Bail Act 1982 (WA), s 14(2)(a) Schedule 1, Part C, cl 1 and cl 3

1 ROBERTS-SMITH J: This is an application for bail made pursuant to the Criminal Code and the Criminal Procedure Rules 2000, on an application dated 14 May 2001. It is supported by an affidavit of the applicant, sworn 27 April and filed on 14 May 2001. There is also before me from the respondent, as handed up in court, with leave, today, an affidavit of John Gerard Zadkovich dated 16 May 2001.

2 Mr Palumbo, who appears on behalf of the applicant, initially indicated that there were matters in that affidavit to which objection would be taken and that, in any event, he would require the deponent to attend for cross examination. When those matters to which Mr Palumbo wished to refer were however canvassed in the course of the proceedings today, they were, I think, resolved to the extent that it was understood that most of what the deponent said, and which was challenged by Mr Palumbo, was really challenged on the basis that it did not go far enough as to saying what the position of the applicant would or might be if particular circumstances changed.

3 By way of example, in par 10, Constable Zadkovich states that he understands the applicant is the current holder of a criminal justice stay certificate which entitles him to remain in Australia pending the determination of the criminal charges but does not entitle him to be released into the community; thus he is to remain a detained person for the entire period. It transpires that Mr Palumbo does not disagree with that as a bare statement of fact but what he does say is that the applicant in fact is in a position to apply for a visa which would entitle him to be released into the community and to work.

4 It was therefore on the understanding that what was in Constable Zadkovich's affidavit in relation to those matters are to be understood in that way that the proceedings then continued without the necessity of any deletions or amendments to the affidavit and without the necessity of having the deponent attend for cross examination.

5 I have also had handed to me, in the course of argument this afternoon, a copy of the indictment against the applicant dated 15 February 2001 and that contains four charges, each one being a charge that he, whilst a servant of Fluor Daniel Pty Ltd, stole certain money. The total amount aggregated in those four charges is something in the order of $417,000.

6 These charges are laid pursuant to s 378(7) of the Criminal Code and the statutory maximum penalty in respect of each is 10 years' imprisonment. This is not the first time the applicant has applied for bail to this court. A similar application was dealt with by Miller J on 14 July 2000 on which occasion his Honour refused bail. It is perhaps useful at this point before I turn to the evidentiary matters and arguments put before me to briefly refer to the applicable principles. The starting point is probably WCVB v R (1989) 1 WAR 279 in which Ipp J examined the provisions of the Bail Act 1982.

7 His Honour noted that the Act is silent as to the approach that should be adopted where there are material disputes of fact and as to the onus of proof, if any, which either an applicant or the Crown has to bear on a bail application. His Honour concluded nonetheless that the common law position continued to apply and so, in short, the situation is that the onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. Where, however, the charge is properly to be described as a serious charge, then the circumstances would have to be shown to be extremely exceptional before bail would be granted and the onus of demonstrating that is on the applicant.

8 The second point of importance is that because this applicant has already applied for bail to a Judge of this Court previously, this application is governed by s 14(2)(a) of the Bail Act 1982 (WA) which requires the applicant on such a second application for bail to satisfy a Judge of this court that either (a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the first application was made or (b) he failed to adequately present his case for bail on that occasion.

9 There is no suggestion today that the applicant failed to adequately present his case for bail before Miller J. As I understand Mr Palumbo's submission, it is that new facts have been discovered and/or circumstances have changed since that occasion. I would construe s 14(2)(a) as requiring a relevant change in relevant circumstances. Beyond that the considerations to which regard must be had on this application for bail are those set out in schedule 1 part C, cls 1 and 3 of the Bail Act.

10 Whilst I have some diffidence about it, I am prepared to deal with this application on the basis that the offences are not serious offences as referred to by Ipp J in WCVB v R and accordingly, subject to the requirements to which I have just referred in respect of a second bail application, that is to say, if the applicant does satisfy me that circumstances have changed in a relevant way since the matter was dealt with by Miller J, then the onus is on the prosecution to demonstrate, to use the appropriate terminology, a reasonable degree of risk that the accused, if allowed bail, would fail to answer it.

11 Against that background of authority, briefly stated as it is, I come to the evidentiary material. The applicant's affidavit is reasonably lengthy and sets out in some detail the history of his dealings with the Department of Immigration and Multicultural Affairs in respect of alleged breaches of conditions on a bridging visa category E granted in 1998 as well as his previous proceedings in the Court of Petty Sessions and considerable reference to proceedings in the Federal Court and indeed in the High Court of Australia.

12 I do not mean to slide over those matters but I will seek to focus on those aspects of them which I consider of particular relevance to the present application, nor do I for present purposes propose to recite the factual circumstances or background in any detail at all. The broad situation as found by Miller J on the information before him on 14 July was that the applicant has a criminal justice stay certificate which enables him to remain in Australia awaiting his trial but under that certificate he must remain in detention.

13 He was released, as I have said, on a bridging visa E and that was subject to quite stringent conditions. In particular he was required to live in Western Australia. But he absconded to Queensland. He was then required to live in Queensland; but he absconded to New South Wales, where he assumed a false identity and according both to the conclusions of Miller J and the affidavit of Constable Zadkovich when police in New South Wales confronted the applicant in February 2000 he had assumed a false identity.

14 The constable says the applicant at that time had documents and pieces of identification in a false name and that he maintained that false identity when confronted by police. He deposes that it was only much later that the applicant admitted his true identity. Mr Palumbo submits that there were reasons for that which had nothing to do with the pending charges against the applicant.

15 Put in very brief terms, what is said on behalf of the applicant in that regard is that the bridging visa class E was given to him as the result of a mistake made by the department. There is annexed to the applicant's affidavit an exhibit which is in the form of a note or an internal memo from Mr Greg Ross, a member of the Department of Immigration, in which he effectively concedes that the applicant was wrongly apprehended by the department in the mistaken belief that he did not hold a bridging visa. He was therefore detained as an unlawful non-citizen under s 189 of the Migration Act 1958 (Cth). He was so detained for 3 days.

16 The department subsequently realised there had been an error and indeed the memorandum acknowledges that the department had no choice but to consent to a declaration in the Federal Court that the applicant was the holder of a bridging visa class B during the period he was in detention.

17 Again I do not propose for present purposes to expand very much more on that. Suffice to say that the conditions which were imposed subsequently on the applicant in respect of his bridging visa class E were, and it seems now to be accepted by the department, unlawful conditions. These conditions included that he was not allowed to work, they required him to obtain a surety and they imposed residential requirements upon him. The surety was for $10,000.

18 Mr Palumbo submits that prior to the applicant's unlawful detention by the department he had enjoyed working rights and travel rights, including leaving and re-entering the country. I am prepared to accept for the purposes of this application that the bridging visa class E could not properly have been granted and that it was a consequence of a departmental error. It is said by Mr Palumbo that the acknowledgment that the applicant was or ought to be recognised as being the holder of a bridging visa class B is important because that would have entitled him to apply for a bridging visa class A which would have allowed him to work. Again I also accept this submission for the purposes of this application, although I make no finding in relation to it.

19 The point about all of this is that it is submitted on the applicant's behalf that these are all matters which impacted on the actions which he took when he failed to comply with the conditions imposed upon him. It is submitted that he was aware of the error made by the department and he had to work to generate income and to live. The proposition again put shortly is that the applicant refused in effect to comply with conditions which could not lawfully be imposed upon him, and Mr Palumbo says it is on the basis of this that the Department of Immigration and the prosecution now say he should be denied a criminal justice stay visa and bail.

20 There is I think considerable uncertainty about the position with respect to the Department of Immigration and whether the minister's decision to refuse a criminal justice stay visa was proper or is likely to be reversed or overturned. I am conscious also of the problem described by Mr Palumbo as the catch-22 which is that the department says he cannot be granted a visa of a kind which would enable his release into the community because he has been refused bail, and on the other hand he is being refused bail because he is subject to an Immigration Department regime which would prevent him working or being released into the community.

21 Under the circumstances and given the uncertainties involved in all of that, it seems to me the question whether or not the applicant is likely to be detained under the immigration regime or not if released to bail is something I should put to one side, and I do so.

22 In passing I should I think also refer to the argument put on behalf of the applicant as to the false identity and his apparent lack of disclosure to the department of migration. This is simply that those matters had nothing to do with the present charges, but were adopted by the applicant to avoid the consequences of his breaches of what he regarded, and apparently correctly so, as conditions unlawfully imposed.

23 I turn now to some of the more particular matters raised by or on behalf of the applicant to do with the charges on which he is presently remanded and to do with the considerations to which I am required to have regard under the Bail Act.

24 I begin with the observation that I am prepared to accept that there has been a relevant change in relevant circumstances here because it does seem to me from looking at the decision of Miller J on 14 July 2000 that it turned to a large extent on his Honour's understanding of the material which had then been put before him as to the position of the applicant with respect to the Immigration Department requirements in respect of the applicant.

25 Whether of course, there having been such a relevant change, there should be a different consequence to the application is of course another matter. What it means simply at this point is that I am required now to consider the application and am not in a position of simply rejecting it because no change in circumstances has been disclosed.

26 I accept that there are many judicial proceedings currently under way by or involving the applicant. These include an application for extension of time for merits review of his permanent visa application in the Administrative Appeals Tribunal, an appeal to the Full Court of the Federal Court from the decision of French J given on 22 December 2000 in respect of a number of applications then made by the applicant about his detention by the department and associated matters, and an application for prerogative relief under s 75(5) of the Commonwealth Constitution which has been made to the High Court.

27 At par 45 of his affidavit the applicant says that there is a strongly arguable case that the state of Western Australia has no jurisdiction to hear this matter. By that I take him to be referring to his prosecution on the four counts of stealing as a servant. This is said to be because at the relevant times he was a resident of Victoria, was employed by a Victorian company and the cheques the subject of the allegations were drawn on a Queensland account and three of the four cheques were physically banked in Victoria and one in Perth. There has been an application to quash the indictment and that apparently was heard before his Honour Judge Muller in the District Court at Perth this morning. I am told his Honour has reserved his decision on that application.

28 The applicant complains of delay in this prosecution and it is, I think, a very real matter of concern that some 17 months have now gone by and no trial date has yet been set.

29 The applicant has no criminal record and that obviously is a significant factor in his favour. The material, however, does disclose that apparently there are warrants out for his apprehension. I am referring here to international warrants in respect of alleged frauds involving banks. They obviously are not convictions but the existence of warrants in respect of charges which have a basic similarity with those presently before the District Court is obviously a relevant consideration. He has surrendered his passport in Western Australia in March 2000 and he asserts that he intends to reside permanently in Western Australia pending resolution of all of the matters referred to in this affidavit including the judicial proceedings and related matters. He says that he has ongoing business interests in Australia. He deposes to being a shareholder in a business which has just registered a provisional patent in February of this year. He says it is expected that a company will be formed in the next couple of months and that he is required to assist in business planning, strategy and marketing. He will not be working as such because he is a part owner, but he deposes to his hope that a substantial financial package would be secured in the next few months. He says the business has great export potential and it is hoped to develop it rapidly on receipt of funding. The business is involved in the grain industry and relates to new prototype grain handling equipment that he says is currently commercial in confidence. No further information is given about that.

30 Apart from the applicant's assertion that he intends to reside in Western Australia there is no other connection between him and this State. There is no suggestion that he has any assets, family or any connection at all, much less substantial connection, with Western Australia. The charges upon which he is presently remanded although, as I have said, not serious within the meaning of that term as used by Ipp J in MCVB v The Queen, are by no means minor offences. The statutory maximum penalty is clearly indicative of that. The amount of money involved is substantial. Even if it be the case that much or all of that money has been recovered, I think it is reasonably to be expected that if the applicant is convicted he will be confronting a substantial term of immediate imprisonment.

31 Mr Palumbo says that he having already been on remand for some 17 months might be taken to have in effect served a term which would be probably or possibly about of the length which he might expect to have to serve if convicted. I think that is a very optimistic expectation on behalf of Mr Palumbo. I would be inclined myself to the view that if the applicant is convicted of these offences he would be confronting a much longer term of imprisonment than that.

32 The position therefore is in broad terms that the applicant has no particular connection with this State, there is nothing which would satisfy me as to his residential commitments and his employment position as deposed to by him is vague in the extreme. Those matters do not give me any encouragement in terms of ties which might bind him to the State and to attend upon his trial in due course.

33 Mr Palumbo submits that any concerns that I might have about the applicant being a flight risk could be obviated by stringent conditions imposed upon him. He mentions, for example, the surrender of the applicant's passport, the requirement of a substantial surety and that although the applicant has no familial or residential ties to this State he would have an interest in not forfeiting the substantial surety. That of course is simply a repetition of the factor relating to the imposition of a surety in the first place. A condition requiring a substantial surety is not one which I would be inclined to see either alone or in combination with other conditions as being one affording great confidence in securing the attendance of the applicant at his trial.

34 I say that in the context that I would have no confidence that he would comply with any conditions which might be imposed and indeed I can think of few conditions in his personal circumstances, given there is no, for example, residential tie to the State, or family tie - I can think of no particular conditions which would have that effect. I say this because although for the purposes of this application I accept that the applicant's response to the conditions of the bridging visa class E imposed by the department was conditioned itself by his view that those conditions were unlawful, nonetheless the fact is he did deliberately choose not to comply with them.

35 I really fail to see any great distinction between his position in relation to that and his position in relation to the present charges. By his own affidavit he deposes to the fact that he has raised before the District Court and intends to pursue to the High Court if necessary an argument that the justice system in Western Australia has no jurisdiction to charge or try him with these offences. That would seem to me to put his view of these proceedings in much the same light as his view of the conditions imposed under the bridging visa by the department.

36 The point is, whether he be right or wrong about his proposition now, and whether he was right or wrong about his understanding of the situation with respect to the visa before, it was not for him to unilaterally decide not to comply with the conditions. I would have a very real concern that he would take a similar approach or could take a similar approach to any conditions that I might impose relating to his bail. I would have no confidence that he would comply with them and he has in relation to his response (or by his response) to the conditions on the visa, demonstrated that he has both the willingness and the ability to abscond from the jurisdiction successfully and to successfully conceal himself from the authorities by the use of a false identity and no doubt other means.

37 Under these circumstances it seems to me I cannot be satisfied that he would attend for his trial if released to bail and I indeed am satisfied that the prosecution has demonstrated that there is a reasonable risk that he would not do so if released to bail and there are no conditions which I could impose which would obviate that risk. The application is accordingly refused.