Application for bail - Previous applications refused - Whether new circumstances have arisen or circumstances changed since the jurisdiction was invoked - Whether exceptional reasons why the applicant should not be kept in custody - Turns on own facts

The Bail Act 1982

1 WHITE AUJ: The applicant, who is presently in custody in Bunbury applies to be released on bail. Previous such applications by him have been refused in the Court of Petty Sessions in Bunbury, in this Court by Scott J, and in the District Court by Martino DCJ as recently as 2 October 2001. There are, relevantly, four indictments which have been presented against the applicant. One has been concluded and the remaining three are pending.

2 The first, Indictment No 131/00, to which the applicant pleaded guilty on 13 November 2000, charged him with one count of the manufacture of methylamphetamine between 1 January 2000 and 9 September 2000. The applicant was released on bail, following his conviction, and, on 7 September 2001, he was sentenced to a two year intensive supervision order with programming and supervision requirements.

3 The second Indictment, No 75/01 charges the applicant with one count of aggravated burglary, unlawful wounding, threats to kill and deprivation of liberty, alleged to have occurred on 7 February 2001, at a time when the applicant was on bail in relation to sentencing following his conviction in respect of Indictment No 131/00. Senior counsel for the applicant submits that the Crown case in respect of this indictment is weak in that it relies upon the uncorroborated and disputed word of the complainant.

4 The third Indictment, No 86/01, charges the applicant with one count of possession of cannabis resin, with intent to sell or supply it to another, one count of possession of cannabis, with intent to sell or supply it to another and one count of possession of methylamphetamine, with intent to sell or supply it to another.

5 The fourth Indictment, No 71/01, charges the applicant with one count of the manufacture of amphetamines. The applicant denies these outstanding charges.

6 In relation to Indictment No 75/01 and No 71/01, the applicant has pleaded not guilty and has been remanded to a status conference in the District Court in the Bunbury sittings on 20 November 2001. The response to his solicitor's inquiries indicates that the earliest likely trial date is February or March 2002. The applicant has been in custody since 14 February 2001.

7 The application is made pursuant to the provisions of s 14(1) of the Bail Act 1982 and, as bail has previously been refused, the applicant must satisfy me that new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked. If that is done, the discretion to grant bail is to be considered in accordance with the provisions of cl 1 and cl 3A of the First Schedule to the Bail Act. Clause 3A provides that, where a serious offence is alleged to have been committed while the accused was on bail for other serious offences, a judicial officer shall refuse to grant bail unless he is satisfied that there are exceptional reasons why the defendant should not be kept in custody and that he may properly grant bail having regard to the provisions of cl 1 and cl 3 of Schedule 1, Part C of the Bail Act.

8 All of the charges the subject of the four indictments which I have mentioned are "serious offences" within the meaning of the relevant sections of the Bail Act.

10 The applicant submits that, since the refusal of bail by Scott J on 22 June 2001, the following changes have occurred in the circumstances:

1. The applicant has since been sentenced for the first offence of manufacturing amphetamines in respect of which he was on bail when the offences alleged in Indictment No 75/01 and No 71/01 are said to have been committed.

2. The applicant's wife, who had left Australia with his children and had gone to Denmark, has now returned to Perth, is renting a property at Willetton and has enrolled the children in a local school. If released, the applicant would wish to live with his family in that house.

3. The applicant has been offered full-time employment with a business operating from premises at O'Connor, namely "Adventure Kayaks". The applicant's brother works at that business and it is said that the proprietors are fully aware of the applicant's position.

11 Clause 2 of Part B of the First Schedule to the Bail Act provides:

"Except where clause 4 applies, the power to grant bail for an appearance."

12 I am satisfied that, taken together, these factors do constitute a change of circumstances sufficient to trigger the power to reconsider the applicant's application for bail in accordance with s 14(2a) of the Bail Act.

13 It follows that I must now consider whether there are exceptional reasons why the applicant should not be kept in custody and, if so, whether I may properly grant bail having regard to the provisions of cl 1 and cl 3 of Schedule 1 of the Bail Act.

14 The applicant submits that the exceptional reasons why he should not be kept in custody are the following:

1. The case against the applicant in respect of the offences the subject of Indictment No 75 of 2001 is not unanswerable and the applicant submits that "one would question whether a reasonable jury properly directed could convict and on that basis he should not be kept in custody". The applicant points out that:

"The Crown case relies entirely on the word of the complainant whose credit is severely in question given what took place immediately after the commission of the alleged offences. The complainant says that at the time he was being held by the applicant in his house, a plumber arrived causing the applicant to flee the scene. Having entered the house and asking about injuries to the face of the complainant, the plumber was told by the complainant that he had injured himself by hitting himself accidentally with a star picket. No mention at all was made about any criminal acts committed by the applicant. There is no confessional evidence. There is no forensic evidence to establish that the applicant was ever at the complainant's house at the relevant time."

2. The applicant submits that the case against him in respect of the offences the subject of Indictment No 71 of 2001 is circumstantially strong but answerable.

3. As I understand his submissions in this regard, it is the applicant's contention that, after the first search of his premises by the police, when evidence was found of his manufacture of amphetamines (to which, as I have mentioned, he pleaded guilty) the police did not remove the apparatus or containers from his premises. He contends that the substances found as a result of the second search of his premises, including traces of various chemicals the subject of a report by the Chemistry Centre which were potentially consistent with the manufacture of methylamphetamine, had been left there at the time of the first search and had been present at that time. Any such traces, therefore, were the result of the original manufacture and not of any subsequent process.

4. The applicant has moved away from Manjimup and, if released to bail, will be living and working in Perth - some hours driving time from Manjimup where the complainant in respect of Indictment No 75/01 resides. Accordingly, it was submitted, the danger that the applicant will interfere with the complainant as a witness is lessened.

5. The applicant's family has returned to Australia and is now residing in Perth and his wife is supportive of him.

6. The applicant has been offered employment on a full-time basis if released to bail.

7. The applicant's continued incarceration will cause considerable financial hardship to his family.

8. The applicant's criminal record is minor, without any offences for breach of bail and not so serious as to deny him bail.

9. The applicant has done nothing which would suggest that he would abscond. He has always previously responded to bail.

15 In my opinion, none of those matters can properly be regarded as constituting exceptional reasons why the applicant should not be kept in custody. It follows that I am required by cl 3A of Part C of Schedule 1 of the Bail Act to refuse to grant bail to the applicant.

16 In any event, if, contrary to the view expressed above, I were free to grant bail, there remains a danger that the applicant may interfere with the complainant, McKeagg, for the reasons set out in the judgment of Scott J delivered on 22 June 2001. The proposed move away from Manjimup to Perth is not sufficient to establish that such interference could not take place.