelman J). I reproduce those paragraphs from Va v The State of Western Australia so that the applicant is aware of the approach I follow. I do this notwithstanding that Milenkovski is well understood:
In Milenkovski, at [31] - [45], McLure P set out extensively the now authoritative exposition of the significance of the Bail Act for present applications. I, of course, accept that and apply it accordingly. A summary of the effect of that decision was helpfully made by Edelman J in the recent case of Quaid v The State of Western Australia [2013] WASC 228, where his Honour said, at [13] and following, that the principles concerning the application of Sch 1, Pt C, cl 1 of the Bail Act, which applies by virtue of s 14 of that Act, can be summarised by the following points:
'1.The Bail Act is a Code in a sense that it is intended to displace the common law.
2.In circumstances such as those in this application, the text and purpose of the Bail Act is inconsistent with the common law approach in general and the requirement that the accused establish exceptional circumstances in order to obtain bail.
3.As to the general provision in cl 1 of pt C, that clause contains no express statutory presumption for or against the grant of bail. The only clauses of pt C, sch 1 of the Bail Act which provide for a (rebuttable) statutory presumption against the grant of bail are cl 3A, cl 3C and cl 4A.'

None of those clauses was relevant to the application before Edelman J, and as I have said, none is relevant to the present case. The only situation where there is a rebuttable statutory presumption in favour of bail is clause 2 of part C of schedule 1, which again does not apply:
'4.The Bail Act does not place any legal onus on any party to a bail application. However, in circumstances where a bail application is to be determined and under cl 1, the consequence of the structure of that clause is that bail would be granted if there is no material before the Court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required for provide proper foundation for refusing bail.

I insert for my purposes in the present application that, of course, the State has sought to do that through the affidavit of Detective Carter of 17 December 2015, and its annexures.
5.The grant or refusal of bail is at the discretion of the person vested with jurisdiction who is required to have regard to the questions in paragraphs (a) - (g) and to any other questions which the decision-maker considers relevant. The correct approach to the exercise of the discretion is sourced in and guided by the matters in paragraphs (a) - (g). The mandatory answers to the 'questions' in those paragraphs and other relevant questions of findings provided the factual basis for the exercise of the discretion. The Court is required to consider an answer to mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.

6.The Court is not required to consider questions directed to whether there are positive grounds for granting bail.
7.Paragraphs (a) and (d) of cl 1(a) are concerned with the possibility of the relevant event occurring. In answering that, and other questions in cl 1(a), the Court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C.
8.The seriousness of the offence does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The Court is required to have regard to all the questions in cl 1 and the matters in (c)(iii) in the exercise of the discretion to grant or refuse bail.'

And finally:
'9.It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the events and the probable consequences if the accused is convicted are sufficient to enable the Court to conclude that the accused may fail to appear in Court in accordance with his bail undertaking. The nature of the potential sentence imposed by the court, having regard to the answers to all the other mandatory questions in cl 1, may require or justify the refusal of bail.'

49 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.
50 This allows for me to receive and take into account material in, but also going beyond material in, any information provided to the court: see Lai v The State of Western Australia [2010] WASC 334 [20] ‑ [25] (EM Heenan J). That includes matters in oral submissions at the bail hearing itself from the applicant or the respondent. However, any such matter that is not supported by any proper evidentiary foundation, would likely be of diminished, sometimes substantially diminished, weight.
51 Further, I consider that matter that may be received and taken into account includes material put before Magistrate Benn.
52 The basis for the present application appears to be that, on the information which I may take into account, the answers to the applicable questions from Bail Act, sch 1, pt C, cl 1(a)(i) ‑ (iv) read with cl 3, cl 1(c), cl 1(e), cl 1(g) and cl 1 opening words (other questions), all either point towards the grant of bail or do not sufficiently point away from it.

The questions in cl 1(a)(i) ‑ (iv) read with cl 3

53 These are the questions whether, if the applicant is not kept in custody, he 'may' fail to appear (see cl 1(a)(i)); or may commit an offence (see cl 1(a)(ii)); or may endanger the safety, welfare or property of any person (see cl 1(a)(iii)); or may interfere with witnesses or otherwise obstruct the course of justice (see cl 1(a)(iv)), in each case, when I have had regard to the matters referred to in cl 3.
54 Bail Act, sch 1, pt C, cl 3 directs me in considering whether the applicant may do any of the things mentioned in cl 1(a) to have regard to the matters listed in cl 3(a) (nature and seriousness of offences and probable method of dealing with them); cl 3(b) (character, previous convictions, antecedence, associations, home environment, background, place of residence, financial position of applicant); cl 3(c) (history of previous grants of bail); and cl 3(d) (strength of evidence against the applicant), as well as any others that I might consider relevant.
55 As to cl 3(a), it was not in contest, it seems to me, that the present charges were offending of a serious kind, and it seems to me that the probable method of dealing with them, were the applicant to be convicted of them after trial, would be sentences of immediate imprisonment, having regard to what information I presently have of the personal circumstances of the applicant, including the applicant's criminal history.
56 This matter, considered with cl 3(d), is, of course, relevant to the risk in cl 1(a)(i) in particular, the risk of flight when considered with the personal circumstances of the applicant, particularly those to show ties to the jurisdiction. Here I do not doubt that there are ties to the jurisdiction the applicant has through his mother and the applicant's role in relation to his mother, to which I will return.
57 As to cl 3(b) and cl 3(c), the applicant's criminal history is a lengthy one. It includes a range of offences, including traffic offences, for which the applicant has received sentences of immediate imprisonment, most recently ones imposed in December 2012 for being armed or pretending to be armed in a way that might cause fear (one offence), and assault (one offence). He has also been sentenced to penalties for 10 offences of breach of bail or protective conditions of bail, most recently in July 2015 (two offences), including sentences of imprisonment for two breach of bail offences, imposed in 2001.
58 He has further been sentenced in respect of 19 breaches of various court orders, being conditionally suspended imprisonment orders, suspended imprisonment orders, intensive supervision orders, a community‑based order, conditional release orders and a violence restraining order. He was most recently so sentenced in April 2012. He has still further been sentenced in respect of breaches of police orders in July 2015.
59 He has also been sentenced for seven drug offences, most recently in April 2012, the penalty in each case being a fine.
60 Other offending for which the applicant has been sentenced includes receiving; stealing, including steal motor vehicle; fraud; reckless driving and driving without a motor drivers licence, with penalties of imprisonment imposed in some cases.
61 I consider this to be a very poor criminal history.
62 I have heard what the applicant has said to me, particularly with respect to breaches of court orders, as to his condition of attention deficit disorder, but I have noted as well the pattern, which includes relatively recent offences. I have noted in particular the breaches of bail, breaches of court orders and breaches of police order.
63 As to cl 3(b), counsel for the respondent confirmed he had no information stating that the applicant had ever been convicted of an offence involving interfering with witnesses, or of any offence committed while the applicant has been on bail for another alleged offence, and the applicant strongly put to me that he has not been in fact convicted of any such offence. I proceed on that basis.
64 I note that all of the matters from the applicant's criminal history I have referred to and the matter I have just referred to are relevant to the risk in cl 1(a)(i), cl 1(a)(ii) and cl 1(a)(iv).
65 As to cl 3(d), I have already noted the relationship between this paragraph and cl 3(a).
66 As to cl 3(d), the applicant strongly contends that the case against him is weak. He points in particular to the witness statutory declarations and to certain matters of alibi as well as to what he says are weaknesses in other matters forming part of the prosecution case.
67 One of the witness statutory declarations is that dated 23 November 2015 of Ms AA. She declares she wishes to withdraw a witness statement made to police on 20 September 2015 as one she says made as a result of apprehended police coercion; that as a 16‑year‑old she did not have permission from her mother to make the statement and did not have a lawyer present; and that the applicant was not the driver of the Prado vehicle but another named person was that driver.
68 Another of the witness declarations is that also dated 23 November 2015 of Ms CA. She declares she is the mother of Ms AA and that she did not give consent for Ms AA to make a statement to police on 20 September 2015.
69 Still another of the witness statutory declarations is also dated 23 November 2015, and it is also of Ms CA. She declares she was a passenger in the Prado vehicle but that the applicant was not its driver, that person being a similar looking man whom she identifies by name and appearance, apparently the same person as identified by Ms AA, and that she withdraws any statement she may have made on 20 September 2015 as one made as a result of apprehended police coercion.
70 I note that Ms CA did in fact make a witness statement on 20 September 2015, and I will return to it. I further note what I was told by the applicant, although it does not appear, at least so far as I can readily determine, in the witness statutory declarations, that Ms CA has confirmed that she made her witness statement at a time when she was in an intoxicated condition.
71 The fourth of the statutory declarations is dated 22 November 2015 and is of Ms TPG. She declares she is the mother of the applicant and that on 20 September 2015 he was at her home sleeping on the lounge and watching movies. He did not go anywhere that day, as was usual for him on a Sunday. She also refers to visitors who were home that day who saw the applicant sleeping, naming four of them. I understood from the applicant that those four were prepared to come forward and so testify if necessary. I should indicate that there is a further statutory declaration from Ms TPG I will reach later which has some tension with what appears in the fourth of the statutory declarations but is not outrightly inconsistent with it.
72 The grounds refer to what appears from the statutory declarations as relevant to who was driving the Prado and where the applicant was at the times in question.
73 Counsel for the respondent, for his part, pointed me to material supporting the prosecution case that the applicant was the driver of the Prado vehicle at all material times, some of which material was of a circumstantial kind (the identification evidence).
74 That material included, in particular, from the annexures to the affidavit of Detective Carter of 17 December 2015, witness statements of persons who state they have witnessed at least part of the matters the subject of the present charges, or encountered not long afterwards in the vicinity a person whose description might be said to be similar to that of the applicant, or witnessed matters immediately preceding the incidents on 20 September 2015.
75 Those witness statements include witness statements of the persons who had made the witness statutory declarations. Counsel for the respondent reminded me that the witness statements of the persons who made the witness statutory declarations indicate that the applicant was the driver of the Prado vehicle at various material times.
76 Further, counsel for the respondent pointed me to further circumstantial evidence supporting the prosecution case (the further circumstantial evidence).
77 The further circumstantial evidence included matter indicating that fingerprints from a glass said to have been used by the person the prosecution said was the applicant at one of the encounters referred to had been analysed and a match to fingerprints of the accused had been obtained.
78 The further circumstantial evidence also included matter representing papers found in the Prado vehicle in the name of the applicant; and matter indicating that a person using initials of the kind the person used in the encounters that I have just described in a telephone call seeking access to the Prado vehicle.
79 The applicant acknowledged, in fact, that he was the person in the encounters, that the papers found in the Prado vehicle were his, and that he had made the telephone call referred to. He did so by reference to the matters I will shortly reach.
80 I should further note in reference to the further circumstantial evidence referred to by counsel for the respondent that the telephone used in the call concerning access to the Prado vehicle itself had been identified with one of a person living near the applicant and the applicant's mother.
81 At the hearing of 22 December 2015, counsel for the respondent produced the further papers I referred to showing that the applicant's mother at the very least was associated with the rental of the Prado vehicle, if not the principal renter. The applicant accepted that such could be drawn from those papers, but emphasised that those papers did not support the further conclusion that his mother was the principal renter and did not show any or the nature of any involvement by the applicant in the rental.
82 The further circumstantial evidence also included photographs or stills of a person in the vicinity of the incident the subject of the present charges, which had been taken at about the time, or not long preceding, or following the time, of those incidents. The person so shown appears to bear a close resemblance to the applicant, counsel for the respondent said.
83 For his part, the applicant drew my attention to what he characterised as uncertainties and other difficulties and limitations, including what he put to me as significant differences with other evidence and differences from what the applicant says is his usual appearance, in the identification evidence other than what has come from those who had made the witness statutory declarations. These, it was said, showed profound weaknesses in the prosecution case.
84 I was taken, in particular, to a number of paragraphs in the witness statements of those other witnesses. In addition, I was taken to differences between the person as shown in the stills, part of the further circumstantial evidence, annexure 'T', taken of a person prior to the incidents the subject of the present charges, and annexures 'M' and 'S' taken of a person after those incidents. The applicant, for his part, accepted for my purposes that the latter two were indeed the applicant himself.
85 With respect to the identification evidence, I accept for my purposes that there are limitations, differences and difficulties of the kinds referred to by the applicant. However, the task falls to me to assess the significance of those limitations, differences and difficulties. In my view, the similarities evident, and what the witnesses could say as to the person they saw, mean that those limitations, differences and difficulties reduce, but not in a substantial way, the significance of that material for the prosecution case. Further, the identification evidence on which the applicant focused my attention must be considered with the remainder of the prosecution case including the further circumstantial evidence.
86 I should note that the applicant also put to me matter in respect of the way the incidents on 20 September 2015 might be said to have occurred, including, it appeared in the witness statements of the two victims, indicating that the way they had behaved had brought on incidents of that kind. I was unable to see any relevance of those submissions except in relation to the credibility of those who had made those witness statements. In respect of that matter, I do not consider those submissions, even if fully accepted, to so undermine the credibility of those two witnesses as to lead to me putting their witness statements aside.
87 In respect of the further circumstantial evidence, the applicant appeared particularly to rely on the matter in the further statutory declaration. That matter indicated that the applicant had left his mother's home on a motorcycle on the evening of 20 September 2015, some time near 6.00 pm or 7.00 pm, and had had an accident on it. He had gone after having been told something about the incidents on 20 September 2015. It appeared to me that the applicant was contending that this accounted for why the applicant presented himself as he did in the period following the incidents the subject of the prosecution charges and explained why the applicant sought the material he did from the Prado vehicle.
88 However, what appears from the applicant's mother in the further statutory declaration, when considered with what appears from her in the fourth of the statutory declarations, appears to me when considered at its lowest to raise questions of credibility which must be weighed in taking account of her evidence. Nothing further, as it seems to me, is matter I can conclude at this point.
89 The applicant also referred me to matter in the annexure to the affidavit of Detective Carter of 17 December 2015 representing the initial collision assessment report (annexure 'Q'). That included, in respect of the second incident on 20 September 2015, the one involving a motorcycle of Mr MB, a statement by the author of that collision assessment report that none of the damage to the undercarriage of the Prado vehicle from his examination 'could be found to be directly linked to the contact with what appears to be Mr MB's motorcycle' (page 118).
90 However, I note the further statement in that report that 'further forensic examination may assist in this regard', and I note what counsel for the respondent reminded me as to the nature of the further report to be made.
91 I also note the matter of the seriousness of the injuries to Mr MB. In that regard, I note the submissions of the applicant as to the plausibility of the injuries of Mr MB so stated as injuries no more serious than those indicated on the material before me as caused by the second incident on 20 September 2015. That is to say that injuries of that kind would simply not be consistent with the second incident as alleged. The applicant put to me that injuries would have been caused by an incident as so alleged that would have been much more serious than the ones referred to by Mr MB. However, particularly in view of the injury to Mr MB's vertebrae and the effect of that injury in immobility terms, I would not give any significant weight to those submissions.
92 I note that, while the matters referred to by the applicant may implicate the credibility of Mr MB, it is not apparent to me at this stage that they necessarily do so and so significantly weaken the strength of the prosecution case in respect of the second incident.
93 As I understood counsel for the respondent to have called upon me to do, I have noted in respect of the witness statements of the persons who made the witness statutory declarations that those persons indicate they had a prior acquaintance with the applicant. The applicant, indeed, does not appear to deny this. As I have indicated, what those witness statements say as to the applicant not being the driver of the Prado vehicle is at variance with what appears in the relevant witness statements by them. I consider these matters as relevant to Bail Act sch 1, pt C, cl 1(a)(iv) (interference with witnesses). That is because taken together they are suggestive of procurement of changes by the applicant.
94 However, I stress, the matter is one of suggestiveness only. I do not determine that the applicant, in fact, procured the change represented by the witness statutory declarations.
95 Leaving aside the witness statements referred to by the persons who had made the witness statutory declarations, and assuming that the persons who gave those witness statements are called, if they are called only by the defence and that they testify in accordance with the witness statutory declarations, as well as allowing for all of the matters of limitation, difference and difficulty I previously referred to, I would nonetheless assess the prosecution case as strong, but not overwhelming.

96 In making that assessment I take account of the likelihood of the inconsistent witness statements of those persons who made the witness statutory declarations being put to them in cross-examination.
97 As to cl 1(a)(i), counsel for the respondent put to me that given the probable consequences of dealing with him on the strength of the case against him, the applicant represented a significant flight risk; and in the respondent's written submissions of 17 December 2015 reference is made for this purpose to the applicant's alleged conduct after the incidents the subject of the present charges, being conduct of 24 September 2015 as referred to in the statements of material facts for the further charges relevant to that conduct.
98 That conduct as so alleged is as follows.
99 On Thursday, 24 September 2015 the applicant was riding a bicycle along a street in Bayswater at about 8.25 am. Police located the applicant and they followed him in an unmarked vehicle. Detective First Class Constable Brkic called out to the applicant telling him they were police and calling for him to stop and pull over. The applicant yelled back that he would pull over but continued to ride his bicycle. The police officers pulled their vehicle in front of the applicant. Detective Brkic approached the applicant. The applicant struck her with the black motorcycle helmet he was carrying. This caused her to stumble back so the applicant could get away. Detective Brkic gave chase but the applicant got away on his vehicle.
100 After about 10 minutes of a number of police vehicles searching for the applicant through Bayswater and Maylands, the applicant was located riding his bicycle. In an attempt to evade police, the applicant tried to ride around a Yaris vehicle that was unattended and parked on the roadside by him. Due to his erratic and reckless driving of his bicycle, the applicant lost control and crashed into the Yaris vehicle, causing a deep gouge along the driver's side of the vehicle from the front door to the rear right quarter panel.
101 It was following those incidents that the applicant was apprehended and arrested by the police as I have previously indicated.
102 I would stress, of course, that these matters are the subject of allegations only. However, there is a witness statement of Detective Brkic in support of them, included among the annexures to Detective Carter's affidavit of 17 December 2015.
103 I have noted what the applicant says as going to explain why he behaved as I should take it he did. However, even allowing for those submissions, I consider the relevant parts of the witness statement of Detective Brkic to be matter tending to support the possibility of flight by the applicant if he were to be released on bail, and this notwithstanding his connections with the jurisdiction, including his connections to his mother, this to be considered with all of the other matter I have referred to in this regard, in particular, the applicant's prior breaches of bail and the protective conditions of bail and his offences of disobedience to court orders and police orders in the applicant's criminal history.
104 As to cl 1(a)(ii), counsel for the respondent put to me that there was a significant risk that the applicant would commit further offences, including violent or traffic offences, if he were to be released. I took counsel to be relying on the same material as for cl 1(a)(i).
105 I consider on all of the matter I have referred to in that regard that the material does indicate a significant risk of that kind.
106 As to cl 1(a)(iii), counsel for the respondent did not put to me there was a significant risk of this kind.
107 As to cl 1(a)(iv), counsel for the respondent put to me that there was a significant risk of this kind, directing my attention to the witness statutory declarations. I consider that the witness statutory declarations do indicate a significant risk of that kind, and I refer to my previous discussion in that regard.

The question of cl 1(b)

108 This is the question of whether the applicant needs to be kept in custody for his own protection.
109 The respondent did not indicate that question applied, and it is not apparent to me that it does apply. I set it aside.

The question in cl 1(c)

110 This is the question of whether the prosecutor has put forward grounds for opposing the granted bail.
111 Counsel for the State did, of course, indicate such grounds, and I have referred to them already in part. There are also grounds which the State refers to in connection with cl 1(e) and cl 1(g) that I will reach.

The question in cl 1(d)

112 This, it seems to me, is a provision that has no application here, as it is restricted to a case where an applicant is presently on trial. That is not the applicant's position.

The question in cl 1(e)

113 This the question of whether there is any condition which could reasonably be imposed under Bail Act sch 1, pt D, which would sufficiently remove the possibilities referred to in cl 1(a) and cl 1(d), obviate the need referred to in cl 1(b), or remove the grounds for opposition referred to in cl 1(c).
114 The applicant indicated to me he was prepared to submit to conditions including have his mother a surety for him with the assets that he referred to her as having and to report regularly to police, as well as to submit himself to a curfew or have home detention bail, and indeed, any other conditions I would see fit reasonably to impose.
115 Counsel for the respondent, for his part, indicated there were no conditions which would significantly remove the possibilities which counsel for the prosecution has referred to. I note in that regard that there is some reason, it seems to me, for me to have the same view as counsel for the respondent, having to do with the significance of the risks in question.

The question in cl 1(f)

116 This clause likewise has no application, as it involves an offence alleged to have been committed in respect of a child.

The question in cl 1(g)

117 This the question whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
118 It seems to me that it is the alleged circumstances of the offending upon which cl 1(g) rests, not the maximum penalty for or classification otherwise of the offence charged.
119 I note from cases like Rauch v The State of Western Australia [2005] WASC 241 that even in cases of very serious offending, bail has been granted.
120 It seems to me that the approach that I should adopt to cl 1(g) is as described in Milenkovski [29] ‑ [39]. Those paragraphs refer me to the second reading speech for the bill that became that part of the Bail Act represented by cl 1(g) where the Honourable Attorney General says this:
Another important aspect of the Bill is that it will make the granting of bail inappropriate where the alleged circumstances of the offence amount to wrongdoing of a serious nature. While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail

121 It seems to me clear from the language of cl 1(g), confirmed by the language of the extract from the legislative history I have just referred to, that the matter of seriousness is one capable of operating independently of other considerations in relation to the grant of bail. However, I am not aware of any authority in which bail was denied on the basis of cl 1(g) alone, and in that regard I note that such a denial would appear itself necessarily to be an exercise of a discretion described in clause 1's opening words.
122 I have gone into that clause in the detail that I have because counsel for the respondent, it appeared to me, had put to me that this paragraph applies here. This was in view of the alleged circumstances of the offending the subject of the present charges, particularly, as I understood it, the second of the incidents on 20 September 2015 involving the intentional driving of the Prado vehicle at Mr MB on his motorcycle.
123 I accept that the circumstances, particularly those just described, are indeed of a serious kind. However, as a matter of impression, which I consider to be the approach I should take on the materials I have, the circumstances are not so serious, in my view, as to engage cl 1(g). However, I also consider that, in view of the allegations of the targeting of two motorcycles and their riders and the consequential injuries to Mr MB, the case is close to the line, and this feeds back into the consideration in cl 3(a) of the seriousness of the offence.

Other questions allowed for by cl 1's opening words

124 There were submissions to me that I took to be references to four matters that the applicant put to me as so relevant here, indeed, that the applicant put to me as extraordinary reasons for the grant of bail.
125 One was to the likely delay until the matters and the present charges were brought to trial. The second was to the great difficulty for the applicant in preparing his case were he to continue to represent himself and remain in custody. The third was the turn for the worse his mother has suffered since Magistrate Benn's decision which has increased his mother's need for care, which she is in no position to get without his availability to her. The statutory declaration of Ms TG, the fourth of the statutory declarations, refers to her dependence on the applicant for care. The fourth was the serious assault on him while on remand, to which the applicant referred several times, involving an offence of a grave sexual character.
126 All of these are referred to in the grounds, and as I have said, the applicant commends them to me as extraordinary circumstances justifying the grant of bail. However, I leave aside the first and the fourth of these matters.
127 As to the first, it is not clear to me there will be an inordinate delay to trial. I was told the trial in the District Court is likely to be in the order of about seven months from now, which appears to me to be right, whether the further charges are joined in the present charges or not, as I have indicated.
128 As to the fourth matter, it is not apparent to me that the applicant faces a substantial risk of repetition of such conduct, especially given the prison authorities may be expected now to be particularly careful not to expose the applicant to any such risk and that action is being taken against the alleged perpetrator, although at a preliminary stage.
129 As to the second matter, I consider it is not clear the applicant will not be able to secure legal representation for his trial. The fact that the applicant has none for the present application is not, it seems to me, information tending to indicate strongly that representation for trial will be unavailable. The applicant indicated to me his understanding he would not receive legal aid for a plea of not guilty. However, it is not clear to me that any such understanding is justified. In particular, any assessment of any application for such legal aid would, it seems to me, likely await the production of the present decision. Further, I understand that a counsel has indicated a preparedness to act for the applicant, at least in relation to a plea of guilty.
130 I should note for this purpose that the present decision should be made available as a draft judgment to both parties on the basis, so far as the applicant is concerned, he may share it with the counsel who I understood is prepared to act for him.
131 As to the third matter, I consider it not to be made out that no sufficient care is available to Ms TG. I should note that I leave aside what was put to Magistrate Benn as to unlawful conduct by the applicant towards Ms TG. I do so as it is not apparent to me that any such conduct affects the present wishes of Ms TG to have the assistance of her son. There is a distinction, in my view, to be drawn between that form of assistance Ms TG would most desire and a form of assistance which would be sufficient.
132 In sum, I do not consider that the four matters have a large significance, let alone extraordinary significance, in my consideration of the applicant's case for bail.

Conclusions

133 I have now considered and answered the questions applicable in this case in Bail Act sch 1, pt C, cl 1, as well as the matter of any further questions.
134 In determining how I would exercise my discretion, I must now engage in the weighing or balancing process referred to in Milenkovski.
135 In my view, having regard to the conditions that I have referred to under cl 1(e) above, I would not grant bail in this case.
136 As I would not grant bail in this case, it is my understanding that the previous remand of the applicant stands and that the applicant will next appear in the Magistrates Court on 15 January 2016.

Citations

Vander WAIDE v Western Australian Police [2015] WASC 497

Most Recent Citation

Cases Citing This Decision

2

Ta v The State of Western Australia [2019] WASC 153

Rasaubale v Commonwealth Director of Public Prosecutions [2019] WASC 142

Cases Cited

6

Statutory Material Cited

4

Lai v The State of Western Australia [2010] WASC 334

Milenkovski v The State of Western Australia [2011] WASCA 99

Actions

Download as PDF Download as Word Document