Yanko v The Queen
[2001] WASC 114
•10 MAY 2001
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL |
| CITATION | : | YANKO -v- THE QUEEN [2001] WASC 114 |
| CORAM | : SCOTT J | ||
| HEARD |
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| DELIVERED | : 10 MAY 2001 | ||
| FILE NO/S |
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| BETWEEN | : WAYNE JOHN YANKO |
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Application for bail following revocation - Proof required of change of circumstance - Series of serious offences alleged whilst on bail - Test requires exceptional circumstances - Earlier application refused
Legislation:
Bail Act 1982, Schedule 1, Part B, cl 4
Result:
Application dismissed
[2001] WASC 114
Representation:
Counsel:
| Applicant | : | Ms V Amidzic |
| Respondent | : | Ms G A Archer |
Solicitors:
| Applicant | : | Amidzic & Co |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
R v Yanko [2001] WASC 1
Case(s) also cited:
Lim v Gregson [1989] WAR 1
WCVB v The Queen (1989) 1 WAR 279
[2001] WASC 114
SCOTT J
SCOTT J: On 19 December 2000 an order was made in the Supreme Court revoking the applicant's bail. Bail had been granted by the Court of Petty Sessions on 7 October 1999 and renewed in that court following a preliminary hearing which concluded on 21 November 2000. On that date, a committal order was made in relation to that initial charge.
By notice of motion of 23 April 2001, the applicant has sought orders to have his bail reinstated.
The first charge laid against the applicant, which was the subject of the committal, arose out of the alleged importation of a quantity of amphetamines into Western Australia. The quantity alleged was substantial so that the matter was a serious offence within the definition of that term in s 3 of the Bail Act 1982. A magistrate in the Court of Petty Sessions however, granted bail in relation to that charge.
The Crown applied to the Supreme Court to revoke that bail because following the committal order on that charge the applicant had been charged with a further four charges. Two of those charges are to be heard in the Court of Petty Sessions and are not of any significance in relation to the present application. The remaining two charges are of importance. Those two charges are:
(a) that between 31 January 2000 and 24 May 2000 the applicant conspired to manufacture amphetamines; and (b) that on 9 August 2000 the applicant possessed amphetamine with intent to sell or supply. Each of those charges is also a serious offence within the meaning of that term in the Bail Act.
When the original bail was revoked, this Court concluded that there was a real risk that the applicant might not answer bail. The reasons for reaching that conclusion were published on 10 January 2001 in R v Yanko [2001] WASC 1. It is not necessary to repeat any of those reasons here but there is no challenge to the conclusions that were then reached.
On 21 February 2001, the applicant applied for bail before Wheeler J in this Court. On that occasion the applicant was represented by senior counsel. Wheeler J, who delivered extempore reasons, said, after referring to the earlier reasons in R v Yanko (supra):
"I leave aside questions of variation of bail which I think need to be considered differently. Circumstances can change which may make a variation desirable and I don't think the same
[2001] WASC 114
SCOTT J
principle necessarily applies, but it cannot be the policy of the Bail Act that repeated identical applications should be made in relation to the same applicant on the same issues simply brought before different justices.
I don't intend to suggest there be any attempted abuse. I understand that the question of whether his Honour should hear this matter was raised with Scott J but nevertheless, it can't be the case that one can go from judge to judge of this Court, raising the same arguments.
So it seems to me that in relation to the decision which his Honour made, I ought not to arrive at a different conclusion unless I reach the view that the facts and circumstances put to me are materially different from those put to his Honour, that circumstances have changed, that the applicant didn't have an opportunity or didn't take advantage of an opportunity adequately to present a case for bail on the previous occasion."
Wheeler J rejected the application for bail.
When the bail was revoked originally, the committal proceedings on the first charge had not been heard and for that reason counsel was given liberty to have the question of bail revisited after the committal proceedings. Pursuant to that grant of leave, counsel for the applicant brought this further application.
Importantly, therefore, as a starting point, it must be borne in mind that the question of the applicant's bail now falls for consideration for the third time in less than five months before a Judge of the Supreme Court.
Clause 4 of Part B of Schedule 1 to the Bail Act provides:
"4
Notwithstanding cl 2, where a defendant has been refused bail for an appearance or has been granted bail therefore on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is coextensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefore if the defendant makes application and satisfies him that
[2001] WASC 114
SCOTT J
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance; (b) he failed to adequately present his case to bail on the previous occasion when it was considered; or (c) where bail was granted subject to a home detention condition, he has, since the previous occasion when his case for bail was considered, complied with the home detention conditions for a period of one month or more."
The matter of bail having been considered by Wheeler J on 21 February this year, and her Honour having determined that bail should not be granted, the applicant, therefore, has the obligation of establishing that either cl 4(a) or (b) applies to this case.
The applicant has provided to the court the committal papers on the original matter and the prosecution brief for the subsequent charges. Those matters not having been taken into account by Wheeler J, it is said that there are sufficient changed circumstances for the matter to be revisited. Alternatively, it is said that pursuant to the original liberty to apply, the matter can be determined afresh.
For the purposes of this application, in my view, it is not necessary to determine whether this is to be dealt with as a fresh bail application or whether, following the revocation of bail, the matter is being revisited under the liberty to apply order because, in my view, regardless of which way the matter is approached, the result of the present application is the same.
One further new matter needs to be mentioned, namely, that counsel for the applicant submits that two businesses previously run by the applicant are now on the verge of bankruptcy because of the applicant's incarceration. The applicant's wife has sworn an affidavit dated 19 February 2001 which deposes to the dire financial straits in which the applicant's two businesses find themselves. It is not necessary to repeat the details of that affidavit in these reasons. It is sufficient to say that there is evidence that these businesses are in danger of imminent closure if the applicant cannot return to his former occupation.
[2001] WASC 114
SCOTT J
A further affidavit has been filed on behalf of the applicant from a person with substantial assets who is prepared to pledge those assets in the sum of $300,000 as surety for the applicant to ensure that the applicant appears at his trial.
That offer by the proposed surety, which is undoubtedly substantial, is a matter to be taken into account in determining whether or not appropriate bail can be fixed. That is important because when the original decision was made to revoke bail, the applicant was seen as being a substantial "flight" risk due to his previous history whilst on bail and because of the serious nature of the charges that he faced. The matters concerning his history whilst on bail are contained in the reasons in R v Yanko (supra) and need not be repeated here. While some challenge was made by counsel for the applicant to the reasons in that earlier judgment, the fundamental facts have not been challenged and whichever way it is expressed the applicant went to the United Kingdom whilst on bail in February 1992. Whether the applicant returned to Australia voluntarily, or whether he returned because of the threat of extradition proceedings and the likelihood that he would remain in custody in the United Kingdom pending those proceedings, is not a factor of significant weight. The applicant did not return to Western Australia where the charges were pending, but went to Queensland to see his family. Again, whether he was extradited from Queensland to Western Australia or whether he returned to this State voluntarily knowing that a provisional warrant had been issued for his extradition is not a significant factor in determining whether bail should be granted on this occasion.
Counsel for the applicant maintains that the evidence against the applicant on the subsequent group of charges is not strong as it is based upon material obtained by the police with the use of a listening device. That the evidence against the applicant is based upon recorded phone calls is substantially correct and I have had the opportunity of considering both the audio recorded material on the CD ROM and the transcription of that material provided with the prosecution brief. Counsel for the applicant has made it clear that the applicant challenges both the authenticity of the recording and the identity of the voice alleged to be his. No doubt that will be a matter for consideration by the trial Judge in due course. There is, however, additional material apart from the audio recording which supports the prosecution case. That material needs to be considered in the light of the audio recorded material because, together, if accepted by a jury, there is evidence which could establish that the applicant was involved in the manufacture of amphetamines from Sudafed. In that respect I have listened to the CD ROM and to what is said to be the
[2001] WASC 114
SCOTT J
applicant's voice discussing what would appear to be an attempt by another to manufacture amphetamine from Sudafed in circumstances where the manufacture was substantially unsuccessful. In addition, Sudafed, is a drug from which a precursor to amphetamine can be extracted. Also, equipment suitable for the manufacture of amphetamine was found on the premises of one of the applicant's alleged accomplices. When those facts are considered in the light of the audio recorded material, which include the applicant's alleged comments concerning the unsuccessful attempt to manufacture amphetamine, then there is evidence from which a jury could conclude that the applicant was involved in the conspiracy to manufacture amphetamine on a significant scale.
In some respects it is unfortunate that this application for bail is being considered prior to the preliminary hearing on the new charges, which I am told is scheduled in the Court of Petty Sessions on 10 August 2001. The trial for the original charge is listed for trial in the Supreme Court commencing on 2 October 2001.
It is not disputed that whilst the applicant was on bail on the original charge and before the subsequent charges were preferred, he honoured his bail terms. It is submitted on his behalf that, notwithstanding the subsequent charges he would both honour the terms of bail and refrain from committing further offences.
All of these matters need to be taken into account in evaluating whether the applicant has demonstrated sufficiently changed circumstances to justify revisiting the matter determined by Wheeler J on 21 February last. In my view, the matters that are said to constitute changed circumstances are marginal only and would not have made a significant difference had they been placed before Wheeler J on that occasion. If that is not the correct test in these circumstances then, even looking at the matter ab initio, I am not persuaded that sufficiently exceptional circumstances have been demonstrated to justify the grant of bail in these circumstances, particularly where it is alleged that serious offences were committed whilst the applicant was already on bail for a serious offence. There is no material placed before me which could lead to the conclusion that the original assessment that the applicant was a risk of flight has changed. In addition, having listened to the CD ROM, there is, in my view, a real risk that the applicant may continue with his alleged involvement in the criminal trafficking in drugs if he was released to bail.
| 21 | In all the circumstances therefore, I am not persuaded either that the circumstances have changed substantially from when the matter was heard |
[2001] WASC 114
SCOTT J
by Wheeler J, or that exceptional circumstances have been demonstrated
of such a nature as to justify the grant or reinstatement of bail.
The application will be dismissed.
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