SABAU -v- THE STATE OF WESTERN AUSTRALIA [2007] WASC 183 (9 August 2007)

Supreme Court of WA|2007-08-09|Before: Johnson J

1 JOHNSON J: The applicant, Marius Stelian Sabau, applies to this Court under s 14 of the Bail Act 1982 (WA) for release on bail pending trial in the District Court on the following charges:

Possession of a prohibited drug, namely heroin, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Prosecution Notice PE 26755/07);
Possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (Prosecution Notice PE 26756/07).

2 I am advised by counsel for the applicant that the chemical analysis of the drug the subject of the second charge (PE 26756/07) revealed it to be cocaine and it is anticipated that, in due course, the charge will be amended to reflect that fact.

3 The applicant is also charged with the offence of driving a motor vehicle without the appropriate driver's licence, contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA) (Prosecution Notice PE 26754/07) ("the driving charge"). I am advised that the applicant intends to plead guilty to that charge and that the State would not oppose bail in relation to it, standing alone, in any event. It is anticipated that a fine would be the likely penalty in relation to that offence. Currently, all matters are before the Perth Magistrates Court where a committal date of 10 August 2007 has been set in relation to the indictable offences.

4 On 10 May 2007 the applicant appeared in Perth Magistrates Court and applied for bail which was refused by the Magistrate. On behalf of the applicant it is said that the primary reason that bail was refused was because of the alleged value of the heroin, which at that time were said by the prosecution to be $3.5 million. However, as revealed by the affidavit evidence before me, it is now the prosecution's position, based on the Drug Reference Index, which is a national database used by law enforcement agencies, and in particular the Index for January to March 2007, that the value of the heroin would have been between $674,400 and $843,000. Counsel for the applicant suggests that the decrease in the stated value of the heroin is most likely to be the result of a lower than anticipated purity level identified in the Certificate of Analyst. That explanation appears reasonable but there is no evidence before me explaining the difference and, in the context of this application, it is unnecessary to make any determination on this matter.

5 It is only necessary to note the prosecution's submission on this point which is that the difference in value is irrelevant because an application to the Supreme Court under s 14 of the Bail Act 1982 is a hearing de novo. Further, it is said that 841 grams is a large quantity of heroin which puts the particular offence into the category of extremely serious offences, irrespective of whether the value of that amount of heroin is $3.5 million or $674,400.

6 The initial application sought bail on whatever terms the Court deems fit. However, in a subsequent application the applicant identified terms which it is suggested might overcome any concerns about releasing the applicant on bail. They are:

A recognisance of $100,000 together with a surety or sureties in the sum of $100,000;
The applicant to report daily to the Joondalup Police Station as directed by the Officer in Charge;
The applicant reside at his principal place of residence at 70 Abbotswood Drive, Landsdale;
The applicant surrender any passport to the Director of Public Prosecutions prior to his release on bail; and
The applicant not go within 1 kilometre of the Perth International or Domestic Airports, a sea port or any Western Australian interstate railways station.

7 Under the Bail Act 1982, an accused person who is in custody awaiting any appearance is entitled to have his case for bail considered in accordance with the Act: s 5(2). Consistent with the express terms of s 5, an accused has no right to bail, only a right to have bail considered. An accused also has a right to apply to the Supreme Court for the consideration of bail, regardless of whether there has been a previous grant or refusal of bail: s 14(1) and s 14(2). The jurisdiction to grant bail, whether exercised by a Judge of the Supreme Court or any other judicial officer, must be exercised in accordance with Pt III of the Act and the provisions of Pt B, Pt C and Pt D of Sch 1: s 13(1), s 14(1).

8 In the circumstances of this application, the principles governing the grant or refusal of bail are set out in cl 1 and cl 3 of Pt C of Sch 1 of the Act.

9 Clause 1 relevantly provides that the decision to grant or refuse bail is at the discretion of the judicial officer but must be exercised having regard to the various questions identified in cl 1 as well as any others which the judicial officer considers relevant. The questions identified in cl 1 which are relevant to this application are the following, although in a summarised form:

(a) whether, if the accused is not kept in custody, he may

(i) fail to appear in court;

(ii) commit an offence;

(iii) endanger the safety, welfare, or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice;

(b) whether the accused needs to be held in custody for his own protection;

(c) whether the prosecutor has put forward grounds for opposing the grant of bail;

(d) whether, if the accused is not kept in custody, the proper conduct of the trial may be prejudiced;

(e) whether there is any condition which could reasonably be imposed which would -

(i) sufficiently remove the possibility referred to in paragraphs (a) and (d);

(ii) obviate the need to keep the accused in custody; or

(iii) remove the grounds for the prosecutor's opposition;

(f) ...; and

(g) whether the alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

10 Clause 3 sets out the matters relevant to the consideration whether the accused may do any of the things mentioned in cl 1(a). Clause 3 also provides that any other matters the judicial officer considers relevant may also be taken into account. The matters which are specifically identified are these, again in summary form:

(a) the nature and seriousness of the offences and the probable method of dealing with the accused for them, if he is convicted;

(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;

(c) the history of any previous grant of bail; and

(d) the strength of the evidence against him.

11 In exercising the jurisdiction conferred by the Bail Act 1982 it is important to note that no one of the above factors is given primacy over another. All matters are to be taken into account, although the circumstances of a particular case may mean that a particular factor, such as the likelihood of the applicant attending trial, will be most important: see WCVB v The Queen (1989) 1 WAR 279 per Ipp J at 283.

12 Counsel for the State submits that, in circumstances where an accused is charged with offences of a serious nature, the onus is on the applicant to show exceptional circumstances for bail to be granted. The decisions of Ipp J in WCVB v The Queen and Roberts‑Smith J in Pinkstone at [9] are cited in support of that proposition.

13 Counsel for the applicant concedes that the dicta of Ipp J (at 282 ‑ 284) in WCVB v The Queen has generally been followed by single Judges as authority for the proposition that the common law principle that there must be exceptional circumstances for the grant of bail in extremely serious cases still applied after the Bail Act 1982 came into operation. However, counsel for the applicant submits that, since the enactment and commencement of the Bail Act 1982, the common law is in fact not the law in Western Australia when considering bail. The decision of McKechnie J in Rauch v The State of Western Australia [2005] WASC 241 at [10] ‑ [12] and The State of Western Australia v Sturgeon [2005] WASC 256 per EM Heenan J at [41] are cited in support of that submission.

14 In WCVB v The Queen, the applicant was charged with 96 offences, including breaking and entering, false pretences, forgery, arson, attempted arson, receiving, stealing and conspiring with members of the Australian Nationalist Movement to commit indictable offences. He applied to a judge of the Supreme Court for bail pending trial.

15 Ipp J commenced his consideration of the principles with respect to the grant of bail by observing (at 280) that the Bail Act 1982 was silent as to the onus of proof, if any, which either the applicant or the Crown (as the respondent was then described) has to bear. Ipp J cited KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988 in which Nicholson J referred to the well established principle at common law that, prima facie, an accused person should be allowed liberty and also to the fact that the onus is on the Crown to establish a reasonable degree of risk that the accused, if allowed bail, would refuse to answer it, that being the relevant factor in that case.

16 Ipp J then referred to Lim v Gregson [1989] WAR 1 where Malcolm CJ (who together with Rowland J constituted the majority) reviewed the general principles applicable to bail applications in cases of murder and held (at 13 ‑ 14) that "extremely exceptional" circumstances are required before bail is granted on a murder charge. Ipp J concluded (at 281) that at least in murder cases the rules referred to in KM v The Queen do not apply.

17 His Honour went on to observe (at 281) that, for many years, a similar approach to that adopted in murder cases was followed in cases of serious crime. Ipp J cited (at 281) R v Watson (1947) 64 WN (NSW) 100 at 102 per Herron J and R v Ladd (1958) 75 WN (NSW) 431 as examples of cases where the courts were reluctant to grant bail in cases of serious crime.

18 Ipp J noted that one of the most important factors is whether the accused person will answer bail, and that in serious offences a strong inference is likely to be drawn that the person charged would be likely to abscond. Ipp J cited (at 282) the following observation of Malcolm CJ in Lim v Gregson in support of this proposition:

"When wilful murder was a capital offence, the task of showing exceptional circumstances would have been more difficult because of the strength of the inference that a person charged with a capital offence would be likely to abscond. Speaking generally, one would expect that the severity of a sentence of imprisonment ... would ordinarily give rise to a strong inference to the same effect, although not necessarily as strong as previously".

19 Ipp J concluded (at 282) that there should not be a substantial difference between the Court's approach in cases of murder and cases of serious crime, at least those which fall into a class that can be described as "extremely serious". His Honour took the view (at 283 ‑ 284) that the charges against the applicant in this case could be regarded as "extremely serious" and therefore "extremely exceptional circumstances" were required to justify bail.

20 At the time of the appeal in Lim v Gregson, the Bail Act 1982 had been enacted but not proclaimed. The Bail Act 1982 did not come into effect until 6 February 1989. Therefore, WCVB v The Queen was decided after the Bail Act 1982 had come into effect. Whether the application of the Bail Act 1982 affected the approach identified by Ipp J in relation to extremely serious charges was an issue to which his Honour gave consideration (at 283). Ipp J noted the factors to be considered in exercising the jurisdiction under the Bail Act 1982 and concluded that all of those factors were relevant under the common law before the Bail Act 1982 came into effect. His Honour also concluded (at 283) that the Bail Act 1982 did not alter the common law in regard to onus of proof. In support of those conclusions Ipp J cited (at 283) the following statement in Lim v Gregson made by Kennedy J who, although in dissent, was the only member of the Court to comment on the Bail Act 1982 and no statement of his with respect to the Bail Act 1982 is contradicted by the majority:

"During the last decade the continued suitability of the common law rules has been called into question and it has been suggested that the liberty of the subject should be given more weight when application is made for bail. Accordingly, in some other jurisdictions, legislation has thrown upon the prosecution the burden of establishing positively that there is a risk of an accused person absconding should he be released on bail, but that is not the common law and, it might be added, it would not be the law if the Bail Act were at last to be proclaimed."

21 When considering the approach taken by Ipp J in WCVB v The Queen it is important to note that the Court was there dealing with offences other than murder and wilful murder and that, in applying the principles in Lim v Gregson, his Honour did not fail to take into consideration that the charge in that case was one of wilful murder. Most significantly, Ipp J was well aware that the Bail Act 1982 was in operation and considered the impact of the Act on the conclusions he had drawn.

22 The requirement identified by Ipp J that the applicant establish exceptional circumstances when applying for bail in relation to serious offences was approved by the Full Court in Jemielita v The Queen (1994) 12 WAR 362. The applicant was charged with the wilful murder of his wife. Having been committed to the Supreme Court for trial, the applicant made an application for bail. His application for bail was refused and the applicant appealed to the Full Court on the principal ground that the learned Judge erred in holding that bail, in the relevant circumstances, should only be granted where his Honour was satisfied that there were exceptional reasons why the applicant should not be kept in custody.

23 In determining this issue, Pidgeon J (with whom Owen and White JJ agreed) first considered the law as it was before the coming into operation of the Bail Act 1982. Pidgeon J stated (at 364 ‑ 365) that the law at that time was as set out by Malcolm CJ in Lim v Gregson (at 130) to the effect that the circumstances would have to be exceptional before a grant of bail could be made on a murder charge before committal. Before identifying the conclusion drawn by Malcolm CJ, Pidgeon J referred to the statement made by Nicholson J, the judge who first considered bail in Lim v Gregson, who said that it was established that, prima facie, a person accused of a crime should be granted bail but 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 charge. Nicholson J added that, when the charge was wilful murder, the position must be that the nature of the crime and the severity of the punishment which follows conviction change the balance: Jemielita v The Queen at 364 ‑ 365. Malcolm CJ's acceptance (at 16) of this proposition on appeal is apparent from his observation that, speaking generally, the severity of a sentence of imprisonment would ordinarily give rise to a strong inference that the person charged would be likely to abscond.

24 Pigeon J then considered whether a change was effected by the coming into operation of the Bail Act 1982. The submission made on behalf of the applicant was that the new Act was to be considered as a Code and there was, therefore, no justification for importing earlier principles. Pidgeon J referred to the decision in WCVB v The Queen and to Ipp J's conclusion that the jurisdiction to grant bail under the Bail Act 1982 had not altered the earlier principles and that, where the charges fell into the extremely serious class, the applicant must show extremely exceptional circumstances to justify bail.

25 Pidgeon J concluded (at 368) that Ipp J was correct in saying that the Bail Act 1982 had not altered the earlier principles and that the principles outlined in Lim v Gregson continued to apply, notwithstanding the commencement of the Bail Act 1982. His Honour's use of the term "earlier principles" rather than "common law principles" was deliberate. Pidgeon J stated (at 365 ‑ 366) that the principles appear to him to have evolved, in the main, in administering statutes, rather than being principles which have arisen out of the common law. His Honour referred (at 366) to the Statute of Westminster the First 1275 (Imp), which was for 550 years the main foundation of the law of bail and which was followed by various other statutes affecting the right to be bailed including the Habeas Corpus Act 1679 (Imp) and the Assizes Relief Act 1889 (Imp). I note that in Al-Kateb v Godwin [2004] HCA 37; (2004) 78 ALJR 1099 at 1106, Gleeson CJ observed that a proceeding for habeas corpus was once the normal method of applying to the King's Bench for bail: referred to by Heenan J in The State of Western Australia v Sturgeon at [30].

26 Pidgeon J stated (at 366) that these enactments were the reason for s 573 of the Criminal Code, the section under consideration in Lim v Gregson which applied to persons committed for trial and which was repealed by the Acts Amendment (Bail) Act 1982 (WA) on the coming into operation of the Bail Act 1982. Section 115 of the Justices Act 1902 (WA) provided that applications for bail in the case of capital offences were in the exclusive jurisdiction of the Supreme Court. Section 15(1) of the Bail Act 1982 confers exclusive jurisdiction on the Supreme Court to grant bail in cases of murder or wilful murder and, as Pidgeon J noted (at 365), is simply a re-enactment of s 115. This indicated to his Honour that the principles previously applied in administering s 115 of the Justices Act 1902 were to carry through to the new Bail Act 1982: at 365.

27 Pidgeon J further noted (at 366) that, while a superior court had an inherent power to admit to bail, applications normally were considered under s 573 of the Criminal Code and s 115 of the Justices Act 1902. In other jurisdictions the question of bail was considered under similar sections. It can be seen, in my view, that there is considerable substance to the proposition that the "earlier principles" commonly referred to were principles which had evolved in administering statutory provisions of the same or similar kind and not simply "common law principles" unrelated to any statutory provision and to be used with caution or even disregarded once a statutory regime is implemented. Despite my agreement with the conclusion of Pidgeon J that, in this context, the term "common law principles" has this wider meaning, I will continue to use that description to maintain consistency when referring to other decisions.

28 Pidgeon J further observed (at 366) that the statutory provisions relating to bail gave a discretion to the courts to admit to bail but did not set out the principles on which bail was to be granted. The courts then formulated principles to be applied when exercising the discretion to admit to bail: referred to by Mansfield SPJ in R v Lythgoe [1950] St R Qd 5 at 6 and set out in earlier editions of Archbold's Pleading, Evidence and Practice in Criminal Cases (32nd ed, 1949) at 71.

29 In this way the position differed from the Bail Act 1982 where cl 1 of Pt C of Sch 1 sets out some of the principles governing the grant or refusal of bail. It cannot be said, however, that the principles in cl 1 were peculiar to the Bail Act 1982 or even original. Many are criteria which have been applied to questions of bail well before the Bail Act 1982 was enacted. Clause 1 contains the important words "as well as to any other factors which the person granting bail considers relevant" which, according to Pidgeon J also indicates that Pt C is not exclusive: at 365. These factors are said by Pidgeon J to strengthen the view, expressed by his Honour at 365 and based on the re‑enactment of s 115 of the Justices Act 1902 as s 15(1) of the Bail Act 1982, that, where appropriate, earlier principles were intended to carry through to the new Bail Act 1982. Pidgeon J noted (at 367) that these principles, which have been evolved when considering relevant matters under the earlier statutes, are based on logic, experience and common sense and are principles that the community would expect in cases of this nature. His Honour expressed the view (at 367) that he did not consider that there has been an intention in the Bail Act 1982 to exclude them.

30 Two such principles are the nature of the crime charged and the severity of the punishment which may be imposed, and it is the weight to be attributed to these two principles which has led to the rule that exceptional circumstances are required to be shown: at 365 ‑ 367; see also Re Anderson [1978] VicRp 34; [1978] VR 322 at 323 ‑ 324 as quoted in Lim v Gregson at 12.

31 I note in this context that Pidgeon J cited with approval (at 367) the view of Malcolm CJ in Lim v Gregson (at 13) that nothing is to be gained by debating the potential semantic differences between the concept of special or unusual circumstances and "exceptional circumstances". Malcolm CJ similarly took the view that there was no important distinction to be drawn between "exceptional circumstances" and "extremely exceptional circumstances".

32 Pidgeon J concluded (at 367 ‑ 368) that the omission in the Bail Act 1982 of a reference to a right to have bail granted and the preservation of the pre-existing discretionary position, as well as the power to consider all relevant questions and matters, resulted in the requirement that the discretion be exercised in accordance with the established principles. Consequently, his Honour considered Ipp J was correct in WCVB v The Queen in saying that the Bail Act 1982 has not altered the earlier principles and concluded that the principle in Lim v Gregson continued to apply.

33 I note that WCVB v The Queen was not the first case in which it was decided that the principle requiring exceptional circumstances to be established applies also to very serious offences, something it was not strictly necessary to specifically address in Jemielita v The Queen or Lim v Gregson because both of those cases dealt with the offence of wilful murder. For example, in R v Lythgoe, Mansfield SPJ added (at 7) "very serious crimes" to the murder and wilful murder when identifying offences of such gravity that, when also taking into account the nature of the penalty on conviction, increase the risk of failure to appear in court to the extent that special or unusual circumstances must be shown. Therefore, in reaching his conclusion in WCVB v The Queen, Ipp J was not, strictly speaking, extending the existing common law principle requiring special circumstances to be established when applying for bail on a charge of wilful murder, his Honour was applying a principle which had already been so extended at common law.

34 In Jemielita v The Queen, because of the nature of the charge, it was not necessary for the Court to apply the conclusion that the principle applied also to very serious offences. That does not, in my view, affect the significance of the decision in relation to the scope of the principle. It is clearly the case that the Full Court in Jemielita v The Queen approved the decision in WCVB v The Queen. The decision in WCVB v The Queen established two matters. The first matter was that the principle requiring exceptional circumstances to be established on an application for bail applied not only to persons charged with wilful murder or murder but also to persons charged with serious offences. The second matter was that the common law principles apply to applications for bail made under the Bail Act 1982.

35 The Full Court in Jemielita v The Queen adopted the proposition that the common law principles apply to applications for bail under the Bail Act 1982. It also approved Ipp J's amendment to or extension of the common law principle requiring exceptional circumstances to be established on bail applications. Whether the conclusion of Ipp J can be described as an amendment to the common law principle to include very serious offences, or as extending the operation of the common law principle requiring exceptional circumstances in the case of very serious offences, either way the effect of the decision in Jemielita v The Queen is that Ipp J's conclusion has been adopted by the Full Court of this State and is, therefore, binding on single Judges of this court. That is because, if the first description is the more legally accurate one then it was that principle, as amended, which was approved and applied by the Court although the amendment to it was of no particular application in the circumstances because the relevant charge was wilful murder. Alternatively, if the second description is the more accurate, then the effect of the Full Court's decision is that common law principles apply to applications for bail under the Bail Act 1982. Examples of principles of that type which were approved by the Full Court are the principle relating to bail on wilful murder charges referred to in cases such as Lim v Gregson, and the principle relating to bail on charges for very serious offences as identified by Ipp J in WCVB v The Queen and by Mansfield SPJ in R v Lythgoe.

36 Clearly also, the rationale which underlies the decision that exceptional circumstances are required, that the length of sentence which results from a conviction for murder has an adverse impact on the likelihood of answering bail, applies to any offence which attracts a long sentence which is any serious offence.

37 As noted above, counsel for the applicant relies on the decision in Rauch v The State of Western Australia in support of the argument that no exceptional circumstances need be established by the applicant. In Rauch v The State of Western Australia the accused was charged with a considerable number of sexual offences, some of which attract sentences of 20 years imprisonment, as well as a charge of manslaughter.

38 In Rauch v The State of Western Australia, McKechnie J specifically addressed the issue of whether it was necessary to show exceptional circumstances in order to justify bail. That question was put generally rather than specifically with respect to murder charges or to other serious offences. Having referred to the statement of principle made by Ipp J in WCVB v The Queen, McKechnie J noted (at [8]) that Ipp J reached that conclusion from an analysis of authority from other jurisdictions. However, Ipp J did in fact consider and refer specifically to the authority of Lim v Gregson: at 281. McKechnie J further noted (at [8]) that, as far as he was able to ascertain, the only case where WCVB v The Queen had been considered on appeal was Ribot‑Cabrera v The Queen [2004] WASCA 101. The following quote from that decision was referred to (at [8]):

"50. ... However, it must still be recognised that these are illustrations of the wider principle that the worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial.

In cases where the consequences of conviction are likely to involve very long terms of imprisonment then the more obvious is this need for the applicant to show special or exceptional circumstances justifying the grant of bail so that, in the absence of such circumstances, bail may be refused and the person charged may have to remain in custody pending trial."

39 As I have noted above, the decision in WCVB v The Queen was not only considered in Ribot-Cabrera v The Queen but also in Jemielita v The Queen and, for the reasons I have referred to above, I consider that the effect of the decision in Jemielita v The Queen is that the Full Court fully endorsed Ipp J's approach and statement of principle. It would appear that the decision in Jemielita v The Queen was not referred to the Court or considered by it.

40 McKechnie J also expressed doubt as to whether the Bail Act 1982 simply reproduces the common law, contrary to the view expressed by Ipp J: at [10]. However, as I have noted, in Jemielita v The Queen, Pidgeon J concluded (at 368) that Ipp J was correct in saying that the Bail Act 1982 had not altered the earlier principles and that the principles outlined in Lim v Gregson continued to apply, notwithstanding the commencement of the Bail Act 1982. As mentioned above, Pidgeon J considered that the principles reproduced in the Bail Act 1982 were more correctly described as "earlier principles" rather than "common law principles" but nevertheless, it is clear that both Pidgeon and McKechnie JJ were considering the same principles as being incorporated into the Bail Act 1982.

41 McKechnie J noted that Ipp J's decision in WCVB v The Queen was given ex tempore. It is not difficult to accept that, in giving reasons for decisions, there is a greater prospect of error or omission when reasons are given ex tempore rather than in written form after reserving the decision. However, I consider the reasons given by Ipp J to be comprehensive and well reasoned, without the deficiencies which sometimes appear in ex tempore decisions.

42 McKechnie J observed (at [11]) that the consequence of the view of Ipp J that under the Bail Act 1982 no particular factor is given primacy, is that it is wrong to encrust upon the words of the statute a so‑called common law principle that an applicant must show exceptional circumstances. However, as Pidgeon J concluded in Jemielita v The Queen (at 365 ‑ 366), such principles are not precisely common law principles but principles adopted by the courts in construing and applying statutory provisions of a sufficiently similar nature. In my respectful view, these principles are not a "judicial gloss", as McKechnie J described them (at 365 ‑ 366). Further, although none of the factors in cl 1 of Pt C are given primacy, and, I might add, nor was primacy conferred on any of the factors identified as applying at common law, the facts of the particular case will almost always identify the factor or factors of particular relevance. It could be said that the common law principle under consideration does no more than identify what is obviously the primary factor in cases of that type. That is, that the length of the likely sentence imposed on conviction will, in most cases, raise the issue of whether the applicant is likely to appear at trial.

43 In any event, and with respect to McKechnie J, I do not share his Honour's view that a requirement to show exceptional circumstances gives primacy to any of the factors identified in Sch 1.

44 His Honour also makes the point (at [11]) that it is significant that, in contrast with Pt C cl 1, in Pt C cl 3A Parliament expressly provides for exceptionality of reasons when an accused satisfies the criteria in cl 3A(1). Clause 3A, which addresses the grant of bail where a serious offence is committed while a defendant is on bail for another serious offence, provides that the judicial officer shall refuse to grant bail unless satisfied that there are exceptional reasons why the defendant should not be kept in custody. I will address this issue later in these reasons.

45 Whilst conceding (at [14]) that the Bail Act 1982 is not a code for the grant of bail, McKechnie J formed the view (at [12]) that an onus on an applicant to establish exceptional circumstances in alleged serious offences is a judicial gloss on the plain words of Pt C, cl 1 which, in his Honour's opinion cannot be sustained.

46 A number of the views expressed by McKechnie J are his Honour's views on the merits of various legal principles. However, his decision to depart from the principle of requiring exceptional circumstances to be established is, in my respectful view, a departure from a principle established by the Full Court of this State.

47 Another authority on which the applicant relies is the decision of Heenan J in The State of Western Australia v Sturgeon. In that case the applicant's charges, which included murder, had been heard before a jury. The jury were unable to reach a decision and were discharged by the trial judge and the accused was remanded for retrial at a later date. The applicant, who had been in custody since his arrest a year earlier, then applied for bail. At the time the offences which had proceeded to trial were alleged to have been committed, the applicant was on bail for other charges. In those circumstances, the application fell within cl 3A of Pt C of Sch 1 of the Bail Act 1982.

48 The issue before the Court was stated by Heenan J (at [29]) to be whether or not the Court could be satisfied that there were exceptional reasons why the accused should not be kept in custody because of the application of cl 3A and, also, but independently, because of the serious nature of the charge of murder still pending against him.

49 Heenan J's analysis of the principles relating to bail commences with a reference to Pidgeon J's summary (at 233 et seq) of the history of the right to bail in Jemielita v The Queen: at [30]. His Honour noted that the question of whether or not an arrested or accused person should be bailed pending trial has resulted over the intervening centuries with the development of many common law principles relating to bail. These are the "earlier principles" considered by Pidgeon J in Jemielita v The Queen at 365 ‑ 366.

50 Heenan J accepted (at [32]) that, although bail has now been put on a statutory footing in all jurisdictions in Australia, "the established common law principles continue to apply to the extent that they are consistent with this legislation". His Honour then referred (at [32]) to Pidgeon J's conclusion in Jemielita v The Queen at (366 ‑ 367) that the "common law" principles are based on logic, experience and common sense and are not excluded by the Bail Act 1982. Pidgeon J described the exercise of the discretion to grant bail in accordance with the established principles as a "requirement": at 367.

51 Turning to specifically address the issue of bail pending trial on a charge of murder, Heenan J referred to the general observation that a person charged with the crime of wilful murder or murder will not be released on bail unless the circumstances are sufficiently exceptional to indicate that, despite such a serious charge, the applicant is not likely to abscond or to interfere with the process of trial or to constitute a danger to himself or to society: at [33]. Heenan J observed (at [33] ‑ [34]) that in all the cases examined by Malcolm CJ, Kennedy J (dissenting) and Rowland J in Lim v Gregson, the prime consideration was whether or not the accused would meet his bail at trial rather than abscond and that, associated with this criterion, was any potential for risk to the trial process or interference with witnesses. His Honour then referred (at [34]) to the following statement of Malcolm CJ in Lim v Gregson (at 13):

"The grant of bail is, however, a matter of discretion and the exceptional circumstances which may be required should not be regarded as a closed list: R v Kleinert (1928) 49 ALT 137."

52 Having referred to the development of applying the principle to all serious cases rather than simply wilful murder or murder, Heenan J noted (at [36]) that in more recent years the decision in Lim v Gregson and WCVB v The Queen have often been cited in support of the broader proposition that in cases involving a charge of wilful murder or murder, bail should not be granted except in exceptional circumstances. Jemielita v The Queen, Pinkstone and Fazzari v The State of Western Australia [2004] WASC 71 are cited as examples of this approach: at [36]. Heenan J placed emphasis (at [37]) on the fact that this requirement for exceptional circumstances to be demonstrated before bail should be granted on a charge of wilful murder, murder or another serious offence, is a product of the common law and not found in the Bail Act 1982. Reference is then made to the explicit statement in cl 1 of Pt C of Sch 1 that the grant or refusal of bail shall be at the discretion of the judicial officer as well as to cl 1(g) which poses the question "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". This criteria clearly refers to the circumstances of the offence rather than the nature of the charge. It goes beyond offences which are necessarily serious because of their nature, such as murder or wilful murder and would include cases where the charges themselves are not of an inherently serious nature but there is some particular seriousness in the way in which the offences were committed or some other factor relating to the commission of the offences. Of course, in some cases, both the nature and the circumstances of the offence might be particularly serious but I consider cl 1(g) to be broader in scope than the principle stated in cases such as Lim v Gregson, Jemielita v The Queen and WCVB v The Queen.

53 Heenan J considered (at [37]) that cl 1(g) was, to a significant extent, tautologous or circular because in effect it prescribes that bail may be refused if the magnitude of the alleged wrongdoing is such as to render it "inappropriate" to grant bail, without specifying or indicating any objective criteria by which the index of "inappropriateness" may be evaluated. I share the view that the inclusion of the words "such as to make a grant of bail inappropriate" are unnecessary and superfluous. When considered together with the introductory words, as intended, cl 1(g) need only read, "whether the alleged circumstances of the offence or offences amount to wrongdoing of a serious nature". In that way, no additional criteria to assist in applying cl 1(g) are required.

54 Heenan J then noted (at [38]) that, under the Bail Act 1982, bail is always at the discretion of the judicial officer, except for cases coming within cl 3A where the need for exceptional circumstances is expressly denoted. His Honour expressed a view, which I share, that the contrast between a clause which specifically requires exceptional circumstances and clauses that do not is of significance when construing statutory provisions. Heenan J cited R v Wallis [1949] HCA 30; (1949) 78 CLR 529 at 550. However, with respect to his Honour, I do not consider that the principles of statutory construction referred to in that reference include the proposition on which he relies.

55 As a result of these factors, Heenan J reached the following conclusion (at 39):

"The explanation appears to me to lie in the view that, generally speaking, on applications for bail not falling with Sch 1, Pt C, cl 3A of the Bail Act, the discretion to grant bail is at large and no single factor is to be regarded as conclusive or determinative in favour of or against the grant of bail. Whereas, in cases coming within the purview of cl 3A, there is a specific statutory direction that the alleged commission of a serious offence whilst on bail for another serious offence must result in the refusal of bail unless exceptional circumstances are demonstrated, so elevating the significance of the alleged commission of the offence whilst on bail for another serious offence to a prescriptively disqualifying factor for such a bail application unless exceptional circumstance be shown. It is not difficult to see a clear policy of Parliament behind such a provision which obviously rests in the concern of the legislature, responding to public anxiety, that person who may turn out to be serious serial offenders may be permitted to remain at large when there is public concern about their ever-present threat to the community.

...

This approach, in my opinion, gives recognition to the differentiation in the treatment of applicants for bail under cl 3 and cl 3A of Pt C of Sch 1 of the Act, in a way which is consonant with long established doctrine and common law principles and which is also harmonious to the Parliamentary recognition of public apprehension about the risk of potentially serial offenders roaming free. However, it still leaves the discretion to grant bail in other cases, including applicants charged with serious offences, who are seeking bail under cl 3 of Pt C of Sch 1 of the Act as the general discretion of the judicial officer or other authority exercising the jurisdiction to consider bail."

56 For myself, I would not have thought that the public apprehension about the risk of juvenile serial offenders roaming free would so exceed the public apprehension concerning the risk of adults accused of murderer being at large as to cause Parliament to tighten the requirements for granting bail with respect to the former and not the latter; unless satisfied that the position with respect to accused adult murderers were already being adequately dealt with by the Courts. At the time the amendment was passed, the Courts were already requiring that exceptional circumstances be established in order for an adult accused of murder to be released on bail. However, repeat offenders have shown themselves not to be deterred from re‑offending by being on bail, something which no condition can really address. Persons charged with murder are an unknown quantity when it comes to re‑offending. Arguably that could provide the basis for taking a stronger position with respect to the juvenile alleged to have re-offended.

57 Having referred to the decision in Rauch v The State of Western Australia and McKechnie J's expression of doubt about the observations of Ipp J in WCVB v The Queen, Heenan J noted that there was a real threat of further offences being committed if bail had been granted to the applicant in WCVB v The Queen. His Honour then stated (at [41]):

"With respect, I consider that the supposed difference between the approach which I have outlined and that expressed by Ipp J in WCVB v The Queen (supra) is more a matter of emphasis than any real difference in principle. Like McKechnie J, I remain of the view that there is no statutory obligation, nor indeed any statutory indication, for a court to insist that exceptional circumstances must be shown before bail can be granted in the case of a serious offence not coming within the category of cl 3A. In such cases, the jurisdiction to grant bail must be considered and exercised without any single factor being regarded as determinative or prohibitive in the exercise of the general discretion addressing the criteria specified in the Act, but this does not mean that the powerful incentive to abscond, provided by the prospect of imprisonment for a lengthy period, can or should be ignored - quite the contrary. In my view, that powerful incentive to abscond must be specifically recognised and addressed in any application for bail for a serious offence, and in many instances it is likely to be a crucial, if not the crucial, factor in leading to the refusal of bail. But that may not always be so and, in my respectful view, it would be a fetter upon the exercise of the general discretion to assume that it must be so."

58 With respect to Heenan J, I do not consider the difference between the decision of Ipp J in WCVB v The Queen and the approach taken by his Honour in this case to be a mere matter of emphasis. Ipp J concluded that the common law principles with respect to a grant of bail apply to the Bail Act 1982. The Full Court in Jemielita v The Queen accepted and applied that conclusion. One such principle was the requirement for special or exceptional circumstances to be established before a person charged with very serious offences, including murder and wilful murder, may be admitted to bail. As I have noted above, that principle was endorsed by the Full Court in Jemielita v The Queen, although it was unnecessary on the facts of that case to apply the principle with respect to a person charged with a serious offence other than wilful murder or murder. As I understand Heenan J's reasons, he does not accept that such a principle applies to the Bail Act 1982 and, in the absence of any statutory instruction to that effect, the conclusion drawn by Heenan J was that the jurisdiction to grant bail must be considered and exercised without any single factor being regarded as determinative or prohibitive in the exercise of the general discretion.

59 It would appear that Heenan J has neither followed nor distinguished the decision in Jemielita v The Queen. However, his Honour acknowledges that similar factors may be considered in determining whether bail should be granted, for example whether the applicant will appear as required, and the outcome may be the same because of the powerful incentive to abscond: at [41]. Heenan J considered (at [41]) that the powerful incentive to abscond provided by the prospect of imprisonment for a lengthy period cannot or should not be ignored. This is said to be because the incentive to abscond must be specifically recognised and addressed in any application for bail for a serious offence, and in many instances it is likely to be a crucial, if not the crucial, factor in leading to the refusal of bail. It would appear from the final sentence of Heenan J's reasons set out at [41] that he considered that the application of the principle requiring exceptional circumstances to be established would be a fetter upon the exercise of the general discretion. Heenan J's conclusion (at [44]) that that applicant must establish exceptional circumstances was because the application was governed by cl 3A rather than cl 3.

60 It is apparent that the express inclusion in cl 3A of the Bail Act 1982 of a requirement for exceptional reasons to be established was of concern to both McKechnie and Heenan JJ. It is certainly a relevant consideration that the requirement in that clause is expressly stated. It could be argued in accordance with the principles of statutory construction that, if the legislature had intended to impose a requirement for exceptional circumstances with respect to other provisions of the Act or the Schedule to the Act. That an amendment would have been made to the provisions at the time of the amendment of cl 3A.

61 The relevance of the terms of cl 3A to the issue of the application of common law principles under the Bail Act 1982 was referred to by McLure JA in Mercanti v The State of Western Australia [2005] WASCA 254 at [13] ‑ [18]. In that context the legislative history of cl 3A was also considered.

62 Clause 3A was added to Pt C of Sch 1 in 1993: Criminal Procedure Amendment Act 1993 (WA). The amendment took effect on 17 January 1994. As appears from the second reading speech, cl 3A was introduced because of the unacceptable frequency of offenders, particularly juveniles, re‑offending whilst on bail or parole: Mercanti v The State of Western Australia at [14] ‑ [15].

63 The fact that cl 3A is an amendment is of particular significance in considering whether those principles can be applied to the Act. As cl 3 was not part of the Act when originally enacted, the principles of statutory construction to which I have already referred, and which Heenan and McKechnie JJ relied upon in The State of Western Australia v Sturgeon and Rauch v The State of Western Australia respectively, do not apply to cl 3. That principle of statutory construction has no application because at the time the Bail Act 1982 was passed, there was no clause within the Act requiring special circumstances to be established which could provide the basis for the principle of interpretation that, if the requirement were intended to apply to cl 1, it would have been expressly included in cl 1, as it was in cl 3A.

64 It is necessary then to look at the effect of amending cl 3A without also amending Sch 1 to require special circumstances in cases of wilful murder, murder or in very special cases. I have already referred to the fact that the release of juveniles on bail, and the frequency of offences committed by juveniles whilst on bail for other offences, was the catalyst for cl 3A. It is apparent that the amendment was intended to address a particular problem more usually connected with juvenile offenders. This would explain why the opportunity was not taken to give statutory effect to the common law principles relied on by the Court when applying the terms of the Bail Act 1982.

65 Further, at the time of the amendment, it had already been established by the Full Court of this State in cases such as Lim v Gregson that the common law principle requiring the applicant to establish special circumstances was already being applied to adult offenders accused of murder and wilful murder.

66 In any event, as I have noted, there is no principle of statutory construction to the effect that, where a clause is amended to include a threshold requirement, unless other clauses are also amended, that threshold requirement cannot be applied by the courts to those other clauses in accordance with common law principles.

67 The fact is that WCVB v The Queen and Jemielita v The Queen were both decided after the amendment to the Bail Act 1982. There is, therefore, no matter or factor which detracts from the force and authority of those decisions.

68 There remains the point raised by Heenan J in The State of Western Australia v Sturgeon that a requirement to establish exceptional circumstances is inconsistent with the discretion conferred by the Bail Act 1982 to allow adult offenders to be released on bail. The point is dependent on the understanding that, at common law, in relation to bail for offenders charged with very serious offences including wilful murder and murder, no discretion exists. In Lim v Gregson, decided before the Bail Act 1982 was passed, Malcolm CJ made the following statement (at 13):

"The grant of bail is, however, a matter of discretion and the exceptional circumstances which may be required should not be regarded as a closed list: R v Kleinert (1928) 49 ALT 137."

69 It would appear that at least Malcolm CJ did not consider the requirement to establish exceptional circumstances and the existence of a discretion to be mutually exclusive.

70 In Mercanti v The State of Western Australia, the applicant did not contend that the exceptional circumstances test is inconsistent with the Bail Act 1982 or that the test is confined to charges of murder. McLure JA observed (at [38]) that the submissions did not go so far as to challenge the correctness of the proposition endorsed in Jemielita v The Queen, namely that the common law principle requiring an accused in limited circumstances to show exceptional circumstances applies under the Bail Act 1982: at [38]. Unfortunately, her Honour did not identify the "limited circumstances" endorsed by Jemielita v The Queen.

71 The conclusion that I have drawn is that Jemielita v The Queen is binding authority for the proposition that certain common law principles still apply to a determination of whether to grant bail, notwithstanding the passing of the Bail Act 1982. Further, I consider that one of the common law principles which apply is that, in very serious cases or extremely serious cases, including murder and wilful murder, the applicant is required to establish exceptional circumstances before bail can be granted. That proposition was endorsed by the Full Court in Jemielita v The Queen and applied to the facts of that case which involved a charge of murder. In my respectful opinion, the law as it currently stands is that exceptional circumstances are required if the Court considers that the offence with which the applicant charged is a very serious offence.

Circumstances relevant to the consideration of bail

72 Clause 1 of Pt C of Sch 1 of the Bail Act 1982 sets out the questions to which the Court is to have regard when considering whether an applicant should be granted bail. However, both counsel agree that there is in this case no evidence to suggest that the applicant may endanger the safety, welfare or property of any person, prejudice the proper conduct of the trial, interfere with witnesses or otherwise obstruct the course of justice. It is also not suggested that the applicant needs to be held in custody for his own protection. Neither is the offence with which the applicant is charged an offence committed with respect to a child. The question posed by cl 1(c) is one which often causes considerable puzzlement. Although the State opposes bail, I do not understand this provision to operate as a veto to the grant of bail whenever the prosecution identifies grounds for opposing an application. Further, it cannot be the case that cl 1(c) confers a right to be heard in opposition to a grant of bail as that is a fundamental right in our criminal justice system and inherent in a system which is adversarial in nature. The State having opposed bail, the matters put forward by counsel for the State will be given full consideration in exercising the discretion to grant bail, as will those raised on behalf of the applicant. As to the likelihood of the applicant re-offending, the State does rely on this factor but concedes that it is not its strongest point.

73 Consequently, the questions which it is necessary to consider are these:

Whether, if the defendant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking: cl 1(a)(i);
Whether, if the applicant is not kept in custody, he may commit an offence: cl 1(a) (ii);
Whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility that the applicant may fail to appear: cl 1(e)(i);
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: cl 1(g).

74 In considering whether the applicant is a flight risk it is necessary to consider the matters set out in cl 3 of Pt C, Sch 1 of the Bail Act 1982.

(a) The nature and seriousness of the offence, the probable method of dealing with the applicant if convicted and the strength of the evidence

75 The first factor identified in cl 3 is the nature and seriousness of the offence and the probable method of dealing with the applicant if he is convicted: cl 3(a). The final factor is the strength of the evidence against him: cl 1(d). Further, as the principle in WCVB v The Queen requiring an applicant to show exceptional circumstances before a grant of bail applies only to very serious offences, it is necessary to consider the nature and circumstances of the offence for that purpose. As an analysis of the evidence is necessary in order to consider all three matters, it is convenient to consider them together.

76 A basic account of the offence alleged to have been committed by the applicant can be found in the prosecution's statement of material facts which is annexed to the affidavit of the applicant's solicitor, Bogdan Soactar, and is in the following terms:

"At about 6.20pm on Friday, 20 April 2007, the accused was observed by police to park his BMW Station Sedan registered number 1CBP964 on the grass verge of Hocking Road, Kingsley near Lakeway Drive.

The accused alighted from his vehicle and walked approximately 100 metres into dense bush land. Whilst at this location the accused was observed to attend a specific area of the bush land. The accused bent down next to a tree, illuminated the area with the light from his mobile phone and removed a package from a container that was secreted in dense vegetation at the base of a tree. The accused began to depart the area and was challenged by four Police Officers at that location. Police observed the accused throw the package into bush land whilst being apprehended.

The accused was placed into police custody and upon inspection of the area police located a plastic lunchbox container with a blue coloured lid containing 12 packages wrapped in plastic packing tape. The packages were individually packed in approximately one ounce portions of heroin. Another similar package weighing 10.22 grams contained methylamphetamine, was located with them. The total weight of the heroin in this container was approximately 364 grams.

In close proximity of this container was another larger plastic Tupperware container with a black lid containing 16 packages, wrapped in plastic pacing tape. The 16 packages were individually packed in approximately one ounce portions of heroin. Another similar package of heroin weighing 3.42 grams was located with them. The total weight of the heroin in this container was approximately 450 grams.

Approximately 15 metres from the two containers, Police located the package thrown by the accused. It was wrapped in plastic wrapping tape. This package was identical to the other packages located by Police and weighed approximately one ounce and contained heroin.

All drugs were seized.

At this location the accused was searched and located in the back pocket of his pants was $560.00 of Australian currency, believed to be the proceeds of drug transactions. The cash was seized.

At about 10.46pm on the same day police executed a Misuse of Drugs Act search warrant on the accused's residential address at 70 Abbotswood Drive, Landsdale. Whilst in the kitchen area police located plastic wrappings and packing tape, similar to the packaging containing the illicit drugs. The items were seized.

The accused was arrested and conveyed to the Organised Crime Squad Office where the present charges were preferred."

77 The Court has also been provided by the prosecution with evidence from the police officers who conducted the surveillance operation that led to the arrest of the applicant. That evidence is in the form of witness statements attached to the affidavit of the investigating officer, Murray Ashley McKay, sworn on 21 June 2007.

78 According to the affidavit evidence, a number of officers were conducting a surveillance operation in bushland on Hocking Road, near Lakeway Drive in Kingsley, on Thursday, 19 April 2007 and Friday, 20 April 2007. At about 10 am on the morning of 19 April 2007, an officer observed the applicant walking along a bush track near the intersection of Hocking Road and Lakeway Drive with an unidentified adult male and a small child. Later that day, officers conducted a search of the area. An officer located a clear container with a blue lid near the bush track the applicant had previously been seen walking on. Later, another container with a brown lid and a tub were located in the vicinity of the container with the blue lid which had been found earlier. Inside the containers were several sealed packages wrapped in brown tape.

79 The next day, at about 6.20 pm, a number of officers were situated at various locations of the bushland on Hocking Road, and observed the applicant walking through the bushland. Two of the officers observed the applicant crouching down in the bushland and illuminating the area with a subdued blue light. The officers had an unobstructed view of the target area which was no more than 10 metres away. At this time, one of the officers heard the distinct noise of a hard plastic lidded container snap open, and then close. As the applicant began walking away, he was arrested by the officers. At the time of the arrest, one of the officers saw the applicant throw a small plastic wrapped package into the nearby reeds. The officer states that the applicant threw the package in his right hand in an under hand throw and the officer tracked it with his torch as it landed about 3 metres into a high reeded area to the applicant's left. Approximately three hours after the applicant was arrested, the officers conducted a search of the reeded area and located a small wrapped package on the ground, several metres from where the applicant was apprehended.

80 The package of heroin which, on the prosecution case, the applicant was seen to throw away when he was apprehended, contained an ounce of heroin. The remainder of the heroin located in the area was also in one ounce lots and packaged in the same way. It is not only location which links the drugs said to have been thrown by the applicant and the larger quantity found close by.

81 When interviewed, the applicant made no admissions in relation to the drugs. When asked to give reasons for being in the bush area the applicant gave a number of different explanations: he went there to urinate, he was walking his dog, being with his wife or child. The applicant's counsel described the answers as inconsistent. However, she conceded that the applicant could be described as evasive in his answers to the question.

82 The Certificates of Analyst annexed the affidavit of Officer McKay identifies the total amount of heroin as 841 grams made up of 450 grams of 14 per cent purity, 363 grams of 12 per cent purity and 28 grams of 15 per cent purity. The amount of cocaine is said to be 10.1 grams of 63 per cent purity. As noted above the value of the heroin would have been between $674,400 and $843,000.

83 At the time of the hearing of the application, the police investigation had not been completed. There is currently no DNA or fingerprint evidence linking the applicant with the drugs and no indication of the likelihood of such evidence being available at a later time.

84 On 21 April 2007 a freezing notice was issued with respect to the applicant's property. The property seized under the notice is the following:

The land at Lot 254 on Plan 20358 in Certificate of Title Volume 2027 Folio 176, commonly known as 283 Badgerup Road, Wanneroo ("the Wanneroo property");
The land at Lot 404 on Deposited Plan 37117 in Certificate of Title Volume 2545 Folio 111, commonly known as 10 Fermoy Link, Darch ("the Darch property");
The land at Lot 64 on Deposited Plan 25805 in Certificate of Title Volume 2503 Folio 41, commonly known as 24 Mobilia Place, Gnangara ("the Gnangara property");
2006 Toyota Landcruiser registered number 1CKC581 ("the Toyota vehicle").

85 Under s 34 of the Misuse of Drugs Act 1981, a person who is convicted of a crime under s 6(1) is liable to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 25 years or both. A crime under s 6(1) is a "serious drug offence" for the purposes of s 32A(1) of the Misuse of Drugs Act 1981. Section 32A(1) relevantly provides that, if a person is convicted of:

(a) a serious drug offence and has, during the period of 10 years ending on the day on which the serious drug offence was committed, been convicted of two or more serious drug offences, or

(b) a serious drug offence in respect of a prohibited drug in a quantity which is not less than the quantity specified in Sch VII in relation to the prohibited drug,

the Court shall, on the application of the Director of Public Prosecutions, declare the person to be a drug trafficker.

86 Schedule VII identifies the relevant quantity of diacetylmorphine (heroin) as 28 grams. The relevant quantity of cocaine is also 28 grams. Consequently, the charge against the applicant of possession of heroin with intent to sell or supply meets the criteria in s 32A(1)(b) of the Misuse of Drugs Act 1981. It is apparent from the wording of the section that there is no discretion involved in making such a declaration. Once the criteria are met, the declaration must be made. Therefore, a declaration that the applicant is a drug trafficker will be made if he is convicted of the offence involving the possession of heroin.

87 The effect of a declaration that a person is a drug trafficker is that all the property that the person owns or effectively controls at the time the declaration was made is confiscated and becomes the property of the State: Criminal Property Confiscation Act 2000 (WA), s 8(1), s 9, s 10.

88 In many cases, one of the facts which deter people from absconding is that they have assets in the State to which they do not wish to lose access. With serious drug offences, if such assets exist then the assets are forfeited on conviction and as a result of the declaration that the offender is a drug trafficker. Therefore absconding does not make the position with respect to access to those assets any worse. There is also the undeniable benefit that the applicant would not be imprisoned for the lengthy term which no doubt would be imposed upon conviction. The combination of these factors provides a very powerful incentive to abscond.

89 Counsel for the State submits that the State's case against the applicant, based on the materials available to date, is a strong circumstantial case. It is said that the characterisation of the case as strong is based solely on the evidence of the events at the scene on the day of the applicant's apprehension. That is because the only rational inference is that the applicant was in possession of the heroin which had been hidden in the bushland close to his home. Further, it is said that, given that the weight of the heroin was 407 times the weight which gives rise to the presumption of an intention to sell and supply under s 11(a) of the Misuse of Drugs Act 1981, the only inference open is that the applicant had the requisite intent. Counsel notes that even counsel for the applicant concedes that the case against the applicant is strong.

90 Counsel for the applicant does indeed concede that there is a strong inferential case against the applicant although she qualifies that description by stating that the prosecution case is not overwhelming. However, it need not be overwhelming in order to establish that there is a good prospect of conviction, which is the basis of the concern that the applicant might not answer his bail. In that regard, based on the material outlined above, there is certainly some substance to the view of counsel for the prosecution that there is no rational inference open suggesting that the applicant had an innocent association with the heroin.

91 I note that counsel emphasised the fact that the case against the applicant was inferential. The evidence of the applicant's possession of the package which he was seen to throw away is direct rather than inferential. However, a circumstantial, or inferential, case can be every bit as strong as a case involving direct evidence, something juries are commonly told.

92 The evidence of one of the surveillance officers is to the effect that he saw the applicant throw the package he had in his hand and he tracked the package with his torch as it landed in a high reeded area approximately 3 metres away. The package was later located in that area. Considering that the package was thrown away by the applicant, in my view, that is compelling evidence connecting the applicant with that package.

93 The evidence connecting the applicant with the larger amount of heroin is equally strong. The area where the larger amount of heroin was located is not far from where the applicant lives and hence is easily accessible by him. On two consecutive days the applicant is observed in the area in which the drugs were located. When interviewed by police and asked to provide his explanation for being at that location the applicant's responses were inconsistent and he appeared evasive. The package thrown by the applicant contained one ounce of heroin and was wrapped in plastic wrapping tape. The larger quantity of heroin found in the two plastic containers was packaged in one ounce packages wrapped in the same type of packing tape which were identical to the package the applicant was observed to throw away. Matching packing tape was found at the applicant's home. The two plastic containers were initially found by police near the bush track the applicant had been seen walking on the previous day. On the second day the applicant was seen crouching down in the bushland by officers who had an unobstructed view of the target area no more than 10 metres away. The snap of the lid of a plastic container opening and closing was heard by a surveillance officer shortly before the applicant was observed with the package.

94 In my view, that evidence makes this case a very strong one and will necessarily give rise to a very real concern on the part of the applicant that he will be convicted.

95 I note in passing that in the context of considering the strength of the prosecution case that counsel for the applicant, when referring to the observations made of the applicant at the location of the heroin, noted that it was clearly very dark at the time which was 6.20 pm in April. That fact, if established, could call into question the ability of the police officers to accurately observe the applicant's activities. Counsel for the State submitted that there is no evidence that it was very dark at that time. That is indeed correct. However, I note that the evidence of at least one of the officers indicates that the applicant was observed crouching down in the bushland and "illuminating the area with a subdued blue light". It would seem that it was at least sufficiently dark for the subdued blue light to illuminate the area and for that to be noticed by observers. Even if that were the case I do not consider that the need to use a subdued blue light to illuminate the area undermines the conclusion that I have drawn with respect to the compelling nature of the prosecution case.

96 The issue of the seriousness of the offence arises for consideration under cl 3(a) as a factor relevant to the questions to be considered under cl 1(a)(i). It is also one of the specific questions requiring consideration under cl 1(g). Further, as I have noted, it is also relevant to the question of whether it is necessary for the applicant to establish that exceptional circumstances exist justifying the grant of bail: WCVB v The Queen. The precondition for the application of that requirement is that the offence is "extremely serious". I note, however, that when reference is made in various judgments to the necessary quality of the offence the descriptive term used is sometimes simply "serious" and also "very serious". Indeed, I have used the term "very serious" in this context in these reasons. I have already referred to the view expressed by Malcolm CJ in Lim v Gregson, and supported by Pidgeon J in Jemielita v The Queen, that nothing is to be gained by debating the semantic differences between such terms. Although that view was expressed with respect to the quality of the circumstances which must be established to justify a grant of bail, I consider the observation to be equally valid with respect to the nature of the offence. For example, in cl 1(g) of Pt C the term used is "serious" and is not further qualified. And yet, the level of seriousness must be such as to, not simply require exceptional circumstances before granting bail, but to make a grant of bail inappropriate. In cl 3(a) the seriousness there referred to is that level of seriousness which simply raises a concern that the offender may fail to appear to answer the charge. In the context of the requirement to establish exceptional circumstances, I consider the level of seriousness required must be such as to fall within a group of offences which includes wilful murder and murder.

97 When considering the issue of seriousness, it must be kept in mind that the applicant has in fact been charged with two offences; possession of heroin with intent and possession of cocaine with intent. Whilst the prosecution does not say the cocaine charge, by itself is extremely serious, it is the combination of the offending that is the relevant factor in this context. I accept that it is the combination of offending which must be such as to justify the applicant's release on bail in relation to both offences.

98 With respect to the heroin, the State's position is that the amount, not far short of a kilogram, is a large quantity of heroin. Counsel for the State maintains that the fact that even larger quantities of heroin have been bought and sold in Perth (or heroin of greater purity) is of little assistance. Each would properly meet the description of a large amount of good quality heroin and constitute the basis of a very serious offence. It is simply a matter of degree.

99 The State also relies on the fact that, if the applicant had not been apprehended, that amount of heroin would have caused considerable damage to the community. That damage includes the effect on users of the heroin and the effect on others of the actions of drug users in acquiring the funds to purchase the heroin. It is well established that drug users can resort to prostitution, stealing, burglary, robberies, fraud and many other offences to fund their addiction.

100 On behalf of the applicant it is submitted that, notwithstanding the large amount of heroin involved, the heroin charge is not extremely serious because it is just a heroin offence without any other aggravating features. Counsel for the applicant identified a number of factors which are said to support the submission that the heroin offence does not fall within the description of an extremely serious offence. The purity of drugs was one such factor. Counsel submitted that a purity level of between 12 ‑ 15 per cent is not heroin that can be cut down a lot further. However, that is something about which the Court has no evidence. Obviously as a matter of logic, heroin of 12 ‑ 15 per cent purity cannot be cut to the extent that heroin with a higher level of purity could be. However, it does not follow that it cannot be cut further. In order to determine the impact of the relevant level of purity on the seriousness of the offence it would be necessary to know the usual level of purity of heroin sold in the community at the time of the offence.

101 I accept that heroin of a higher purity can be disseminated to a greater number of people but it does not follow that the same amount of heroin of a lesser purity is not sufficient for the offence to be said to be extremely serious. Even counsel for the applicant agreed that it is "an enormous amount of heroin".

102 Another factor raised by the applicant's counsel with respect to the seriousness of the offence is that the applicant did not have the trappings of a dealer. Although the police found tape consistent with the wrapping of the drugs when the applicant's house was searched, there is no allegation that clip‑seal bags, electronic scales or large amounts of cash were discovered in the applicant's possession. There is no evidence that the house was fortified or that the applicant was in possession of guns or other weapons. I accept that there is no evidence of such items being located at the applicant's house although it does not necessarily follow that that the applicant was not a dealer in the sense of being in the business of selling drugs rather than someone who sells or supplies small amounts to another to subsidise a heroin addiction. There could be a number of explanations for the absence of the sort of paraphernalia described by counsel for the applicant. The first and most obvious is that the applicant did not himself package the drugs and did not intend to further cut the drug himself. Alternatively, those activities could have been carried out somewhere else and/or by someone else. This could be the applicant's first foray into dealing and he was not yet properly set up for that "business". Also, I am not aware that fortification of premises and the possession of weapons are a requirement for those in the business of dealing in drugs. Neither can I accept counsel's submission that, aside from the amount of heroin involved, there are no other matters which would bring the offence within the extremely serious category. Of course, it is not simply the amount of heroin, it is the fact that the applicant was to disseminate the drug in the community with all the consequence that almost invariably arise from that. In such circumstances, the amount of heroin is the factor that makes it a very serious offence.

103 I accept that, at the time of the search of his premises, the applicant did not appear as somebody who had an up and running business which involved weighing and parcelling up the heroin himself. Nevertheless he was found in possession of a large quantity of drugs which had been secreted at the location where he was found. Common sense, as well as the deeming provision of the Misuse of Drugs Act 1981, supports the conclusion that he was a drug dealer of that amount and at least to the extent that the surrounding circumstances dictate. In my view, that is, in itself, a very serious offence despite the fact that even more serious offences with respect to drugs can occur or be contemplated.

104 Counsel for the State submits that the nature of the sentence to be imposed on a case of this type is a very significant factor in determining whether the offence is extremely serious. Counsel for the State submits that, based on the general principles of sentencing for offences of this type, the only disposition that would realistically be open would be a term of immediate imprisonment. That is said to be so because of the weight of the drug and the need for personal and general deterrence. I note that there is no evidence that the applicant is or was a drug user. Indeed, the absence of any reference to drugs, as well as the mention of alcohol addiction in the report of Dr Van Nierk, indicates that, at least until that point in time, the applicant did not have a drug dependency. On that basis, if convicted, the applicant would be dealt with on the basis that this was a strictly commercial enterprise. In view of the amount of real estate owned by the applicant, it can also be said that the offence was not committed for the purpose, however misguided, of obtaining desperately needed funds. Even if the applicant had over-extended himself with respect to the purchase of property, it can always be sold. Further, the applicant has a number of previous convictions and would not be able to avail himself of the mitigation of being a first offender. Neither is extreme youth a mitigatory factor which might be applied to the applicant's conduct.

105 In all the circumstances, I accept the State's submission that, if convicted, the applicant is likely to receive a very significant term of imprisonment. I also agree with counsel's comment that the applicant would be looking at a head sentence "somewhere in double figures".

106 The submission of counsel for the applicant is that an offence is not categorised as extremely serious simply by virtue of the maximum penalty prescribed by Parliament. It is said to be the nature of the charge and the particular circumstances of the offence which are the significant factors in determining sentence and it would be actual or likely sentence which affects seriousness: I accept that the usual method of determining the level of seriousness of a particular offence involves a consideration of the circumstances of the offence as well as the nature of the charge and that actual or likely penalties are a better guide to seriousness than the maximum available sentence.

107 However, the question of whether an offence is of a serious nature, or is more serious than another type of offence, is a subjective one and is often a matter of debate. Personal circumstances, experiences and prejudices may affect the answer. For example, many believe that offences involving personal violence are necessarily more serious than offences involving property. The maximum sentence or the penalty range, along with the categorisation of an offence as a simple offence, misdemeanour or crime, are the ways in which Parliament indicates the seriousness with which each type of offence is to be viewed. On that basis, penalty range provides a relevant and useful indication of the seriousness of the offence but is not determinative of the issue.

108 Counsel for the applicant referred the Court to a number of cases dealing with bail applications where the offences were said to be extremely serious. One such case was Rauch v The State of Western Australia where the indictment set out 54 counts of sexual offences and a charge of manslaughter. McKechnie J concluded that it was obvious that the circumstances of the charges faced by the applicant were extremely serious: at [13].

109 In Goldfinch v State of Western Australia [2004] WASC 218 the accused was facing charges of aggravated burglary, robbery and unlawful detention. Roberts‑Smith J considered them to be serious charges: at [50] ‑ [51]. In reaching that conclusion his Honour considered, inter alia, the maximum penalties for the offences: at [15]. Roberts‑Smith J also considered the facts of the offences: at [17] ‑ [32].

110 In the course of recounting the relevant aspects of this decision, counsel for the applicant submitted that it was necessary to consider the whole of the circumstances pertaining to the offence, including the circumstances of the person or persons committing it. The submission put is that there must be circumstances other than the commission of the offence itself in order for an offence to be described as serious and because in this case the surrounding circumstances do not aggravate the offence, it cannot be serious. I do not accept that proposition and none of the cases cited in the course of this application support it.

111 In my view, it is the circumstances of the commission of the offence and related matters such as an offender's level of involvement in the offence, action taken to cover up the offence or the specific consequences of the offence which render it more or less serious, not the circumstances of the offender. However, the circumstances of the offender might well provide reasons for or against granting bail. Surrounding circumstances such as whether the applicant is likely to appear for trial and the likelihood of re-offending are factors relevant to whether bail should be granted and which may well influence the Court not to grant bail but they are not factors which make the offence more or less serious. Indeed, in Goldfinch v State of Western Australia it was, I believe, Roberts‑Smith J's reference to the contention that the applicant was a flight risk in the paragraph immediately following reference to the facts which are an integral part of determining the seriousness of the offence, which led to the submission by the applicant's counsel that the circumstances of the offender are relevant to that issue. In my view, all that his Honour was doing was taking into account all the matters necessary in order to consider whether it was appropriate to grant bail, one of which is whether the applicant is likely to answer his bail: cl 1(a)(i).

112 Counsel's submission is that there has to be something exceptional about the offence in order for it to be classified as extremely serious. I cannot agree with that proposition. The fact that one can identify offences which are exceptional or have a greater level of seriousness does not mean that less serious offences are not also extremely serious. The term "extremely serious" when applied to offences describes a class or band of offences, where each offence must fit the description but not all offences will have precisely the same degree of seriousness.

113 Counsel for the applicant also addressed the issue of whether any inference could be drawn from the extent of the applicant's assets and the amount of his income about the level or extent of his dealing in heroin. I have outlined above the property of the applicant which was the subject of the freezing notice. According to the antecedent report, the applicant was in receipt each week of between $500 and $1,000. The understanding of counsel for the applicant was that the State would be putting the submission that the applicant's income does not appear to justify that level of assets. Her response to the submission is that there is insufficient evidence to justify such a conclusion.

114 The submission foreshadowed was not in fact made by the State either in written or oral submissions. I would note, however, that there was no evidence before the Court concerning the acquisition or the value of the properties or the source of the money used to purchase them. Further, the extent to which the properties are encumbered, or any other factor affecting the applicant's equity in the properties, is not the subject of any evidence in these proceedings.

115 A consideration of the assets owned by the applicant and his level of income has been raised by counsel for the State in the context of whether the applicant is likely to re‑offend and will be addressed in that context.

116 For the reasons to which I have referred, I consider the offence alleged against the applicant to be of an extremely serious nature. In reaching that conclusion I have taken into account the nature and circumstances of the offence including the amount of heroin, its value and the potential impact on those who purchase the drug as well as the consequential impact on members of the community. Assuming for the purposes of this application that the charge against the applicant can be established to the requisite standard, I have also taken into account that the quantity of heroin and the absence of any evidence that the applicant is a drug addict or even a drug user, clearly indicates that the purpose of the applicant's possession of the drug was a purely commercial exercise and potentially a very lucrative one. It will therefore be necessary for the applicant to establish exceptional circumstances before bail is granted.

117 The applicant was born in Romania on 31 January 1978 and hence is currently 29 years old. He holds a Romanian and an Australian passport which are both in the custody of the authorities. The applicant came to Australia on 1 January 1995 and has resided here since that time. The various character references that are annexed to the applicant's affidavit describe him as a trustworthy, hard-working and conscientious members of his community and a dedicated, supportive and caring father, husband and friend. Counsel for the State submitted that, though relevant, the character references do not address the key issue in this application which is not about whether the applicant is a good father and family member or a good worker. There is substance in that submission but the character references also address the applicant's general character. Statements to the effect that the applicant is trustworthy and a conscientious member of the community are, in my view, relevant to whether the applicant would abide by the obligations of bail and also to the likelihood of him removing himself from his family and his community.

118 The applicant's principal place of residence is at 70 Abbotswood Drive, Lansdale, ("the Landsdale property") where he lives with his wife of six months, Mirela Crenanaru. The applicant has two children from a previous relationship with Rosita Potts. They are Luca who is 7 years old and Liam who is 9 years old. The applicant cares for these children on weekends. The applicant also has a child, Sergui, who is 4 years old, from a relationship with Suraini Masuari. Sergui is in the sole care of the applicant although his wife, Mirela, is currently the primary care giver for Sergui. She stopped work to care for Sergui as there was nobody else to care for him. The applicant's wife currently receives Centrelink payments of $1,600 per month from which it is necessary to pay rent on the Landsdale property as well as meet all other expenses for herself and Sergui. According to the affidavit evidence Sergui is suffering as a result of the applicant's absence and is "lost without him". Ms Crenanaru states that she is currently surviving by using her credit cards and relying on the good will of friends and family. She states that her outgoings, including finance on the Toyota vehicle, the mortgage and rental payments amount to $4,680 per month, well in excess of her Centrelink income. Ms Crenanaru maintains that even if she obtains employment, with child care expenses she will not be able to make ends meet.

119 Counsel for the State raised the question of why, in view of the fact that the applicant owns three properties in Perth, he and his wife live in a rental property. In a supplementary affidavit of the applicant he deposes to the fact that the house being built on the Darch property is not completed, the Gnangara property is only a block of land and the Wanneroo property was sold on 4 March 2007. Settlement has been delayed due to the freezing notice over the property.

120 The affidavit evidence reveals that the applicant has a close and supportive relationship with the mothers of his children and is a loving and dedicated father. Sergui's mother, Ms Masuari, deposes to the fact that she works full time as an Associate Strata Manager which is why the applicant has been providing full time care for Sergui. She has been diagnosed with Grave's disease which is an autoimmune disease causing hyperthyroidism and which can be exacerbated by stress and overwork. It is because of her illness combined with her work commitments the applicant has full time custody of Sergui. Ms Masuari mentioned in her affidavit by way of explanation that when she was working full time as well as caring for Sergui full time her health deteriorated to the point where she required hospitalisation and she did not want to put herself in that position again. It is also said that there are difficulties with the extended family caring for Sergui because of employment and disability.

121 With respect to the evidence of Ms Masuari, counsel for the State submits that her affidavit is deficient in terms of details of financial assistance she would be able to give to the primary caregiver of Sergui, who is currently the applicant's wife. As Ms Masuari admits in her affidavit that she works full time, I consider the State makes a valid point.

122 Ms Potts deposes to the fact that, because the applicant cares for the children on the weekend, she is able to pursue her career as a licensed real estate sales representative and to provide for her children. She also states that the applicant has always contributed financially to the upbringing of the children "whenever he is able". This statement seems to indicate that the applicant does not provide regular financial support for the two children. Since the applicant was arrested Ms Potts has given up her employment as a real estate sales representative and commenced working as a bar attendant at nights, which provides a steady income. Ms Potts further states that if the applicant is remanded in custody for much longer she "will be faced with the daunting fact of having no support". She adds that she fears what this may do to the development of her and her children. It would appear that this is a reference to the absence of the applicant's calming and stabilising influence on his children. Ms Potts also states that the applicant has always taken the children when she has been busy or working and that if she has to take care of the children on a full time basis she will have to quit her job which is currently her only source of income.

123 Ms Potts makes no mention of how she is currently managing to work nights without the assistance of the applicant. Further, whilst accepting that her preference must necessarily be for the way her life was before the applicant's arrest, it must be said that there are a vast number of single parents in the position in which she is now, who are able to manage and, if the applicant is convicted and imprisoned, managing her children without the applicant's assistance will be something that it will be necessary for her to do.

124 It is also significant to note that a substantial number of the applicant's close family live and reside in the Perth metropolitan area. The applicant's only brother and his wife and children live in Perth as do the applicant's father and his parents‑in‑law. However, it is the case that the applicant's mother and only sister reside overseas. They are Romanian and work and live in Spain. Counsel for the State submitted that Spain has no extradition treaty with Australia although there is no evidence provided to support that assertion and I am, therefore, unable to take that factor into account. It is also said that the applicant has extended family members overseas as well. However, it is said on the applicant's behalf that he has no business connections to Romania, nor does he have any property in Romania.

125 Prior to his arrest, the applicant operated, together with his brother, a Telechoice mobile phone franchise. The applicant's brother, Flavius Sabau, deposes to the fact that, because he and the applicant had different duties, he was unable to run the franchise by himself. In her submissions, counsel for the applicant said that, as a result, the franchise was "handed back". However, the applicant's brother does not depose to any action that has been taken with respect to the franchise, although he does state that his assets have also been frozen. I am unaware of whether that has had any impact on the business. According to the State, the value of the franchise was between $150,000 and $250,000 and was on the market before the applicant went into custody. The applicant's brother admits that the franchise was for sale prior to the applicant's arrest but states that they had not been contacted by any prospective buyers or received any offers to purchase the business. The brother states in his affidavit that he is currently working as a brick paver in order to support his family and pay bills and that, if the applicant is released, they will commence working together doing brick paving. Apparently, brick paving is something that the applicant worked at prior to operating the Telechoice franchise.

126 The applicant has adult convictions for assault occasioning bodily harm, stealing, breach of probation, traffic offences, two breaches of bail and possessing a controlled weapon. Apart from the breach of bail and probation offences, in my opinion the assault, stealing and weapons charges, being neither numerous nor of a particularly serious nature, are of no particular relevance to the question of bail. However, the traffic offences indicate the applicant's willingness to flout controls placed on his conduct by the legal system.

127 The applicant maintains that, as it is unlikely that a trial will take place prior to the end of this year, unless he is released on bail, he will be unable to earn an income, he will incur significant legal costs and will be unable to fund his defence and provide for his family. In particular, the applicant and a number of family members who have provided affidavit evidence in this application express a significant level of concern about the wellbeing of the child, Sergui, who is currently in the care of the applicant's wife. It appears that he is suffering an understandable degree of distress at being separated from his father who is his primary care giver. The affidavit evidence also emphasises the considerable financial problems facing the applicant's immediate family due to his absence and because he previously provided the financial support for his family. The family's financial position is exacerbated by the fact that because the house to be built on the Darch property is incomplete, the other property is vacant land and the proceeds of sale of the third property have been frozen pending the resolution of the charges against the applicant. As a result, the applicant's wife has to pay rent and meet the family's other financial needs from a pension.

128 In my view the affidavit evidence has established some personal circumstances in favour of the applicant's release on bail. However, those factors have to be weighed against the other factors which point to a different resolution. In particular, the family's currently parlous financial position as a result of the confiscation of the applicant's assets, does not provide an incentive for the applicant to remain in the jurisdiction and answer his bail. It would seem that the applicant's only financial "asset" is his capacity to work and provide for his family, something he can do in other places.

129 In the context of considering whether the applicant is a flight risk it is significant to note that he is a person who is familiar with international travel. In the previous five years the applicant has travelled overseas five times and was out of Australia on the following dates: 26 March to 4 April 2007, 21 March to 28 March 2006, 17 July to 30 August 2005, 19 March to 27 March 2004 and 12 January to 12 February 2002. More importantly, the applicant has a Romanian passport and has visited that country in 2002 and 2005, suggesting that he still has links with that country.

130 The applicant maintains that, whereas he has no business or property ties in Romania, he has significant property ties to Western Australia and, prior to his arrest, was involved in a successful business with his brother. Of course, as I have noted, if the applicant is convicted, he will have no property in Australia either because of the property confiscation legislation. Further, the applicant's brother has stated on affidavit that the business that he operated with his brother had to be "handed back" because he could not operate it alone. Although the applicant relies on the fact that he has a brother and father here, he has a mother and sister overseas. Effectively, the only point of difference is that the applicant's wife and children live in Australia. There is, of course, nothing to prevent the applicant's wife living elsewhere. It is the case that the situation with respect to the children would be affected by the attitude of their mothers but there are certainly difficulties experienced by them in caring for the children single-handedly which may influence the decision as to where their children are to reside.

131 Because of the obvious significance of that fact in determining the risks that the applicant will not comply with his bail undertaking, later in these reasons I have addressed the issue of wether it is possible to ensure that the applicant would not be able to leave the jurisdiction with his children.

(c) The history of any previous grants of bail

132 The applicant has two convictions for breach of bail, one on 17 August 1998 and one on 30 June 2004. Both of the offences for which the applicant failed to appear were driving offences: offences for which the penalty range is at the opposite end of the scale to possession of heroin with intent.

133 I note that the applicant's record also has an entry for breach of probation. I have no information in relation to that matter and can only assume that it is what it appears to be. Breaching probation is also evidence of a willingness to disregard the orders of the Court.

134 The conviction on 17 August 1998 for breach of bail resulted in the imposition of a fine of $75. Counsel for the applicant submitted that the appropriate inference to be drawn is that it was not a significant breach. I consider the inference to be drawn is that, despite information given to an accused of the importance of complying with a bail undertaking, the applicant did not consider the obligation sufficiently important to abide by it. The fine was imposed in 1998 and there is no information before me concerning the usual range of penalties for an offence of this type at that time. I note that the penalty for the offence of breaching a bail undertaking is now a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both: s 51(6) Bail Act 1982.

135 The applicant has not provided the Court with any detail with respect to the first breach of bail offence. It may be that the lapse of time explains that omission but I would at the very least have expected an account of the circumstances of him being presented to the Court after having absconded.

136 The applicant states: "At the time of these breaches my life was somewhat disorganised due to alcohol abuse". He explained that he was charged on 9 May 2003 with driving under the influence of alcohol, driving whilst not being entitled to do so, and giving a false name. It was the latter two offences to which I was referring when earlier I made the comment about the applicant's difficulties with legal obligations. The applicant states that he had a severe drinking problem at the time and his life was disorganised. One of the symptoms of his drinking problem was the desire to avoid any problems rather than deal with them. He alleges he was also experiencing paranoia, depression and suicidal ideation. The applicant maintains that these were the reasons he did not appear in court on 15 May 2003. A bench warrant was issued. On 18 July 2003 he presented at Hannington Clinical Psychology. The applicant attended there on a weekly basis for over four months in an attempt to overcome his addiction. Attached to his affidavit is a copy of a report prepared by Dr Leesa Van Nierk dated 23 October 2003. Dr Van Nierk expresses the opinion that the applicant referred himself for treatment because he realised that reliance on alcohol as a coping mechanism was impacting negatively on his psychological health and that his alcohol use had created a number of personal and legal difficulties for him. She states that the applicant has maintained a very proactive and committed approach to therapy and has consistently attended for the last three month period.

137 Having received treatment, the applicant arranged, through his solicitor, to present to the police to be dealt with for the breach of bail and the offence for which bail was granted. The period between failing to appear and presenting himself to the police was some six months. The applicant was sentenced to a term of 6 months imprisonment but the term was suspended. The applicant completed the period of suspension. If the first breach of bail offence was said to be not significant because of the $75 fine imposed, then the penalty for the second offence of 6 months suspended imprisonment would indicate that it was certainly seen as significant.

138 Counsel for the applicant submitted that alcoholism was particularly relevant to the second breach of bail. This implies that it has some relevance to the first breach of bail. However, the first offence occurred some five years before. Whilst it is obviously possible that the applicant's alcohol problem was of that duration, there is no independent evidence to support that conclusion. I note that, with the exception of the .08 per cent offence committed in 2004, the applicant's criminal history does not contain the sort of offences which are commonly seen in a person with a serious alcohol problem.

139 It is said that the applicant no longer has an alcohol problem. That is an assertion that is not supported by any independent evidence. The Court has not been presented with any medical or other reports which would allow me to confidently accept that proposition. The report of Dr Van Nierk identified the applicant's condition only as 2003. I have emphasised the lack of independent verification of the assertion that the applicant no longer has an alcohol problem because that fact is the basis of a submission that he is no longer a flight risk because his breaches of bail were solely attributable to his alcohol problem, which has been overcome.

140 Counsel for the State maintains that the previous convictions for breaching bail show that the applicant is a person who, when confronted with problems, will not face them. When the problem is a criminal charge the method used to avoid facing the problem is not to attend court. As counsel points out, the likelihood of serving a term of imprisonment of 10 years or more is a significant problem. Of course, the applicant's position is that the desire to avoid problems rather than deal with them was a symptom of the alcohol problem and now that it has been overcome that attitude of avoidance no longer exists.

141 There are a number of issues involved in that proposition. The first and most significant is that it was the alcohol problem that caused the applicant to fail to attend. Even if I accept that such a problem existed, and there is no evidence which would call into question the conclusions drawn by Dr Van Nierk, I would have to be confident that the condition is the sole explanation for the applicant's failure to appear. The next issue is that the alcohol problem has been overcome and I have already referred to the difficulties in reaching that conclusion. In particular, I appreciate that establishing the absence of something is often more difficult that establishing the existence of it. Nevertheless, in an application of this type I can only draw conclusions from the material before me.

142 Ultimately, I am not persuaded that the effect of the two previous failures to comply with the bail obligation is overcome by the evidence concerning the applicant's alcohol problem nor that the applicant's statement that he no longer has an alcohol problem is a complete answer to the risk of the applicant again failing to appear. In my view, the fact that the applicant has twice failed to answer to bail, once on a relatively recent occasion, remains a significant factor in considering with the applicant should be granted bail and militate strongly against a decision to release him.

143 Having considered the material before me and the submissions made on behalf of counsel for the State and for the Applicant, I have formed the view that there is a substantial risk that the applicant will fail to appear if he is granted bail. The factors taken into account in forming that view are referred to above but I will briefly summarise them:

The strength of the prosecution case; in my view there is compelling direct and circumstantial evidence connecting the applicant to the drugs;
The amount of drugs, the impact on the community of disseminating that amount of heroin, and the purely commercial nature of the enterprise, place this offence in the category of extremely serious offences such that, should the State prove its case in relation to the heroin charge or both charges, the applicant will face a very significant term of imprisonment, likely to be in excess of ten years. It is really a matter of common sense to observe that the more severe the potential consequences facing a person charged with a criminal offence, the greater is the incentive to abscond: Ribot-Cabrera v The Queen at [50]. Further, serving such a term of imprisonment will operate to remove the applicant from his family even if he remains in the jurisdiction;
The applicant's two prior convictions for breaching bail are not, in my view, so adequately explained that the Court can be confident that the cause of the failure to appear has been removed. Overall, the applicant's history of complying with Court imposed obligations is poor;
As a result of a conviction the applicant will be declared a drug trafficker and all his property in Australia will be forfeited to the State without the State having to establish that any of it was purchased with money obtained from drug transactions. Further, the applicant's franchise business has already been "handed in" and is not an ongoing enterprise which might connect him to the State;
The applicant was born in Romania, has both a Romanian and Australian passport and has travelled overseas on a number of occasions in recent years. Despite the fact that the applicant has family in Western Australia, in particular, his wife, children, brother and father, his mother and sister live overseas. As there is no mechanism by which the Court can ensure that the applicant's wife and children could not join him overseas if the approval of the children's mothers were obtained, the applicant's primary connection to Western Australia need not and may not remain here.

144 I consider that these factors combine to provide a powerful incentive to leave the jurisdiction rather than face the risks associated with appearing at trial.

2. Whether, if the defendant is not kept in custody, he may commit an offence: cl 1(a)(ii);

145 Counsel for the State notes that, based on the figures in the freezing notice, the value of the property owned by the applicant is approximately $2.4 million and $650,000 is owed by the applicant. The information in the antecedent report is that the applicant earns between $400 and $1,000 per week. The submission made by counsel for the State is that the applicant's income is prima facie inconsistent with his asset base which not only consists of the three properties but also two motor vehicles, a boat and other sundry items. The State also submits that the applicant's income is inconsistent with the costs associated with providing for three children. The combination of these factors is said to support an inference that the applicant has supported his lifestyle by dealing in illicit drugs and in order to continue to facilitate that lifestyle. Therefore, according to the State, the applicant is likely to commit further drug related offences if granted bail.

146 Even if I were to accept the underlying financial propositions, although I do not consider the freezing notice or the antecedent report from which the various figures are taken as an adequate evidentiary basis for the conclusions which are said to be open or the inferences I am asked to draw, I have some difficulty with the proposition that they justify the conclusion that there is a risk that the applicant will commit offences whilst on bail. The inference that the applicant has in the past supported his lifestyle by dealing in drugs, even if drawn, does not, in my view, establish the likelihood that he would do so whilst on bail.

147 It is apparent that even counsel for the applicant accepts that any grant of bail would involve rigorous conditions. Further, the applicant is now aware that he has been under surveillance for drug offences and is believed by the police to be a drug dealer. He would at the very least have a concern that his activities whilst on bail would be closely monitored and is more likely to firmly believe that to be the case. I would not presume to suggest that there are no drug dealers apprehended in this way who would return to dealing when released on bail, however, for the reasons that I have mentioned I am not persuaded that there is in this case a real risk of re-offending that would preclude a grant of bail.

3. Whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility that the applicant may fail to appear: cl 1(e)(i);

148 The applicant states that he is prepared to surrender his passport, although it is already in the possession of the police, to abide by reporting conditions or by any other condition imposed to remove any residual concern. He further states that he can raise a surety and offer a substantial personal undertaking.

149 As a passport is a pre-requisite to international travel, it might be thought that the fact that the applicant's passport has been surrendered to police would preclude the applicant from travelling overseas and overcome the concern that the such travel might be part of an intention not to answer bail

150 However, experience shows that surrendering a passport does not in all cases impede a person who has a strong incentive to abscond. Unauthorised passports can be obtained or the passport of a relative used. Further, international travel is not a necessary component of absconding whilst on bail. Moving within Australia can also serve that purpose. Overseas travel simply improves the offender's prospects of remaining at large either because of the difficulties in locating the offender or the difficulties in extraditing the offender.

151 One of the issues addressed during the hearing of this matter, which arose from the close relationship between the applicant and his children and the unlikelihood of him wanting to be separated from them, is whether they would be able to join him overseas. The related question is whether the risk of the applicant leaving the country could be overcome by ensuring that the children were not able to leave. Affidavit evidence provided after the hearing indicates that each of the children was born in Australia and they currently have no passports. Of course, with the consent of both parents, passports could be obtained for them.

152 I have considered whether the risk of the applicant absconding could be overcome by preventing him from having the children accompany him or be brought to him at a later time. Whilst I could make it a condition of the applicant's bail undertaking that he not approve or procure a passport for any of the children, if he is prepared to ignore the undertaking to appear I have no doubt he would be prepared to ignore the condition that he not authorise passports for his children. Although consenting to the issue of passports to the children would provide notice of the applicant's intention, the authorisation could be done after the applicant has departed. Further, Ms Masuari and Ms Potts both also depose to the fact that they have no intention of obtaining passports for the children. However, as I have no power to prevent the mothers of the children from authorising and obtain passports for the children, I believe there is no condition that could be imposed which would reduce the risk of the children being able to join their father overseas and hence reduce the risk of the applicant leaving the country and failing to appear.

153 On behalf of the applicant it has been said that he is willing to comply with daily reporting conditions in order to be released on bail. Without in any way undermining the effect of such conditions, they are not necessarily a dis-incentive to absconding on bail. To a large extent, the real effect of reporting conditions is to provide early notice that an accused may not answer his bail. Where there is such a strong incentive to flee the jurisdiction as there is, in my view, in this case, I am not persuaded that reporting conditions, however onerous, would operate to overcome that risk.

154 I can think of no other conditions that would overcome the concerns I have with respect to whether the applicant will answer bail.

4. 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: cl 1(g).

155 I am not persuaded that the alleged circumstances amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. In my view, the level of seriousness sufficient to satisfy that requirement is of a far higher order. I say that because, unlike the principle of establishing exceptional circumstances before the grant of bail on a very serious charge, and despite the discretionary nature of the bail decision, cl 1(g) describes a category of offences which, even if there be exceptional circumstances, it would be inappropriate to grant bail.

156 I accept that circumstances relating to the welfare of family members are relevant to whether bail should be granted and that, in some cases, such matters might reach a level that could justifiably be called exceptional circumstances. However, I am not persuaded on the material before me that the situation in which the applicant's wife and children find themselves following the applicant's arrest amount to exceptional circumstances. Sadly, they are the sort of consequences that commonly arise when a parent and primary wage earner is arrested and kept in custody. Neither am I persuaded that, although the type of problems relied on may be common in such circumstances, they are at such a level and of such intensity that they nevertheless amount to exceptional circumstances. I reach that conclusion without in any way underestimating the impact on the applicant's family.

157 In my view, none of the other matters raised on behalf of the applicant are remotely close to establishing exceptional circumstances or exceptional reasons.

158 I should make it clear that, even if the applicant had managed to establish exceptional circumstances, I would not grant bail. For all the reasons to which I have referred I consider the applicant to be a substantial flight risk and I have no confidence that any condition I could impose would overcome that risk.

159 In my view, the personal circumstances which in many situations might favour the applicant's release on bail are not of such a nature to outweigh the factors that, in my view, constitute the very high risk that the applicant will not appear at trial.

160 The applicant is facing a very serious charge which, if established by the State, will attract a very lengthy term of imprisonment. On the evidence before me I consider that the State's case is compelling and the likelihood of conviction sufficiently strong to weigh heavily on the applicant's mind. The fact of conviction will result in the applicant losing all his property in Australia. As a result of his arrest and remaining in custody, he has already lost the business he had been operating with his brother. The factors that might provide an incentive for the applicant to remain in the country will no longer apply.

161 It is also of particular relevance to point out that, if the applicant is convicted and receives the term of imprisonment which offences of this type commonly attract, he will be effectively separated from his family and precluded from providing the financial and emotional support which the applicant maintains is necessary to their continued welfare. That, in itself, adds to the risk that the applicant may not appear to answer bail.

162 In circumstances where it is not possible to ensure that the applicant's wife and children cannot leave the country to join him if he should abscond whilst on bail, the risk that the applicant will fail to appear becomes even stronger.

163 I appreciate that the applicant will be required to spend considerable time in prison awaiting trial, but the interests of justice also require that persons charged with very serious offences are brought to trial. Delay which is not inordinate does not constitute exceptional circumstances for granting bail: Firkins v Director of Public Prosecutions [2002] WASC 203; (2002) 132 A Crim R 321. Neither does it alter the decision I have reached that this application for bail should be dismissed.

Property Confiscation Act 2000

Misuse of Drugs Act 1981

Assizes Relief Act 1889

Amendment (Bail) Act 1982

Procedure Amendment Act 1993

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (187 paragraphs)

(a) The nature and seriousness of the offence, the probable method of dealing with the applicant if convicted and the strength of the evidence

(c) The history of any previous grants of bail

Legislation Cited (7)

Cases Cited (4)