VENGADASELAM v The Queen
[2014] WASC 392
•7 OCTOBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: VENGADASELAM -v- THE QUEEN [2014] WASC 392
CORAM: MITCHELL J
HEARD: 7 OCTOBER 2014
DELIVERED : 7 OCTOBER 2014
FILE NO/S: MBA 37 of 2014
BETWEEN: JAYAKODY VENGADASELAM
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail - Flight risk - Turns on own facts
Legislation:
Bail Act 1982 (WA), s 13, s 14, cl 2 pt A sch 1, cl 1 pt C sch 1, cl 3 pt C sch 1, pt D sch 1
Criminal Code Act 1995 (Cth), s 307.1
Judiciary Act 1903 (Cth), s 68
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Ms M Cheshire
Respondent: Ms K A Gregory
Solicitors:
Applicant: Cheshire Legal Pty Ltd
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
James v Western Australia [2013] WASC 235
Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v Western Australia [2013] WASC 228
MITCHELL J:
(This judgment was delivered extemporaneously on 7 October 2014 and has been edited from the transcript.)
Application
This is an application for the grant of bail for the applicant's appearance before the Magistrates Court on 29 October 2014. The charge against the applicant is that on 16 July 2014, at Perth International Airport, he imported a substance, being a border controlled drug, namely methylamphetamine, and the quantity imported being a commercial quantity, contrary to s 307.1 of the Criminal Code Act 1995 (Cth) (Criminal Code). The applicant was charged on 16 July 2014 and has been remanded in custody since his first appearance in the Magistrates Court on 17 July 2014. Bail was refused by a magistrate on 15 August 2014.
Evidence
The application for bail is supported by the affidavit of Maria‑Elena Cheshire, sworn 1 October 2014, a statutory declaration from Amanda Anne Jayakody and some loan account details from Ms Jayakody and her husband, who is the applicant's son.
The Commonwealth relies on the statement of material facts, a transcript of a record of interview undertaken by the applicant with the Australian Federal Police on 16 July 2014, as well as statements of Antwon Kim Sligh made on 22 July 2014 and of Samantha Jayne Cartledge made on 17 July 2014.
Jurisdiction to grant bail
The jurisdiction sought to be invoked is that provided for by s 14(1)(a) of the Bail Act 1982 (WA) read with s 13(1) of that Act, cl 2 of pt A of sch 1 to that Act and s 68(2) of the Judiciary Act1903 (Cth).
Clause 2 of pt A of sch 1 to the Bail Act conferred jurisdiction on the magistrate granting an adjournment of proceedings for an offence, not being a committal, to grant bail for an appearance in the Magistrates Court after that adjournment. Section 14(1)(a) of the Bail Act provides that a judge of this court may, in accordance with that Act, exercise a power to grant bail which is conferred upon any other judicial officer.
Section 14(2) of the Bail Act relevantly contemplates that this jurisdiction may be invoked by an application made by the accused, whether or not any other judicial officer has previously refused bail. It is common ground between the parties, and I accept, that I am to exercise the bail discretion afresh and it is not necessary for the applicant to demonstrate any particular error in the reasoning of the magistrate.
The provisions of the Bail Act are applied to the applicant, who is charged with an offence against s 307.1 of the Criminal Code, by s 68(1) of the Judiciary Act. The jurisdiction being exercised by this court is therefore federal jurisdiction. Section 13(1) of the Bail Act requires that the jurisdiction to grant bail be exercised subject to, and in accordance with, pt III of the Bail Act and the further provisions in pt B, pt C and pt D of sch 1 to the Bail Act.
Mandatory relevant considerations
Subject to presently immaterial exceptions, cl 1 in pt C of sch 1 to the Bail Act provides that the grant or refusal of bail to the applicant is in my discretion. Clause 1 requires that this discretion be exercised having regard to questions posed by pars (a) ‑ (g) of that clause. The matters specified in those paragraphs are non‑exclusive mandatory relevant considerations: see Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25] and [37]. The discretion is also to be exercised having regard to other questions which are considered to be relevant.
In Milenkovski [39] ‑ [41], McLure P noted a number of significant points in the following terms:
First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings, as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances, where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to 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 to provide a proper foundation for refusing bail. (original emphasis)
I then turn to consider each of the matters referred to in pars 1(a) ‑ (g), before turning to the weighing and balancing process inherent in the exercise of the discretionary power.
Paragraph 1(a)
Paragraph 1(a) requires that I consider a number of matters. The only relevant matter in this case is whether, if the accused is not kept in custody, he may fail to appear in court in accordance with his bail undertaking. There is no evidence or other material suggesting that any of the other events referred to in par 1(a) may occur if the applicant is not kept in custody.
Relevant considerations
The question is then whether the applicant may fail to appear in court in accordance with his bail undertaking if he is not kept in custody. In considering that question, I am required to have regard to the matters referred to in cl 3 of pt C of sch 1 of the Bail Act, as well as to other matters which I consider relevant.
One of the matters which I am required to consider is the nature and seriousness of the offence with which the applicant is charged, there being no other offence for which he is awaiting trial in this case. The offence with which the applicant is charged is provided for by s 307.1 of the Criminal Code. The maximum penalty for that offence is a sentence of life imprisonment or a fine of 7,500 penalty units, which I am told by the Commonwealth is a fine of $1.275 million, or both.
The circumstances of the offence alleged by the Commonwealth have been described to me in the submissions of both counsel. It is convenient for these purposes to take a summary from the statement of material facts.
At about 12.30 pm on 16 July 2014, the applicant arrived at Perth International Airport aboard Singapore Airways flight SQ213 from Shanghai, having transferred via Singapore.
The applicant, a Singaporean national, entered Australia on a Singaporean passport, and I have noted the indications from the bar table that the applicant is also a resident of Malaysia. Upon arrival, the applicant attended the international terminal barrier where he underwent processing by Australian Customs and Border Protection Service officers. The applicant presented an incoming passenger card which he had completed and signed. On the incoming passenger card the applicant had ticked the box marked 'No' in answer to the question:
Are you bringing into Australia goods that may be prohibited or subject to restrictions, such as medicines, steroids, pornography, firearms, weapons or illicit drugs?
The applicant was selected for baggage examination by customs officers and was questioned on the purpose of his travel to Australia. He advised customs officers that he was visiting Perth for a holiday and for a look around, and when asked whether he had packed his bags himself, the applicant answered, 'Yes', and indicated that he was fully aware of the contents of the bags.
Customs officers became suspicious that the applicant was carrying illicit substances and conducted an X‑ray of his baggage, including a large black suitcase which contained women and children's clothing and handbags. The X‑rays revealed an anomaly in the lining of the base of the suitcase, consistent with the concealment of an illicit substance. Examination revealed a white crystalline substance concealed inside the lining of the suitcase. Presumptive testing of the substance indicated a positive result for methylamphetamine. The applicant was subsequently cautioned and interviewed by Australian Federal Police.
I also note that the statement of Mr Sligh indicates that, when the applicant was asked why he was coming to Perth, he said that it was for a holiday. He was asked where he would go while in Perth, and the applicant responded, 'Just around to see the city'. When asked whether he knew any tourist attractions, the applicant said no, that he would just look around. He was then asked further questions about his travel to Perth and who had booked it. He indicated that a friend, whose name he gave as Rolland Edward, a South African, had paid for or booked the ticket. The applicant also indicated that they were friends, and that he had done 'it' - I infer that that refers to the applicant booking travel - for Mr Edward too.
The contents of the bag were analysed, and it was found to contain 2.2 kg of crystalline content, with a methylamphetamine purity of 79.7%. The total amount of pure methylamphetamine alleged to be imported into Australia by the accused was 1.7 kg.
The applicant participated in a taped record of interview with investigators on 16 July 2014, where he indicated a number of matters, set out below.
The applicant said that about six months ago he entered into a business arrangement with a male person known as Rolland Edward, who he believed was a banker in Burkina Faso, via telephone and email correspondence. Mr Edward agreed to invest US$7 million into the applicant's Singapore‑based company.
To facilitate this transaction, the applicant agreed to travel from Singapore to Shanghai to sign banking documents. He further agreed to travel from Shanghai to Australia to sign and collect other business related documents for the transaction. Mr Edward arranged and paid for his accommodation and travel, and the itinerary was emailed to him.
On Wednesday, 9 July 2014, the applicant travelled from Singapore to Shanghai, and on 14 July 2014 he met with a male person in Shanghai and collected the suitcase. He opened the suitcase and saw it contained children's clothing. He inspected the children's clothing for drugs. He emptied the contents of the suitcase, felt it and did not feel anything unusual about the suitcase.
On Tuesday, 15 July 2014, he departed Shanghai and checked the suitcase into hold luggage and flew via Singapore to Perth. On Wednesday, 16 July 2014, he arrived at Perth where he was stopped by customs. On arrival in Perth his instructions were to contact Mr Edward and advise him of the hotel room number he was staying in. He believed that somebody would then come to the hotel with the relevant banking documents and collect the suitcase.
The applicant intended to stay in Perth for three days, and had conducted a similar trip for Mr Edward on a previous occasion in 2014, where he delivered a suitcase to an African male person in Melbourne.
The matters set out above are, of course, merely allegations which have not yet been tested at trial. However, the importation of a commercial quantity of methylamphetamine is clearly a very serious charge. The quantity which is alleged to have been involved in the applicant's offence is significantly in excess of the commercial quantity of 750 g minimum.
If the applicant were convicted of this offence then I consider that a substantial term of immediate imprisonment is inevitable. There is nothing in the evidence or other information I have about the applicant's character, previous convictions, antecedents, associations, home environment, or background that indicates that he may not comply with his bail conditions. Indeed, the information that I have received is that the applicant has no previous convictions; at least, none that have come to the attention of the Commonwealth authorities.
The fact that there is no indication that the applicant has previous convictions is a factor which counts against a conclusion that the applicant may fail to appear in court in accordance with his bail undertaking if not kept in custody.
There are also factors which count the other way. It is significant that the applicant is not a resident of the State and has no relevant ties to the State or to Australia. I have no evidence or other material which indicates the financial position of the applicant other than that, in his record of interview with the Federal Police officers, he indicated to the effect that he did not have much money. There is nothing before me which suggests that the applicant has previously been subject to a bail undertaking.
Strength of evidence
It appears from the submissions which have been made to me that there is no real contest that the applicant imported a quantity of methylamphetamine, which is a border controlled drug, by bringing that substance into Australia, and that the quantity was a commercial quantity. A critical question at trial is therefore likely to be whether the applicant was reckless as to the substance found in the suitcase being a border controlled drug. That will depend on whether the prosecution can establish, beyond reasonable doubt, that the applicant was aware of a substantial risk that the suitcase contained a border controlled drug and, having regard to the circumstances known to him, it was unjustifiable to take that risk.
The record of the applicant's interview with the Australian Federal Police indicates that the applicant made admissions which the Commonwealth contends are capable of establishing that the applicant was reckless as to those matters. While the matter will ultimately be one for the jury to determine, I am satisfied that there is a substantial case against the applicant based on those admissions. I am also of the view that the Commonwealth's case against the applicant is significantly strengthened by the inconsistencies between the statements which he made to the customs officers and statements which he made to the Australian Federal Police, particularly as to the reasons for his travel to Perth and also as to the circumstances in which that travel had been arranged.
Having regard to all of the material currently before me, I would regard the Commonwealth's case as strong.
Conclusion as to likelihood of absconding
Having regard to all of the matters to which I have referred, I am satisfied that there is a significant possibility that the applicant would fail to appear in court, in accordance with his bail undertaking, if he is not kept in custody. He has been charged with a very serious offence, and can anticipate a lengthy custodial sentence if convicted of that offence and has no connection with either the State or Australia that may provide a disincentive to absconding.
Paragraph 1(b)
There is no evidence or other material to suggest that the applicant needs to be held in custody for his own protection.
Paragraph 1(c)
The prosecutor has put forward grounds for opposing the grant of bail, being essentially the risk of flight if bail is granted.
Paragraph 1(d)
There is no evidence or other material to suggest that there are grounds for believing that, if the applicant is not kept in custody, the proper conduct of the trial may be prejudiced.
Paragraph 1(e)
Paragraph 1(e) relevantly requires me to have regard to whether there is any condition which could reasonably be imposed under pt D of sch 1 to the Bail Act which would sufficiently remove the possibility that, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking.
In my view, the conditions which may be reasonably imposed under that part in this case would not sufficiently deal with that possibility. The conditions suggested by the applicant are:
•a condition for surety;
•residence at the home of his son's family;
•surrender of his passport;
•not applying for a new passport;
•not leaving the address unless in the company of his son or daughter‑in‑law;
•not approaching certain points of departure;
•presenting to a police officer on the doorstep as required; and
•reporting to a police station daily.
While those conditions would make flight more difficult, I am not satisfied that they sufficiently deal with that possibility.
Paragraph 1(f)
As the applicant has not been charged with any offence that is alleged to have been committed in respect of a child, this paragraph is not relevant.
Paragraph (1)(g)
Paragraph (1)(g) requires me to have regard to whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. Paragraph (1)(g) directs attention to the alleged circumstances of the offence, rather than the charge or statutory provision which creates the offence that is the subject of the charge. As Edelman J has noted, the mere existence of an extremely serious charge can never be sufficient for the refusal of bail. The mere charging of an accused with a serious offence should not be considered in a vacuum. All information concerning the circumstances of the alleged offence must be considered, including information relating to possible defences: see Quaid v Western Australia [2013] WASC 228 [18] and James v Western Australia [2013] WASC 235 [69].
Unlike the other paragraphs of cl 1, par 1(g) is expressed in terms which, taken literally, suggest an outcome of the exercise of my discretion. If the alleged circumstances referred to in par 1(g) are such as to make the grant of bail inappropriate, then it is difficult to see how the court can then conclude that bail should be granted.
Paragraph 1(g) does not indicate why it must be inappropriate to grant bail. Wrongdoing of a particularly serious nature may be an indicator of flight risk or risk of interference with witnesses due to the incentives created by the serious consequences of conviction. Wrongdoing of that kind may be an indicator of a risk to public safety or reoffending. However, those examples are covered by other paragraphs of cl 1. This suggests that the reasons why a grant of bail is inappropriate may extend beyond considerations concerning the risk of flight, reoffending or interference with the administration of justice.
In Milenkovski [29], the court quoted the Minister's second reading speech for the Bill which introduced par 1(g). There, the Minister said:
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.
This passage also suggests that the seriousness of the circumstances of the alleged offending may - quite apart from risks of flight, reoffending or interference with the administration of justice - provide grounds for refusing bail in at least some cases. In the present case, however, it is unnecessary for me to resolve all of the constructional issues associated with par 1(g) of cl 1 in pt C of sch 1 to the Bail Act. That is for two reasons:
(1)Counsel for the Commonwealth does not rely on par 1(g) independently of considerations of flight risk, which are dealt with under the rubric of par 1(a).
(2)I am satisfied that bail should be refused by reason of the risk that the applicant may fail to appear in court in accordance with his bail undertaking if he is not kept in custody.
The seriousness of the offence and the strength of the case against the applicant have informed my conclusion about flight risk. It is unnecessary for me to consider then whether other reasons concerning the serious nature of the alleged wrongdoing make a grant of bail inappropriate.
Other matters
Counsel for the applicant points to the advanced age and health issues concerning the applicant as other considerations counting against the refusal of bail in this case. I accept that the burden of incarceration on the applicant is likely to be greater than the burden experienced by a younger person who does not suffer from any significant health conditions. However, it has not been suggested to me that the Department of Corrective Services will not provide appropriate medical care for the applicant while he is in custody. Nevertheless, the age and health concerns of the applicant are factors which count towards the grant of bail.
It is also relevant that the proposed conditions would have the applicant residing outside of the State. I accept Ms Cheshire's submission that it is not impossible to grant bail for persons to reside interstate, but I also accept the submissions of Ms Gregory that there are practical difficulties in arranging for the police force of another State to monitor bail conditions. Ms Cheshire suggested that arrangements could be put in place for residence within the State, but it does not appear that those arrangements have yet been made.
In the end, I do not regard the difficulties as to where the applicant might reside if granted bail as being of great weight one way or the other in the exercise of my discretion.
I am also advised that it is likely that if the matter goes to trial, it will not be until July of 2015, and that length of time until trial is a factor which counts in favour of the grant of bail.
Exercise of discretion
Having considered all of the matters I have referred to, I have concluded on balance that bail should be refused.
In my view, the significant possibility that the applicant will not appear in court in accordance with his bail undertaking if he is not kept in custody and the serious nature of the alleged offence (the serious nature of the offence informing the risk of flight in the event that bail be granted) combine to provide a proper foundation for refusing bail. That consideration outweighs the matters concerning the applicant's age and health and the time to trial. For those reasons, I refuse to grant bail in this matter.
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