Wright v Reedy
[2005] WASC 282
•22 DECEMBER 2005
WRIGHT -v- REEDY [2005] WASC 282
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 282 | |
| 22/12/2005 | |||
| Case No: | SJA:1086/2005 | 30 NOVEMBER 2005 | |
| Coram: | JENKINS J | 30/11/05 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Application for forfeiture of amount agreed to be forfeited in bail undertaking remitted to Broome Magistrate's Court to be heard according to law | ||
| B | |||
| PDF Version |
| Parties: | GENE ALEXANDER WRIGHT JAMES TRINITY REEDY |
Catchwords: | Criminal law Bail Forfeiture of amount agreed to be forfeited in bail undertaking Magistrate's failure to make necessary findings of fact Insufficient evidence to support Magistrate's decision to refuse to order forfeiture |
Legislation: | Bail Act 1982 (WA), s 51(2), s 57, s 57(1), s 57(2), s 59 Criminal Appeals Act 2004 (WA), s 14(3) Criminal Procedure Rules 2005 (WA), r 65(6), r 67, r 67(1), r 67(4) Interpretation Act 1984 (WA), s 56(2) Restraining Orders Act 1997 (WA), s 61(2)(a) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JAMES TRINITY REEDY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE A L BLOEMEN
File No : BM 1377 of 2005
Catchwords:
Criminal law - Bail - Forfeiture of amount agreed to be forfeited in bail undertaking - Magistrate's failure to make necessary findings of fact - Insufficient evidence to support Magistrate's decision to refuse to order forfeiture
(Page 2)
Legislation:
Bail Act 1982 (WA), s 51(2), s 57, s 57(1), s 57(2), s 59
Criminal Appeals Act 2004 (WA), s 14(3)
Criminal Procedure Rules 2005 (WA), r 65(6), r 67, r 67(1), r 67(4)
Interpretation Act 1984 (WA), s 56(2)
Restraining Orders Act 1997 (WA), s 61(2)(a)
Result:
Appeal allowed
Application for forfeiture of amount agreed to be forfeited in bail undertaking remitted to Broome Magistrate's Court to be heard according to law
Category: B
Representation:
Counsel:
Appellant : Mr R A Vines
Respondent : No appearance
Solicitors:
Appellant : State Solicitor's Office
Respondent : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
- JENKINS J:
The Decision under Appeal
1 This is an appeal from the decision of a Magistrate sitting in the Magistrates Court at Broome on 1 August 2005 on prosecution notice number BM1377 of 2005, being one count of breach of bail. The appeal is against the Magistrate's decision, after convicting and fining the respondent, to refuse to order forfeiture of the amount agreed to be forfeited in the respondent's bail undertaking.
Absence of the Respondent
2 The respondent did not appear, either personally or by counsel, at the hearing of the appeal and has not filed a notice of respondent's intention to appear pursuant to the Criminal Procedure Rules 2005 (WA) ("the Criminal Procedure Rules"), r 67. The issue is whether the appeal should proceed in the absence of the respondent.
3 The notice of appeal, dated 26 August 2005 was personally served on the respondent on 2 September 2005 at 5/14 Rodriguez Road, Cable Beach. This service was in accordance with the Criminal Procedure Rules, r 65(6).
4 By orders dated 6 September 2005, McKechnie J ordered that the appellant serve an entry for hearing on the respondent. The appellant sent, it seems by ordinary post, a copy of the entry for hearing form to the respondent at 5/14 Rodriguez Road, Cable Beach. I am told from the Bar table that that letter was not returned to the appellant.
5 The court also wrote to the respondent on 2 November 2005, at that same address, to advise him of the date for this hearing. That letter has not been returned to the court.
6 The Criminal Procedure Rules, r 67(1) provides that on being served with an appeal notice, a respondent may lodge a form 22 being a notice of respondent's intention. That form must be lodged within seven days after the date on which the respondent is served with the appeal notice. Rule 67(4) states:
"If a respondent does not lodge a Form 22 within the 7 days or any extension of that period ordered by the court, the
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- respondent is not entitled to take part or be heard in the appeal and is not a party to the appeal for the purposes of these rules."
7 As the respondent has not filed a form 22 and has not sought an extension of time in which to do so he is not entitled to be heard on this appeal. Consequently I may hear this appeal in the absence of the respondent. Indeed, according to r 67(4) the respondent is not a party to this appeal.
8 The court is keen to ensure that the respondent be given every opportunity to be present for the hearing of the appeal. In this case I am satisfied that all reasonable steps have been taken to advise the respondent both of the appeal and of the hearing date. I am satisfied that it is now appropriate that the appeal be heard and determined in his absence.
9 I note that the final orders requested by the appellant, if granted, will result in this matter being returned to the Magistrates Court to be redetermined. If that order is made, hopefully the respondent will be able to be heard at the rehearing of this matter.
Ground of Appeal
10 There is one ground of appeal which states:
"The Magistrate erred in law in that he failed to order forfeiture of the respondent's bail undertaking when there was no evidence before the court that the Respondent's circumstances had changed since he entered into the undertaking, and no consideration given to the exercise of powers under section 59 of the Bail Act 1982."
Details of the Charge and Proceedings
11 The prosecution notice alleged that on 10 June 2005 the respondent, without reasonable cause, failed to appear at the Bunbury Magistrates Court and failed to appear as soon as practicable thereafter, such appearance being a requirement of a bail undertaking entered into by him on 12 April 2005, contrary to the Bail Act 1982 (WA) ("the Bail Act"), s 51(2).
12 The respondent pleaded guilty to this offence. After the prosecutor recited the facts and counsel made a plea in mitigation the Magistrate ordered that the respondent be placed on a conditional release order for
(Page 5)
- 10 months and fined him $300. The Magistrate refused to order that the respondent forfeit the amount agreed to be forfeited in the bail undertaking.
13 On the same date the respondent pleaded guilty to a charge of breaching a police order made under the Restraining Orders Act 1997, s 61(2)(a). The same penalty was imposed in respect to that breach of the police order.
14 The facts of the breach of bail offence are that on 12 April 2005 the respondent appeared in the Magistrates Court in Bunbury in respect to the charge of breaching the police order. He had failed to appear in respect to that charge in the Bunbury Magistrates Court on 8 April 2005 and a bench warrant had been issued for his arrest.
15 On 12 April 2005 he was remanded to appear in the Bunbury Magistrates Court on 17 May 2005 and fresh bail was ordered requiring the respondent to enter into a personal undertaking to comply with the bail or forfeit $1,000. The respondent by his plea admitted that he had entered into that bail undertaking. He appeared in the court on 17 May 2005 and he was then remanded to appear on 10 June 2005 in the Bunbury Court. His bail was enlarged to that date.
16 The respondent failed to appear in the Bunbury Court on 10 June 2005 and a bench warrant was issued for his arrest. On 30 July 2005 he was arrested in Broome. It seems that the respondent pleaded guilty to the charge of breach of bail on his first appearance in court on that charge which was 1 August 2005. After stating the facts, the prosecutor asked for an order for forfeiture of $1,000, being the amount that the respondent had agree to forfeit in his bail undertaking.
17 The respondent's counsel told the Magistrate that after a domestic incident on 30 March 2005, which led to the charge of breaching the police order, the respondent had nowhere to stay in Bunbury and was evicted from his house. He then moved to Broome. The respondent apparently thought that the charges had to be determined in Bunbury. Counsel made the following submission in respect to the respondent's then personal circumstances:
"… he is in receipt of a disability support pension. He does have two children up here. They don't reside with him, but he does have contact with them. And he's also been able to pick up
(Page 6)
- a bit of work at the races recently, as well. His normal work is security and crowd control. He has also spent two nights in custody, sir. Taking into account his short record and that this offence is towards the lower end of the scale, perhaps a fine is an appropriate way to deal with these matters today, sir."
18 The Magistrate then said:
"Having taken into consideration your record, which is very short, I will place you on a 10-months' community release order in relation to the failing to appear and the sum of $300. In relation to the charge of bonded by police, there will be an order- --order of 10-months' community release order and the sum of $300."
19 The prosecutor then reminded the Magistrate of the application for forfeiture. The Magistrate said:
"I'm not prepared to do that, sergeant, taking into consideration the short duration he has on the record."
20 The prosecutor told the Magistrate that he did not believe that the Magistrate had a discretion. After apparently checking the relevant section of the Bail Act, the Magistrate replied:
"I do have a discretion under the section, sergeant. And it says, section 51 subs(1), there's 51---yes. But I do have a discretion so I won't make the order."
21 This appeal turns on the construction of the Bail Act, s 57, and whether the Magistrate erred in law in not considering the terms of that section, and finally whether there was material before the Magistrate that justified the decision he made. The Bail Act, s 57(1) and (2) states:
"57. Forfeiture of money under bail undertaking
(1) Where an accused is convicted of an offence against section 51(1), (2) or (2a), the court by which he is convicted shall, whether or not an application is made therefor by the prosecutor, order that the full amount agreed to be forfeited, in the accused's bail undertaking, be forfeited to the State.
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- (2) Notwithstanding subsection (1), the court may decline to make an order thereunder or may order forfeiture in part only where the accused shows to the satisfaction of the judicial officer –
(a) that, by reason of a change of circumstances since the bail undertaking was entered into, an order for forfeiture, or for forfeiture in full (as the case may be), would cause excessive hardship to the accused or his dependants; and
(b) that such hardship would not be relieved by the exercise of one of the powers conferred by section 59."
"59. Further power of judicial officer in relation to enforcement of undertakings
A court or an appropriate judicial officer who makes an order for forfeiture under section 49 or 57 may, when doing so, or at any time thereafter, further order –
(a) that payment of any sum be made by specified instalments or be postponed to a specified date;
(b) that any security given be applied in or towards payment of the sum forfeited; or
(c) that the accused or the surety, as the case may be, do all such things and execute all such documents as may be necessary, or as may be specified in the order, for the purpose of vesting any security in the State or enabling the State to realize the same or to resort thereto to recover the sum forfeited,
and the court or an appropriate judicial officer may at any time vary or revoke an order made under paragraph (a), (b), or (c)."
(Page 8)
23 The appellant also relies upon the Interpretation Act 1984 (WA), s 56(2) in respect to the meaning of the word "shall" in the Bail Act, s 57(1). Section 56(2) states:
"Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed."
24 Thus a Magistrate must order forfeiture of the amount agreed in a bail undertaking to be forfeited by an offender found guilty of an offence under the Bail Act, s 51(2) unless the two conditions in s 57(2) are met. Those two conditions require that the Magistrate must be satisfied first, that by reason of a change in circumstances since the bail undertaking was entered into an order for forfeiture would cause excessive hardship to the accused or his dependants and, secondly, that such hardship would not be relieved by the exercise of one of the powers conferred by s 59.
25 His Honour's comments indicate that he declined to order forfeiture by reason of "the short duration he has on the record". This reason, whatever it means, does not meet the requirements of the Bail Act, s 57(2). After being referred to the relevant provision in the Bail Act, his Honour simply said that he exercised his discretion not to grant forfeiture without giving further reasons.
26 I am satisfied that the Magistrate erred in law in failing to make the findings of fact that were required before he could decline to order forfeiture. He did not make any reference to the statutory test. The only reason he gave for his decision was irrelevant to those tests.
27 However, the Criminal Appeals Act 2004 (WA), s 14(3) states:
"(3) The Supreme Court is not required to set aside or vary a decision of a court of summary jurisdiction because the court omitted to make any necessary finding of fact if the facts or evidence –
(a) in substance support the decision; or
(b) justify the finding,
and the Supreme Court, under subsection (1), may instead either vary the decision or substitute another decision for it."
(Page 9)
28 The appellant's ground of appeal therefore must, and does, go one step further and say that the Magistrate erred in that he exercised his discretion to order forfeiture in the absence of any evidence before him that could have justified him exercising the discretion not to order forfeiture.
29 In summary, the most beneficial view of the respondent's counsel's submissions is that prior to entering into his bail undertaking the respondent had been living in Bunbury with his fiancée, that he suffered from a mental illness for which he was taking medication, that he was on a disability support pension, that he had been having relationship problems, and that he had a short criminal history. Further, since entering into the bail undertaking the respondent had separated from his fiancée, he had been evicted from his house in Bunbury, he had moved to Broome where he had contact with his two children and where he had been able to pick up some work.
30 In my view, there was insufficient material before the Magistrate to enable him to be satisfied of the matters contained in s 57(2). There were no submissions directly addressed to the issue of hardship. The Magistrate was entitled to draw inferences from what he was told about the respondent's personal circumstances. However, given that the Magistrate was told that the respondent was on a pension, that he had also been able to find some work in Broome and that the Magistrate received no other submissions on the respondent's then financial circumstances, there was insufficient material before him from which he could have legitimately drawn the necessary inferences that would have warranted him or justified him refusing to forfeit the bail undertaking.
31 In terms of the Criminal Appeals Act 2004 (WA), s 14(3), I am satisfied that there was insufficient material before the Magistrate to "in substance support the decision" not to order the forfeiture of the bail.
32 I appreciate that ultimately the decision to order forfeiture is a discretionary decision and that an appeal should not be allowed simply because the appeal Court would have exercised the discretion in a different manner. However, the Magistrate's discretion must still be exercised according to law. In my opinion, the Magistrate failed to exercise his discretion according to law in that not only did he fail to make the requisite findings of fact, but there was also insufficient material before him to "in substance support his decision".
(Page 10)
33 The appellant has made out the ground of appeal. Arguably, as the respondent was represented by counsel before the Magistrate and had the opportunity to put all relevant matters before the Magistrate, the decision of the Magistrate ought to be quashed and in substitution therefor an order for forfeiture and payment over time ought to be made. However, the appellant is content for the matter to be remitted to the Magistrates Court in Broome to be heard according to law. In my view, this is a very fair result for the respondent who will then have a further opportunity to persuade the Magistrate to exercise the discretion not to order forfeiture of the amount agreed to be forfeited.
34 I will hear counsel for the appellant as to final orders.
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