Judgment Suppressed [2010] WASC 334 (19 November 2010)

(b) that on 23 September 2010 at the Perth Domestic Airport, with intent to sell it to another, she had in her possession a prohibited drug, namely methylamphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act.

3 On these two charges, Mrs Lai was brought before his Honour, Magistrate Smith in the Magistrates Court at Perth on the afternoon of 29 September 2010, where she was represented by the duty lawyer. She was not required to plead but sought bail. Bail was opposed by the prosecution on the grounds that the police had indicated that numerous further charges were likely to be laid against her and that large quantities of drugs were involved in the two offences alleged. It was submitted that the seriousness of the alleged illegal conduct, the probability that further related charges would be laid, and the fact that the applicant had been trying to leave the country meant that bail should not be granted.

4 At this stage, it is significant to note that Mrs Lai was not charged with being in possession of illegal drugs at the Perth International Airport when she was arrested on 29 September 2010, nor was it alleged that she was in possession of any illegal drugs or had committed other offences on that occasion. Rather, as explained to the Magistrates Court, the case for the prosecution was that another person, an associate named Van Thinh Pham, had been intercepted at the Perth Domestic Airport on 23 September 2010, on his return from Sydney in possession of 498.7 grams (18 ounces) of methylamphetamine at 47 52% purity and 167 grams (6 ounces) of heroin at 64 66% purity. The allegation advanced by the prosecution is that Pham is an accomplice of the applicant, who had organised for him to go to Sydney, collect the illicit drugs and return with them to Perth for distribution and sale through a network of drug suppliers organised by the applicant, Mrs Lai. The prosecution has not alleged at any time that Mrs Lai was at the Perth Domestic Airport with Pham when he arrived there allegedly in possession of the illicit drugs, or that she met him there, or took delivery of any of those drugs. Accordingly, the two charges before the court against Mrs Lai that she was in possession with intent to sell the illicit drugs found in the possession of Pham six days before, proceeded on the basis that she was a party to the offences committed by Pham on that date and was liable as a principal for those offences Criminal Code s 7.

5 His Honour, Magistrate Smith, was not disposed to grant bail at the hearing on 29 September 2010 without further information about the alleged offences, in particular without further information showing on what basis it was being alleged that Mrs Lai was connected with the offences said to have been committed by Pham on 23 September 2010. Furthermore, his Honour was concerned about the assertion by the prosecution that other serious charges were likely to be preferred against Mrs Lai, and his Honour also desired more information about whether or not she constituted a flight risk. For that reason, the bail hearing was adjourned to 7 October and Mrs Lai was remanded in custody on both charges.

6 On 7 October 2010, Mrs Lai was again represented before his Honour but by her own counsel, who informed the court that she was a grandmother, that she had by then lived permanently in Australia for more than 20 years, held an Australian passport, which by then was in the hands of the police, and owned property at Beechboro. According to her counsel, the applicant was on her way to visit family and friends in Vietnam with her three grandchildren and to observe a Vietnamese tradition to commemorate the anniversary of the death of one of her sons three years ago. She had planned to be away for about three months but to return to Australia where all her close family are living. She renewed the application for bail. Again, however, the prosecution opposed the grant of bail, substantially for the same reasons as before. Although again stating that further charges were to be preferred against the applicant, no further charges had then been laid.

7 After hearing submissions, his Honour again refused bail and remanded the applicant in custody. His Honour's reasons for that decision were:

There has been a strong application for bail made on your behalf and there is equally opposed to that, a strong opposition by the police to you being granted bail. Mr Sklarz has said on your behalf, those things which can be said in relation to a bail application. The police are opposed to bail for a number of reasons.

I do notice that you do have a minor criminal record which does include a conviction for breach of bail, although I am not going to put much weight on that. What is of more concern is the extreme seriousness of these particular charges that you face. Also of concern is the fact that further charges are going to be proffered against you.

You were apprehended at the airport on your way to Vietnam. The police say that they have evidence that you have forwarded large sums of money to Vietnam. They say that that's something which you did in preparation for relocating permanently to Vietnam. They also say that although you own your own house in Beechboro, that you have moved out of that house and are trying to sell it.

I have to weigh up a number of factors in determining a grant of bail, especially when it is vigorously opposed. Important considerations are the seriousness of the charges and the risk of reoffending. In this particular case, bearing in mind the seriousness of the charges, a very important consideration is an assessment of whether you are a person who would be likely to turn up in court as required. The police say that you are an extreme flight risk.

You are facing and you are going to face a very large number of extremely serious charges. The police say that with your assets and your access to funds and your contacts in Vietnam, that you are a flight risk, even without a passport. I have to make an assessment as to whether you ar a person who could be said to be trusted to turn up in court and whether any conditions could be set on a grant of bail to ensure that you did turn up in court.

I can only grant bail if I were confident that that could be achieved. Unfortunately, I am not confident that you would turn up in court. In my assessment, in all of the circumstances, the flight risk is too great and I am not granting you bail. Mr Sklarz, refuse bail.

8 It is apparent that his Honour considered that the applicant was facing two extremely serious charges and further was going to face a very large number of extremely serious other charges although, of course, no such further charges had been laid nor had the details or circumstances of the alleged offences been identified with any particularity. His Honour plainly considered the applicant a flight risk and was not confident that she would answer bail, if granted, and appear in court in future when required.

9 It is apparent that at the adjourned appearance before the Magistrates Court on 7 October 2010 the prosecutor put before the court more details of the alleged circumstances of the offences laid against Mrs Lai. Such information has also been presented at this hearing in the form of a statement of material facts annexed to an affidavit of Mr Sklarz, solicitor for the applicant, sworn 11 October 2010. That statement of alleged facts, which it must be said the applicant denies insofar as it asserts illegal conduct on her part, is as follows:

Between July and September 2010 detectives from Organised Crime Squad, Perth conducted an investigation into the drug dealing activities of the accused.

As a result of that investigation it will be alleged that the accused was the head of a Western Australian based drug syndicate. This drug syndicate is responsible for the importation of trafficable quantities of methylamphetamine and heroin into Western Australia from Sydney, New South Wales. These drugs were then on sold to numerous people in Perth.

Specifically in regards to this offence the accused utilised the services of the coaccused (PHAM, Van Thinh) to personally courier a large quantity of cash to a drug supplier in Sydney on 21 September 2010.

The accused prearranged an order with this drug supplier to obtain a trafficable quantity of methylamphetamine and heroin.

The accused exercised exclusive control of this operation and provided the finance for the drugs and courier costs.

The coaccused PHAM collected the drugs from the supplier in Sydney and returned to Perth Domestic Airport via Qantas Airlines on 23 September, 2010 where he was intercepted by detectives.

A subsequent search of the coaccused PHAM's luggage revealed 498.7 grams (18 ounces) of methylamphetamine at 47 52% purity and 167 grams (6 ounces) of heroin at 64 66% purity.

On 29 September 2010 at about 12.30 am the accused was stopped at the Perth International Airport attempting to board a flight to Vietnam. The accused was arrested under suspicion by investigators and taken to Organised Crime Squad office where she was formally charged.

Explanation: None given, declined video record of interview.

10 It was submitted that if the accused were convicted of these charges she should be declared to be a Drug Trafficker under the provisions of s 32A(1)(b)(i) of the Misuse of Drugs Act because conviction for either offence would be a conviction in respect of a prohibited drug in a quantity which is not less than the quantity in Schedule VII in relation to the prohibited drug. Under s 32A(3) of the Misuse of Drugs Act, an offence under s 6(1) of the Misuse of Drugs Act is defined as a 'serious drug offence' for the purpose of s 32A. It was stressed on behalf of the prosecution that if the applicant were convicted of the offences charged, then not only would she be likely to be sentenced to a lengthy period or periods of immediate imprisonment but that she would be declared to be a drug trafficker and that all her property would then become forfeited to the State. The severity of these likely sanctions were, so it was submitted, very powerful incentives to induce the applicant to attempt to abscond and so accentuated the alleged risk of flight.

11 On 11 October 2010, that is four days after the refusal of bail in the Magistrates Court, Mrs Lai filed an application to this court pursuant to s 14 of the Bail Act to be granted bail on these charges. By that application she seeks orders that:

(a) the applicant be granted bail on personal recognisance of $50,000 and approved surety of $50,000 with the following conditions:

(i) that the applicant reside at (address given) Beechboro, WA;

(ii) that the applicant personally report to the officerincharge of the Mirrabooka police station each Monday, Wednesday and Friday between 8.00 am and 7.00 pm;

(iii) that she comply with a curfew between 8.00 pm and 6.00 pm each day;

(iv) such further orders as this honourable court deems fit;

(b) alternatively, the applicant be assessed for Home Detention Bail, to reside at the premises at (address given) Beechboro, WA;

(c) the applicant be remanded to the Perth Magistrates Court on 30 December 2010.

12 Any application for bail by a person in custody concerns the liberty of the subject and, as such, conventionally is given the highest priority in the business of this court. So it has, for example, been a long and unbroken tradition that an application for a writ of habeas corpus takes precedence over other civil matters in the court lists and is brought on at the earliest opportunity and as the first matter of business for the court in that list. It is, therefore, somewhat surprising that this application was not listed for hearing until 11 November 2010, a month later. No explanation has been given for this delay, nor has any complaint or objection about it been made on behalf of the applicant so it is not necessary for me to consider that question further. However, I do not consider that the occasion can be allowed to pass without again stressing the importance, urgency and priority which should be given, and which traditionally has always been given, to dealing with any application concerning the liberty of the subject.

13 In support of her application for bail, the applicant relies on two affidavits, the first sworn by Mr Henry Sklarz on 11 October 2010, by which the history of events as I have already described is narrated and which annexes copies of the two prosecution notices, the statement of material facts and some statistics extracted from the reports by the District Court of Western Australia annual review and the associated website of that court showing the median delay to trial of cases committed to the District Court from a Magistrates Court. These indicate that, in March 2010, the median delay was 23 weeks or thereabouts. By this affidavit, Mr Sklarz sets out that his client denies police allegations that she was trying to sell her house or was sending substantial sums of money to Vietnam prior to her attempted departure. Mr Sklarz also deposes that he has been informed by the police prosecutors that it will take several months before the police are able to decipher and translate various authorised telephone intercepts of the applicant upon which it is said they rely for implicating her in the alleged offences. Mr Sklarz refers to the applicant's minor criminal record, which amounts to two convictions for shoplifting, for which she was fined, and a previous breach of bail relating to one of those charges. According to the affidavit, her nonappearance at court was an oversight and later explained, but did not involve any attempt to abscond.

14 At the date of this affidavit there had not been disclosure by the prosecution of the evidence upon which it would rely for the charges, as required by s 42(5) of the Criminal Procedure Act 2004 (WA), but a committal/disclosure date has since been set in the Magistrates Court for 30 December 2010. Mr Sklarz estimated that it may be up to eight months before a trial in the District Court on these charges could be expected to occur and that these delays may be further aggravated by the forthcoming Christmas and New Year holiday periods.

15 The second affidavit relied upon by the applicant is that of Mr Paul Wayne Catalano, sworn 3 November 2010. Mr Catalano is also a legal practitioner acting for the applicant in the absence of Mr Sklarz, now abroad. To his affidavit Mr Catalano annexes certified copies of the transcript of the hearings in the Perth Magistrates Court on 29 September and 7 October 2010, certified copies of the two prosecution notices and a letter in the Vietnamese language written by the applicant and a translated copy, the substance of which is that the applicant denies the allegations against her, denies any involvement in illicit drug dealing, and says that she was leaving Australia for Vietnam for a family holiday and was intending to return. She also describes the property which she owns in this State but denies any intention to sell it, and also denies the allegations that she was recently involved in sending large amounts of money from Australia to Vietnam.

16 By contrast, no affidavit material was produced on behalf of the respondent. However, the respondent did seek to tender two witness statements, dated respectively 10 and 11 November 2010, by Detective Senior Constable Carlo Dino Cecchele, with annexures in the form of witness statements prepared for use on an order for committal and as part of the depositions for use at a trial on indictment. Each such statement carried endorsements acknowledging that the declarant would be guilty of a crime if the statement were tendered in evidence and if he wilfully included in it anything which he knew to be false or which he did not believe to be true. A third similar witness statement from a Mr Colin Nguyen made on 10 November 2010, carrying a similar endorsement, was also tendered. By this statement, Mr Nguyen describes his experience as a qualified and authorised professional legal interpreter of the Vietnamese language and of his role in interpreting, for the prosecuting officers in this inquiry, a large quantity of authorised telephone intercept information which he says he truly and honestly translated from the Vietnamese language to English and which included some SMS or email messages.

17 Accompanying the tender was a summary of seven pages of selected translations by Mr Nguyen of authorised intercepted telephone conversations involving the applicant and others dating from 3 September to 24 September 2010 which, so it was submitted, demonstrated that a crude and transparent form of code was being used to arrange, discuss and direct drug dealing operations by the applicant.

18 At the hearing a question arose as to whether any of these materials was admissible, in the absence of an affidavit from the deponents or an affidavit from an investigating officer identifying these materials as being information relied upon by the prosecution and expressing knowledge of, or belief in, the contents. Subject to the provisions of the Evidence Act and any other Act relating to evidence, any fact required to be proved at the trial of any action by the evidence of witnesses should be proved by the examination of witnesses orally and in open court RSC O 36 r 1, but the court may, before a trial or hearing of an action, order that all or any of the evidence be given by affidavit if the court thinks that the circumstances of the case render it reasonable to do so and in which case affidavits relied upon may sometimes result in the deponents becoming subject to crossexamination. The process adopted by the respondent in this case therefore did not involve any verification of the material relied upon whether by oath, affirmation or statutory declaration and certainly did not provide any opportunity for crossexamination.

19 Counsel for the respondent was not able to identify any basis upon which the proposed evidence might be admissible but, on being referred by the court to s 22 of the Bail Act took refuge in that provision. In those circumstances, therefore, I accepted the material conditionally upon a determination of the question of whether or not it was admissible in that form, and it is to that issue that I now turn.

20 Section 22 of the Bail Act provides:

A judicial officer or authorised person may in considering any case for bail receive and take into account such information as he thinks fit whether or not the same would normally be admissible in a court of law.

21 Despite the obvious importance of this provision, there appears to be little judicial analysis of its effect or limits. However, it has been frequently employed to receive evidence at a bail hearing, either originally or on an application to this court, otherwise than by affidavit, or in addition to or contradiction of affidavit evidence which has been adduced. Examples of the use of the section in this way, together with references to its breadth, include McGibbon v The Queen [2003] WASC 14; Hoddy v Hawes [2003] WASC 22; Lewandowski v Sherman [2002] WASC 239; and Bonow v Harris [2008] WASC 2, all decisions of Hasluck J. It has also been mentioned and given wide effect by McKechnie J in Saka v The Queen [2001] WASC 2, by Templeman J in Houghton v The State of Western Australia [2005] WASC 48 and by Simmonds J in Gilmour v The State of Western Australia [2005] WASC 243 and Dabag v The State of Western Australia [2005] WASC 22, and also by RobertsSmith J in Rus v The Queen [2000] WASC 297.

22 The manner of taking evidence at a bail hearing was referred to repeatedly in the final report of the Law Reform Commission of Western Australia Project No 64 'Bail', published in March 1979. As that report was a basis for the subsequent enactment of this legislation, its content is of significance and a useful aid to interpretation Interpretation Act 1984 (WA), s 18(2)(b). One of its specific recommendations (number 13) was that a bail decision maker should be empowered to obtain a report from the probation and parole service and take into account evidence on oath or otherwise from any other person for the purpose of making his bail decision (see generally pars 5.8 to 5.10 which stress that a bail decision maker should be able to obtain evidence on oath or affidavit or in any way). The report also stresses that insistence upon taking evidence formally should not be adopted because of inevitable delays if there were to be any such requirement.

23 This points to another significant consideration, and that is the question: to what extent it is necessary or desirable for the bail decisionmaker to resolve disputed issues of fact in the course of any such application? At par 3.17, when addressing the issue of whether or not there should be a statutory presumption in the context of bail legislation, either for or against the grant of bail, the Law Reform Report observed:

A presumption in law creates an evidentiary burden on a party to introduce evidence to rebut it. This might be appropriate where there is a dispute between parties, for example, as in a criminal trial. But, in the Commission's view, it would be inappropriate in a matter such as a bail decision. This does not involve an issue which has to be proved one way or another by parties to a dispute. The question for a baildecisionmaker to answer should be whether to grant bail to a defendant having regard to the information made available to him at his request or otherwise. It should not be whether a particular party to the bail proceedings has discharged a statutory onus cast upon him.

24 Further reflection quickly confirms this point because, obviously enough, it would be entirely inappropriate for the bail decisionmaker to attempt to decide a question of guilt or innocence of the offence charged by the person seeking bail. As the present case also illustrates, there may be many other peripheral issues, such as whether or not the applicant had been attempting to sell her home in Western Australia or had transmitted large amounts of money out of the State, which are not suitable for resolution or determination on a bail hearing. The considerations relevant to the grant or refusal of bail are to be found in the Bail Act itself, sch 1 pt C cl 3. A major consideration is often likely to be whether or not the person accused will answer to bail and be available at the eventual trial of the charge.

25 This being the case, I am satisfied that the materials proffered by the respondent for consideration on the hearing of this application, unsworn and unverified depositions by the investigating officer and other witnesses, can be received and considered on the present application. The weight to be attributed to such material is likely to depend on the circumstances of different cases, and the fact that it has not been verified on oath may, sometimes, diminish the weight which it may have. However, I am satisfied that I can and should receive the material for the purposes of this application and give it such weight as I consider fit.

26 The material received from the investigating officer, who has long experience in the investigation and prosecution of illicit drug offences, describes how in July 2010 the organised crime squad began an investigation in relation to the applicant and others, in the course of which it obtained warrants authorising the interception of telecommunication services used by the applicant and others. Over the period since, a large quantity of telecommunication intercepts were recorded, mostly in the Vietnamese language, and translated by an authorised translator. The investigating police officer has examined the product of these telecommunication intercepts (the TI product) and as a result formed the opinion that the applicant was buying and selling prohibited drugs on many occasions. He advanced examples of TI suggesting illicit drug deals or preparations dating from 23 July 2010 and continuing until 19 September 2010 and another series of TI products around 23 September 2010 when the courier Pham was arrested.

27 Also from the TI intercept material the investigating police officer referred to conversations from which he deduced that on one occasion the applicant arranged to transfer approximately $110,000 to Vietnam and on a later occasion made another transmission of approximately $70,000 to Vietnam. He also produced laboratory certificates showing analysis of heroin and methylamphetamine said to be associated with the applicant and seized from Pham on 23 September 2010 at the Perth Domestic Airport. In the experience of the investigating officer, these drugs, if sold in their current form to the illicit market, could be expected to be worth approximately $356,000 or, if sold in smaller quantities, possibly twice that value.

28 The information provided by the investigating officer was also to the effect that Mrs Lai was a regular visitor to the Burswood Casino and a heavy gambler there, turning over in excess of $500,000 at that casino in the first six months of 2010. He also referred to surveillance footage in the possession of the police said to confirm that associates of the applicant, her daughter and the daughter's woman friend who was with the applicant at the airport, are participants in prohibited drug selling activities and have been recorded delivering drugs to customers in the Burswood Casino carpark.

29 The material from the investigating officer also revealed that there had been an apparent unlawful breakin to the applicant's home at the address given in Beechboro, which some of her friends had then reported to the police, resulting in police officers attending the scene. However, the applicant did not wish to make a complaint to the police in relation to the incident and had discouraged further investigation.

30 Apart from the small quantity of TI information summarised in the selection of intercepted conversations referred to by the Vietnamese interpreter there was no other TI information or evidence put before the learned magistrate or produced on this present application. The explanation given by the respondent was that it was a very timeconsuming process to have all the product transcribed and translated into English and that this task could not be completed for some time possibly not for three months However, it was said that most of the relevant TI material could be disclosed immediately.

31 It seems that this delay in processing, translating and selecting the TI material accounts for the fact that full disclosure has not yet been made by the prosecution. Although the accused has been remanded to appear before the Magistrates Court on 30 December 2010 for a committal/disclosure hearing, with a view to her case being committed for trial in the District Court, that has not yet occurred. The Criminal Procedure Act requires full disclosure by the prosecution, s 42(5), and for this to be done as soon as practicable. The fact that this has not yet been done, and may not be done before the end of December 2010, seems to indicate that I may infer, with some confidence, that no trial of the accused on these charges is likely to take place before about May or June 2011 at the earliest.

32 Similarly, despite the submissions made on behalf of the prosecution before the learned magistrate on 29 September and 7 October 2010, there have not, at least so far, been any further charges laid against the applicant. At this hearing, counsel for the respondent indicated that the existing charges may be amended to allege that the applicant attempted to have in her possession for the purposes of sale the illicit drugs referred to because, as appears from the history of events now given, she did not actually succeed in obtaining possession of them, either on 23 September 2010 or at any other time. As more than seven weeks have passed since the applicant was taken into custody and no further charges have been laid, this raises a real question of what attention, if any, should be given to assertions by the prosecution, on such a bail application, that further charges are intended and are imminent, especially where, as here, such emphasis has been placed on the allegation that Mrs Lai faced numerous other very serious charges. This is a subject to which I shall return.

33 Counsel for the applicant submits that the case for the prosecution is weak and that there is little evidence to support it apart from general allegations about the existence of, so far undisclosed, TI material. In that regard, counsel submits that the court should consider bail upon the extent of the disclosure by the prosecution at the date of the application and should not speculate about further anticipated disclosure: Ganeshamoorthy v The State of Western Australia [2010] WASC 123 [32] (Simmonds J). As a corollary, the applicant submits that she has a strong defence to the charge in that there is no evidence that she had control or knowledge of any prohibited drugs. Furthermore, counsel for the applicant submits that for the determination of the bail application, it is not necessary for the court to make any finding on the evidence in relation to the defence but, rather, the court ought to be satisfied that there is an arguably strong defence: Houghton v The Queen [2002] WASCA 363; Hunt v The State of Western Australia [2008] WASCA 37 and Shrivastava v The State of Western Australia [2010] WASCA 96 [32] [33] (Mazza J). I accept that one of the issues to be considered is the strength of the prosecution case: Bail Act sch 1 pt C cl 3(d), which will usually also entail examining the other side of the coin to determine the existence or otherwise of the defence (where that is possible). But the question of bail cannot depend entirely on the existence of a strong defence, because that would reverse the presumption of innocence, and the onus of proof. It would also diminish the significance of the potential consequences if the accused person were to be kept in custody as opposed to being allowed some measure of liberty in the community on bail.

34 It was further submitted for the applicant that, with regard to the allegation of the existence of a flight risk, the prosecution must establish that there is a real or significant risk and not just a possibility, suspicion or speculation that the accused may abscond: Lewandowski v Sherman [2002] WASC 239 [106] [109] (Hasluck J). The need to demonstrate the reality of a significant flight risk as a ground for refusing bail must be considered in the light of the suitability or adequacy of potential conditions to be placed on bail which would eliminate or reduce such a risk: Bail Act sch 1 pt C cl 1(c) and The State of Western Australia v Oates [2004] WASC 214 [41] 42] (RobertsSmith); Rauch v The State of Western Australia [2005] WASC 241 per McKechnie J at [42]. In this regard, counsel submitted there was no evidence of any real risk that the applicant would not meet her bail requirements while awaiting trial and because: her only passport had been seized by the police; and she was an Australian citizen with a strong connection to this State where her children and grandchildren live and where she has had her home for the last 20 years or more.

35 Counsel for the applicant also submitted that the delay likely to occur before the applicant would be put on trial for these charges was considerable and that this delay, extended and aggravated by the Christmas and New Year vacation periods, would constitute a substantial hardship which was not warranted and could readily be avoided. Counsel for the defendant drew upon published statistics from the District Court Annual Review 2009 and its website statistics as accessed on 20 October 2010, to support the contention that the median delay to trial from committal in that court is now 23 weeks and that monthly variations for the last 12 months have been up to more than 30 weeks. It may be unusual to have recourse to such information on such an application but, for reasons which I have already covered, I am satisfied that under s 22 of the Bail Act, information of this kind can be received.

36 This raises a question about how significant the delay might be before it is likely to influence the granting or withholding of bail. Regrettably it is the case that because of a variety of pressures there can be long delays before people are brought to trial and so they may be kept in custody until then. I addressed this issue in Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34 at [50] [56] and included a passage from the observations of Vincent J (as he then was) in R v Mantase (Unreported, SCt of Vic, 21 September 2000) which was quoted with approval by RobertsSmith J in The State of Western Australia v Oates. In that passage, Vincent J said:

If our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of 18 months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represented the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice.

37 A period of detention before trial from the applicant's arrest on 29 September 2010 until (say) June 2011 would amount to seven or eight months which, while although I am afraid is no longer exceptional, is a very severe and harsh imposition upon a person who is presumed at law to be innocent. Furthermore, in the present case, where part of the delay appears to be due to the police continuing with further investigations in the expectation that numerous other charges will be laid, the court must be alert to ensure that any period of detention is no longer than is necessary to allow to the proper determination of the charges which have actually been laid against the applicant, and does not become, indirectly or directly, an opportunity for the prosecution to pursue further investigations into possible charges which have not yet been laid and may never be laid.

38 Such is the respect and tradition for the liberty of the subject that it is entirely unacceptable for persons to be arrested and detained for the purposes of questioning or to allow further investigations to be pursued. Once a person has been arrested and charged, the control of that person's destiny passes immediately from the executive to the judicial arm of government and the function of the judicial arm is to ensure that he or she is brought to trial on the charges which have then been laid at the earliest reasonable possibility.

39 These principles were enunciated and applied in no uncertain terms in Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 where the principle was emphatically declared, that if an arrested person is detained for the purpose of enabling him to be brought before a justice, he may be questioned in the interim, either about the offence for which he has been arrested or about other offences and such questioning will not necessarily mean that there has been a failure to bring him before a justice as quickly as reasonably practicable. But, if on the other hand, the accused person is detained not for that purpose, but solely for the purpose of questioning him, the detention will be unlawful - per Gibbs CJ at (285). Mason and Brennan JJ (292 295) examined the responsibilities of police officers who had arrested suspected offenders and who were under an obligation to bring them before a justice as soon as practicable and addressed what impact there may be upon that obligation if, before doing so, the police questioned the person charged extensively or pursued further inquiries. In doing so their Honours observed (292):

The right to personal liberty is, as Fullagar J described it, 'the most elementary and important of all common law rights': Trobridge v. Hardy [1955] HCA 68; (1935) 94 CLR 147 at 152. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and never been abridged by the laws of England 'without sufficient cause: Commentaries on the Laws of England (Oxford, 1765), Bk 1, pp 120-121, 130-131. He warned:

Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper ... there would soon be an end of all other rights and immunities.

That warning has been recently echoed. In Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 26, Deane J said:

It is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on police powers of arrest and detention be scrupulously observed.

The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested.

40 Then, after examining a series of other authorities and statutes, Mason and Brennan JJ said at (295) with respect to the observations of Hempel J in R v Larson & Lee [1984] VicRp 45; [1984] VR 559, 568:

That view is surely right. If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words 'as soon as practicable' cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person's complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence.

41 In a separate judgment, Wilson and Dawson JJ agreed with those observations and (at 306 309) added their own powerful support for those conclusions.

42 There is, plainly, a clear distinction between the present situation and the one under examination by the High Court in Williams v The Queen, where the focus was upon the obligation of arresting officers to bring a person arrested before the courts as soon as practicable leading to the observations that it would be unlawful to detain that person and fail to bring him before the courts if the reason for doing so was to question him further or to pursue other inquiries. In the present case, no question of detention of the arrested person by the police before she was brought before the courts has arisen or can arise. Mrs Lai was brought promptly before the Magistrates Court on the afternoon of the very day she was arrested. The arresting officers have plainly performed their duty and Mrs Lai's custody or liberty is now solely in the hands of the courts. Decisions about her present detention or conditional liberty must be made solely with regard to accomplishing the purpose of bringing her to trial on the charges which have been laid against her as soon as reasonably possible.

43 The purpose of this judicially controlled custody, whether in prison or subject to the restrictions imposed by the grant of bail, is to conduce to the proper and fair trial of the applicant upon the charges for which she has been detained. No part of this purpose includes detention to allow further investigations to be carried out, further inquiries to be made or consideration to be given to the possibility of other additional or different charges being preferred. The only justification for any restraint upon the liberty of this applicant is that she has been charged with two specific offences, themselves serious, and upon which she is to be tried.

44 It follows that refusing bail, now, or when the applicant was before the magistrate on 29 September and again on 7 October 2010, in order to allow further investigations to be conducted and to provide an opportunity for further charges to be preferred is entirely unjustifiable, contrary to principle and erroneous at law. Decisions relating to the grant or withholding of bail must be made upon the basis of the charges then before the court and no others, and upon the information disclosed at the bail hearing relevant to those charges and with regard to the factors mentioned in sch 1 pt C of the Bail Act and in particular to cls 1 and 3. There is no mention in sch 1 pt C, or elsewhere in the Act, that bail may be refused because of the possibility that other charges may be laid against the person concerned.

45 Counsel for the State accepts that Mrs Lai is entitled to pursue her application for bail in this court under s 14(1)(a) of the Bail Act notwithstanding that bail was refused by the learned magistrate on 7 October 2010 - s 14(2)(a). He also submits that the determination of the application should be conducted by reference to the factors set out in sch 1 pt C cls 1 and 3 of the Bail Act and that although the offences with which the applicant has been charged are serious offences within the meaning of that term in s 3(1) of the Bail Act or as listed in sch 2 of the Act, they are not offences to which cls 3A, 3B or 3C of that schedule apply. In other words, the submission is that the Act does not make it necessary for the applicant to demonstrate exceptional reasons why she should not be kept in custody because, although these charges are for serious offences, it is not a case where the alleged offence was committed while the accused was on bail for another serious offence (sch 1 pt C, cl 3A); is not a case where the charge is murder (sch 1 pt C, cl 3C); nor is a case where the applicant applies for bail after conviction but pending an appeal - see McKechnie J in Rauch v The State of Western Australia [11].

46 In accepting that this was the case, counsel for the respondent, nevertheless, submitted that because of the gravity of these particular offences, and the potential consequences for the applicant if convicted, there was a strong incentive to abscond and that, accordingly, stronger reasons would need to be shown for bail to be granted. Counsel accepted the proposition that exceptional reasons need not be established to obtain a grant of bail on these charges but that submission needs some refinement for its full appreciation. Counsel for the respondent made it clear that that acknowledgement only meant that there was no express statutory requirement in the Bail Act or elsewhere that exceptional reasons be shown before bail could be granted in this case because these offences did not come within the scope of cls 3A, 3C or 4A of sch 1 pt C of the Act.

47 However, counsel nevertheless submitted that on one view of the authorities, common law principles set out in Jemielita v The Queen (1994) 12 WAR 362; (1995) 78 A Crim R 91; Ribot-Cabrera v The Queen [2004] WASCA 101 and WCVB v The Queen (1989) 1 WAR 279 support a proposition that in serious cases, some form of exceptional grounds or reasons may need to be shown for the granted of bail. The proposition advanced was that in drugrelated matters, the larger the quantities of drugs involved, and the stronger the prosecution case, the greater is the need for the applicant seeking bail to demonstrate that he or she will meet the obligations of bail by appearing at trial: Milenkovski v The State of Western Australia [2010] WASC 87 [31] (Blaxell J).

48 In relation to particular matters, counsel for the respondent submits:

• that the State case against the applicant will be significantly broader in scope than the present charges which have been preferred of 'organising for the coaccused' to courier cash to Sydney for the purchase of methylamphetamine and heroin on a single date;
• rather, that from the TI product and monitoring the applicant was an active participant in the business of buying and selling prohibited drugs;
• in any case the charges presently preferred against the applicant are very serious charges as they involve a very considerable amount of high grade methylamphetamine and heroin;
• that although the applicant owns her own home at [address given] in Beechboro, she was not residing there immediately before her arrest;
• although the applicant has previously travelled to Vietnam and then returned to Australia on a number of occasions, she was not then the subject of police investigation or facing any charges;
• that the applicant was intending to return to Vietnam for at least three months, as her return ticket was for travel on 27 December 2010; and
• from the TI product it is clear that the applicant had sent a considerable amount of money to Vietnam in the recent past and, further from the TI product, the applicant was considering moving to Vietnam to live temporally to avoid further invasion of her home such as had occurred in the recent breakin.

General principles applying to applications for bail

49 The general approach to the grant of bail under the Bail Act has been treated on many previous occasions as being that described by Nicholson J in KM v The Queen (Unreported, WASC, Library No 7193, 14 July 1988) which was an application under former provisions of the Criminal Code s 573. This approach has been adopted in Saka v The Queen [2001] WASC 92 [16] [17] by McKechnie J, in Gilmour v The State of Western Australia [2005] WASC 243 [33] by Simmonds J, and although KM was not there cited, it is consistent with the approach adopted by Hasluck J in Hoddy v Hawes, and by myself in The State of Western Australia v Sturgeon [31].

It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of the 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. The court is therefore called upon to balance the interests of the accused and the public interest in the trial proceeding. 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. This position is well established.

51 By sch 1 pt C cl 1 of the Bail Act a nonexclusive list of factors is listed which must be considered by the judicial officer when exercising the discretion whether or not to grant bail. The judicial officer may also consider any other relevant consideration. As already mentioned, counsel for the respondent submits that because of the gravity of the alleged offences and the potential consequences for the applicant if convicted, the applicant should show exceptional circumstances for the grant of bail. This submission is a reference to a supposed controversy of judicial opinion over whether in such cases, falling short of the statutory requirements for an applicant to show exceptional reasons for the grant of bail, there is nevertheless some such onus imposed by common law principles. I referred to this supposed controversy in some detail in The State Western Australia v Sturgeon where there can be found an extensive reference to the authorities and the contending principles. It is unnecessary for me to repeat those observations, but I adhere to the conclusions expressed in that decision. There has been subsequent reference to that decision in Rauch v The State of Western Australia, where McKechnie J reached similar conclusions. I note that Johnson J took a different view in Sabau v The State of Western Australia [2007] WASC 183; (2007) 173 A Crim R 401 but, with respect, I am not persuaded by that approach. Hall J mentioned the issue in Bertolami v The State of Western Australia [2009) WASC 269. The issue was noticed by McLure JA of the Court of Appeal in Mercanti v The State of Western Australia [2005] WASCA 254 [42] but not pursued, although her Honour did make reference to The State of Western Australia v Sturgeon without apparent criticism.

52 In Ribot-Cabrera v The Queen I had earlier said, at [50], that each different approach was an example of:

The wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial.

53 And, in The State of Western Australia v Sturgeon at [41] I mentioned:

That powerful incentive to abscond must be specifically recognised and addressed in any application for bail for a serious offence, and in many instances it is likely to be a crucial, if not the crucial, factor leading to the refusal of bail. But that may not always be so and in my respectful view, it would be a fetter on the exercise of the general discretion to assume that it must be so.

54 Turning now to the factors specified by sch 1 pt C cl 1 of the Bail Act, there are some which can immediately be eliminated as being of potential significance in this present case. Nothing has been shown to suggest that if granted bail the applicant would be likely to endanger the safety, welfare or property of any person or interfere with witnesses or otherwise obstruct the course of justice. Similarly, there is no suggestion that she needs to be held in custody for her own protection or that she should be kept in custody to avoid prejudicing the proper conduct of the eventual trial. Nor is there any suggestion that the offences were committed in respect of a child.

55 This leaves as pertinent for consideration whether or not the applicant might fail to appear in court in accordance with her bail undertaking or commit an offence if allowed bail; whether the prosecutor has put forward grounds for opposing the grant of bail, whether the alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make the grant of bail inappropriate and, perhaps most significant of all in the present case, whether or not there is a real risk of flight, that is, that the applicant may abscond. I am also obliged to have regard to the apparent strength of the prosecution case.

56 Because there has been no disclosure of the prosecution evidence, apart from the statements which I have received under s 22 of the Bail Act, it is very difficult to assess the apparent strength or otherwise of the case for the prosecution. Taking those materials at their highest, they amount to a general allegation that as a result of extensive telephone intercepts the accused is believed to be a leading figure, if not the leading figure, in a network for the distribution of heroin and methylamphetamine in the Perth metropolitan area and involved in sourcing the illicit drugs from suppliers in Sydney. However, the limited extent of the disclosure does not directly associate the applicant with the importation of drugs into Western Australia by the man Pham on the occasion when he was arrested at the Perth Domestic Airport on 23 September 2010, although there are general allegations that the TI product includes evidence to this effect.

57 Furthermore, it remains the fact that, other than involvement in the alleged importation of drugs by Pham at the Perth Domestic Airport on 23 September 2010, this applicant has not been charged with any other offences relating to involvement of a more extensive nature in drug supplies in or around Perth. I am satisfied that I should not determine this application for bail on the footing that that may yet happen. The only basis for proceeding is to have regard to the offences presently charged. Accordingly, it is not possible for me to conclude that the prosecution case is strong, or very strong, or that the defence is weak, or very weak. I proceed, therefore, on the footing that the prosecution considers that it has evidence to prove the offences alleged against the applicant but no decision can be reached on the information presently available about the strength of that case.

58 It has also been submitted on behalf of the respondent that if released on bail the applicant may commit further offences. This allegation is supported by the contention that she is a frequent and heavy gambler at the Burswood Casino and that, accordingly, there is a risk that she will commit criminal offences to feed and continue her gambling habit. There is simply no evidence to support the assertion of such a risk. It has not been alleged that Mrs Lai's habit of attending the casino, or even the extensive gambling in which she has been said to have been engaged, has involved the commission of any criminal offences, or that the source of the money used for gambling comes from the commission of criminal offences. Perhaps the prosecution has a suspicion that this is so but, in the absence of any evidence at all in this regard, I must treat this as speculation and I do not consider that it amounts to a factor weighing against the grant of bail. Nevertheless, there is some evidence in the TI intercept material which has been received to suggest that the applicant has been involved in the illicit supply of drugs in the carpark and elsewhere in the vicinity of the casino. The risk of her engaging in such conduct can, however, be met by the imposition of a bail condition prohibiting her from attending the casino or being in the near vicinity.

59 Taking into account all potentially relevant factors, I consider that the most significant factors relevant to the present application are the apparent seriousness of the offences charged and any corresponding flight risk. These two, in reality, go hand in hand.

60 For a lady of the applicant's age and background, with family and other connections in another country, it is not at all surprising or uncommon for her to make visits, even frequent visits, to her homeland. It is clear that Mrs Lai has been visiting Vietnam repeatedly over past years and her background supplies reasons why that is not unusual or suspicious. She has been living in this country for many years, has family and property here, is an Australian citizen and holds an Australian passport. So far as it is significant, she was holding a return ticket to Australia when she was apprehended at the Perth International Airport.

61 While it would be unrealistic to assume that there may not be some risk or inducement for Mrs Lai to attempt to leave the country in the present circumstances, that risk, with proper precautions, seems to be capable of being reduced to a low level. The imposition of conditions that she must surrender her passport and any other current passport which she may hold, avoid attending any point of international departure in Australia, avoid moving out of the State and report regularly to the police will, in my view, reduce any such risk substantially, if not eliminate it entirely.

62 It follows that I consider that Mrs Lai should be granted bail but on strict conditions. The bail should be:

(a) a personal recognisance of $100,000 and an approved surety of $100,000;

(b) that the applicant reside at the nominated address in Beechboro or such other address as may be approved by the police or by this court;

(c) that the applicant personally report to the officer in charge at the Mirrabooka police station each weekday between 8.00 am and 7.00 pm or at such other place or time as may be directed by that officer or by this court;

(d) that the applicant surrender to the police or to the court her current Australian passport and any other current passport which she may hold;

(e) that the applicant shall not leave the State of Western Australia without the approval of the court;

(f) that the applicant comply with a curfew and remain at her approved place of abode between 8.00 pm and 6.00 am each day unless otherwise approved by the officer in charge of the police station which she attends each weekday;

(g) that the applicant shall not attend, or be, or remain within the precincts, or immediate surrounds, including carparks, of the Burswood Casino;

(h) that the applicant shall not attend, remain in, or be within the immediate surrounds of the Perth International Airport or any other place of international departure within Australia;

(i) that there be liberty to apply to add to, remove or vary any of these conditions.