Criminal law - Bail - Serious offences - Exceptional reasons required - Strength of prosecution case - Delay - Health - Adverse impact on business

Bail Act 1982 (WA), s 14, sch 1 pt C cl 3A

Bertolami v The State of Western Australia [2009] WASC 269

Outman v The Queen [2001] WASC 162

The State of Western Australia v Oates [2004] WASC 214

Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303

1 HALL J: This is an application for bail under s 14 of the Bail Act 1982 (WA). On 3 March 2009 the applicant Colin Bradley Riley was arrested and charged with a number of serious offences (as defined in the Bail Act). At that time he was on bail in respect of other charges for serious offences that had been laid in May 2008. In these circumstances Mr Riley could only be granted bail on the new charges if there were exceptional reasons for granting bail and if bail could otherwise be properly granted having regard to the provisions of cl 1 and cl 3 of sch 1 to the Bail Act: cl 3A, Bail Act. Accordingly, from 3 March 2009 Mr Riley has been remanded in custody. He has applied for but been refused bail in the Magistrates Court.

2 The use of the word 'exceptional' in cl 3A implies that the reasons justifying a grant of bail in a case such as the present must be unusual or out of the ordinary or in some way special or an exception to the general run of cases: Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303. It is possible for a number of circumstances that are unexceptional when taken individually to amount to exceptional reasons when taken together.

3 It was submitted that the following factors in combination provided exceptional reasons for a grant of bail in this case:

1. the strength of the prosecution case;
2. the anticipated delay before the applicant is brought to trial;
3. the effect of incarceration on the health of the applicant; and
4. the effect of incarceration on the applicant's business.

4 The applicant has filed affidavits sworn by his solicitor, Mr Ash, on 24 November, 25 November and 30 November 2009. The respondent has filed an affidavit from Ms Petrusa dated 30 November 2009.

5 The charges against the applicant fall into three groups. The first group of charges alleges that on 6 May 2008 the applicant possessed a prohibited drug with intent to sell or supply. The amount involved in that possession was the subject of conflicting submissions at the hearing of this matter, but on any view it was a relatively small amount and less than 2 g. It would appear to follow from this that the allegation of an intention to sell or supply does not rely upon the statutory presumption arising from an amount possessed but is to be proven by evidence. There are also charges that on 6 May 2008 the applicant possessed unlicensed ammunition; carried articles with intent to cause fear; possessed a controlled weapon; and possessed stolen or unlawfully obtained property.

6 The second group of charges alleges that the applicant made offers to sell or supply a prohibited drug to another. I was advised that these charges are based upon intercepted telephone conversations and that the offences are alleged to have occurred in April 2008. There is no doubt that at least the charges relating to the drugs in the first and second groups, being charges under s 6(1) of the Misuse of Drugs Act 1981 (WA), are charges of 'serious offences' as defined in s 3 and sch 2 of the Bail Act.

7 It is alleged that on 3 March 2009 police attended at a house in Manning and executed a search warrant. The prosecution case is that the applicant was in attendance at those premises as were five other people. A search of the property resulted in the location of 31.4 g of methylamphetamine and pseudoephedrine spread across the floor in the kitchen; 10.8 g of methylamphetamine in a clipseal bag in the kitchen; 22 g of cocaine in the toilet; and 73.2 g of dimethyl-sulphone in the centre console of a vehicle parked at the house. Two handguns were also located, one in the house and one in the vehicle. The prosecution will allege that the applicant made admissions regarding the drugs and the guns and that he identified the dimethyl-sulphone as 'chop' (being a colloquial term used to refer to a cutting agent). In relation to these events, the applicant was charged with further offences including two charges of possession of a prohibited drug with intent to sell or supply. The drug charges are to be dealt with on indictment in the District Court. Those charges being further serious offences alleged to have been committed whilst the applicant was on bail, sch 1 pt C cl 3A of the Bail Act became operative.

8 The applicant's counsel submitted that the prosecution case on the 3 March 2009 charges was not overwhelming. It was submitted that the applicant intended to challenge the admissibility of the admissions said to have been made to the police on the basis that they were made only due to police coercion. It is not possible for me to determine whether that claim has any merit. It was also submitted that there was evidence that could be relied upon as suggesting that other persons present at the house were responsible for the drugs. In particular, it was said that DNA of another person was found on clipseal bags in the kitchen. It was also suggested that that person was in possession of electronic scales on which were found traces of drugs.

9 The respondent denies the suggestion in regards to DNA on clipseal bags in the kitchen area and points out that the strength of the prosecution case is substantially based on the admissions and the apparent knowledge of the applicant of the nature of the cutting agent found in the car. The respondent also submits that the challenge to the admissions is a recent claim and that there is nothing in the prosecution brief to support such a claim.

10 As it is impossible for me to make any assessment as to whether evidence will be found admissible or not, I can only determine the likely strength of the prosecution case on the basis of what is said to be the available evidence. On this basis it does not appear that there is any inherent weakness in the prosecution case. As to the suggestion that the prosecution case is 'not an overwhelming one' as I stated in Bertolami v The State of Western Australia [2009] WASC 269:

Even if this was a correct characterisation, a less than overwhelming case does not provide exceptional reasons to grant bail. If the prosecution case was a particularly weak one or there was a high probability of acquittal, the position might be different [16].

11 As to delay, the applicant referred to the fact that the first two groups of charges, which are being dealt with summarily, have been pending since May 2008. I understand that these matters have been set down for trial in June 2010. It is certainly true that those charges have been pending for a considerable time, but the reasons for the delay in those matters being finalised is not clear. In any event, the applicant was not initially remanded in custody on these charges and it was conceded on the hearing of the application that any relevant delay was that which had occurred since 3 March 2009 when the applicant was charged with the indictable matters and remanded in custody.

12 The period that has elapsed since 3 March 2009 is nine months. The applicant has now been committed for trial to the District Court on the indictable charges and the respondent submitted that it is possible to obtain trial dates within 2 - 4 months of first appearance in that court. If that is correct a trial in the first half of 2010 appears likely.

13 The applicant's counsel expressed the view that the prosecution was likely to wish to defer a trial of the indictable matters until after the summary charges are dealt with in June 2010. It was submitted that the prosecution would do this in order to seek to rely upon the evidence relating to those matters at a later District Court trial pursuant to s 31A of the Evidence Act 1906 (WA). The respondent's counsel said that no consideration had been given to this possibility.

14 At present, any future delay is speculative. I can, however, take into account any delay that has occurred to date. A period of nine months in custody is not insignificant. It is also appropriate to take into account the nature of the charges in respect of which the applicant has been remanded in custody. They are serious charges that carry significant maximum penalties on conviction, but they are not charges that could justify a long period of custody awaiting trial.

15 Delay may reach a point where to remand the accused in custody for further time would be inappropriate. Where delay has been a factor it is usually in circumstances where the accused has already been remanded in custody for an extended period: The State of Western Australia v Oates [2004] WASC 214.

16 In my view, it is impossible to predict with any degree of certainty when the indictable matters will come to trial. There would certainly appear to be a prospect of a trial in the early part of next year. If that were to occur, the delay, in my view, would not be inordinate. However, if substantial additional delay occurred that may constitute new circumstances which would justify a further consideration of bail under s 14(2)(a). I note in this regard that bail was granted in Outman v The Queen [2001] WASC 162 where the accused had spent 15 months in custody on drug charges.

17 As regards the applicant's health, medical records indicate that he has been morbidly obese since the age of 22. He also suffers from asthma, diabetes, hypertension, and hepatitis C. Clearly he is not a man in good health, but there is nothing in the medical records to suggest that his health is being adversely compromised by reason of his imprisonment. His health issues are all long-standing ones, the prison authorities are aware of them, and the records indicate that those conditions are being managed by the medical staff in the prison.

18 It was submitted that the applicant wishes to have gastric banding surgery to deal with his obesity. It is not possible to have such surgery whilst a remand prisoner. I am prepared to accept that such surgery may positively improve the applicant's health. However, that does not lead to a conclusion that he must be granted bail. There is nothing in the evidence to suggest that lap banding surgery is necessary to prevent a critical deterioration in the applicant's health. Nor is there anything that could lead me to conclude that it is the only option available to the applicant. Indeed, it would appear that the applicant is not presently a suitable candidate for such surgery.

19 As regards the applicant's business, the affidavit of Mr Ash of 30 November 2009 states that the applicant established a business called Boodiyah Nyoongar Art prior to his arrest in March 2009. It is said that the purpose of the business was to market the applicant's artwork as digital prints on canvas, posters, and postcards whilst retaining the original copyright.

20 The applicant has produced in excess of 50 artworks whilst in custody and now has a product range of in excess of 200 artworks. A website is in the process of being finalised and it is submitted that the applicant's liberty is required in order to ensure that the website is maintained and that the applicant can engage in marketing. Some examples of the applicant's artwork were tendered at the hearing of this application.

21 The evidence relating to this business was extremely limited. Clearly, being in custody has not prevented the applicant from producing artwork for his business. Exactly what marketing the applicant would engage in if released and why that activity was essential to the business was not explained. The respondent submitted that there was nothing to suggest that another person could not undertake marketing activities and monitor the website of the business. On the available evidence it is not possible to conclude that any business interests of the applicant are being significantly negatively impacted by his incarceration.

22 I have considered all of the factors in this case, both individually and in combination, and I am not satisfied that exceptional reasons exist for granting bail. In these circumstances, cl 3A requires that I refuse to grant bail.