Bail Act 1982, Schedule 1 Part C cl 3A, cl 4

1 SCOTT J: By notice of motion dated 11 May 2001, the applicant applied for bail pending appeal. The matter came on for hearing on 17 May 2001 and on that date the application was dismissed. I indicated to counsel that I would later give reasons for having reached that view. These are those reasons.

2 On 9 May 2001 the applicant was sentenced to a term of 6 years' imprisonment for the offence of armed robbery in company. On the same day he was also sentenced to a term of 5 years' imprisonment for the offence of assault with intent to steal. Those sentences were ordered to run concurrently and backdated to commence on 3 April 2001.

3 The applicant's involvement in that chapter of criminality is set out in the affidavit of Linda Petrusa, sworn 17 May 2001. In that affidavit, Ms Petrusa deposes to the chronology of events surrounding the applicant's alleged involvement in criminality. The offences in relation to which the applicant was sentenced on 9 May 2001 occurred on 18 May 2000 at Burswood. The circumstances surrounding the convictions were that the applicant and others went to the Burswood car park with a view to committing an assault on homosexual men. The applicant took with him a metal pole. Others were also armed. At the car park the group identified two complainants and started abusing them. One of the group (not the applicant) demanded money and one of the complainants had his car keys snatched from him and was then struck on the legs with a weapon. A second complainant was punched in the head and then hit with a piece of wood and another weapon. The trial Judge concluded that it was the applicant who used the piece of wood.

4 The two juveniles involved in this attack, in company with the applicant, used the stolen car keys to take the car to which the keys belonged and left the scene.

6 In sentencing the applicant, the learned trial Judge concluded that the applicant "played a leading part in devising the unlawful purpose and carrying that purpose into effect".

7 After assessing all of the factors involved in relation to the criminal conduct and the applicant's personal circumstances, the learned trial Judge imposed the sentences to which I earlier referred.

8 The applicant has lodged an appeal seeking to set aside his conviction. The grounds of appeal are:

"The Trial Judge erred in the exercise of his discretion to admit into evidence a video taped record of interview obtained in circumstances of:

1 Unlawful detention.

Particulars :

(a) The Applicant was effectively held in custody for a period of eight hours prior to the second record of interview being video taped.

(b) At the time of taking the Applicant into custody, Police Officers were aware of an existing warrant of apprehension pursuant to Section 59 of the Justices Act 1902 requiring the Applicant 'to be brought before justices to answer the complaint or to be further dealt with according to law'.

2 Non-compliance by the primary investigating detective with current requirements and guidelines of existing orders to police for the proper recording of records of interviews.

Particulars :

(a) Police officers are required by the Police Regulations 1979 to act in accordance with the Orders and instructions provided to them;

(b) Police Officers are required pursuant to Order 43 to conduct a video-taped record of interview in accordance with existing Police Service Guidelines;

(c) Police Officers failed to conduct a record of interview as required because of:

(i) Failure to ask the Applicant if he understood the caution and was prepared to proceed with the interview.

(ii) In the first video taped record of interview, failed to establish that the interview was made voluntarily.

(iii) In the first record of interview, failed to 'nullify' a suspicion that the first interview was not made voluntarily.

(iv) In both records of interview failed to ask the Applicant if the interview was made without any threats, promises or inducements being made to him.

(v) In both records of interview failed to advise the Applicant that a copy of the tape(s) would be served upon him or his legal representative.

(vi) During the second record of interview, Police misled the Applicant in regard to :

(c) Saying all assailants 'had a go' at the complainants.

3 Failure to establish that the record of interview had been made without any threat, promise or inducement:

Particulars:

(a) The Police Officers at the end of either record of interview failed to ask the Applicant if the interview was made without any threats, promises, or inducements being made to him."

9 It is alleged that whilst on bail, the applicant committed further offences on 4 December 2000. He was charged with threatening to kill, deprivation of liberty and stealing with violence. He was remanded in custody. He came before the District Court on 7 May 2001, was arraigned, pleaded not guilty and was further remanded.

10 There are two separate reasons why the applicant needs to demonstrate exceptional circumstances in order to obtain bail in this instant:

1 Because it is alleged that whilst on bail for a serious offence the applicant committed further serious offences.

11 Clause 3A Part C of Schedule 1 of the Bail Act 1982 provides:

"3A(1) Notwithstanding clause 1 or 2 or any other provision of this Act, where -

(a) the defendant is in custody awaiting an appearance in court before conviction for a serious offence; and

(b) the serious offence is alleged to have been committed whilst the defendant was -

(i) on bail for; or

(ii) at liberty under an early release order made in respect of,

another serious offence, the judicial officer (if section 16A does not apply) the authorised officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer or authorised officer -

(c) is satisfied that there are exceptional reasons why the defendant should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; and

(d) is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child defendant, clauses 2 and 3."

It is not in dispute that both the original and subsequent charges included offences which were serious offences within the meaning of that term in Schedule 2 of the Bail Act 1982.

2 Because the applicant is seeking bail pending appeal following his conviction.

12 Clause 4 Part C of the Bail Act 1982 provides:

"4 In deciding whether or not to grant bail to a defendant who is in custody waiting to be sentenced or otherwise dealt with for an offence of which he has been convicted or awaiting the disposal of appeal proceedings, the judicial officer shall, subject to clauses 5 and 6, consider whether -

(a) in the case of a defendant waiting to be sentenced, there is a strong likelihood that he will impose a non-custodial sentence; or

(b) in either case there are exceptional reasons why the defendant should not be kept in custody, ...".

13 Counsel for the applicant maintains that exceptional reasons have been demonstrated because:

2 because the issues that are to be raised in the appeal are such that it is likely that a considerable time will elapse before any reserved decision is delivered.

14 Dealing with the first of those matters, the grounds of appeal have already been set out earlier in these reasons. As can be seen from those grounds, they attack the admissions said to have been made by the applicant to police officers which were admitted into evidence during the course of the trial. In developing the submissions on the application, counsel for the applicant submitted that errors have been demonstrated in the reasons of the learned trial Judge in his ruling that the two videos taken from the applicant were admissible in evidence. In that respect I have examined the published reasons of the trial Judge: R v Norton [2001] WASC 84. I am quite unable to detect any manifest error in the reasoning, which is thorough and comprehensive and refers to most of the leading cases on the admissibility of so-called confessional material. Whilst counsel for the applicant maintained a strong attack upon those reasons, I am unable to conclude that the submissions have substance. Counsel for the applicant pointed out that the same Judge had also ruled on the admissibility of a video-tape taken from a co-accused, Jarrah Miller ("Miller"), see: R v Miller [2001] WASC 81.

15 Whilst it is correct to say that some of the reasons in Miller are reproduced verbatim in the decision in Norton's case, the similarity arises largely in relation to the analysis of the law in each case rather than in relation to the facts. That having been said, however, there is substance in the submission made by counsel for the applicant that sections of the reasons in Miller's case have been reproduced word for word in the decision in the applicant's case. I accept that in reproducing reasons in that fashion, an error is revealed in the reasons of the learned trial Judge in that in the applicant's case he refers to "three" interviews when it common ground that there were only two interviews conducted between the applicant and police officers. The reference to "three" interviews is an error arising from a paragraph taken verbatim from the Miller decision.

16 The statutory matters relevant to the present application have been referred to earlier in these reasons. The legal principles dealing with an application for bail pending appeal, however, are the subject of some controversy. In Chamberlain v The Queen [1983] HCA 13; (1983) 153 CLR 514, Brennan J said at 519:

"To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted. But the jury is the tribunal constituted to determine whether an accused should be convicted or acquitted, and its verdict takes effect immediately."

17 A contrary view was expressed by Callinan J in Marotta v The Queen [1999] HCA 4 where his Honour said at [10] after citing Chamberlain v The Queen (supra):

"With respect, I doubt whether a grant of bail does treat a verdict of guilty as provisional. The verdict stands unless and until it is quashed. One of its consequences, the service of a custodial sentence, is only interrupted by a grant of bail."

18 In Nguyen v The Queen [2001] WASCA 137 I indicated that in my view the reasons of Brennan J in Chamberlain (supra) are to be preferred to those of Callinan J in Marotta (supra).

19 In addition, there is some controversy as to the appropriate test to be applied in a case where the exceptional circumstances are said to arise out of the strength of the applicant's case on appeal. In Bond v The Queen, unreported; CCA SCt of WA; Library No 920322; 12 June 1992, Franklyn J said at 8:

"But in any event I am not persuaded that the case is of such strength as to demonstrate such a possibility of success as to amount to an exceptional reason for granting bail."

20 That decision was considered by Miller J in Caratti v The Queen [1999] WASCA 91, where his Honour said at [11]:

"However, for present purposes, the test which I will apply is whether there are strongly arguable grounds of appeal, which have strong prospects of success."

21 In dealing with the grounds of appeal, counsel for the respondent made it clear that apart from the two records of interview conducted between the applicant and the police, there was other evidence which, if accepted by the jury, could have been the basis of the finding of guilt. A co-accused was called to give evidence at the trial and although his evidence has not been made available on this application, it is common ground that his evidence, if accepted, could properly have been the basis upon which the jury may have convicted the applicant. However, it is not disputed that the co-offender was in law an accomplice so that an accomplice warning was required. None of the grounds of appeal however are directed towards any deficiencies in the summing up relating to that aspect of the trial.

22 Counsel for the applicant maintains that the two video recorded interviews between the police and the applicant were in breach of the guidelines issued by the then Commissioner of Police and in particular guideline OP-38.1.1 which, amongst other things, provides "Ask the interviewee if they understand the caution and if they are prepared to proceed with the interview".

23 It is common ground that whilst the applicant was asked if he understood the caution, he was never asked if he was prepared to proceed with the interview.

24 In addition, the Commissioner's guideline includes the following:

• "Ask him/her if the interview was made without any threats, promises or inducements being made to him/her. If the interviewee does mention anything that may later cause suspicion that the video interview was not made voluntarily, if possible, nullify that statement or allegation on video.

• At the conclusion and before turning the equipment off, the interviewee should be advised that a copy of the tape will be served upon them or their legal representative."

25 It is common ground that these guidelines were not complied with other than in general terms. The applicant was not asked if he was prepared to proceed with the interview in each case and at the end of the interview the applicant was asked, "Have you any complaints about the way you've been treated?" It is common ground that the applicant answered, "No." There was, however, no specific mention of "any threats, promises or inducements" as referred to in the guideline.

26 In relation therefore to the first matter said to be exceptional, that is the strength of the applicant's case on appeal, I am not persuaded that the applicant has demonstrated that the appeal has such strength as to amount to an exceptional reason for granting bail. In that respect, even if the applicant succeeds in establishing that the records of interview were wrongly admitted, there was other evidence at the trial which, if accepted by the jury, could have established his guilt. It follows that even if this ground of appeal is made out, one possibility is that the court could conclude that there was no miscarriage of justice: see s 689 of the Criminal Code.

27 The second matter which requires the applicant to show exceptional circumstances is that it is alleged that the applicant committed serious offences whilst on bail for a serious offence. In that respect the learned trial Judge who presided over the applicant's trial in the course of sentencing said:

"On 24 May 2000 all these charges were brought before Zempilas CSM who refused an application for bail after taking account of the facts and the matters relevant to the various charges on the ground that you constituted a danger to the general public."

28 Whilst the trial Judge did not expressly endorse that view, it is clear from his Honour's sentencing remarks that he took a grave view of the applicant's involvement in these offences. His Honour said:

"The offences of which you have been convicted are both extremely serious ... Further, this was not a crime committed by individuals forced to commit robbery out of a sense of desperation because of drugs or pressure by dealers. The offenders in the present case were acting partly in search of a thrill."

29 In looking at the overall chronology concerning the applicant which is comprehensively summarised in the affidavit of Linda Petrusa of 17 May 2001 (with the exception of par 2(k) which is factually wrong in that the applicant did not plead guilty) I am not persuaded that the applicant is likely to remain free of criminal conduct if released on bail.

30 Whilst the applicant says his mother would be prepared to go surety for him, in my view there is a significant risk that the applicant would commit a further offence or offences: see Schedule 1 Part C cl 1(1)(ii) Bail Act 1982.

31 In addition, because of the serious nature of the charges preferred against the applicant, in my view there is a considerable risk that he would fail to appear in court in accordance with a bail undertaking (Bail Act 1982 Schedule 1 Part C cl 1(a)(i)).

32 I would finally add that whilst the grounds of appeal raise issues of policy concerning the extent to which police officers should comply with the guidelines which I have mentioned, in my view there is nothing about this appeal or the grounds as presently formulated which would justify any exceptional delay in a decision to be arrived at by the Court of Criminal Appeal. In that respect counsel relied on Speed v The Queen [2001] WASCA 125 which was heard on 2 March and 30 October 2000 and where the decision was delivered on 22 February 2001. In that case the appeal was allowed and the convictions quashed without a retrial being ordered.

33 In my view it was wrong for counsel for the applicant to submit that the decision was reserved for almost a year. The file on that matter indicates that the case was recalled on 30 October 2000 for further argument on revised grounds of appeal and the decision delivered on 22 February 2001. That is a period of less than four months from the conclusion of the hearing of the appeal. That decision does not support the contention advanced by counsel for the applicant that a decision in this case could be reserved for up to a year before delivery.

34 For these reasons the application was dismissed.