Supreme Court of WA|2004-10-08|Before: Smith J

Goldfinch v State of Western Australia [2004] WASC 218 (8 October 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GOLDFINCH -v- STATE OF WESTERN AUSTRALIA [2004] WASC 218

Criminal procedure - Bail - Bail pending trial - Multiple charges including aggravated burglary, aggravated armed robbery, unlawful detention and discharging firearm - Serious offences - Exceptional circumstances to be shown for bail to be granted - Magistrate initially granting bail but later recalling order and refusing bail - Coaccused charged with same offences granted bail - Applicant aggrieved - Whether principle of parity applies to bail applications - Possible delay of 14 months before trial - Whether exceptional circumstances or reasons for bail to be granted

Bail Act 1982 (WA), Sch 1, Pt C, cl 1 and cl 3

Director of Public Prosecutions (Commonwealth) v Abbott, unreported; SCt of Vic; 1564 of 1997; 23 September 1997

Donald Stuart Browne-Kerr, unreported; SCt of Vic; 10 August 1993

Firkins v Director of Public Prosecutions [2002] WASC 203; (2002) 132 A Crim R 321

Jemielita v R (1994) 12 WAR 362

Lim v Gregson [1989] WAR 1

Michael Paul Collins v R, unreported; SCt of WA; Library No 930742, 23 December 1993

Mihaka v State of Western Australia [2004] WASC 17

Outman v R [2001] WASC 162

R v Robertson [2001] WASC 120

The State of WA v Oates [2004] WASC 214

1 ROBERTS-SMITH J: This is an application by notice of motion dated 30 September 2004 for orders that the applicant be released on bail with a surety and subject to certain conditions, or alternatively be admitted to home detention bail on certain terms and conditions.

2 The notice of motion is supported by an affidavit of the applicant sworn the same day. In that affidavit the applicant deposes that he is currently 25 years of age, having been born on 9 November 1978 in New Zealand. He and his family arrived in Western Australia in 1989 when he attended the Illawarra Primary School and thereafter the Mercy College at Koondoola for his senior school, completing year 11 in 1999. His father is John Albert Goldfinch who presently lives at unit 50, 34 Palmerston Street, Northbridge. His father is self-employed and runs a ceiling contracting business in Perth.

3 According to the applicant, upon leaving school in 1999 he worked for his father as a ceiling fixer and also travelled to New Zealand and completed six months of army service there. Because his family remained in Perth, however, he was honourably discharged after his six months to accompany his family for compassionate reasons. He deposes that his present incarceration is the first time that he has been incarcerated and he has remained in custody since his arrest. He has never been in custody before. He specifically deposes that his only criminal record to the best of his recollection is a traffic conviction in 2001 for which he received a fine and a minor assault to which he pleaded in the Perth Court of Petty Sessions.

4 His father, he says, is prepared to raise the necessary surety to allow him to be released to bail, whereby the applicant would live with his father at the address indicated and also work with him as a ceiling fixer. He states that he has no intention of fleeing the jurisdiction and has entered a plea of not guilty to the charges which he intends to defend. The police, he says, have his old New Zealand passport which had previously been stolen from him and subsequently recovered, together with a current New Zealand passport of his. He says he does not have a passport at hand and undertakes to the court that he would not apply for a passport in the interim prior to the matter being heard. He says that in the event that he is granted surety bail he is prepared to adhere to strict conditions of residence, curfew and daily reporting.

5 He further deposes that when he appeared before his Worship Mr Michelides SM in Fremantle Court of Petty Sessions on 28 September this year, he was represented by Mr Sklarz as counsel and the learned Magistrate granted him bail in the sum of $50,000 with a surety of the same amount and ordered that he live at his father's address, comply with a curfew provision, to remain in that residence during hours of darkness and report daily to the City police station. He was thereupon remitted to the Supreme Court sittings on 1 December 2004.

6 According to the applicant's affidavit, after he was granted that bail and committed to the Supreme Court he was taken back to the detention centre at the Fremantle Court of Petty Sessions. His understanding was that he was to be held there until his father was able to be approved as a surety. His lawyer, Mr Sklarz, after seeing him for a short period after the court appearance, left the precincts and went about his business.

7 The applicant deposes that at the same time he was brought before the learned Magistrate on that occasion, his co-accused Simon Nguyen was also committed to the Supreme Court and his bail was renewed in the sum of $20,000 with a surety in the same amount.

8 The applicant notes that he is now in custody, having been denied bail whilst his co-accused Nguyen, who is charged with the same offences, has been and continues to be on surety bail of $20,000.

9 What occurred after that, according to the applicant, is that after Mr Sklarz left the court precincts the applicant was recalled before the court on two occasions unrepresented when the learned Magistrate heard from the prosecutor an application to reopen the question of bail. The applicant told the learned Magistrate that he wished his lawyer to be present and as a result the application was stood over for a further hearing at 2.15 pm that day. The applicant was able to contact his lawyer, who was able to make arrangements to be present at that time.

10 When the matter was recalled at 2.15 pm, the applicant was represented by his lawyer, who sought that the bail order which had been made that morning remain standing on the basis that the applicant had been committed to the Supreme Court and the Court of Petty Sessions no longer had jurisdiction. Nonetheless, the learned Magistrate proceeded. I am informed by Mr Sklarz from the bar table that his Worship took the view that he was able to recall that order and consider it further until the court rose that day. I do not need to make any finding in relation to that and do not do so.

11 In any event, following the further hearing of the matter at 2.15 pm, the prosecution succeeded in its application to have bail refused on the basis that the charges were serious and the applicant was a flight risk. It is the applicant's contention that none of that was new information and that all of which was put before the learned Magistrate on that occasion was known and referred to by the prosecution earlier that day and ought not to have been presented to him. As I say, I make no finding and express no view about that for present purposes.

12 The outcome was that following those further submissions the learned Magistrate recalled his prior bail order and remanded the applicant in custody. The applicant says that with respect to the afternoon decision of the learned Magistrate made on 28 September 2004 denying him bail which had previously been granted to the applicant that morning, he is aggrieved by that determination on the basis that there are exceptional reasons that he should have been allowed surety bail with stringent conditions, they being for the reasons already mentioned, or alternatively, home detention bail. He says in his affidavit it is exceptional that he was granted bail by his Worship and later had such bail recalled.

13 Finally, the applicant deposes that if he is not granted bail, it is likely that he will remain in custody for at least a further 14 months, whilst his co-accused, who is charged with the same matters, remains on bail and it is in the interest of justice that he should be afforded, as he puts it, the same legal rights as have been granted to his co-accused, particularly when his bail conditions will not only be extremely stringent but would also avail him an opportunity to work and live with his father under his supervision and guidance.

14 It is apt that at this point I refer to the particular charges which the applicant faces. There is a charge of aggravated burglary pursuant to s 401(1)(a) of the Criminal Code, a charge of robbery pursuant to s 392(c) and (d) of the Code, one of unlawful detention pursuant to s 333, one of a discharge of a firearm contrary to s 23(9)(a) of the Firearms Act 1973, a further charge of aggravated burglary, a further charge of robbery and a further charge of unlawful detention.

15 These are serious charges. Aggravated burglary carries a maximum penalty of 20 years' imprisonment. Robbery with the circumstances of aggravation alleged here carries a maximum of life imprisonment. The maximum punishment for unlawful detention is 10 years' imprisonment.

16 The factual basis for the application is contained in the applicant's affidavit, to which I have already referred, to which is annexed a copy of some of the complaints. It is not necessary for me to refer specifically to them here. An affidavit was filed by the respondent this morning and I shall return to that shortly. I have not had the benefit of any outline of submissions or list of authorities from either side.

17 As I apprehend it, the grounds of the application, which are not set out in the notice of motion, are to be distilled from the applicant's affidavit as follows:

(1) he has no criminal record other than one conviction for a minor assault;

(2) he is able to provide a surety and would comply with conditions of residence, curfew and daily reporting;

(3) he was originally granted bail subject to a surety and strict bail conditions but was subsequently returned to the Court of Petty Sessions, initially without notice to his lawyer and then again when his lawyer did appear, at which time the learned Magistrate recalled the order previously made and refused bail;

(4) if not granted bail it is likely he will remain in custody for at least a further 14 months; and

(5) he is aggrieved because his co-accused, who has been charged with the same offences and who has also been committed for trial in this court, has been granted bail in the sum of $20,000 with a surety in the same amount.

18 No details of the circumstances of the alleged offences were given in the applicant's affidavit. However, they are set out comprehensively in the affidavit of Acting Detective Sergeant Peter John Healy, sworn on 7 October 2004 as follows.

19 The applicant's apprehension was the result of a police investigation into two home invasions which occurred in Embleton and Winthrop on 7 July 2004. The detective sergeant deposes that in his opinion the evidence against the applicant is overwhelming and he lists some of the factors upon which he bases that opinion.

20 He contends that the general descriptions of one of the intruders is consistent with the general description of the applicant. The applicant is Caucasian and speaks Vietnamese, which is consistent with the description of the intruder at the Embleton residence. His co-accused, Baker and Fredericks, will give evidence against him, which implicates him in both home invasions and is suggestive that the applicant is the ringleader and the offender who carried the gun.

21 The applicant's fingerprints have been found on handcuff wrappings which were located in the Toyota Corolla vehicle which was located and said to have been from handcuffs used on the home invasions and purchased on the day on which they are alleged to have occurred. The applicant's property contained numerous items supportive of his involvement in the home invasions and the applicant took flight to leave the state and travel to New Zealand, which the prosecution contends is evidence of consciousness of guilt.

22 Briefly expressed, the circumstances alleged to have been involved in the Embleton home invasion are that about 3 pm on Wednesday, 7 July the applicant and three co offenders went to an address in Embleton in a Toyota Landcruiser sedan. At the time there was a 15 year old female alone inside the premises. An offender described as "Asian looking", knocked on the front door of the premises. The 15 year old female answered the door and was engaged in a conversation with him in relation to the whereabouts of her mother.

23 Following that, that offender returned to the Landcruiser and the complainant closed the door. A short time later a man wearing all black clothing with a black balaclava came running into the house through the unlocked front door, shouting that he was the police. He grabbed the complainant from behind and put handcuffs on her and dragged her into her bedroom. Another offender, who the prosecution contends to have been the applicant, wearing a green camouflage shirt, entered the bedroom, brandishing a shotgun.

24 He threatened to shoot the complainant if she moved and demanded that she disclose to him the location of drugs in the house. That offender left the bedroom but returned a short time later and placed the muzzle of the shotgun against the complainant's neck. It is said that the applicant spoke English and Vietnamese to the complainant but she did not understand what he was saying to her when he spoke in the latter language.

25 The remaining offenders, the prosecution says, then searched the premises for property and drugs, before leaving through the front door. An LG mobile telephone and a $100 fold of heroin was stolen. About that time the complainant's mother returned home with her young daughter and was confronted by one of the offenders, described as a "Vietnamese-looking" man. He told her to go inside the house as he was from the police. He showed her an identification badge but she was unconvinced about its authenticity.

26 That offender then started pushing the complainant's mother towards the house and as that was occurring she could see other men in the house: one a Caucasian man wearing a balaclava. She managed, however, to escape from the offenders, screaming out for assistance as other neighbours came out to see what was going on. The complainant's mother then saw three men leave her house and get into the four-wheel drive vehicle. The fourth man driving it was the Vietnamese man she had spoken to initially.

27 The prosecution contends that at that stage the applicant discharged the shotgun into the air as all of the offenders got into the Landcruiser and drove off. No property from those offences has been recovered.

28 In relation to the Winthrop home invasion, the prosecution case is that at about 4.15 pm on the same day, the applicant in company with the same three co-offenders went to the complainant's home address at Balodis Place, Winthrop. One of the offenders (described as "Indian-looking") knocked on the front door.

29 The complainant partially opened the front door, leaving the security chain fastened. A short conversation took place after which the complainant pushed the front door closed as the offender attempted to gain entrance into the house. The complainant noticed at that time that the driver of the vehicle at the front of the house was an Asian-looking male. The complainant called the police on 000. Whilst on the telephone to the police, the complainant heard the sound of a chainsaw starting up outside.

30 He ran into his bedroom and armed himself with a Samurai sword for his own protection. One of the offenders used the chainsaw to cut out the lock section of the wooden double doors to the complainant's home. Once they had sawn through the door they kicked it in and entered the house. The complainant describes the offenders as one being an Indian-looking man, and two Caucasians. One of the Caucasians (again whom the prosecution contends was the applicant) was armed with a shotgun and two of the other offenders confronted the complainant in the entrance area to the house.

31 The applicant pointed the shotgun at the complainant who then threw the Samurai sword to the ground. The applicant kicked the complainant to the chest, causing him to double over and whilst he was bent over, the complainant was struck to the head by a hard object, causing him to fall to the floor. The applicant then demanded the complainant empty his pockets which he did. The complainant took from his pockets a mobile phone and wallet and put them on the ground in front of him.

32 The Indian-looking male picked up the sword and the applicant directed the Indian-looking person to pick up the wallet and mobile phone from the floor, which he did. Whilst the complainant was being held on the floor, the second Caucasian offender went to the kitchen area and removed an envelope containing $1800. He then went into the study area and removed the complainant's Toshiba laptop computer. The Indian-looking male offender took the complainant's Samurai sword. They all left the premises and went into a waiting Toyota Landcruiser being driven by the fourth offender. As the offenders were running off, the complainant heard one of them say, "Let's go, Simon."

33 Police attended both of the addresses and made preliminary inquiries. They established the ownership of the vehicle which was found to be registered to one He Ming - or Simon - Tan. Further inquiries revealed that Simon Tan was on holidays with his wife in Singapore on that date, but his daughter and her boyfriend Simon Nguyen remained in Perth to look after his house.

34 About 5 pm on 7 July, police conducted surveillance at the address of the owner of the Toyota Landcruiser. A short time later, they observed a Toyota Corolla depart that address and three occupants, one being the applicant, were observed to be in the vehicle. The vehicle was followed and pursued by police for a short time and eventually stopped in Thornlie. As the occupants were to be apprehended, one of the police officers had cause to discharge his police pistol which resulted in one round striking the front passenger (who was Frank William Fredericks) in the right upper arm.

35 The driver immediately reversed the vehicle and attempted to avoid apprehension. The applicant was at that time seated in the rear seat. Following those events, he decamped from the vehicle and made his escape. The vehicle with the two remaining offenders stopped a short distance away and both were apprehended. They were Fredericks and Leslie Charles Baker. Both of them were subsequently interviewed and made full admissions to both sets of offences.

36 They implicated the applicant as planning and committing the offences with them. Both of them have provided statements to police and it is anticipated that both will be called to give evidence against the applicant at his trial. The Toyota Corolla was taken to a holding yard where it was examined forensically and that examination revealed the existence of a Toshiba laptop computer, a Sony Ericsson mobile telephone and the Samurai sword, all of which belonged to the Winthrop complainant.

37 Other items located in the Toyota Corolla were consistent with being used during the commission of the offences and they included an earpiece to a CB radio, handcuff packaging and a receipt to the purchase of a set of three handcuffs. A night bag containing the applicant's wallet, personal documents, New Zealand passport, clothing and other toiletries was recovered on the rear seat of the Toyota Corolla. The applicant's fingerprints were subsequently identified on the handcuff packaging. The handcuffs were purchased on the day of the home invasions.

38 By the early hours of the morning of 8 July, the applicant and his alleged co-offender Hoang Simon Nguyen, remained at large in the community.

39 As a consequence other police jurisdictions were notified. On Tuesday 13 July a media release was issued to the television and print media by police. The applicant and his alleged co-offender were named and photographs were published. The investigating police officers subsequently became aware of the existence of a number of emails sent to members of the media by the applicant from his email address. Copies of the emails are annexed to Detective Sergeant Healy's affidavit. They, amongst other things, canvassed the circumstances of the home invasions.

40 Again it is not necessary for me to set out in any detail the content of those emails. It is sufficient to say they do discuss in considerable detail the circumstances of the alleged offences by somebody who, on the face of it, had an intimate knowledge of them. There are also other significantly disconcerting aspects of the emails which either suggest an involvement in wider criminal activity or alternatively convey an impression of a somewhat bizarre and fantastic, in the sense of fantasy, scenario which on the face of it would appear to be quite delusional. If it is not delusional then it is even more seriously indicative of danger to the community constituted by the applicant.

41 About 3.30 pm on 29 July the investigating officers were notified by the Australian Federal Police that the applicant had checked luggage in at the Sydney International Airport and was about to board an Air New Zealand flight to New Zealand. This was approximately a week after the alleged co-offender Simon Nguyen had handed himself into police at which time he was arrested and charged.

42 Having been advised of the identification of the applicant in the Sydney airport, Western Australian police made arrangements with their counterparts in the Australian Federal Police and the New South Wales police to have him apprehended. He was arrested and subsequently extradited to Western Australia.

43 On 31 July 2004 detectives collected property which had been seized from the applicant's possession when he was apprehended at the Sydney International Airport and taken to the Mascot police station.

44 A number of items that were of apparent interest to the investigation included disposable cameras, sets of black-coloured handcuffs, a black-coloured police baton, two CB radios, a CB radio earpiece, a balaclava, a black mask, a "Ralph" magazine containing cut-out newspaper articles, Internet articles and a digital image of the applicant. These articles were specifically about the two home invasions in Winthrop and Embleton and included a number of emails printed out in relation to the applicant's email address.

45 There was also a postcard addressed to "members of Big Circle 666" and in particular the three co-offenders charged with these offences. It is not necessary for present purposes for me to expand upon the relevance of that description.

46 It is contended that the applicant is a flight risk. He is a New Zealand citizen. It is said that in his affidavit he said that his New Zealand passport had been stolen but that is untrue. It is said that in fact the applicant's passport was located in an overnight bag that was left in the Toyota Corolla when he ran from the vehicle to evade apprehension by the police on 7 July.

47 When he was, as it put in the affidavit, "on the run" thereafter he obtained urgently a passport from the embassy in Sydney on the basis that his original passport had been stolen which, as I have just observed, is said not to have been true. The contention is the applicant has demonstrated an ability and willingness to flee the jurisdiction in order to escape criminal responsibility and that he is willing to lie in order to facilitate his escape.

48 So far as the conditions of bail proposed by the applicant are concerned, it is noted by Detective Sergeant Healy in his affidavit that the applicant has indicated he wishes to reside with his father. Detective Sergeant Healy points out that the applicant was living with his father when he committed these offences and then fled the jurisdiction. The applicant's father, it is submitted, is not a motivator to keep the applicant abiding any bail conditions and nor is his father a deterrent to becoming involved in conduct of this kind.

49 It is further submitted and is reiterated to me from the bar table, that the applicant's father is not a suitable person for the applicant to reside with in any event because his father has been convicted of a firearms offence following him being found in possession of a firearm when delivering his son to Graylands. On that occasion he is said to have told police that he needed the firearm to protect the applicant from unknown assassins.

50 Mr Sklarz submits the charges which the applicant is facing are not charges of such serious offences as to bring into play the requirement for the applicant to demonstrate exceptional circumstances before a grant of bail would be justified. His submission is that the application should be determined simply on the basis of the ordinary criteria which are to be found in cl 1 and cl 3 of Pt C of sch 1 of the Bail Act.

51 I cannot accept that submission. It is now well established that in cases in which the charges fall into the extremely serious class, the applicant must show exceptional circumstances to justify bail being granted: WCVB v R (1989) 1 WAR 279, Lim v Gregson [1989] WAR 1. So far as the offences are concerned, it is apparent that they are, in my view, particularly serious offences which do fall into that category. The details set out comprehensively in the affidavit of Acting Detective Sergeant Healy indicate the applicant appears to be living in a world of very dangerous fantasy and delusion at best. Whether that is the product of an actual psychiatric illness or something less is not apparent and it is not for me to express any view about that here.

52 The point is, that material indicates on the face of it that the applicant would be a real danger to the community if released and also indicates the seriousness of the offences with which he has been charged.

53 In effect, I take it that the applicant says the exceptional circumstances which here justify this court granting bail are the fact that he was initially granted bail by the learned Magistrate, who then allowed the prosecution to reargue the matter and then revoked the initial order and refused bail, combined with the fact that his co-accused has been granted bail.

54 I shall deal with the latter point first. The criteria for determining whether or not bail should be granted ordinarily are those, as I have said, which are set out in cl 1 and cl 3 of Pt C of the first schedule to the Bail Act. Legislation gives no one of those criteria primacy but nor does it require they all be given the same weight. All the criteria must be considered: WCVB v R. The weight to be given to them individually will depend upon all the circumstances of the particular case: Jemielita v R (1994) 12 WAR 362.

55 A useful summary of factors likely to be relevant in the context of the statutory criteria is to be found in the judgment of McKechnie J in Saka v R [2001] WASC 92. They include the personal circumstances and antecedents of the accused, the likely disposition if convicted, the strength of the prosecution case, the likely lapse of time before trial and the need to protect the integrity of the trial process. Not only will these vary from case to case but it is apparent they are likely usually to vary between those who are co-accused in the same case.

56 One accused may have a significant relevant criminal history, while the other may have none. Their personal antecedents may be entirely different. The nature of their alleged participation in the offence may reflect very different degrees of criminality or culpability. The case against one might be quite strong but that against the other weak. One may be facing the prospect of a substantial custodial sentence, whilst there may be a real possibility the other may receive a non-custodial disposition, even allowing for the application of the principle of parity in sentencing.

57 Some or all of these considerations may in turn impact upon an assessment of the relative risk that the individual accused might abscond. Considerations such as these have led to findings that the fact one co-accused has been granted bail is not necessarily a ground or reason for granting bail to another. On the other hand, there is authority for the proposition that where all other things are equal there may be an appearance of injustice where bail is granted to one co-offender but refused to another, such as to give rise to a justified sense of grievance on the part of the accused to whom it is refused.

58 In the Director of Public Prosecutions (Commonwealth) v Abbott, unreported; SCt of Vic; 1564 of 1997; 23 September 1997, Gillard J had occasion to consider this question. It was argued before his Honour that parity of bail is a relevant factor to take into account in determining exceptional circumstances in the context of the particular legislative provision which there applied. Counsel were referred to a decision of Cowdry J in Donald Stuart Browne-Kerr, unreported; SCt of Vic; 10 August 1993.

59 In that case Cowdrey J was dealing with an application for bail by an applicant who was charged with trafficking and conspiracy to traffic in cannabis. His Honour said:

"What troubles me in this case is the fact that the co-accused ..., who on the material before me is in a situation virtually indistinguishable from the applicant, has been granted bail in these matters. Whilst parity is not a concept which must inevitably transpose into a bail context, there is in my view a prima facie requirement that like cases are not treated unequally."

60 After quoting that passage, Gillard J went on to refer to the conclusion reached by Cowdrey J:

"Ultimately, the factors of parity, the applicant's current family situation and the probably ancillary effect of that on his conduct, together with and to a lesser extent, the apprehended delay and the resolution of these matters, cause me to conclude, but I must say not without some hesitation, that sufficient cause has been shown to justify the grant of bail upon stringent conditions."

61 Gillard J then said in relation to the case before him, that the question was whether the parity factor is relevant to a bail application. His Honour assumed that the alleged parity factor is similar to that applied in sentencing, as discussed by the High Court in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 and quoted from the passage of the judgment of Dawson J with whom Wilson J agreed at 623:

"There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done. ..."

62 Gillard J then referred to the decision of the High Court in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 in which that court reaffirmed the principle stated in Lowe v R. His Honour quoted a passage from the judgment of Dawson and Gaudron JJ at page 301:

"The parity principal upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowances should be made for them."

"The same sense of grievance leading to the appearance of injustice could result from the different treatment of co-accused on applications for bail. To that extent I am prepared to hold that the principle is relevant to the questions of exceptional circumstances ... the question of the applicant showing cause why his detention in custody is not justified ... and also in relation to the enquiry concerning unacceptable risk factors ... Act. However, in my view it would indeed be rare for the principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant.

In my opinion the principle can apply but it must be established that things are equal as between the co-offenders."

64 His Honour went on to say that adapting the principle for a bail application it could be stated in this way:

"That where other things are equal, applicants for bail should receive the same decision or other things are not equal the bail applications may be dealt with differently."

65 The point has arisen in this jurisdiction in Michael Paul Collins v R, unreported; SCt of WA; Library No 930742, 23 December 1993. There Owen J referred (at p 12) to submissions which had been advanced in relation to grants of bail to the applicant's co-accused. His Honour said:

"Counsel for the applicant was critical of the decision of the prosecution not to oppose bail in respect of two of the accused, Mr Ingham (who had made a statement admitting involvement in the offences and is therefore likely to plead guilty) and a Mr Williams. The Crown did not seek to explain why it took that approach.

In my opinion, that is not an appropriate factor to be regarded as exceptional. There are any number of reasons why the Crown might have taken a tactical decision not to oppose bail, especially in the case of Mr Ingham. I can see why the applicant might feel some sense of grievance because he was not afforded the same treatment. However, the issue here is not parity of sentencing after conviction where unexplained differences in treatment of co-offenders is certainly relevant. I have little, if any, information concerning the personal circumstances of Mr Ingham or Mr Williams and cannot comment on the factors that might have influenced the Magistrate who considered those application for bail. It is the judicial officer, not the prosecutor, who decides whether bail is appropriate. I think it would be inappropriate for the Court to regard what might be seen as a tactical decision by the prosecuting authority as an exceptional circumstance, when it could not be said that the prosecuting authority was acting in a way in which was somehow indefensible."

66 In R v Robertson [2001] WASC 120, I said at [24] in relation to a ground for an application for bail that the co-accused had been granted bail that I would have to say that I would not regard that as a relevant consideration. There I said that parity, in my view, had a bearing on the exercise of the sentencing discretion but not in relation to the discretion to grant or refuse bail. Finally, the point was also dealt with again by me in the case of Mihaka v State of Western Australia [2004] WASC 17.

67 At [28] I noted the submission that the applicant had a sense of grievance arising out of the fact that the co-defendants had been granted bail for the same very serious charges whilst he was refused. The submission was put to me on that occasion that although the charges were sufficiently serious to require the applicant to demonstrate exceptional reasons for bail to be granted, those exceptional reasons were to be found in the combination of the applicant's sense of grievance arising out of the fact that his two co-defendants had been granted home detention bail and that he did not have a substantial record of previous convictions for offences of that kind. I did not accept the submission that those did amount to exceptional circumstances for that purpose.

68 At [58] and following I dealt with the point of the applicant's sense of grievance about being refused bail when it had been granted to his co-defendants:

"59 A justifiable sense of grievance arising from markedly different sentences imposed upon co-offenders for the same or similar offences, when there is no other apparent reason for distinguishing between them, may give substance to an appeal against sentence on the ground of disparity. The same principle does not apply on an application for bail pending trial. The question of bail does not fall to be determined on some sort of parity basis. As is apparent from the principles to which I have referred above, each application is to be considered on its merits. Each of the relevant factors (including, but not limited to, those set out in cl 1 and cl 3 of Pt C of Sch 1) is to be assessed against the circumstances as they pertain to the individual applicant. Whether or not a co-defendant is released to bail would ordinarily be of marginal (or no) relevance. If all other relevant factors were equivocal in their effect, the fact that an applicant's co-defendants had been released to bail for the same offence may lead to a conclusion that bail should be granted. But where the alleged offenders play different roles, their personal circumstances and backgrounds are different, the assessment of the likelihood of their attending for trial and the availability and potential efficacy of bail conditions to them differ (or are not known), the fact that co-defendants have been granted bail cannot carry any particular weight.

60 In the present case I know very little about the criminal histories of the co-defendants and nothing about their personal circumstances nor any other factor which might have borne on their suitability for release to bail. The fact that the applicant feels aggrieved by their being released to bail when he has been refused, is not, to my mind, a reason for granting it to him."

69 If the principle is taken to be that justice requires equal treatment of like cases but due allowance is to be made for relevant differences, then it can be accepted as applying to bail applications as much as to any other matter requiring judicial determination. However, it seems to me that it is likely to have practical effect very rarely indeed on an application for bail for the reasons acknowledged by Gillard J in Abbott and those to which I have adverted above.

70 Furthermore, to succeed on a bail application based to any degree on a parity argument, the applicant would have to demonstrate that all relevant factors as between his or her case and that of the co-offender were, in fact, essentially the same and there were no relevant distinguishing features. Even so, bail would not be granted unless it were otherwise appropriate having regard to the statutory criteria. It could never be the case that an applicant should be granted bail because his or her co-accused was, in circumstances in which the statutory criteria militated against it for the applicant.

71 I return to the present application. Apart from the bald assertion that his co-accused has been charged with the same offences and that he has been released to bail on his own recognisance of $20,000 with a surety in the same amount, there is no evidence before me whatsoever from the applicant. There is no material upon which I could gain any understanding of the points of similarity or difference between the applicant and his co-accused or their relevant circumstances and antecedents, nor the strength of the cases against them, nor the nature of their alleged criminal complicity.

72 In short there is no basis upon which I could conclude that parity in the sense I have explained it in this context is a factor which could or should carry any weight in the applicant's favour. To the contrary, the affidavit of Acting Detective Sergeant Healy shows it to be the prosecution case that the applicant was a - if not the - ringleader and that he had planned or was involved in the planning of the offences. Furthermore, there is a significant feature of distinction between him and his co-accused Nguyen in that Nguyen apparently surrendered to police whilst the applicant actively sought to escape and was only apprehended at a point of international departure.

73 That then leaves me to consider the second factor upon which the applicant relies as showing exceptional circumstances, namely the proceedings before the learned Magistrate involving an initial ground of bail and subsequent refusal.

74 The first point to be made is that this is not an appeal from nor an administrative review of the proceedings before the learned Magistrate. It is an application for bail which I am required to consider de novo on the material before me and in accordance with the statutory criteria and the applicable legal principles. The exceptional circumstances which must be shown by an applicant must necessarily be circumstances which bear upon the statutory criteria and relevantly upon the question of whether or not it would be proper to grant bail.

75 It seems to me that whatever may have occurred before the learned Magistrate about which I have no evidence other than as I have recounted it from the applicant's affidavit, it does not bear logically on those criteria nor that question. It follows that neither of the two particular matters upon which the applicant relies are exceptional circumstances or exceptional reasons for granting bail either alone or in combination.

76 I have also considered the other specific factors relied upon by the applicant, they being his lack of any relevant criminal record, his ability and willingness to provide a surety and comply with bail conditions, and the period of time he is likely to be in custody pending trial.

77 As to the previous criminal history I note that in fact that includes five convictions for burglary and committing an offence in the Children's Court at Perth in November 1995; one offence of assault occasioning bodily harm for which a conviction was recorded again in November 1995; one conviction for burglary and committing an offence in December 1996 and one conviction of possessing an offensive weapon in August 1999. There are other driving offences which I disregard for present purposes.

78 Neither of the first matters, even were I to take it that the applicant had a minimal or a negligible criminal history, are exceptional circumstances or exceptional reasons for granting bail either alone or in combination.

79 It may well be that the applicant's trial could be heard earlier than 14 months hence, but even if a delay of that order is presently assumed, it is not such as to constitute an exceptional circumstance. That would equate to a term of imprisonment of 2 years 4 months. On the face of it, sentences imposed for the number and type of offences charged here would be certainly likely to be substantially more than that so that if convicted the applicant would still have a substantial period of imprisonment to serve.

80 Of course it cannot be assumed the applicant would be convicted. Indeed he is presumed innocent and his application must be approached on that basis. Nonetheless I am required as a matter of law to consider the strength of the prosecution case and I have already commented on that.

81 The interests of justice also require that persons charged with serious offences are brought to trial. Criminal trials cannot be brought on immediately and if the circumstances are such that a grant of bail is not appropriate then a delay which is not inordinate will not constitute an exceptional reason for granting bail: Firkins v Director of Public Prosecutions [2002] WASC 203; (2002) 132 A Crim R 321, although a delay which is inordinate may do so: Outman v R [2001] WASC 162; The State of WA v Oates [2004] WASC 214

82 The end result of this application is that the applicant has failed to cross the threshold of demonstrating exceptional reasons why bail should be granted. The application will be refused.

83 I should not leave this matter without making it clear that even if the applicant had crossed that threshold of demonstrating exceptional circumstances I would have refused bail. I refer in my consideration of that general question, to, amongst other factors, what I have said about his criminal record not in fact being as negligible as portrayed in his affidavit, and the fact that the circumstances of the alleged offences are serious in the extreme. On the material before me the prosecution case appears to be very strong. The emails attached to Detective Sergeant Healy's affidavit appear to demonstrate an intimate knowledge of the alleged offences quite apart from the evidence which the prosecution, I am told, would be leading from at least two of the alleged co offenders and the objective evidence to which reference has been made. It is further the prosecution case that the applicant played a - if not the - leading role in the planning and execution of the offences. The material seized by the police and which relates to the applicant indicates in my view he is at the very least dangerously delusional. He has already attempted to flee the jurisdiction and to lie to obtain a passport. He is in my view a substantial flight risk and I would not have any degree of confidence that any conditions I could impose would overcome the risk that he might commit further offences, attempt to interfere with prosecution witnesses, or most importantly to flee the jurisdiction.

84 As I say, for these reasons even had the applicant demonstrated exceptional reasons why his application for bail should be considered against the ordinary statutory criteria, I would have refused it in any event. The application will be dismissed.

Goldfinch v State of Western Australia [2004] WASC 218

At a glance

Court

Decision date

Before

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Source

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Judgment (115 paragraphs)

Goldfinch v State of Western Australia [2004] WASC 218 (8 October 2004)

Parties

Cases Cited (4)