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[2003] WASC 180
Supreme Court of WA
2003-09-18
Mr P, Wheeler J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : OATES -v- THE QUEEN [2003] WASC 180
Criminal law - Bail - Previous application to Supreme Court refused - Fresh application claiming change in circumstances - Balance of factors - Turns on own facts
Respondent : Commonwealth Director of Public Prosecutions
1 WHEELER J: In June this year the applicant appeared in the Court of Petty Sessions at Perth on a complaint relating to a number of indictable offences. Count 1 was a count of conspiracy to defraud contrary to s 412 of the Criminal Code, the maximum penalty for which is 7 years' imprisonment. There were a further seven charges of making improper use of his position as an officer of a company contrary to s 294(4) and s 570 of the Companies (WA) Code with a further seven alternative charges of failing to act honestly in the exercise of his powers and the discharge of his duties as an officer of a company contrary to s 294(1)(b) and s 570. Two alleged co-offenders who were originally named in the same complaint, although (apart from the conspiracy count) on different counts, have pleaded guilty to certain of the charges and have been dealt with. The disposition of their matters, and the facts alleged by the Crown, suggest that a term of imprisonment would be the most likely disposition in the event of the applicant being convicted. Bail was refused.
2 On 4 July the applicant came before me with an application for bail. I refused it. The reasons which I gave are to be found in the transcript of the hearing on that occasion. That application was made in the context of the applicant having been extradited from Poland, where he had been living for many years. It was common ground that the extradition proceedings had been lengthy, the applicant having opposed his extradition. It was also common ground that by reason of a limitation period in Polish law the Australian authorities were unable to proceed against the applicant in respect of two of the charges which had originally appeared on the complaint against him.
3 It is submitted by the applicant that, pursuant to cl 4 of Pt B of Sch 1 to the Bail Act, new facts have been discovered, new circumstances have arisen, or the circumstances have changed, since I refused the applicant bail. These provisions of the Act are concerned with balancing the rights of a person who is awaiting trial who is entitled to the presumption of innocence, and whose preparation for trial may be hampered by being in custody, against the undesirability of "bail shopping" by an applicant who has once been refused bail after a hearing on the merits. I accept the respondent's submission that any change should be of some weight, and not as to mere matters of detail, in order to justify a reconsideration of an application: Van Blitterswyk v R, unreported; CCA SCt of WA; Library No 8132; 16 February 1990, Pallister v The Queen [2001] WASC 295. With that principle in mind, I turn to the various factors which I considered on the last occasion, and consider whether there has been any relevant change. The factors appear to fall into three broad categories, although they overlap.
4 There are no new circumstances under this heading. I accept, as I did on the last occasion, that the applicant is a person of previous good character. I accept that his conduct in Poland was law abiding, and that he answered to his bail while proceedings in Poland were on foot. I accept also however that the applicant has for a considerable time made his home in Poland and that his ties are to that country. He has some ties of family and friendship here, but he has not visited this country since 1991. I accept that of course the proceedings relating to these alleged offences would have been an adequate reason for a prudent person to remain away from Australia, in the absence of very strong ties requiring his return. I note also that the applicant is a person of significant financial resources. Since the time of his last appearance before me he appears to have paid legal fees in the sum of approximately $250,000.
5 The offences are, as I noted on the last occasion, relatively serious ones of their kind, and would be likely to attract a custodial sentence if the applicant were convicted. Nothing has changed in that respect. I noted on the last occasion that I was not really in a position to assess the strength of the Crown case. That is still the case. However, although I was advised on the last occasion that the applicant intended to plead not guilty to all charges, it appears that since that time it has occurred to those advising the applicant that certain of the charges against him may require close attention before a fully informed choice of plea can be made. I do not think that that minor difference is of any significance.
6 I accept, as I did on the last occasion, that the applicant and those advising him face some difficulty in preparing a complex commercial matter of this kind while the applicant is in custody. However, an affidavit upon which the respondent relies points out that the applicant is not required to undertake work while in prison if he does not wish to do so, and that there would be very significant time available to him in prison, and a private area in which he could consult his legal advisers. There is or may be, however, a difficulty with the bringing into prison, or the use in prison, of any computers to assist in that respect. I am not able to assess on the materials before me whether this is a significant disadvantage.
7 The applicant's solicitor has now a somewhat firmer view as to the likely course of preparation for trial. However, that estimate does not appear to be based on any fresh material.
8 I note also that it was submitted by the respondent, and accepted by the applicant, that it is now apparent that the applicant has not entered pleas at the earliest opportunity in relation to the charges against him, and that the proceedings in the Court of Petty Sessions have been adjourned a number of times at the applicant's request. It was submitted to me on behalf of the applicant that the delay was due to a delay in provision by the respondent of the s 100 material which it is required to provide, and also to the need for the careful review of certain of the charges before an informed choice of plea could be made. However, given that it is submitted on behalf of the applicant that a trial is unlikely to be possible before the middle of next year, it is not clear to me why at least provisional pleas of not guilty could not be entered at this stage, and further consideration given during the time which must in any event elapse between now and trial. That is a very common course of proceeding and, provided that any plea of guilty which may eventually be entered is entered with reasonable promptness having regard to all the circumstances, an offender will obtain some credit for it. To some small degree, then, the delay prior to trial may be seen to be caused, unnecessarily, by the applicant
9 Although, as can be seen, there are some differences in relation to preparation for trial questions between the position now and that obtaining at the time at which the applicant was last before me, they can truly be said to be "matters of detail".
10 On the last occasion, it was not entirely clear to me whether it was accepted on both sides that the effect of Polish law was that all charges against the applicant would become spent, for the purposes of Polish law, by the middle of next year. It now appears that that is accepted. In any event, it is very clear from the affidavits which are now before me that it would simply not be possible, were the applicant to return to Poland, for the Australian authorities to be able to complete extradition proceedings against him there, before the present charges became spent. Once they become spent under Polish law, it seems reasonably clear that no extradition would be possible. There is no change in circumstance in any of that information; rather it is simply a greater clarity in relation to information previously before me.
11 On the last occasion, I had before me really no useful information as to the applicant's ability to leave Australia without a conventional Australian passport obtained in the usual way. That is still the case, in the sense that I have no information about the applicant's personal resources. I have noted that he is a person of considerable financial resources. I should however also note that, as was the case on the last occasion, he deposes that he has no knowledge of any way in which he might obtain false travel papers or leave the country without travel papers. I have an affidavit from a Federal agent who deposes to the fact that it is not unknown for persons to leave the country without valid travel documents, or to obtain travel documents unlawfully. That is hardly surprising, and again there is no change of circumstance in any of that information.
12 There is however new information concerning Polish law, in relation to a number of points. The information from the Polish authorities confirms that it would not be possible for the applicant to enter Poland without valid travel documents from Australia or some other country. If he were to enter Poland without such documents he would be liable to be deported as an illegal non-citizen. He would apparently be deported from Poland to the country from which he arrived, so that, if he arrived from Australia he would be deported to Australia, while if he travelled via a third country he would be deported to that third country. Deportation may be executed immediately, or there may be a deadline given to the illegal non-citizen before which they must depart from Poland. In circumstances where deportation is not possible immediately, the court will issue an order to have the person put into a camp or kept in detention pending deportation. There is no information about precisely what type of facilities would be used for that purpose. It is also reasonably clear that a decision to deport a foreigner, even under those circumstances, is subject to various rights of appeal in the Polish courts, the time frame for which cannot be defined with any precision.
13 Although more information is available, it seems to me that the effect of the information which is available is not to change in any material respect the position as it appeared to be before me on the last occasion on which I considered questions of bail. On the last occasion I noted that a submission was made to me that Mr Oates did not have an Australian passport and that he would be unable lawfully to travel to Poland, and that if he were to do so he would be promptly returned. I noted that those seemed to me to be at that time matters of speculation. It now seems clear that without a valid travel document of some kind Mr Oates would be unable lawfully to travel to Poland. Whether he would be "promptly returned" if he were to travel to Poland is still, it seems to me, a matter of speculation. Much would depend upon whether he entered Poland directly from Australia or from another country. It seems that there certainly would be proceedings which he could take in order to resist, for some unspecified time, deportation in accordance with Polish law. How long such proceedings might take is a matter of speculation, and whether they would ultimately be of any use to the applicant would depend upon the state of Polish law at the relevant time.
14 In the end, the new material from the Polish authorities does not appear to me to do any more than confirm that the sorts of assumptions which were made about what Polish law was likely to be, on the previous occasion, were in broad terms correct. That is, like most other countries, Poland requires certain valid travel documents to be obtained before entry is obtained to that country. If entry is obtained unlawfully then, as in other countries, the authorities will take steps to deport the entrant, generally but not always to the country from which the entrant immediately arrived. There is provision for detention of a person unlawfully within the country. There is also, as in most other countries, provision for decisions in relation to alleged unlawful entry, and in relation to deportation, to be challenged in legal proceedings. Precisely how all of that would work in the case of this applicant, is, and is likely always to be, a matter of speculation. In the end, I do not think that the new material put before me can be considered to amount to a change of circumstance or the discovery of new facts which would trigger a fresh consideration of his application for bail. I would therefore dismiss this application.
# Oates
The Queen \[2003\] WASC 180