SMART -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 220 (21 May 2020)

(1) The application for an extension of time is refused.

1. The court said that it would deliver reasons for these orders at a later date. These are our reasons.

1. Smart No 1 concerned nine offences alleged to have been committed by the appellant which were then pending before the Magistrates Court. The offences and the details of the appellant's next due appearances in the Magistrates Court were set out in tabular form at [21] of his Honour's reasons. For convenience, we reproduce the table below:

1. The appellant had been on bail in respect of all of the matters set out in the table until 22 May 2018. On that day, the appellant failed to appear in the Perth Magistrates Court. A warrant for his arrest was issued by the Deputy Chief Magistrate.[2]
2. The appellant became aware of the warrant and handed himself in to the Perth Magistrates Court on 14 June 2018. Also on that day, the appellant was due to appear in the Joondalup Magistrates Court for a trial in respect of charge number JO 14577/17.[3]
3. On 14 June 2018, the appellant was refused bail in the Magistrates Court in respect of all of the charges in the above table. Two further bail applications were made to the Magistrates Court in respect of these charges. On 6 July 2018 and 31 August 2018, respectively, these applications were refused.[4]
4. In addition to the charges set out in the table, the appellant faced four other charges in the Magistrates Court and five charges in the District Court. It is unnecessary in these reasons to set out the details of these charges as they were not the subject of the proceedings before Fiannaca J. Save for two of the District Court charges, the appellant was subject to grants of bail. The appellant was in custody on remand for two of the District Court charges, but only because he was in custody on remand for the offences referred to in the table above.[5]

Proceedings in the Magistrates Court 14 June 2018

1. On 14 June 2018, the appellant appeared before Magistrate Huston in the Perth Magistrates Court, having surrendered himself to that court in respect of the arrest warrant which was issued on 22 May 2018. He applied for bail. The application was opposed by the police prosecutor.[6]
2. The appellant proffered a number of excuses for his failure to appear on 22 May 2018 which Fiannaca J observed ultimately boiled down to a claim that he had forgotten about the requirement to attend on that day.[7]
3. As mentioned earlier, the appellant was also due to appear in the Joondalup Magistrates Court for a trial on 14 June 2018. The appellant provided Magistrate Huston with a number of excuses for his failure to appear in that court, including that he was medically unfit to appear at the trial and that he had been informed by someone at the Joondalup Magistrates Court that he did not have to appear on that day. None of these claims were supported by cogent evidence.[8]
4. Magistrate Huston was not satisfied that the appellant had provided an adequate explanation for his failure to appear on 22 May 2018. The learned magistrate found, in effect, that the appellant had frustrated the trial listed in the Joondalup Magistrates Court on 14 June 2018 by appearing in the Perth Magistrates Court. Magistrate Huston expressed the opinion that, if convicted of some of the offences before him, the appellant would be liable to a term of imprisonment. The learned magistrate concluded that there were no conditions he could impose to ensure that the appellant attended court as required. The appellant was remanded in custody.[9]

1. On 6 July 2018, the appellant again applied for bail in respect of the eight charges that had been considered by Magistrate Huston. This application was heard and determined by Magistrate Maughan.
2. In accordance with s 7D of the Bail Act, Magistrate Maughan identified the requirement for the appellant to show new or changed circumstances since Magistrate Huston's decision before the appellant could be granted bail. The appellant made detailed submissions in support of the application. Magistrate Maughan rejected the submissions and found that there were no new or changed circumstances that justified a grant of bail. Accordingly, the appellant remained in custody.[10]

1. On 31 August 2018, the appellant again applied for bail. This time the application was heard by Magistrate Smith. Although not completely clear, it appears that Magistrate Smith had before him five of the matters set out in the table at [6], being AR 379 ‑ 380/16, JO 14577/17 and PE 18862‑3/16. As in the application heard by Magistrate Maughan, it was necessary for the appellant to show new or changed circumstances. Magistrate Smith did not consider that the matters raised by the appellant were new or changed circumstances that justified a gr[11]t of bail.11

1. The jurisdiction of a single judge of the General Division of the Supreme Court to grant bail is set out in s 14(1) of the Bail Act. Section 14(2) provides that the jurisdiction of a judge under subsection (1) may be invoked whether or not any other judicial officer has, relevantly to the present case, previously refused bail. Thus, Fiannaca J had jurisdiction to grant bail to the appellant, notwithstanding the decisions of Magistrates Huston, Maughan and Smith. Fiannaca J's jurisdiction to grant bail was subject to, and in accordance with, pt 3 of the Bail Act and the further provisions in pt B, pt C and pt D of sch 1.
2. As Fiannaca J pointed out in his reasons, the appellant was subject to cl 3A of pt C sch 1 of the Bail Act. That clause provides, relevantly and in general terms, that where a person is in custody awaiting an appearance in court before conviction for a serious offence and the serious offence is alleged to have been committed while the accused was on bail for another serious offence, bail should be refused unless the court is satisfied that there are exceptional reasons why the accused should not be kept in custody. Even if the court is satisfied that exceptional reasons exist, the court must also be satisfied that bail could properly be granted having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act.
3. Charge AR 379/19, being an assault occasioning bodily harm, and charge PE 2590/17, being an assault on a public officer, are both serious offences as described in sch 2 of the Bail Act. The offence charged in PE 2590/17 is alleged to have been committed on 13 January 2017 while the appellant was on bail for the offence the subject of AR 379/16. Thus, Fiannaca J was obliged to refuse the appellant's bail application unless he was satisfied that there were exceptional reasons why the appellant should not be kept in custody and that it would otherwise be appropriate for bail to be granted, having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act.

The appellant's arguments before Fiannaca J - Smart No 1

1. Fiannaca J set out in detail the appellant's arguments in support of his bail application. His Honour's task in summarising the appellant's arguments was by no means easy. As his Honour pointed out, many of the appellant's 'submissions' were not submissions at all. Rather, they were unsubstantiated claims of corruption on the part of various persons. His Honour distilled the appellant's arguments into eight 'key points' which he expressed in these terms:[12]
   1. He submits that he does not have to demonstrate exceptional reasons for a grant of bail, because that was determined by Magistrate Wilson on 3 February 2017.
   2. If he does have to demonstrate exceptional reasons, then the first matter on which he relies is delay in the charges proceeding to trial. In this context, he argues that the risk of an injustice arises because of the potential that he will serve more time on remand than any sentence that might be imposed, and because the prosecution case against him is weak in respect of all of the charges.
   3. He has medical conditions for which he cannot obtain adequate treatment in custody.
   4. While he is in custody, he cannot get access to materials that are necessary for him to prepare his defence in respect of the various charges.
   5. While in custody, he cannot do what is necessary to identify and locate witnesses whom he may need to summon for the defence case in the trial of the assault occasioning bodily harm, and he is not able to issue summonses.
   6. The prosecution have failed to comply with the disclosure order made by Magistrate Wilson in February 2017.
   7. In relation to whether bail would otherwise be appropriate, the applicant addressed the matters that were raised by the State as risks that warranted the applicant being remanded in custody. Principal among his responses was that he had largely complied with his bail undertakings, and that a handful of breaches, in particular the failure to appear on 22 May 2017 were relatively minor and should not lead to the conclusion that he will fail to appear.
   8. As for the alleged risk that he may commit an offence or interfere with witnesses, the applicant submitted that suitable conditions could be imposed to remove that risk to an acceptable extent.
2. Fiannaca J then, in detail, dealt with each of the 'key points' raised by the appellant.[13] None of them were resolved in the appellant's favour. Save for the first key point, the appellant's grounds of appeal in this court do not seek to impugn his Honour's analysis and it is unnecessary to repeat it.
3. At [122] of his reasons, Fiannaca J concluded as follows:

I am not satisfied that [the appellant] has established there are exceptional reasons why he should not be kept in custody in respect of the two serious offences, one of which is to proceed to trial on 12 November 2018. I have come to that conclusion considering each of the matters raised by [the appellant] individually and in combination with the other matters. Ultimately, I do not consider that the combined weight of the matters raised is sufficient to constitute exceptional reasons.

1. Fiannaca J then proceeded to examine the question of whether, had exceptional reasons been shown, a grant of bail was appropriate, having regard to cl 1 and cl 3 of pt C sch 1 of the Bail Act. His Honour said that he had 'real concerns' about whether the appellant would comply with a bail undertaking by appearing for his trial and he had 'significant reservations' about whether any conditions could be imposed that would reduce those concerns to an acceptable level.[14] However, his Honour made no finding that, had exceptional reasons been demonstrated, he would have considered it inappropriate to grant bail, having regard to cl 1 and cl 3 of pt C sch 1.
2. The reasons in Smart No 1 were published on 5 November 2018. The following day, the Associate to Fiannaca J issued a corrigendum in which a typographical error in footnote 3 was corrected and minor amendments were made to [5], [26] and [42] of the reasons.

Further proceedings before Fiannaca J - Smart No 2 and Smart No 3

1. The appellant's trial in respect of PE 2587, 2589, 2590 and 2591/17 commenced on 12 November 2018. At the conclusion of proceedings on 13 November 2018, the presiding magistrate, Magistrate Walton, adjourned the part‑heard proceedings until 18 March 2019, after the completion of the first prosecution witness' evidence. The appellant applied for bail. Magistrate Walton said he did not have jurisdiction to reconsider bail, but commented that if he had jurisdiction he would not have granted bail. The appellant was remanded in custody. The appellant again applied to a single judge of the General Division of the Supreme Court for bail. The application was listed before Fiannaca J on 3 December 2018. On that day, the appellant applied to Fiannaca J to recuse himself from hearing the application. His Honour refused to recuse himself. He gave reasons for doing so.[15] Ultimately, the appellant's application for bail was refused by Fiannaca J.[16]
2. In Smart No 3, his Honour found that there had been a change of circumstances which enlivened the jurisdiction in s 14 of the Bail Act to reconsider the question of bail, in essence being the adjournment of the proceedings by Magistrate Walton to 18 March 2019.[17] However, his Honour was not satisfied that the appellant had established exceptional reasons why he should not be kept in custody.[18] Nor was his Honour satisfied that a grant of bail would be appropriate, having regard to cl 1 of pt C sch 1 of the Bail Act. This was, in particular, because of threats the appellant made towards Magistrate Walton which Fiannaca J held were designed to intimidate the magistrate.[19]

1. The nature of the appeal to this court is explained in Smart v The State of Western Australia[20] and YSN v The State of Western Australia.[21] For present purposes, it is enough to state the following propositions:

(1) The right of appeal against Fiannaca J's decisions is conferred by s 15A(2)(c) of the Bail Act which relevantly provides that an accused person may appeal to the Court of Appeal against a bail decision of a judge of the Supreme Court. The expression 'bail decision' is defined in s 15A(1) to mean a decision, inter alia, to 'refuse bail'.

(2) Section 15A(3) of the Bail Act states that the leave of the Court of Appeal is required for each ground of appeal. Section 15A(4) of the Bail Act states that s 27(2), (3) and (4) of the Criminal Appeals Act 2004 (WA) apply with necessary modifications as if the appeal under s 15A were an appeal under pt 3 of that Act. Section 27(2) of the Criminal Appeals Act provides that this court must not give leave to appeal on a ground unless it is satisfied the ground has a reasonable prospect of succeeding. Section 27(3) states that unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.

(c) Section 15B(2) of the Bail Act provides that this court shall determine an appeal on the material and evidence that was before the judge whose decision is the subject of the appeal. This means that if there are new facts and circumstances which have arisen since the decision under review, the proper course is for the appellant to make a fresh application under s 14(2a) of the Bail Act.

(d) An appeal under s 15A and s 15B of the Bail Act is not an appeal de novo. Rather, it is an appeal by way of rehearing which requires the appellant to either establish error by the primary judge or a miscarriage of justice.

(e) The appeal to this court is against a discretionary decision of the primary judge. Thus, the well‑known principles in House v The King,[22] apply.

1. At all relevant times in these appeals, the appellant has been unrepresented and in custody. His grounds of appeal in each appeal are identical and are focused on the bail decisions. There is no ground in either appeal directed to Fiannaca J's decisions to refuse the appellant's applications for recusal. We will, for completeness, deal with this issue later in these reasons.
2. The handwritten grounds of appeal as expressed in the appellant's cases are as follows:

(1) A magistrate excused me from appearing at allegedly missed court date in May 2018, due to refusal to waive fees. I cannot obtain copies of transcript to prove my case.

(2) Magistrate Huston wrongly accused me of being on bail for matters I was not on bail for, failed to take into account my medical condition of anxiety disorder and wrongly believed I would get prescribed treatment in jail.

(3) Magistrates Young, Maughan and others failed to properly consider bail on alleged charges.

(4) I have never been charged with breaching bail of alleged non‑appearance.

(5) [Fiannaca J] was incorrect to assume I had to prove exceptional reasons TWICE for schedule 2 bail. I had held schedule 2 bail since 3/2/17 to May 2018 and delay was still an issue as Armadale Magistrates Court orders of Magistrate Wilson were lost for some 18 months when charges were sent to Perth. In relation to disclosure, orders were meant to be a substitute for summons issued on 20 Dec 2016 that police ignored/have ignored to this day, material supplied by police did not amount to a resolution of [indecipherable] summons other than proving doctor who made report never examined Kenneth Unsworth.

1. In CACR 247 of 2018, the appellant swore an affidavit on 8 November 2018 which was filed on 19 December 2018. The affidavit is argumentative in its content. It is inadmissible in respect of CACR 247 of 2018.
2. The appellant's written and oral submissions in support of his grounds of appeal were confusing and irrelevant. As in Smart No 1, the appellant appears focused upon unsubstantiated claims of corruption and misconduct on the part of various persons and entities. It is pointless to repeat them here.

Disposition of CACR 247 of 2018 and CACR 233 of 2018

1. None of the grounds of appeal as set out at [30] of these reasons have any merit. We will deal with each ground as it is expressed sequentially.

1. The onus was on the appellant to demonstrate that he had been excused from appearing in the Magistrates Court on 22 May 2018. He has failed to do so. Ground 1 has no merit.

1. Ground 2 makes various unsubstantiated complaints about Magistrate Huston's decision to refuse bail on 14 June 2018. The appeal to this court is in respect of Fiannaca J's decisions and not with respect to Magistrate Huston's decision. Ground 2 has no merit.

1. The generalised complaint in ground 3, to the effect that the named magistrates 'and others' failed to properly consider bail, is so wide that it is, in effect, meaningless. The appellant has been given ample opportunity to explain how the persons described in ground 3 did not properly consider bail, but has not done so. Again, the ground is not focused upon the decisions of Fiannaca J. Ground 3 has no merit.

1. We will assume, favourably from the appellant's perspective, that he had never been previously convicted of breaching bail by failing to appear in accordance with his bail undertaking prior to his appearance in the Perth Magistrates Court on 14 June 2018. It does not appear from Fiannaca J's reasons in Smart No 1 and Smart No 3 that this point, if it was made by the appellant, was a matter to which his Honour had regard. However, the focus of Fiannaca J's decisions in Smart No 1 and Smart No 3 was largely on the question of whether the appellant had demonstrated that there were exceptional reasons why he should not be kept in custody. His Honour's reasons, as set out between [87] and [122] in Smart No 1, and between [66] and [102] in Smart No 3, analyse in detail all of the contentions and issues raised by the appellant. There is no reason to doubt the correctness of his Honour's analyses or conclusions. We are unable to see how, on the facts and circumstances of the present case, the absence of any prior convictions for breach of bail by non‑appearance, alone or in combination, would have constituted an exceptional reason for a grant of bail. Ground 4 has no merit.

1. The gist of the complaint in ground 5 appears to be the first of the eight 'key points' identified by Fiannaca J in his reasons for decision, which are repeated at [21] of these reasons. As Fiannaca J explained in Smart No 1, on 3 February 2017, Magistrate Wilson was satisfied that the appellant had established, at that time, that there were exceptional reasons why he should not be kept in custody and grant[23] him bail.23 Fiannaca J observed that Magistrate Wilson's decision [24]s 'sound',24 but his decision was dependent upon the circumstances that existed at that time. Fiannaca J went on to explain that, since Magistrate Wilson's decision on 3 February 2017, there had been, in effect, a change of circumstances. As his Honour put it, 'Since 3 February 2017, there have been many developments', including that the appellant had been charged with additional offences, that a number of matters had been listed for trial before the end of 2018 and that his Honour, like Magistrate Huston, had 'no confidence [the appellant] would attend court for his trial in any of the matters that were listed[25]or trial'.25
2. Of course, as a result of the appellant's failure to appear on 22 May 2018, the question of bail had to be considered afresh once he appeared before Magistrate Huston on 14 June 2018 in answer to the arrest warrant. Neither Magistrate Huston nor Fiannaca J were bound by Magistrate Wilson's earlier finding that exceptional reasons existed. Neither of them erred by approaching afresh the question of whether exceptional reasons existed. Ground 5 has no merit.
3. The appellant has failed to demonstrate that Fiannaca J erred in the exercise of his discretion to refuse the appellant bail in either Smart No 1 or Smart No 3.

1. It may be understood from the appellant's oral submissions that by each appeal the appellant challenged Fiannaca J's refusals to recuse himself on the basis of apprehended bias. We will deal briefly with the issue.
2. The appellant's applications for recusal were based upon the proposition that, prior to his appointment to this court, his Honour held various positions in the Office of the Director of Public Prosecutions (WA). Moreover, the appellant pointed to his Honour's role in a particular case. In Smart No 2, the appellant also relied upon the fact that his Honour refused his application for bail in Smart No 1.
3. The test to be applied in determining whether a judge should recuse himself or herself by reason of reasonable apprehension of bias is well established. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[26] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[27]
4. Bearing these factors in mind, the matters referred to by the appellant could not give rise to an apprehension, in a fair‑minded and reasonable lay observer, that his Honour might not bring an impartial mind to the resolution of the question of the appellant's bail. The mere fact that a judge has, before appointment to the court, been employed in a prosecuting agency could provide no reasonable basis for apprehending that the judge might determine a bail application or other matter arising in a criminal case, in which the judge had no involvement as prosecutor,[28] otherwise than on its merits. There was also no connection between the particular previous case to which the appellant referred and the present matter. Nor could the mere fact that a judge has previously determined a bail application by a particular accused provide any reasonable basis for apprehending that the judge might determine a subsequent bail application by the same accused otherwise than on its merits. The manner in which Fiannaca J determined Smart No 1 could not give rise to any reasonable apprehension that his Honour had prejudged any new issues requiring determination in the appellant's subsequent bail application.[29] Fiannaca J was plainly correct to refuse the appellant's recusal application.

1. There is no merit in either of the appellant's appeals. Leave to appeal must be refused on all grounds. In CACR 247 of 2018, an extension of time must be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[19] Smart No 3 [86], [93], [103].

[20] Smart v The State of Western Australia [2010] WASCA 218 [5] ‑ [10].

[21] YSN v The State of Western Australia [2017] WASCA 155 [30] ‑ [34].

[22] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[26] See Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60].

[27] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

[28] Cf Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135.

[29] As to when a reasonable apprehension of bias may arise from a previous ruling on an issue, see British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [139] - [145].