Court of Appeal (WA)|2005-12-23|Before: McLure JA

The applicant has not demonstrated that there has been any material change in the strength of the prosecution case in the applicant's favour.

36 The other alleged material change in circumstance is the completion of the police investigation into the matter. Blaxell J at [37] (set out earlier) referred to the risk of interference with witnesses as well as obstruction of the continuing police investigation. They are clearly independent matters. Interference with witnesses can occur notwithstanding the completion of the investigation. Blaxell J also found that there was a risk of retaliatory violence between the gangs of which the applicant and the complainant are members. Both continuing risks, considered individually or in combination, are very weighty considerations against the grant of bail.

38 The applicant contends that the offences with which he has been charged are not of such a nature as to require him to demonstrate exceptional circumstances. As I understand it, the applicant contends that, as a matter of fact, the offences are of insufficient seriousness to require him to demonstrate exceptional circumstances. He does not contend that the exceptional circumstances test is inconsistent with the Bail Act or that the test is confined to charges of murder. That is, the submissions did not go so far as to challenge the correctness of the proposition endorsed in Jemielita, namely that the common law principle requiring an accused in limited circumstances to show exceptional circumstances applies under the Bail Act.

39 However, there is a preliminary hurdle for the applicant to overcome. This is not an appeal from Blaxell J's decision but an appeal from McKechnie J's finding of no jurisdiction. Senior Counsel for the applicant contends that the correctness of the conclusion that the applicant is required to demonstrate exceptional circumstances arises from McKechnie J's decision because his analysis of whether there had been a material change in circumstances was governed, or at least affected, by that requirement. Reliance is placed on [20] and [21] of McKechnie J's reasons. In [20] he quotes [40] of Blaxell J's reasons (set out earlier) and continues:

"21 The other matters advanced before Blaxell J remain. One exception is that the investigation has been completed. I do not regard that fact as evidencing a material change in circumstances. It is not my role to sit on appeal in any way from the decision of Blaxell J as to those matters. Clearly he was of the view that the seriousness of the offence itself, coupled with the strength of the prosecution case, made the grant of bail inappropriate. No jurisdictional fact has been established to allow me to reassess bail."

40 In my respectful view, that is an incomplete statement of Blaxell J's reasons for refusing bail. Blaxell J, as he was obliged to do, asked himself the questions in cl 1 (and cl 3) of Pt C and although he concluded that the flight risk could be managed by conditions, he found there were real risks of interference with witnesses and gang-related retaliatory violence.

41 Paragraphs 20 and 21 of the judgment do not support the applicant's contention that McKechnie J's determination as to the materiality of the new facts and circumstances relied on by the applicant was in any way affected by Blaxell J's conclusion that the applicant had to show exceptional circumstances. The strength of the case against the applicant is primarily relevant to the risk of the applicant failing to appear in Court in accordance with his bail undertaking. In that regard, Blaxell J concluded that the flight risk could be met with appropriate conditions. Accordingly, any reduction in the strength of the case would have no material effect on the result. The second matter relied on relates to the risk of the applicant obstructing continuing police investigations. However, that and the other risks identified by Blaxell J, being the risk of interference with witnesses and of retaliatory gang violence are themselves weighty factors under cl 1(a)(ii), (iii), (v) and (b) of Pt C against the grant of bail. Indeed, each of those factors provided positive support for the refusal of bail and demonstrate that the outcome did not depend upon automatic inferences arising solely from the seriousness of the offence or a failure of the applicant to discharge any onus. Thus, the determination that there had been no material change of circumstances was unaffected by the application of the exceptional circumstances test. In any event, I see no error in Blaxell J's reasons or conclusion that the charge of unlawful wounding in the alleged circumstances is extremely serious for the purposes of the common law principle.

42 McKechnie J in [20] and [21] is simply foreshadowing the view stated later in Rauch v The State of Western Australia [2005] WASC 241 that he doubted the correctness of WCVB v The Queen. In particular, he doubted whether the Bail Act cast an onus on an applicant charged with murder or any other serious offence to show exceptional circumstances before the grant of bail, relying in part on cl 3A of Pt C for that conclusion. McKechnie J did not refer to the Full Court decision of Jemielita, which was decided after cl 3A was inserted. In The State of Western Australia v Sturgeon [2005] WASC 256 EM Heenan J provides a reconciliation of the common law principles, the Full Court decision in Jemielita and the Bail Act. However, this is not the occasion for determining or indeed commenting on the different views expressed in these decisions because it is not necessary for the determination of the application. Any reconsideration of Jemielita will require the Court to consider, inter alia, whether the Bail Act is a comprehensive code, whether any presumptions apply (including whether there is a prima facie

right to bail) and matters relating to onus. All of these issues are canvassed in the 1979 Report on Bail of the Law Reform Commission of Western Australia on which the Bail Act is based. None of them were explored before us. I would dismiss ground 2.

43 For these reasons, I would grant leave to appeal but dismiss the appeal.

44 PULLIN JA: I have read the draft reasons prepared by McLure JA. I agree with those reasons and have nothing to add.

45 MURRAY AJA: I agree that the appeal should be dismissed, for the reasons given by McLure JA. The questions at issue are of a limited nature, being concerned with the jurisdiction to reopen the question of bail before McKechnie J. I can detect no error by his Honour in respect of that question and, therefore, the case requires no re-examination of the authorities as to the consideration of bail in a case such as this.

Procedure Amendment Act 1993

Mercanti v The State of Western Australia [2005] WASCA 254 (23 December 2005)

Citation : MERCANTI - v - THE STATE OF WESTERN AUSTRALIA [2005] WASC 122

Lim v Gregson [1989] WAR 1

Musarri v The Queen [2001] WASC 200

Rauch v The State of Western Australia [2005] WASC 241

Stephens v The State of Western Australia [2005] WASCA 98

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

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

Mercanti v The State of Western Australia [2005] WASCA 254

At a glance

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Cases Cited (9)

Mercanti v The State of Western Australia [2005] WASCA 254 (23 December 2005)