Bail Act 1982, s 22, Sch 1, cl 1(a)(i), cl 1(c), cl 1(g), cl 3

1 ROBERTS-SMITH J: This is an application for bail by notice of motion filed on 20 November 2000. The application is in respect of a number of charges on complaint in the Court of Petty Sessions; namely, one count of possession of heroin with intent to sell or supply on 3 September this year (the amount alleged being between 7 and 10 ounces), one count of possession of heroin with intent to sell or supply on 12 September 2000, (unknown quantity), and one count of supplying heroin on 2 October this year, (the allegation being that was some 110.47 grams).

2 I have before me and I have read the affidavit of Gheorghe Rus sworn on 16 November this year in which Mr Rus, amongst other things, briefly sets out the procedural history of the matter. I will return to that in just a moment. Annexed to that affidavit is a copy of the police statement of material facts.

3 Put briefly, the facts alleged by the prosecution in relation to these charges are that on 2 September this year a person placed an order with the applicant's alleged co-offender Mocanu and with the applicant, for between seven and 10 ounces of heroin. On 12 September the same person placed an order for more heroin. Both of those orders were allegedly filled by Mocanu and the applicant. Another order was allegedly placed on 2 October and at about 4.30pm on that date the applicant was a passenger in a Holden Commodore sedan which was under surveillance in Bardsley Avenue, Girrawheen when he was seen to alight from the vehicle and throw a white plastic bag over the fence of a male person's house situated in that area.

4 The vehicle was stopped and searched immediately after the applicant dropped the plastic bag and an amount of $3437.15 was found in his possession. A Misuse of Drugs Act search warrant was immediately executed at the Girrawheen address and the white plastic bag was found in the yard. It was found to contain four separate amounts of heroin, the total weight being approximately 110.47 grams.

5 A warrant was also executed on the applicant's home address at Leeder Street, Glendalough and that search located an amount slightly in excess of $5000 making the total amount of cash seized on that occasion $8437.15. The prosecution alleges that these amounts of cash are proceeds from the sale of drugs.

6 The applicant appeared before his Worship Calder SM sitting at the Perth Court of Petty Sessions on 3 October and on that occasion made an application for bail. It was said on behalf of the prosecution there that the case against the applicant was very strong and that there was a high risk he would leave Australia and return to his native Romania where his family lives. It was said he has a Romanian wife and that they had accumulated substantial assets in Romania. It was also said that it has come to the attention of the police that the applicant had told informants that were he ever caught with heroin he would leave Australia and return to Romania.

7 Counsel who then appeared on behalf of the applicant on that application made a number of submissions predicated largely on the proposition, and indeed the fact, that much if not most of what had been said in opposition to bail on that occasion was unsupported by evidence and was clearly hearsay. I do not propose to deal with that to any particular extent here. It is at this stage for me simply a matter of setting the background.

8 Suffice to say on the conclusion of that hearing the learned Magistrate adjourned the hearing, it appears from the transcript, for the purpose of enabling the prosecution to call further evidence in support of its opposition to the application. In fact what happened was that the matter came back before the Perth Court of Petty Sessions on 10 October and although the transcript records that the hearing was before his Worship Mr Calder, it is apparent from the text of the transcript that it was some other Magistrate whose identity is presently unknown to us.

9 In fact no further evidence was called on that occasion and the application for bail appears to have been dealt with afresh without objection or difficulty on behalf of any party. Once again, the opposition of the prosecution was essentially predicated on the serious nature of the charges, the strength of the prosecution case against the applicant, and the apprehension that he would abscond were bail to be granted.

10 At the conclusion of that hearing the Magistrate refused bail, and that is how the matter now comes before me.

11 In addition to the affidavit of the applicant, I have also had put before me today by Mr Dunn QC, who appears on his behalf, a medical report from the Karrinyup Medical Centre, dated 27 November 2000, which has been admitted as exhibit A.

12 In his affidavit the applicant gives some detail of his background, beginning with the fact that he was born in Romania on 11 August 1962. He says he fled Romania in 1984, arriving in Australia that same year, and he was granted refugee status. He is, he says, an Australian citizen.

13 In his affidavit he stated in paragraph 12 initially that he was married but separated. The words "married but separated" are crossed out and the word "divorced" is written in and initialled. I mention that simply because there appears to be some question as to whether he is indeed still married to the woman who was his wife.

14 She, it seems, was also originally from Romania and returned to Romania, he says, upon their separation in or about February 2000. They have no children. He continues to say in his affidavit that in about 1985 he purchased a house in Melbourne for $52,000. He still owns that property and estimates that the house is currently worth approximately $130,000. He states that between 1984 and 1998 he lived and worked in Melbourne as a painter or machine operator and in 1998 moved to Perth.

15 Under the heading "Medical Problems" at para 17 he says that he currently suffers from cirrhosis of the liver, high blood pressure and disease of the kidney. I note in passing that in relation to those matters the report from the Karrinyup Medical Centre, exhibit A, certainly confirms the existence of a serious case of cirrhosis of the liver with what Dr Collett describes as a guarded prognosis.

16 However, in that same report the doctor observes that he has no knowledge of any high blood pressure and in fact the applicant has been normotensive on each occasion that his blood pressure was taken. I understand that to mean that the reading was normal or within normal limits.

17 In para 19 of his affidavit the applicant states that for approximately 12 months leading up to his arrest he was in receipt of a disability pension due to his chronic ill health. There are no relevant criminal convictions.

18 Mr Dunn QC on behalf of the applicant points out that he has been in custody now for some 2 months on what Mr Dunn describes as unsubstantiated allegations that he will abscond overseas. The other point which has been addressed thus far in a significant way is, of course, the seriousness of the offence combined with what is said to be (on the prosecution's side) a very strong case.

19 Mr Dunn quite correctly points out that the regime under the Bail Act 1982 clearly contemplates bail being granted in a wide variety of situations and on occasion in relation to serious offences. He submits that if there is an apprehended problem in relation particularly to the possibility that the applicant may abscond, then that and any other concerns could be overcome by conditions which might be imposed.

20 The combination of factors upon which he particularly relies are, first, the delay which is likely between now and the committal hearing and any subsequent trial should there be a committal for trial, and in that regard he notes appropriately that Christmas will be intervening in this process.

21 He relies then upon the applicant's state of health and, thirdly, what I suppose, in a sense may be described as an argument of unfairness that denial of bail of this point has been based on mere assertions, and indeed continues to be in the sense that no formal evidence has been called even today.

22 The conditions which Mr Dunn submits may be imposed which would, he says, accommodate any concerns the prosecution or indeed the Court may have might include daily reporting, the imposition of a curfew, the surrender of the applicant's passports and that an order be made that he not be within 3 kilometres of any international point of departure, together with, of course, substantial sureties. It is also suggested that a home detention order might be made.

23 Mr Dunn submits that there is considerable difficulty on the part of the defence in attempting both to make this application and to support it against the opposition of the prosecution when even at this stage the applicant does not really know the case against him. That is because although on one view - that is, the view as it is understood by the defence - the date of election for the applicant is supposedly tomorrow, I am informed by Ms Black for the prosecution that the election date is 6 December.

24 There appears to be some confusion about that. Certainly the transcript from the Court of Petty Sessions indicates that the election date was tomorrow, or is tomorrow, and there is no other indication in the material before me as to how that may have been changed to 6 December.

25 Be all that as it may, I think the only significant consideration which flows from it is really the point made by Mr Dunn that for whatever reason he and his client are still in the position of not knowing precisely what the case against the applicant is at this stage.

26 In his submission to me Mr Dunn has elaborated in considerably more detail upon the antecedents and background of the applicant. I do not propose to reiterate all that now, suffice to say I have noted it and considered it again over the luncheon adjournment and I have regard to it.

27 Taking those matters perhaps to more recent times and more immediate considerations from the point of view of this application, it is said to me that the applicant married in the late 1980s as a result of a proxy arrangement to a girl then 17 years of age who spoke no English, she coming also from Romania. They returned to Australia where she learned English and apparently other skills. Over a period of time the relationship became difficult, and indeed they became estranged. One of the difficulties, it seems, was the applicant's problem with alcohol which, I understand from the thrust of Mr Dunn's submissions, became increasingly problematical from that time onwards, and that is obviously borne out by the content of the medical report as to the cirrhosis condition from which the applicant now suffers.

28 It is said by Mr Dunn that the applicant and his wife are now divorced, and I have already made some passing reference to that. The applicant decided, apparently, to come to Perth to make a new start. The house which he owns in Melbourne has not been sold, in the hope that his wife would return. Since he arrived in Perth he has been doing odd jobs and continues, of course, to suffer from his serious drinking problem.

29 Ms Black, who appears, as I have said, for the prosecution, reiterates the submissions which were made before the learned Magistrate in substance, but has detailed rather more information in support of them. She contends the Crown case is particularly strong and is primarily based upon telephone intercepts between the applicant, his de facto who is a co-applicant, and a third person who was charged but has since, apparently, absconded.

30 The telephone conversations were apparently in the Romanian language and that has occasioned one of the principal difficulties, as I am told, in the prosecution being able to put its evidence of the translations of those telephone calls together. The short background to the alleged circumstances of the alleged offences appears to be that the applicant was under surveillance for some time, including telephone surveillance, and that from 17 September onwards a series of telephone calls was monitored involving the third party, that being the person to whom it is alleged the heroin was sold, also a Romanian individual, and the co-applicant and the applicant himself.

31 There were discussions about cabbage rolls and the delivery of those, and the prosecution allegation, of course, is that these telephone conversations, which were obviously elliptical, as one often sees in circumstances of the kind alleged here, were in fact all about the supply of heroin. I do not propose to reiterate now the details of the alleged telephone conversations. Suffice to say that if that evidence is admitted at trial, then it would be inclined, as was submitted by Ms Black, to very strongly support and add cogent weight to the physical evidence of the observations of the applicant and his co-applicant.

32 As to the allegation that the applicant would not attend for his trial should bail be granted even with conditions, Ms Black points to some concern on the part of the prosecution about the availability to the applicant of a passport or passports. She correctly pointed out that in his submissions to the learned Magistrate on 3 October Mr Levy, who then appeared, told the Court that the applicant did not hold a passport but was an Australian citizen. The suggestion was apparently made that the police have his passport.

33 Ms Black informs me that the police do not have the applicant's passport, that inquiries of the Department of Immigration have revealed that he is the owner of Australian passport with an expiry date of January 2004, and the department understands that he does have a Romanian passport. Ms Black properly acknowledges that to the extent the availability of an Australia or Romanian passport or both may be concerned, that concern could be met by a condition that bail not be allowed the applicant unless and until those passports were surrendered.

34 The only other particularly salient matters referred to by Ms Black are allegations that the applicant himself on 28 April this year sent an amount of $8500 to a woman in Romania who apparently is said to be his mother-in-law, and that on other occasions amounts of money were transferred by other Romanian people to relatives of the applicant, the allegation again being that those transfers were done on the initiative of and for the applicant.

35 Ms Black points out that the applicant owns no substantial property in Western Australia, although there is a house here owned by his ex-wife, and points out again the inconsistency between what has previously been said about whether they are still married or divorced, that his house in Melbourne is likely or possibly to be sold, that the applicant has no property ties to Western Australia, that his immediate family is in Romania, that his de facto is charged and in custody here in this State, and that indeed any ties that he has to Australia are minimal.

36 Some reference was made to criminal charges in Victoria. Under the circumstances and in light of what was said about those, I disregard them for the purposes of the present proceedings, as I disregard the allegation that the applicant failed to turn up in respect of one of those charges. The fact is, and it appears not to be disputed, that although he did not attend in accordance with the bail requirement, he did later return to the State and bring his presence to the attention of the Court.

37 Virtually nothing is known about that and it seems to me is not something upon which I can rely either way in these proceedings. I also disregard the suggestion that there is a warrant outstanding in Victoria for a drink driving offence.

38 This application, of course, falls to be considered under Part C sch 1 and in particular cl 1 and cl 3 of the Bail Act.

39 It seems to me the primary considerations, for present purposes, are those referred to in cl 1(a)(i) - that is whether, if the applicant is not kept in custody, he may fail to appear in accordance with his bail undertaking - cl 1(c), which is whether the prosecutor has put forward grounds for opposing the grant of bail and cl 1(g), which is whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

40 So far as the matters set out in cl 3, as being relevant to a consideration of the matters referred to in cl 1(a) are concerned, the salient ones here seem to me to be cl 3(a) which deals with the nature and seriousness of the offences, and the probable method of dealing with the applicant for them if he is convicted, and 3(d), namely the strength of the evidence against him.

41 I accept Mr Dunn's submission that when dealing with the issue of a possible failure to appear or grounds advanced by the prosecution in opposition to bail, I must consider whether any conditions could be imposed which could overcome these matters. I should also say that in the way in which this matter comes before me, namely following arrest and before the alleged offences have been dealt with, the applicant is of course entitled to the presumption of innocence.

42 As against that, however, I am also required, as I have indicated, to take into account such factors as the seriousness of the alleged offences and the strength of the prosecution case in respect of them. I am conscious that no formal evidence has been given before me and I acknowledge the difficulty, which Mr Dunn quite rightly points out, of the applicant not being able to test, in the evidentiary sense, factual matters which have been put to me by the prosecution.

43 Nonetheless, reliance on information of that kind is expressly contemplated by s 22 of the Bail Act and I think it appropriate in this case to act on it for present purposes. The major factors, it seems to me, are, first, the seriousness of the offences charged. They do carry a maximum of 25 years' imprisonment in respect of each and I take the view that they are probably serious examples of their kind, according to the circumstances alleged.

44 It is clear that if the applicant is convicted of these offences, he will inevitably be facing a substantial term of imprisonment. The second point I think of particular consideration here is the strength of the prosecution case. I accept that the telephone intercepts, if they are accepted - and that of course is not for me to determine here - both bear out and support or are confirmed by - because I think it probably works both ways - the observations made of the applicant as a consequence of police surveillance.

45 Those two factors, it seems to me, are of particular cogency here. The third factor to which I think particular regard must be had is the prospect that the applicant might abscond. On balance, I think that in all of the circumstances it is a real possibility that he may abscond if given the opportunity. The likelihood that that may occur seems to be significantly increased because of the seriousness of the offences charged and the strength of the prosecution case.

46 I accept, and it seems to me clear, that his connections with Western Australia are virtually non-existent and that his ownership of a house in Melbourne would be no impediment to his departure from the jurisdiction.

47 I have given very serious consideration to the efficacy of conditions of the kind suggested by Mr Dunn. I was initially inclined to the view that I could resolve any concerns I may have otherwise by imposition of conditions of that kind, but at the end of the day I am not left with that degree of satisfaction.

48 Were the applicant minded to abscond, I think he could manage to disappear quickly and put the whole prosecution and judicial process at nought. I am mindful in particular of the submissions made to me in relation to the passports, but it seems to me possibly naive to proceed on a view that there are not other ways of departing from Australia and particularly Western Australia without legitimate or other passports.

49 I am particularly mindful of the time the applicant is likely to spend in custody pending committal and trial, but that does not outweigh my concerns about the other major factors to which I have made reference. Accordingly, the application for bail will be refused. The applicant may stand down.