Misuse of Drugs Act 1981 (WA), s 6(1)(b)

Bail Act 1982, s 14

Dobrosavlyevic v Allen, unreported; SCt of WA (Pidgeon J); Library No 6656; 1 April 1987

Unchango & Ors v The Queen, unreported; SCt of WA (Templeman J); Library No 980346; 12 June 1998

1 HASLUCK J: This is an application for bail by an accused person awaiting trial. The application is brought pursuant to s 14 of the Bail Act 1982 which provides that a Judge of the Supreme Court may exercise a power to grant bail which is conferred upon any other judicial officer.

2 The application is supported by an affidavit of the applicant sworn 24 November 2000 and by the affidavit of Jeremy James Scudds sworn 27 November 2000, to which is exhibited a copy of the complaint reflecting the charge against the applicant and related depositions. Counsel for the applicant has also filed written submissions. By s 22 of the Act I may receive and take into account such information as I think fit, whether or not the same would normally be admissible in a court of law, and, upon that basis, some additional information was placed before me by counsel at the hearing.

3 The charge to which the application for bail relates is that on 9 March 2000 at Belmont the applicant, Daniello Montaperto and Michelle Evelyn McFarlane manufactured a prohibited drug, namely, methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).

4 The section in question (omitting the inessential parts) provides that a person who manufactures or prepares a prohibited drug commits an indictable offence. The effect of various provisions of the Criminal Code is that any person who does any act for the purpose of enabling or aiding another person to commit an offence can be charged with and found guilty of committing the offence in question.

5 Before reviewing the applicant's personal circumstances, I must touch briefly upon the procedural history of the matter, as this has a bearing upon the criteria relevant to the application for bail.

6 Late in 1997, the applicant was arrested on charges relating to the alleged manufacture of amphetamines. He says that he was not involved in the alleged manufacture of any prohibited drugs and has pleaded not guilty. He is currently on bail of $100,000, with a similar surety, in respect of that charge.

7 On 9 March 2000, he was arrested and charged with having manufactured amphetamines, this being the charge to which the present application for bail relates.

8 On 10 March 2000, in the Perth Court of Petty Sessions, the applicant was refused bail because he was already on bail for charges relating to allegedly manufacturing amphetamines, that is to say, he was on bail in respect of the charges arising out of the 1997 events. Bail was further refused at the preliminary hearing in respect of the present charge on 18 and 19 October 2000.

9 By s 13 of the Bail Act the jurisdiction to grant bail is to be exercised subject to and in accordance with related provisions and the further provisions in Pt C of Sch 1.

10 Part C of Sch 1 summarises the principles governing grant or refusal of bail in various situations, including bail before conviction (cl 1 and cl 3); bail where a serious offence is alleged to have been committed while the defendant is on bail for another serious offence (cl 3A); bail after conviction (cl 4 and cl 5) and bail of people on community orders (cl 6). It also sets out certain limitations on the periods for which bail may be granted.

11 I will return to the relevant principles in due course. It was common ground at the hearing before me that cl 3A applied to the circumstances of the present case in that a serious offence is alleged to have been committed while the defendant was on bail for another serious offence. In these circumstances, cl 3A requires the judicial officer to refuse bail to a defendant in custody unless there are "exceptional reasons" why the defendant should not be kept in custody and the judicial officer considers that he may properly grant bail having regard to the provisions of cl 1 and cl 3.

12 The applicant has been in custody since March 2000. He has now been committed to stand trial in the District Court. I understand that a status conference will be held in March 2001. Counsel for the Crown suggests that in circumstances where an accused is being held in custody a degree of priority is likely to be afforded to the case, with the result that the case could be listed for hearing in June 2001. This is disputed by counsel for the applicant, who suggests that the trial date could be 18 months away.

13 When I turn to the personal particulars of the applicant, I notice that he was born in 1956. He is the father of two sons, being David aged 20 and James aged 19. Prior to his arrest, the children were living with him, as their mother had immigrated to Europe.

14 The applicant says that his brother, John, and his brother's wife, Lynette, have been looking after the two boys. The eldest son, David, has developed a heroin habit and is in need of support. The youngest son, James, has been diagnosed as suffering from depression, which may be linked to his father's absence.

15 The applicant was unemployed at the time of his arrest. He says that while he was on bail for the 1997 offences he always reported as required and surrendered his passport. Although it is alleged that he committed the offences of manufacturing prohibited drugs, he denies any involvement and is defending the charges in order to clear his name.

16 In regard to the charges for which bail is sought, I note that according to the Crown case the applicant is said to have booked a room at the All Travellers Motel in Belmont. When a search warrant was obtained, chemical ingredients and equipment were found in the room which are said to have been associated with the manufacture of prohibited drugs. The occupants of the room, Daniello Montaperto and Michelle McFarlane were subsequently apprehended and questioned. A vehicle driven by the applicant was seen in the vicinity of the motel room.

17 The case against the applicant is summed up neatly in a letter dated 5 July 2000 from the Director of Public Prosecutions to the applicant's legal adviser in this way:

"The evidence against him is that he booked and paid cash for the hotel room for two nights and that a piece of hose used in the manufacturing process matched and therefore by inference came from a hose at his house. In addition to this your client was found at the scene on the day of the manufacture."

18 The applicant has asserted in his affidavit that he was not involved in the manufacture of a prohibited drug as alleged. He says that because Montaperto and McFarlane wanted a place to stay, he lent them money to get a motel room for a few days. While at his home, Montaperto, or his girlfriend, must have helped himself to a piece of the garden hose at his house without the applicant's knowledge. The applicant went to the motel to pick up money due to him from Montaperto and it was at that stage that he was placed under arrest.

19 The applicant notes that the charges against McFarlane were dropped at the preliminary hearing on 18 October 2000. It is his belief that he has a good defence to the charge and that the prosecution case against him is not strong. If granted a surety bail, his proposed surety will be Kim Hayhurst, who is his surety on the other bail.

20 In WCVB v The Queen (1989) 1 WAR 279, Ipp J indicated that common law principles concerning bail may be considered in conjunction with the principles reflected in the Bail Act. Prima facie, a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full 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 charges. The Court is therefore called upon to balance the interests of the accused and the public interest in the trial proceedings. 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 appear on the prescribed day. See also Jemielita v The Queen (1994) 12 WAR 362.

21 I must now return to the principles set out in the Bail Act. Clause 1 of Pt C identifies the factors which are to be taken into account when application is made for bail. Clause 3 requires that in addressing the factors specified in cl 1, the judicial officer shall have regard to various matters, including the nature and seriousness of the offence, the personal circumstances and previous convictions of the defendant, the history of any previous grants of bail and the strength of the evidence against the person applying for bail.

22 By cl 1, the questions to be considered in the light of the matters mentioned in cl 3 include whether the defendant may fail to appear, commit an offence, endanger the welfare of others or interfere with witnesses. It will be material to know whether the prosecutor has put forward grounds for opposing bail. There is also the question of whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

23 The decision of Ipp J in WCVB v The Queen (supra) suggests that all the factors referred to in cl 1 are to be taken into account before the judicial officer exercises his discretion. Where extremely serious charges are involved, then the applicant is required to show exceptional circumstances in order to justify a grant of bail. It is apparent from Jemielita v The Queen (supra) that given the severity of punishment for murder, bail will generally be refused for a serious offence of that kind, except in rare cases where exceptional circumstances are shown to exist.

24 I have already noted that in the circumstances of the present case, where the applicant is in custody for a serious offence and the offence is alleged to have been committed while he was on bail in respect of another serious offence, the judicial officer shall refuse to grant bail unless he is satisfied, first, that there are exceptional reasons why the defendant should not be kept in custody and, second, that he may properly grant bail having regard to the provisions of cl 1 and cl 3 of Pt C of the schedule.

25 Counsel for the applicant submitted that the main question for determining whether bail should be granted or not is the probability of the accused appearing in court. I have already noted, however, that according to the decided cases all matters in cl 1 of Pt C are to be taken into account and no particular factor is to be given primacy.

26 Normally, the onus is on the prosecution to show that the accused will not answer his bail. Counsel for the applicant acknowledged, however, that in the present case under cl 3A the applicant, who has allegedly committed another serious offence, must show exceptional reasons before he can be granted bail in addition to satisfying the Court about the other factors.

27 Counsel for the applicant submitted that in the circumstances of the present case, the exceptional circumstances are related to the following matters, namely, the likely delay in bringing the charge to trial, the current family situation of the applicant which includes the breakdown of the family unit and the problems presently being experienced by his sons. These problems are said to be linked to the applicant's absence from the family home. Counsel referred also to the general circumstances of the accused, including the strength of the prosecution case.

28 In regard to delay, counsel for the applicant relied upon a number of previously decided cases which suggested that a delay in bringing an accused to trial can be characterised as an exceptional circumstance. See Alexopoulos v R, unreported; SCt of Vic (Hampel J); BC 9800603; 23 February 1998; Pinkstone v R [2000] WASC 199 at 5. Those cases suggest that delay should be measured not against the state of the court list in any particular jurisdiction, but having regard to objective criteria based on the concept that a humanitarian society recognising the presumption of innocence will find abhorrent the idea that people are kept in custody for undue time without trial.

29 In regard to the strength of the prosecution case, being one of the factors that I am required to take account of pursuant to Pt C of the Bail Act, I note that Hampel J in Alexopoulos observed that in some cases where the evidence is so overwhelming a judicial officer may take the view that the defendant in such a case may see himself as being in such a hopeless position that he cannot be trusted to be out on bail, for the temptation not to appear would be too great. Certainly, cl 3 of Pt C requires the Court to give attention to the strength of the prosecution case.

30 Counsel for the applicant submitted that the case against the applicant is not strong. The facts alleged by the Crown to suggest a prima facie case are equivocal and explained in the applicant's affidavit. Further, there is the presumption of innocence which must be considered. No fingerprints of the applicant were found in the motel room where the co-accused and Michelle McFarlane were staying and where the drug paraphernalia was found. The charges against Michelle McFarlane have been dropped.

31 Balanced against these considerations are the matters referred to in the Director of Public Prosecutions' letter mentioned earlier. The Crown says that there is sufficient circumstantial evidence available to constitute a strong case against the accused.

32 Counsel for the applicant submits that there is no suggestion that the applicant would not appear in court to answer his bail. He was born in Western Australia and all his ties are to the State of Western Australia. He has a strong family commitment to his sons. He does not have an extensive criminal history and has never breached his bail or absconded while on bail.

33 I was referred to the decision of Scott J in Townsend v The Queen [2000] WASC 63. That was a case, similar to the present, in which it was alleged that an applicant had committed a serious offence whilst on bail for other serious offences. His Honour recognised that exceptional circumstances had to be demonstrated in order to persuade a court that a further grant of bail was appropriate.

34 The applicant in that case was charged with conspiring to launder money and to manufacture a prohibited drug, these being the further serious charges the subject of the application. After a careful review of the various factors bearing upon the grant of bail, Scott J was not persuaded that the applicant had established sufficiently exceptional circumstances to justify the grant of bail in that case. He noted that there was a reasonably strong case that the applicant would be convicted of some offences. Further, he was not satisfied that the applicant would refrain from committing further offences if released to bail. This conclusion was inevitable in his Honour's view when the applicant's record was considered, together with the number and nature of the charges pending against him.

35 I pause to note, however, that the applicant in the Townsend case had a more substantial history of wrongdoing and a greater likelihood of conviction than the applicant in the present case.

36 When I turn to the circumstances of the present case I have to say that I am not satisfied that the requirements of cl 3A have been made out. The charge to which the present application for bail relates is of the same kind as the earlier charge, and both charges are alleged to have occurred within a comparatively short period of time. The Crown is opposed to bail and points to various matters which suggest, contrary to the applicant's submissions, that the strength of the evidence against the applicant is significant. I am satisfied that this is so, although ultimately, of course, that will be a matter for the jury.

37 To my mind, the matters relied upon by the applicant do not amount to exceptional circumstances. It seems that there is not likely to be an inordinate delay in bringing the matter to trial. It is always difficult to determine the exact cause of domestic problems and one must therefore be cautious in accepting that there is a necessary link between the applicant's present situation and the difficulties being experienced by his sons, bearing in mind that they are no longer children but young adults. Further, the nature of the charges brought against the applicant weigh against the applicant, for this is a form of wrongdoing that is difficult to detect and can be easily repeated.

38 The requirements of cl 3A are a clear recognition that notwithstanding the presumption of innocence an application for bail in circumstances such as the present stands in a special category. I am not satisfied that the special requirements of cl 3A have been made out, with the result that the application for bail will be refused.