MATTER : The Bail Act 1982 (as amended)

Criminal law and procedure - Bail - Offence of conspiring to commit fraud - Question of flight risk - Delay to trial - Conditions for grant of bail

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

Dabag v The State of Western Australia [2005] WASC 22

KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988)

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

Saka v The Queen [2001] WASC 92

The State of Western Australia v Sturgeon [2005] WASC 256

SIMMONDS J: (These reasons were delivered at the hearing and are edited from the transcript).

1 I will now indicate my reasons for the determination of this application at which I have arrived. This is an application to grant bail to the applicant who faces a charge under Criminal Code (WA) (Code) s 558(1) of conspiracy to commit the indictable offence under Code s 409 of the commission of fraud. The prosecution opposes the grant of bail and on 1 February 2010 a magistrate refused the applicant's application for bail.

2 However, the Bail Act 1982 (WA) (the Bail Act) makes it plain through s 14(1) read with s 14(2) and s 14(4)(b)(i) that I have the jurisdiction to grant bail for an appearance notwithstanding that refusal. Furthermore, it is clear on the authorities as well as on the Act that my jurisdiction to grant bail is an original jurisdiction and the discretion to grant or refuse bail is to be exercised without regard to prior refusal. At the same time the Bail Act permits me to take account of information from any source and that includes information that may, or indeed may not, have been before the magistrate on the prior occasion.

3 I turn then to the approach to the exercise of the jurisdiction to grant bail that I should follow. The Bail Act provisions here guide this process. They are in sch 1 pt C cl 1 and cl 3. In cl 1(1) I particularly note (a)(i) and (ii), (c), (e), (f) and (g). Clause 3 is directed to (a) of cl 1 and so I should refer in particular to that paragraph since, on the submissions made to me by both counsel, it looms particularly large in my deliberations.

4 Paragraph (a)(i) and (ii) says, reading these together with the introductory words in cl 1(1):

Subject to clause 3A and 3E - [neither of which has application here] the grant or refusal of bail to an accused, other than a child who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that jurisdiction shall be exercised having regard to the following questions as well as to any others which he considers relevant -

(a) whether, if the accused is not kept in custody, he may -

(i) fail to appear in court in accordance with his bail undertaking;

(ii) commit an offence.

5 The particular emphasis was on (a)(i) although I also considered that there was some reference to (a)(ii) as well.

6 Clause 3, to which I referred, tells me as follows:

In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant -

(a) the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;

(b) the character, of previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;

(c) the history of any previous grants of bail to him; and

(d) the strength of the evidence against him.

7 I note immediately that the offence with which the applicant is charged is not a 'serious' offence within Bail Act sch 2. I did not understand counsel for the respondent, the state to be putting to me that the alleged circumstances of the offence or offences amounted to wrongdoing of such a serious nature as to make a grant of bail inappropriate (see sch 1 pt C cl 1(g)); but counsel for the respondent was putting to me that the offences were serious ones of their kind and needed to be weighed carefully because of cl 3(a).

8 There is, in my view, little doubt that the offences in this case are, if this may be expressed at such an early stage in the development of the case against the applicant, ones of relative seriousness for offences of this kind. This has a number of implications relevant to me. The first of these has to do with the probable method of dealing with the accused for the offence if he is convicted of it, and I stress the conditional.

9 The other relevant aspect has to do with features of the probable sentencing option - as I am inclined to think, notwithstanding the antecedents of the applicant, it is capable of recognition as such, even at this early stage - of a custodial sentence. I stress, however, the early stage in the process involved here, ahead indeed of a committal hearing and ahead of further events which I will reach shortly. If a custodial sentence is provided for, questions would arise of its possible suspension. Subject to those there is the prospect of an immediate term of imprisonment of some significance. At the same time I am inclined to the view that the probable term - and again this is an extremely difficult prediction to make - would not be at the top end of the relevant range. More than that it is hard for me to say.

10 I turn then to the general principles applicable to a grant of bail. It did not seem to me there was any contest about those. I recently reviewed them in Dabag v The State of Western Australia [2005] WASC 22 [13] - [15] and I would not repeat here what I said other than to stress part of the judgment of Nicholson J in KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988) a decision which continues to be referred to in authorities in this state, such as Saka v The Queen [2001] WASC 92 and The State of Western Australia v Sturgeon [2005] WASC 256. There Nicholson J expressed the view that it is well established, prima facie, a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge, to which I would add the other matters, I have indicated by reference to sch 1 pt C cl 1 which, as will appear, assumed some significance in this case.

11 I turn then to the circumstances of this case. The charge the offender faces carries a maximum penalty, if prosecuted, on an indictment of imprisonment for one half of the maximum term (7 years), that is allowed for prosecution on indictment for the offence under s 409. That is to say, the maximum term the offender faces is 3 1/2 years. On the statement of the material facts annexed to the affidavit of the applicant sworn 9 February 2010 the prosecution arises out of the compromising of EFTPOS equipment at a number of McDonald's restaurants in metropolitan locations in Western Australia.

12 Over the period 10 September 2009 - 2 October 2009 PIN pads with skimming devices were installed replacing the PIN pads on equipment handed over when a meal was purchased and paid for, in the drive-through at the McDonald's restaurants. Skimming devices associated with the PIN pads included what appears to have been transmission equipment, from what I was shown as photographs of the replacement PIN pad equipment. This replacement enabled those involved in the offending to obtain financial information from the use by customers afterwards of the compromised PIN pads.

13 That information was taken from the encoded magnetic strip on cards used by the customers to pay for their purchases together with the PIN code those customers supplied. This data was then encoded at least in a number of cases on to the magnetic strips of blank cards and the cards used to make withdrawals from ATMs located in New South Wales and Victoria in this country as well as Canada, England, Malaysia and India. Fraudulent withdrawals were in excess of (in Australian funds) $4.5 million and caused losses to a number of financial institutions in this country. On the allegations - and they are of course at this stage allegations not proven to the criminal standard - the offending in this case was co-ordinated, it was sophisticated, it had a substantial financial impact and it involved a significant measure of international activity.

14 It is alleged that the first compromised PIN pads were stolen in New South Wales apparently from McDonald's outlets there and brought to this state by those involved in the offending. I was informed at the proceedings before me today that that was an important part of the offending because of the supplier-specific character of the EFTPOS equipment. To put it more straightforwardly, only McDonald's equipment could be used at a McDonald's restaurant but such equipment could be used in McDonald's restaurants other than the one from which the equipment was taken.

15 A number of compromised PIN pads were located at McDonald's restaurants in Perth and, together with receipts signed at the time the compromised PIN pads were installed, they were forensically examined. A number of latent fingerprints were identified.

16 I turn then to the applicant. The applicant is a UK national who was employed in that country where he lives with his wife and two school-aged children. He was identified as having travelled to Australia on five occasions since August 2008.

17 On one of these occasions he visited this state twice and was in this state on 11 September 2009 and 27 September 2009; whether this was on the same trip or two different trips was not altogether clear to me. On both of these dates compromised PIN pads were installed in McDonald's restaurants. On the later occasion, 27 September 2009, a compromised PIN pad was installed in a McDonald's restaurant in a southern suburb. At the time of the installation a hired motor vehicle was captured on closed circuit television, a motor vehicle which had been hired by the applicant from a hire car company at Perth International Airport.

18 Copies of the applicant's fingerprints were obtained from the UK for comparison with latent fingerprints from the crime scenes and a positive match to the applicant was made with a latent fingerprint from a receipt generated about two weeks before the footage of 27 September 2009. I was informed as well at the application before me today that the footage from 27 September 2009 also makes it possible to recognise a person corresponding with the applicant's description.

19 The applicant was arrested in Sydney in a flat where some tools and EFTPOS machines were located. I was informed today that a fingerprint of the applicant, or at least one on which a match to the fingerprints of the applicant was obtained, was located on a Toshiba laptop computer. Fingerprints of the applicant, however, have not been identified on any of the EFTPOS equipment used in the fraud, on any of the EFTPOS equipment in the flat or any of the tools, apparently being those located in the flat.

20 No date for a trial in this matter has been fixed. Indeed as it is common ground the investigation is still ongoing. Perhaps the clearest indication of that is there are significant further charges which may well be laid against the applicant. Charges have also been laid against an alleged co-offender.

21 The difficulty that this creates for the purposes of the present application before me is the following, and both counsel were specifically asked to comment upon this. It is that a trial, apparently in the District Court, is still some little time away. On the estimate, which I am prepared to accept is a not unreasonable one, the minimum duration or delay before trial is 12 months.

22 The applicant went into custody on 23 December which would mean that he is looking, if not released from custody, at being in custody for a period a little over 13 months. There is always the chance it will be less; there is also, however, the chance that it will be greater, by virtue or the factors that I referred to earlier having to do with investigation and additional charges.

23 The bail application before me today is one in which, I was informed by counsel for the applicant, the applicant has indicated he would submit to appropriate conditions including ones of some stringency, including specifically a personal undertaking, a surety, that the applicant would live at a stipulated address in Perth, significant reporting obligations and that he would not approach an airport. The applicant's passport has already been surrendered by his counsel. This is not, his counsel indicated, intended to be an exhaustive catalogue of the conditions that the applicant was prepared to submit to.

24 At the hearing before me counsel for the state contended that there is a very high, indeed an unacceptable risk, that the accused, if allowed bail, would fail to answer to it. Heavy reliance is placed on a number of factors.

25 The first of these is the applicant has no connection to this state other than, I am satisfied, by reason of familiarity he has with a person who has indicated a preparedness to accommodate the applicant if he were granted bail. That person, however, as counsel for the state properly points out, has a relatively slight acquaintance with the appellant to the point of not having understood where it is that the appellant regularly lives.

26 In addition, as counsel for the respondent points out, the appellant's family connections in the form of his wife and his children are with the United Kingdom and the only family connections with this country appear to be relations on his wife's side in Sydney, principally a married woman there.

27 In addition counsel for the respondent emphasises the international travel patterns of the applicant which include the trips to Australia that I have previously referred to, but go beyond that, to include a substantial amount of international travel, the subject of a document provided to me at the application for bail, which occasioned an adjournment to permit the counsel for the applicant to discuss the document with her client. This was international travel from 15 January 2006 - 25 November 2009, showing over that period voyages of substantial distance originating, as best I can tell, predominantly from London, Heathrow but also from Gatwick and terminating in destinations including Chennai, Sydney, Melbourne and Dubai, to name the apparent principal ones.

28 This pattern of travel, counsel for the respondent indicated, was one that was difficult to accept as being simply that of a person touring or meeting family obligations and was particularly difficult to accept on financial information concerning the resources and income of the applicant addressed in a witness statement of a police officer involved in the investigation of the offending.

29 Counsel for the applicant pointed out to me that her client has an explanation for much at least of this international travel in terms of a family bereavement which required him to travel to satisfy family and religious obligations.

30 The duration of the travel period does, it seems to me, somewhat exceed the period she mentioned of about a year but I am satisfied that a significant portion of the travel can be so explained on the material before me. Perhaps of greater moment to me, the applicant's financial position appears to be somewhat less straitened than that which might emerge from the police officer's witness statement, by reference to rental income and by the quantification of the income of his wife.

31 Further, the class of the travel referred to by counsel for the respondent, business class, for the most part at least, I understood could be explained by reference to upgrades using frequent flyer entitlements, and at this point, on the evidence I have before me, that does not seem to me to be an unduly unbelievable explanation. The basic fares also were said to be quite cheap and various amounts were referred to in that regard.

32 Counsel for the respondent also emphasised the strong circumstantial case which was said to emerge from the material to which I have already referred. The circumstantial case is, of course, just that. It is at a relatively early stage of development. It is difficult for a judge in my position to say anything more about that case than to assess whether or not it would merit a description in terms of weak, moderate or strong. In my view it is not a weak case. It is not the strongest, however, that might be imagined. The lack of forensic evidence of the kind I have described would, it seems to me, be the principal reason for that conclusion. However, it is not an insignificant case.

33 I also must note that the applicant has no criminal record in this country or overseas.

34 Counsel for the applicant, quite properly, referred me to the time the applicant would expect to be kept in custody until trial if he were not granted bail, and I have already referred to that period. There are two principal decisions, as I understand the other authorities in this state, on the matter of delay in custody until a person is tried on charges they are to face.

35 Those principal authorities are the Saka decision I have referred to earlier, of McKechnie J, particularly at [38] - [40]; and, perhaps most directly of assistance to me, there is Oates v The State of Western Australia [2004] WASC 214. There the applicant faced 15 counts on indictment including a charge of conspiracy to defraud under the former Code, s 412 where he had limited connections to Australia, he had already spent 16 months in custody in Australia following some months in Poland awaiting the outcome of extradition proceedings, and where the expected delay to trial meant that, including the time in custody in Australia, he was looking at spending 2 1/2 years in custody. I immediately add that those kinds of delays substantially exceed anything that was suggested to me the applicant faces in this case.

36 However, of importance from Oates and of importance from Saka, to which Roberts-Smith J referred in Oates, is the strong indications in both judgments that where the expected time in custody of an accused exceeds 12 months, the concern of the court for the duration of that custody is enlivened. The judgments also discussed the extent to which other matters might outweigh the concern for that period and thereby result in a denial of bail. The period here is in excess of 12 months and counsel for the respondent accepted that on those authorities there was a concern the court could have that it was appropriate he address.

37 The address was in terms of the flight risk that I have previously referred to and for that purpose it is perhaps as well that I refer to what his Honour Roberts-Smith J said in Oates in determining in that case that he would grant bail but on stringent conditions. What he said in [38] - [41] was as follows:

What is apparent from the passages I have just quoted from the judgment of Miller J in December last year is that the accused had lived in Poland since 1991 where his wife is, and his family links in Australia are not sufficient to require him to remain in Australia should he feel pressured otherwise to avoid trial by remaining out of the country.

In my view, that remains the position. Furthermore, I accept the submission of Mr Hall that there is now a very powerful incentive for the accused to abscond from Australia and return to Poland, and that is because the extradition agreement between Australia and Poland contains certain limitation provisions which, applied to the circumstances of this case, would mean that the relevant limitation periods in Poland would have expired so as to render it impossible for him to be extradited from Poland back to Australia now should he leave this country and return there.

Despite that though, for the reasons I have already expressed, I consider the factor of delay before the accused's retrial with the unacceptably long period of time he would have served in custody by then to outweigh those factors militating against the grant of bail. Whilst I accept that if the flight risk is so great as to be unacceptable or is, to use Mr Hall's expression, 'real and unanswerable', delay can never prevail over it, that proposition must be considered in the context to which I have already referred as articulated in Mokbel.

The proposition, baldly expressed, must be correct, but I have come to the conclusion that although I believe there to be an appreciable risk the accused might seek to return to Poland, I do not regard it as so great as to outweigh the factor of delay having regard to the stringent conditions which I am presently minded to impose.

38 I consider in this case that there is indeed an appreciable risk that the applicant might yield to the temptation to seek to return to the United Kingdom and that from there he might indeed proceed to a number of places, including ones in respect of which perhaps extradition could be less clearly established. However, it seems to me it is the flight risk of any kind that is my principal concern. I say that there is an appreciable risk, given the travel patterns that I have referred to, the lack of connection to Western Australia and the limited connection to this country, together with the seriousness of the offence here, particularly for a person who does not have a criminal record.

39 At the same time, in weighing that risk I note that it is not of the same order as in Oates. Further, I have noted the explanation of the prior travel patterns, although I consider those patterns indicate that the applicant is a person familiar with the way in which international travel can be arranged and indeed had then the means to undertake such travel. It was put to me by counsel for the respondent that I should infer in all the circumstances that the travel was indeed facilitated by alleged co-conspirators but I do not consider the circumstantial evidence is at all substantial in that regard, particularly having regard to the new material I have had placed before me as to his means. That is not to say that the travel was not so facilitated, simply that I do not weigh that suggestion in my deliberations.

40 The counsel for the respondent also put to me that I should take account particularly of the co-accused and the travel document which he had that was false, together with, I took it, the computer expertise and the like which might enable the production of substitute false travel documents to facilitate travel by the applicant. However, for the same reasons as in respect of the facilitation of travel, I consider the evidence to be extremely weak in terms of access to facilitation of this kind again, without suggesting that it simply could not occur. It does not, however, in my view, have a significant role to play in my deliberations.

41 On balance, weighing all of these matters, I would, like Roberts-Smith J in Oates, be prepared to grant bail. I do so, however, having regard to the conditions that I would impose. I note that as the flight risk in this case is less, not only is the factor tending against the grant of bail less intense without being insignificant, it also affects the level of the stringency of the conditions. I nonetheless have been guided by the conditions that his Honour would have imposed.

42 It seems to me that I must particularly allow for the fact that I am dealing with a person with no financial connections to this state and where the conditions are to be ones that would be addressed particularly to a flight risk. The conditions I would impose are of the same seven kinds as in Oates at [42]. I would be looking to a personal undertaking of the Australian dollar equivalent at current exchange rates today of £100,000 to reflect a reasonable buffer for what the applicant says is his equity in his property in the United Kingdom as condition 1. I would also look for a cash surety in an amount in the order of £20,000. That surety in cash might indeed entail the raising of funds overseas.

43 Condition 2 will be that there be a surety from the relation in New South Wales, the wife referred to, in the amount of $100,000 with security for that obligation to be provided in that sum for the performance of the surety's obligations in compliance with cl 1(2)(e) of pt D of sch 1 of the Bail Act so as to render any security effective and enforceable by the state.

44 Condition 3 is that the accused not be in possession of and not seek to obtain a passport, whether an Australian passport or that of any other country.

45 Condition 4 is that the applicant reside at the facility the subject of the document provided to me for the purpose of the bail hearing today.

46 Condition 5 is that the applicant report daily to the nearest 24-hour police station at a time falling between 10 am and 12 noon.

47 Condition 6 is that the applicant not contact directly or indirectly any prosecution witness in this matter.

48 Condition 7 is that the accused not be within 1 km of any point of international departure.

49 In relation to the provision for security for the obligation I referred to earlier, that security needs to be in a form acceptable to a Justice of the Peace.