Wilson v The State of Western Australia - [2014] WASC 508

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WILSON -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 508

CORAM: CHANEY J

HEARD: 10 APRIL 2014

DELIVERED : 10 APRIL 2014

FILE NO/S: MBA 42 of 2013

BETWEEN: ROBERT TROY WILSON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - Exceptional circumstances - Turns on own facts

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 3A

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr H Sklarz
Respondent: Mr D Krueger

Solicitors:

Applicant: Sklarz Lawyers
Respondent: Director of Public Prosecutions (WA)

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

Williams v The Queen [2001] WASC 308
CHANEY J:
(This judgment was delivered extemporaneously on 10 April 2014 and has been edited from the transcript.)

Mr Wilson applies this morning for bail in respect of six charges with which he currently stands charged and which will, in due course, be going to trial in the District Court later this year. Of those six charges, it seems that three of them are serious offences for the purposes of the Bail Act 1982 (WA).
This is the third occasion on which an application for bail has been made in relation to these charges. In October 2013, an application was made and refused by a magistrate in the Fremantle Magistrates Court. A subsequent application to this court was dealt with on 21 January 2014, in which Hall J concluded that exceptional circumstances had not been demonstrated and that bail should therefore be refused. The need for the establishment of exceptional circumstances arises because, at the time of the alleged offences the subject of the six remaining charges, the accused was subject to bail on a charge of unlawful wounding.
It is now necessary to consider whether or not there are new circumstances which have arisen since the decision by the court on 21 January 2014 to refuse bail. The need to consider that question arises because of sch 1 pt C cl 3A(2)(a) of the Bail Act, which provides that, where bail has been refused under cl 3A(1), which is the clause that applies when the alleged offences occur whilst on bail for another serious offence, an application may not be considered again unless the applicant satisfies the judicial officer that new facts have been discovered, new circumstances have arisen, or the circumstances have changed since bail was refused.
It is not an issue in this case that there is a new circumstance which has arisen for the purposes of that provision of the Schedule. The new circumstance is that, on 26 March 2014, Mr Wilson was acquitted of the unlawful wounding charge for which he was on bail when the alleged offences occurred. It has been recognised in previous decisions of this court that that development is relevantly a new circumstance which enlivens the capacity of the court to consider again an application for bail. The consequence of that is that the Court is required to consider the matters prescribed in cl 3A of sch 1 pt C of the Bail Act. That is a requirement that the court must be satisfied that there are exceptional reasons why the accused should not be kept in custody and that bail may properly be granted having regard to the general considerations in relation to bail.
In this case, the accused points to three exceptional circumstances upon which he relies. They are as follows:
(1)The acquittal that has occurred on the unlawful wounding charge.
(2)The likely delay until trial of remaining matters. The accused has been in custody since 4 October 2013, slightly in excess of six months. It is not expected that there will be a District Court trial on the remaining charges until the end of this year at the earliest.
(3)Matters personal to Mr Wilson, being:
(i)the need for him to care for his children because their present circumstances are unsatisfactory; and
(ii)his desire to provide care for his father.
Those matters were relied upon as exceptional circumstances when the matter was dealt with by the court on 21 January 2014. Justice Hall concluded that they did not amount to exceptional circumstances. There are, in the materials which have been provided through the affidavit of counsel, some additional matters which go to this question.
In relation to the situation with the children, it is said that the concerns which were expressed previously, namely that they are in inadequate accommodation and are being inadequately cared for by their mother, continue to apply. It is also said that the accused is in a position to offer much more satisfactory accommodation at his parents' home, which is where he would live were bail to be granted, and that the children would therefore be better off.
As I have stated, they were matters which were before Hall J and which he found were not sufficient to amount to exceptional circumstances.
The additional matter that has arisen is the evidence of the mother of the children at the trial of the unlawful wounding matter, that, at the time of the incident that formed the subject matter of the unlawful wounding charge, she was a drug addict using methylamphetamines, was drinking excessive alcohol, and had also worked as a prostitute. It is submitted by the State that, whilst that evidence was given, it was limited to her position at the time of that incident, and that she gave evidence that she had subsequently undertaken some counselling.
In my view, that additional material does not elevate this issue to an exceptional circumstance. There remains quite limited evidence as to the current arrangements for the children and, certainly insufficient evidence to reach a conclusion that they are not being adequately cared for by their mother or others. I would not consider that issue of itself to amount to an exceptional circumstance, even in light of the mother's evidence at the District Court.
In relation to the need to care for the accused's father, having looked at the material that was before Hall J and compared it with the material that is now put forward, the matter has been progressed slightly. The difference is that there is now an updated patient health summary document, which says, at least, that it was printed on 31 March 2014 and contains a handwritten annotation, apparently by a medical practitioner, which says that the accused's father has multiple chronic medical conditions and requires assistance with work around the house and garden.
That is the extent of the evidence on the point, other than the suggestion in the affidavit sworn by Mr Wilson's solicitor that the father suffers from asbestosis. That is borne out in the patient health summary, as it records amongst the list of medical conditions, asbestosis in 2000. There is no other evidence which suggests either the extent of the accused's father's needs in this respect or the need for the accused to personally be in a position to provide that assistance.
I have had the benefit of listening to certain telephone calls between the accused and his mother. She seems, on the basis of those calls, to be quite able. There is no evidence to suggest that there is any particular need for the accused to assist in relation to her husband's needs. I do not consider that aspect of the accused's personal circumstances to amount to an exceptional circumstance.
The matter of the acquittal on the unlawful wounding charge does not, of itself, amount to an exceptional circumstance. As was observed by Scott J in Williams v The Queen [2001] WASC 308:
[T]he original disposition of the earlier charges is irrelevant to that question, except to the extent that the disposition of that matter may form part of the applicant's antecedents [13].
It is the case that, when the matter was considered in January 2014, the accused had the spectre of that charge hanging over his head. He now does not have that hanging over his head. That makes his antecedents less serious than they might otherwise be, but it does not change or reduce the relevance of the criminal record, which includes the previous breaches of bail conditions and various drug‑related offences. The antecedents do not amount to a favourable basis for release on bail.
As to the delay in the matter going to trial, that is, of course, a matter of concern having regard to the fact that Mr Wilson has been in custody since 4 October 2013. It looks like, if bail is not granted, he is likely to spend another six months or so in custody awaiting trial.
In my view, that matter, whilst it is obviously of concern, is not sufficient to constitute an exceptional circumstance, either alone or in combination with the other matters that have been raised. It is an inevitable reality in the criminal justice system that getting to trial takes some time. No doubt there has been some delay by reason of the fact that there was another matter pending and having to be dealt with in March 2014, but I do not consider the fact that there is going to be lengthy delay to be an exceptional circumstance.
That is sufficient to dispose of the application for bail. Had I found that any of those matters did amount to exceptional circumstances, I would, of course, have been required to be satisfied as to the other matters referred to in sch 1 pt C cl 1 and 3. These include the likelihood that he may, if released on bail, commit further offences, endanger other parties, or interfere with the witnesses, having regard to the matters under sch 1 pt C cl 3, which include his history of previous grants of bail.
They are matters which I can say, on the materials which I have seen and particularly having regard to the contents of some telephone conversations which were provided by the State in opposition to this application, are matters which may have caused me some difficulty. But given that I have determined that exceptional circumstances have not been established, it is not necessary for me to express any views on those matters; nor is it necessary for me to express any views on the question of the strength of the prosecution case, which was not said in the oral submissions of counsel to be an exceptional circumstance, but it was mentioned in the written materials. It is sufficient to say that I do not accept that, on the face of it, the State's case is excessively weak, but it is not necessary for me to say any more on the subject.
For those reasons, Mr Wilson, I decline the application for bail.