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[2018] WASC 412
Supreme Court of WA
2018-12-14
Fiannaca J
Original judgment source is linked above.
The applicant's behaviour at the end of the bail hearing in this court
98 As I noted earlier, at the conclusion of his submissions in the present proceedings, having dealt with the condition I could impose to protect the magistrate, and having reacted with disdain at the suggestion of home detention, the applicant made what may be regarded, at the very least, as a veiled threat in the following passage (italics added):
So I will be stuck in jail over Christmas and New Year's and you somehow think that as fucking funny. Well, I'm not going to be held in jail forever and all the people involved better get fucking that message through their fucking head because I'm getting pissed off.
99 Subsequently, as I was giving my brief reasons, the applicant stood up and started to pull down his pants, before the video link was terminated.
100 Both incidents tend to reinforce my conclusions, which I had reached before they occurred, that the applicant poses a risk to the welfare or property of the magistrate, and that no condition I could reasonably impose would sufficiently remove that risk.
102 In particular, I do not accept the proposition that there was an agreement in the Magistrates Court as to what sentence might be imposed in respect of the offences the subject of this application. Further, having regard to other factors that militate against the grant of bail, including those identified in Smart (No 1), which continue to be relevant, and the risk which I have found that the applicant now poses to the safety, welfare or property of the magistrate hearing the charge of assaulting a public officer, I am not satisfied that the likelihood of the applicant receiving a sentence other than an immediate term of imprisonment if he is convicted of the charges the subject of this application, or of receiving a sentence of imprisonment that is less than the time he will have spent in custody as a remand prisoner, would amount, in the circumstances of this case, to an exceptional reason why the applicant should not be kept in custody.
103 Even if I had come to the view that there were exceptional reasons, I would still need to be satisfied that the grant of bail would be appropriate, having regard to the provisions of the Bail Act, in particular, cl 1 of sch 1 pt C. For reasons I gave in Smart (No 1), there is a substantial concern that the applicant will not answer his bail or that he may commit an offence if not kept in custody. Further, for reasons I have given, I am satisfied there now exists the possibility that the applicant may endanger the safety, welfare or property of a person, namely, the magistrate hearing the charge of assaulting a public officer, or that he would otherwise obstruct the course of justice. In those circumstances, unless there is a condition that could be imposed that would sufficiently remove that possibility, it would not be appropriate to release the applicant on bail. I am not satisfied that there is any such condition that could be imposed.
105 As the applicant has charges pending in the District Court, which may be the subject of a jury trial, I make an order prohibiting the publication of the decision and my reasons in this application until further order, except that a copy of the decision and reasons may be provided to the Office of Commonwealth DPP, which has the conduct of the District Court matters, to the applicant's legal representative in those proceedings and to any judicial officer considering bail in respect of any of the applicant's outstanding matters in the Magistrates Court.
106 I amend the non-publication order made in the proceedings the subject of Smart (No 1)[35] to include the exception that my decision and reasons in that case may be provided to any judicial officer considering bail in respect of any of the applicant's outstanding matters in the Magistrates Court.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
[1] Smart v The State of Western Australia [2018] WASC 336 [62] ‑ [67].
[2] Donaldson v Western Australia [2010] WASC 264 [54] and [58].
[3] ts 2. All transcript references are to the transcript of proceedings on 12 and 13 November 2018.
[9] Haigh v Oliver [2015] WASC 462 [38]. Tottle J also found that the appellant adduced no evidence to support that he was unable to afford legal representation, but it appears it would have been sufficient to deny the application of the Dietrich principles that the offence was regarded as one that would not attract a term of imprisonment.
[11] VJS v State of Western Australia [156], [157] and [160].
[31] ts 68. Evidence of Detective Senior Constable Callaghan.
[32] ts 69. Evidence of Detective Senior Constable Callaghan.
[33] ts 66. Evidence of Detective Senior Constable Callaghan.
5 I had previously denied the applicant bail in respect of those charges for his appearance in the Magistrates Court on 12 November 2018: see Smart v The State of Western Australia [2018] WASC 336 (Smart (No 1)). That decision also related to bail for other charges faced by the applicant in the Magistrates Court. In my reasons, published 5 November 2018, I examined in detail the factual circumstances concerning the charges and the applicant's bail history in respect of the charges until that point in time. The applicant had submitted that I should disqualify myself from hearing that bail application on the basis of apprehended bias. I had rejected that submission and published my reasons for doing so in the same decision.
16 I also have regard to the observations of Murray J in Donaldson v Western Australia [2010] WASC 264 (referred to by the respondent):[2]
29 The Magistrate heard the accused's submissions and reviewed the history of the proceedings. His Honour treated the application to adjourn as one that relied on the principles in Dietrich v The Queen (1992) 177 CLR 292.[8] The essence of those principles was explained by Mazza JA (Martin CJ and Buss P agreeing) in VJS v State of Western Australia [2017] WASCA 172 at [155] (footnote omitted; italics added):
30 Magistrate Walton had regard to VJS and to the decision in Haigh v Oliver [2015] WASC 462. In the latter case, Tottle J, on an appeal from the Magistrates Court which included grounds concerning the application of the Dietrich principles, concluded that the 'principles did not apply to the appellant's case before the magistrate because the offence was not a serious offence and there was no prospect that the appellant was liable to be punished by a term of imprisonment.'[9]
66 In Stephens v The Queen [2004] WASCA 22, Roberts-Smith J explained what is a relevant change in circumstances (which is applicable in the context of s 14(2a) of the Bail Act) in the following terms, which I respectfully adopt:[30]
(1992) 177 CLR 292