Bail Act 1982 (WA), Schedule 1, Part C, cl 3A

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

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

Townsend v The Queen [2000] WASC 63

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

1 ROBERTS-SMITH J: This is an application for bail pending trial in the District Court. It is made by a notice dated 30 May 2001. The material filed in support of the application was an affidavit of the applicant sworn on 23 May and filed on 30 May 2001, the affidavit of Danielo Adam Montaperto sworn 13 March 2001 and a copy of the police statement of Michelle Evelyn McFarlane dated 31 August 1999, together with outlines of submissions from the applicant and respondent.

2 There had been a previous bail application before Hasluck J on 1 December last year. On that occasion his Honour refused bail, giving written reasons on 14 December, (Outman v The Queen [2000] WASC 303). I was asked to have regard also to the material which had been before Hasluck J. Apart from the application itself, that comprised (a) the affidavit of the applicant sworn on 24 November 2000; (b) the affidavit of Jeremy James Scudds sworn and filed on 27 November 2000; and (c) in addition, at the hearing before me on 7 June 2001 the respondent handed up a further police statement of Michelle McFarlane dated 15 November 2000.

3 The charge in respect of which this application is made was originally one that on 9 March 2000 at Belmont, the applicant, together with Danielo Montaperto and Michelle McFarlane, manufactured a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).

4 I am informed that Montaperto has since pleaded guilty and on 9 June 2001 was sentenced in respect of the March 2000 charge to 18 months' imprisonment, that being part of an overall sentence of 4 years' imprisonment with parole. The charge against McFarlane was withdrawn apparently at the preliminary hearing.

5 In late 1997 the applicant was arrested on charges of allegedly manufacturing amphetamine, or a charge to that effect, and I will refer to this as the 1997 charge. To that charge he has pleaded not guilty. In December 2000 he was on bail on that charge. In the meantime, on 9 March 2000 he was arrested and charged with the present charge of manufacturing methylamphetamine and I will refer to it in that way.

6 On 10 March 2000 the applicant was refused bail in the Perth Court of Petty Sessions. That was because he was alleged to have committed the present offence whilst on bail for the 1997 charge. There was a preliminary hearing on 18 and 19 October 2000 and bail was again refused. Thereafter there was the first application to this court which came before Hasluck J on 1 December 2000.

7 It was common ground before his Honour that it fell to be decided under cl 3(a) of Part C of Schedule 1 of the Bail Act 1982. That clause directs that where a serious offence is alleged to have been committed while a defendant was on bail for another serious offence, bail must be refused unless the court is satisfied there are exceptional reasons why the defendant should not be kept in custody. His Honour accepted that he could not grant bail unless satisfied first that there were exceptional reasons within the meaning of cl 3(a) and secondly, that it would be proper to grant bail having regard to the general principles set out in cl 1 and cl 3 of Part C of Schedule 1.

8 It is convenient at this point to summarise the facts and circumstances as set out in the judgment of Hasluck J. So far as the position before his Honour was concerned, the applicant had been in custody since March 2000 and a status conference was expected to be held in March 2001. Counsel for the Crown told his Honour 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 it could be listed for hearing in June 2001. That was disputed by counsel for the applicant before his Honour who suggested that the trial date could be 18 months away from that time.

9 His Honour referred to the personal circumstances of the applicant noting that he was born in 1956 and is the father of two sons aged 20 and 19 respectively. Prior to the applicant's arrest, the children were living with him because their mother had emigrated to Europe. The applicant said in the affidavit before his Honour, and it is also of course before me, that his brother and his brother's wife had been looking after the two boys. However, the eldest son has developed a heroin habit and is in need of support. The youngest has been diagnosed as suffering from depression which it was suggested might have been linked to the applicant's absence.

10 The applicant was unemployed at the time of his arrest and said in his affidavit that while he was on bail for the 1997 offences, he always reported as required and surrendered his passport. His Honour noted that although it is alleged that the applicant committed the offence of manufacturing prohibited drugs, he denies any involvement and is defending both sets of charges in order to clear his name.

11 In relation to the matter before his Honour, which of course as I have said is the same one before me, the Crown case is essentially that 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 and these were associated with the manufacture of prohibited drugs.

12 The occupants of the room were Danielo Montaperto and Michelle McFarlane. They were subsequently apprehended and questioned. A vehicle driven by the applicant was subsequently seen in the motel carpark and he was apprehended. There is a suggestion that he may have been attempting to evade apprehension but Mr Scudds indicates that the circumstances of that are at best ambiguous.

13 The evidence against the applicant is essentially that he booked and paid cash for the hotel room for two nights and that a piece of hose used in the manufacturing process and as part of the equipment found in the room was a piece of hose which came from a hose subsequently found at the applicant's house. In addition to that, there was the applicant's presence at the scene on the date of his apprehension.

14 As pointed out by his Honour the applicant then asserted (and continues to assert) that he was not involved in the manufacture of the drug. His explanation is that Montaperto and McFarlane wanted a place to stay and so he lent them money to do that for a few days. It was while at his home that Montaperto or his girlfriend must have helped himself to a piece of the garden hose without the applicant's knowledge. The arrangement between the two of them was that the applicant would be repaid by Montaperto when he collected some money the following day and that was the applicant's explanation for going back to the hotel, namely to collect the money owing to him.

15 As the matter now comes before me, the provisions of cl 3A(1) of Part C still apply and so bail cannot be granted unless the applicant demonstrates exceptional reasons why it should be. In addition, as this is the second application to this Court, it also comes within the terms of cl 3A(2) which says:

"... where a defendant is refused bail under subclause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for that offence unless he satisfies the judicial officer who may order his detention that -

(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or

(b) he failed to adequately present his case for bail on the occasion of that refusal."

16 Thus the applicant here must pass the threshold test of meeting the requirements of cl 3A(2) and, if he does that, must demonstrate exceptional reasons why bail should be granted. That brings me to the affidavit of the applicant sworn on 23 May 2001.

17 Having referred to his application before Hasluck J in December last year, the applicant then refers to the 1997 charge which had apparently been listed for trial on 14 to 18 May this year. He says that at approximately 5.15 pm on Friday, 11 May the prosecution faxed a copy of an expert report to the offices of his solicitor. After the trial commenced on 14 May his counsel made application that the prosecution not be permitted to lead the expert evidence in the trial because of the late service of the expert report. He maintains that the prosecution had more than sufficient time to complete any expert tests prior to the trial and to serve those on the defence, particularly as the matter had been ongoing for over 3 years.

18 He deposes that the learned trial judge refused to permit the prosecution to lead the expert evidence and consequently the Crown made an application to adjourn the trial. That application was opposed by the defence but was granted by the trial judge.

19 The 1997 charges are listed for a status conference on 22 June 2001. The applicant reiterates in his affidavit that he has now been in custody since 9 March 2000. He points out that the counts on the present indictment are listed for a status conference on 25 June this year. He says at par 12 of his affidavit that if the trial in respect of the 1997 charge had proceeded and he had been acquitted, he would have been in a position to reapply for bail on the present charges.

20 Insofar as that last proposition is concerned, an acquittal of the 1997 charge may well have constituted a relevant change in circumstances sufficient to enable a further application for bail. But if what is meant by that is that the acquittal would have removed the circumstance that he had been charged with committing the present offence whilst on bail for the 1997 offence, that would be fallacious. As I understand it, Mr Scudds accepted that would be so.

21 I return to what occurred in the District Court on 14 May 2001 as explained to me by counsel. What happened essentially was that the prosecution sought to lead expert evidence of handwriting which Ms Porter informed me was a handwritten recipe for the manufacture of the prohibited drug, the handwriting comparison for which (that is, the sample of the handwriting of the applicant) had only been discovered apparently as the result of the investigation of the present charge. It is put by the prosecution that the evidence is compelling in respect of the 1997 charge.

22 The position before the learned trial judge was, therefore, that objection had been taken to the leading of this evidence without the defence having had a proper opportunity to consider it and deal with it. It was on that basis that his Honour first refused to allow the evidence to be led and then subsequently acceded to the Crown's application for an adjournment to enable the defence in those circumstances to consider that evidence, and in that way presumably it is envisaged that the handwriting evidence would be led in due course at that trial.

23 Ms Porter conceded that the adjournment of the trial of the 1997 charge is probably sufficient to constitute a relevant change of circumstances within the meaning of cl 3A(2) of Part C. I agree, and it would do so certainly in combination with the affidavit of Mr Montaperto to which I shall shortly refer. I accordingly proceed on that basis and so turn now to consider whether exceptional reasons have been shown.

24 These are said by Mr Scudds to be, first, the delay in bringing the present charge to trial, the applicant now having spent nearly 15 months in prison, and he submits that a trial is unlikely before early 2002; secondly, he refers to the adjournment of the trial of the 1997 charge and the circumstances in which that occurred, which clearly had nothing to do with the applicant; thirdly, the general circumstances of the applicant, including the strength of the prosecution case, the sentencing of Montaperto and the statement of Michelle McFarlane, dated 31 August 1999.

25 I cannot accept that the fact of the adjournment of the trial of the 1997 charge and the circumstances in respect of that could constitute exceptional reasons why bail should now be granted in respect of the present unrelated charge, nor do I consider that the general circumstances of the applicant, either alone or in combination with other factors, would fall within that category. I think the two matters upon which this application must ultimately turn are the strength or weakness of the prosecution case and the question of potential time in custody before trial.

26 As to the strength of the prosecution case, one must start with the presumption of innocence. The prosecution case essentially is, as I have indicated, that Montaperto was a manufacturer of methylamphetamine, that he and McFarlane were arrested by police, having occupied the motel room in which Montaperto had set up and been using equipment for that purpose, that it was discovered because of a chemical smell which was noticed and reported to police, that the room was booked by the applicant in his own name and he gave the registration details of his own car, and the piece of hose used in the manufacturing set-up was later found to be part of the hose found at his house. He was arrested in the carpark later when he arrived at the motel. There are no admissions by the applicant.

27 The defence case is reflected, I think, in the affidavit of Montaperto, dated 13 March 2001. In that affidavit Montaperto deposes that about 7 March 2000 the applicant helped him and McFarlane to book the motel room for a couple of days. Montaperto says he had gone to see the applicant at his house in Redcliffe to borrow some money and for the applicant to book the two of them a room.

28 He deposes that he was in the applicant's house talking to him and then they went outside. At that point the applicant apparently had forgotten his cigarettes and went back into the house to get them. While he was inside the house Montaperto took a piece of garden hose that was in the entry to the garage and cut off a short length because he knew he would need a piece later and it was convenient for him. He deposes that he did not tell the applicant that he had taken the piece of hose.

29 Thereafter, he deposes that the applicant booked the motel room and did so in his own name because Montaperto and McFarlane had neither money nor identification to enable them to do so. He says that he does not know the applicant well, having met him only about a week before and seen him only a couple of times. He said that the applicant knew that he was a "cook", that is to say he knew how to manufacture amphetamines, although the applicant and he never agreed to possess, manufacture or sell drugs.

30 The basis of their discussion was a general one about the drug scene in Perth and about him being a "cook". He says the applicant came to the motel on 9 March according to an arrangement with Montaperto to pick up the money Montaperto owed him for the motel room. He further deposes that the applicant had no knowledge of the fact that he was manufacturing amphetamines.

31 He does say that he has made previous statements to the police in which he does implicate the applicant, but he now maintains in this affidavit that those statements were not correct and that he was pressured by the police into making them. He says he implicated the applicant simply because the police knew the applicant had come to the motel.

32 It is apparent that Montaperto has given several conflicting accounts and his credibility would be very much in issue. At the same time, the applicant will not have to prove his innocence at trial. The onus will be on the prosecution to prove his guilt and if the jury is left with a reasonable doubt that his involvement was only, or may have only been that described by Montaperto, then the applicant would have to be acquitted.

33 McFarlane's statement of 31 August 1999 talks about her involvement in the drug scene and with Montaperto. The applicant is not mentioned. However, that was prepared in respect of other matters and obviously before the events giving rise to the present charge. It accordingly has no bearing on this application.

34 Her statement dated 15 November 2000 does say a good deal about the applicant. She describes herself as being a heavy user of methylamphetamine, using approximately 5 points of pure methylamphetamine a day; a point being .1 of a gram. She says in the statement that Montaperto used to manufacture the methylamphetamine that he and she would use. His habit was similar to hers. She had an aversion to needles, so Montaperto used to inject her. She had this relationship with Montaperto for nearly three years and over that time they would go to various hotels and people's houses where he would manufacture the drug. It was made mainly for their own use, although occasionally Montaperto would sell a packet.

35 She says in her statement that on 8 March she went to the motel at Belmont with Montaperto and the applicant, although at that time she did not know the applicant's surname. The night before they had done so Montaperto had showed her a bag of white powder at her parents' house. He said something to her about that. In her statement she says that he told her he had received it from the applicant. That evidence of course would not be admissible on the applicant's trial nor would other conversations she recounts in her statement as having occurred between her and Montaperto in the absence of the applicant.

36 She says that she made arrangements with Montaperto to go to a motel room and it is clear from her statement that her expectation was that he would be manufacturing methylamphetamine. They were picked up by a vehicle, the driver of which turned out to be the applicant. The applicant drove them to the motel, parked out in front of reception and Montaperto and the applicant went into reception to book the room. McFarlane says she stayed in the car.

37 They went into the motel and in the room Montaperto took things out of a bag he had brought with him. This was the equipment which he was then to use for manufacturing the drug. She says that the applicant and Montaperto went into the bedroom and began talking. She says she heard them discuss something about Montaperto forgetting the hose and that they needed one. She says she could not hear what else they were talking about but after about 15 minutes they both left and she went to sleep. When she woke up the two of them were coming back into the motel room and she saw the applicant and Montaperto carrying items into the room.

38 Again there is a further conversation in the absence of the applicant and she then describes how Montaperto set up the equipment for the manufacture of the drugs. She left the room to go back to her own house and to get some food and other items and then returned to the motel. The following morning when she woke up she saw Montaperto crystallising the methylamphetamine under the sink in the main kitchen area and she was apparently angry with him because of the smell. She went up to reception and bought some bacon which she brought back to cook on the stove and deliberately let it burn in order to disguise the smell.

39 When the methylamphetamine was produced, Montaperto mixed it, put it in a needle and injected her. She says that at about 7.30 am the applicant returned to the motel room and Montaperto indicated to him that the powder could be used to manufacture methylamphetamine. There was some discussion about cooking the bacon as having been a good idea to disguise the smell.

40 That, I think, is probably sufficient at this point for present purposes to indicate the nature of the content of McFarlane's statement. As Mr Scudds points out, there will likely be real issues about her credibility too, particularly given this statement was made after the charge against her was withdrawn in October 1999. Ms Porter disputes that circumstance will give rise to any relevant issue of credibility, but on McFarlane's own statement she was a knowing participant in what Montaperto was doing in that she took action herself to try to conceal the chemical smell. The jury would have to be warned to approach her evidence with considerable caution.

41 Be all that as it may, I would have to say that on the material before me, which is more extensive than that before Hasluck J, whilst there is certainly a prima facie case against the applicant, I would not regard the prosecution case as being particularly strong. It certainly could not be said that conviction is inevitable.

42 Insofar as the strength of the prosecution case is relevant to the likelihood of the accused attending for his trial, I would not regard the present case as having such strength as to give rise to a reasonable apprehension that the applicant would abscond because he could have no expectation of successfully defending it; but that consideration by itself could not constitute an exceptional reason for granting bail. That brings me to the question of delay.

43 The 1997 charge has been adjourned to a status conference in the District Court on 22 June. The present charge is listed for a status conference in that court on 25 June. Neither counsel was able to give me any properly informed information about likely trial dates. Mr Scudds said that his experience of a couple of months ago was that the District Court was then listing trials for November or December this year. Ms Porter said she would have thought the trial could be had before October, although she conceded she may be wrong about that. She says this matter is proceeding in the normal way through the District Court list.

44 I have been advised by the District Court listings that a three day trial of a person in custody would presently be listed for October 2001, although persons not in custody are being listed for hearing in January 2002. Those times may extend further out by 25 June. It must be accepted that there can be a point at which delay in bringing an accused to trial can be an exceptional circumstance or reason for granting bail. In my judgment on a bail application in Pinkstone v The Queen [2000] WASC 321 delivered on 18 December 2000, I referred to the Victorian Supreme Court case of Alexopoulos v The Queen, unreported; SCt of Victoria; 23 February 1998, in which the Crown had submitted the delay involved there was not unusual and did not constitute exceptional circumstances.

45 It was contended that to be exceptional the circumstances must be contrary to what is normal or usual. With respect to that submission, Hampel J said at 2:

"In my opinion, where exceptional circumstances which substantially depend on delay are raised, they cannot be measured simply by what may be normal or usual. There was a time when senior judges in this court thought that anything over a year, as a rule of thumb, would be treated as being exceptional and inordinate. I think there must be some objective criteria which does not depend purely on what the position is at the particular time because of delays in the system or lack of resources. It must be objective criteria based on the concept that we are a humanitarian society which respects the presumption of innocence and finds abhorrent the idea that people are kept in custody for undue time without trial. The Bail Act, I think, must be interpreted in that context and not simply by reference to what happens to be the unhappy norm at this time.

As I said during argument, if at some time in the future the backlogs became such that it became the norm to have two or three year delays, it could not be said that that is not inordinate when one looks at fundamental principles and concerns with the liberty of the subject.

Of course, there cannot be arbitrary times and each case depends on its own circumstances. In my opinion, the delay in the circumstances of this accused does amount to exceptional circumstances and I think bail should be granted. Nor is this a case which is so overwhelming against the applicant that there is a clear risk that he will simply not face up to trial, quite apart from the exceptional circumstances issue."

"It is not good enough, I think, to say we will wait and see what happens. There have been cases recently where bail was granted after a year and a half or two years, because what was feared had actually occurred, namely an inordinate delay. But by then an accused who has not been tried had been in custody for an extraordinary time. That is unacceptable.

Having said all that, of course, the system must accept that some time will have to pass before accused are tried. One cannot bring cases on immediately. However, when there is tension between resources and systems on the one hand and fundamental principles which I have mentioned, fundamentals must prevail. The system has to change and more resources be made available."

46 I said in Pinkstone v The Queen that I agreed with what fell from Hampel J there and I still respectfully agree with it. Similar sentiments were expressed by McKechnie J in Saka v The Queen [2001] WASC 92. His Honour was there concerned about the prospect of the applicant being in custody for over a year before he could be brought to trial. At pars 38, 39 and 40 his Honour said:

"The detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.

A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice.

The State, using this term in its widest sense, brings the charge against an accused person and the State, in consequence, bears the burden of providing sufficient resources to enable the trial of a person to take place with reasonable expedition. Where, as here, the State objects to the release of an applicant on bail on the ground that the administration of justice may thereby be imperilled, it is incumbent on the State to provide the resources necessary to minimise the consequent injustice of a continued detention of a person who is at law presumed innocent of the charge. Consequently, where there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention."

47 This applicant has already spent 15 months in custody in respect of the present charge. As Mr Scudds points out, that would equate to a term, before eligibility for parole on a sentence, of almost 4 years' imprisonment. Even if the applicant comes to trial in October he will have spent 18 months in custody by then. That would be equivalent to a sentence of almost 4 and a half years' imprisonment.

48 Should he be acquitted there will be no compensation nor recompense for that. Should he be convicted, given the 18 months' sentence imposed on Montaperto it is inconceivable he would be given a sentence of imprisonment even approaching 4 years and so he will have served more, and probably substantially more, time in prison on remand than he would have had to serve on the portion before eligibility for parole of his sentence on conviction.

49 In my view, in these circumstances and having regard to the observations I have made about the strength of the prosecution case, the length of delay between the applicant's arrest and the possible date of trial, (even if that now be in October), does constitute an exceptional reason for the grant of bail and I will grant the application subject to stringent conditions. I will hear counsel as to what those conditions should be.