Bail Act 1982 (WA), s 14, cl 1 and cl 3, Pt C, Sch 1

Suitors' Fund Act 1964 (WA), s 14

State of WA : Commonwealth Director of Public Prosecutions

Director of Public Prosecutions (Cth) v Tang & Ors (1995) 83 A Crim R 593

Firkins v Director of Public Prosecutions [2002] WASC 203; (2002) 132 A Crim R 321

In the Matter of an Application for Bail by Alexopoulos, unreported; SCt of Vic; 23 February 1998

Mokbel v Director of Public Prosecutions (No 2) [2002] VSC 312; (2002) 132 A Crim R 290

Mokbel v Director of Public Prosecutions (No 3) [2002] VSC 393; (2002) 133 A Crim R 141

Oates v Commonwealth Director of Public Prosecutions [2003] WASCA 329

Oates v R [2003] WASC 180

Outman v R [2001] WASC 162

Pinkstone v R (2000) 119 A Crim R 462

R v Kantzides, unreported; SCt of Vic; 9 August 1996

R v Mantase, unreported; SCt of Vic; 21 September 2000

R v Medici, unreported; SCt of Vic; 27 September 1993

Saka v R [2001] WASC 92

1 ROBERTS-SMITH J: This is an application by the accused, Antony Gordon Oates, for bail pending his retrial on an indictment containing 15 counts, the first being one that contrary to s 412 of the Criminal Code, he conspired with others to defraud Bell Resources Ltd and others by fraudulent means, together with two groups in broad terms of seven offences, each relating to his duties as a director of either Bell Resources Ltd or Freefold Pty Ltd, contrary to various provisions of the Companies (Western Australia) Code. The application was foreshadowed by Ms Fullerton SC following the discharge of the jury of the accused's first trial on Wednesday of this week and is made by written application dated 30 September 2004.

2 The application arises out of extremely regrettable and unfortunate circumstances which it is not necessary for me to describe in any detail but which are, in short, that the accused's trial on this indictment, which commenced in this court on 4 August 2004, had to be aborted and the jury discharged on the second day of the accused's cross examination and after nine weeks of trial. The accused is to be remanded pending retrial. I have directed the retrial be listed for 10 weeks from 18 July 2005. For reasons which I have already explained to counsel, it cannot be listed earlier than that.

3 The matter has a long history. The charges, the subject of the indictment, arise out of events which occurred in 1988 and 1989. The accused was extradited from Poland and returned to Australia on 21 June 2003. He was in custody in Poland pending extradition for some months. He has been in custody in Australia ever since.

4 On 4 July 2003 the accused applied for bail before Wheeler J. Her Honour refused that application. On 12 September 2003 he appeared before her Honour again on a further application for bail.

5 That was refused on 18 September 2003 (Oates v R [2003] WASC 180), her Honour holding that the material then put before her could not be considered to amount to a change of circumstance or the discovery of new facts which would trigger a fresh consideration of the question of bail under the provisions of cl 4 of Pt B of sch 1 to the Bail Act 1982.

6 The accused appealed against that decision of Wheeler J given on 18 September 2003. It came before the Full Court on 17 December that year. The court comprised Miller J, me and Wallwork AUJ. We delivered our reasons for decision on 19 December 2003 (Oates v Commonwealth Director of Public Prosecutions [2003] WASCA 329). The appeal was dismissed, Wallwork AUJ dissenting.

7 The present application is made on essentially the same factual bases and in light of that I do not propose to canvass them here. I do have regard to those factual matters as they were put before the court on that occasion.

8 The question is raised on this application whether in light of the fact the last decision on the applicant's bail was made by the Full Court I have jurisdiction to deal with it as a single Judge.

9 That question I think is thought to be raised because of the general structure of the Bail Act which precludes a grant of bail by a judicial officer where it has already been refused by a judicial officer of the same or greater hierarchical jurisdiction. Mr Hall SC submits that because the accused was previously refused bail by Wheeler J, I do have jurisdiction but only if within the terms of s 14(2)(a) of the Bail Act the accused can demonstrate that new facts have been discovered, new circumstances have arisen or the circumstances have changed since the decision was made by Wheeler J, or, alternatively, the accused failed to adequately present his case for bail on that occasion. The prosecution does not contest the proposition that circumstances have changed relevantly since then. However, I do not take the view that the application falls within that provision.

10 The first point to note is that the decision of December 2003 was not one of the Court of Criminal Appeal exercising its own jurisdiction on an appeal nor at all. It was a decision of the Full Court sitting on appeal from a decision of a single Judge.

11 The merits of the application for bail were not considered by the Full Court in resolution of the point covered by the appeal, although views were expressed in relation to the merits of the application. The appeal was dismissed. The operative decision, therefore, remained that of Wheeler J. Secondly, and more to the point, a grant or refusal of bail relates to securing the appearance of the accused at a hearing, so, for example, s 14(2) of the Bail Act refers to the jurisdiction of a Judge of the Supreme Court "... in respect of an appearance by a defendant" whether or not any other judicial officer has previously granted or refused or varied bail "... in respect of that appearance". Thus, as the learned author of "Criminal Law in Western Australia" points out at par 40,060.5, once the defendant or accused appears at the hearing, the bail is answered and he or she is in the custody of the court. (See also item 2 in the first column of Pt A of sch 1 to the Bail Act).

12 It accordingly falls within the jurisdiction of the judicial officer conducting the hearing to deal with the question of bail during or after the hearing in the ordinary way and in accordance with the ordinary principles, relevantly for present purposes, those in cl 1 and cl 3 of Pt C of sch 1 of the Bail Act. In that way then the accused came back within the purview of my jurisdiction with respect to bail as the trial Judge on 4 August 2004.

13 In addition to the material in the appeal book upon which both counsel rely, for the purposes of the present application I have also had regard to three additional affidavits filed today by senior counsel for the accused, they being two further affidavits of Rudolf Alexander Zilkens and one of Anthony Charles Kevin.

14 As I have indicated, it seems to me presently not necessary to canvass again all of the matters raised, whether factually or by way of submission, on the appeal to the Full Court in December last year. I have had regard to them, and I think the conclusions to which I come can be understood and should be understood against that background.

15 In my view, the most significant consideration, that is to say, the one which carries the greatest weight on this application, is now that of delay. The accused has been in custody in Australia since approximately 21 June 2003, which is now some 16 months. He was previously in custody for some months in a Polish prison awaiting extradition. As Miller J pointed out in his reasons for judgment at [26] of Oates v Commonwealth DPP on 19 December 2003, whether and to what extent time in custody in Poland would be a relevant factor to be taken into account on sentencing the accused, should he be convicted of offences on this indictment, is an open question.

16 However, the situation has obviously developed further since the decision of the Full Court in December 2003. At that stage the accused had spent six months in custody in Australia and the expectation was that with his trial commencing on 4 August 2004, he would have served approximately 14 months in custody before trial.

17 As I have observed, as at today's date the accused has now been in custody for some 16 months in respect of these charges. His retrial is listed to commence on 18 July 2005. For the reasons I have already explained, it cannot be heard any earlier than that. By that time he will have been in custody in Australia in respect of these charges for approximately another 15 months. That is overall more than two and a half years. A period of 2-1/2 years served before eligibility for parole presently represents a head sentence of 5 years' imprisonment or one of 7 years 6 months prior to the amendments to the Sentencing Act 1995 (WA) made in late 2003.

18 I note that the accused's alleged co-conspirators, Alan Bond and Peter Mitchell, have previously been convicted and sentenced to terms of 4 years' imprisonment respectively. The Court of Criminal Appeal subsequently decided the 4 year sentence imposed in respect of Bond should have been one of 7 years' imprisonment, although the High Court later held that the Court of Criminal Appeal had no jurisdiction to entertain the appeal because the Director of Public Prosecutions had no authority to bring it.

19 Those sentences would not necessarily reflect in pre-2003 terms what sentence this accused might expect should he be convicted, but they do afford some general indication. Under the present sentencing regime, a sentence of 7 years' imprisonment would be equivalent to one of 4 years. A sentence of 4 years would be equivalent to one of two years' imprisonment.

20 Of course, the sentences imposed on Bond and Mitchell were arrived at after a substantial discount, probably between 25 and 35 per cent, attributable to their pleas of guilty, a discount to which the accused would not be entitled were he to be convicted after a trial. The accused could therefore reasonably expect he may well have to serve a not insubstantial term of imprisonment in those circumstances even allowing for some 2-1/2 years in custody pending conviction.

21 That consideration, however, is not necessarily determinative. In Mokbel v Director of Public Prosecutions (No 2) [2002] VSC 312; (2002) 132 A Crim R 290, delivered on 9 August 2002, Kellam J in the Supreme Court of Victoria considered that the factor of unacceptable risk that the applicant if released on bail would fail to answer the charges or would commit an offence on bail or would interfere with witnesses or otherwise obstruct the course of justice falls to be judged according to proper criteria, one of which is the length of delay before trial. On the question whether delay could constitute exceptional circumstances for the purpose of bail, his Honour said at [18] to [20]:

"It is clear that the delay between arrest and final disposition can of itself constitute an exceptional circumstance. A civilised society, as we profess to be, cannot tolerate its citizens being detained for inordinate periods without the allegations made being determined by the process of trial.

Vincent J, as he then was, said in R v Mantase, (unreported) SC Vic 21 September 2000:

'... if our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of 18 months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represent the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice'."

"It is true, of course, that the question of what is a reasonable delay will vary with the circumstances of the alleged offence or offences, and the complexity of the matter the subject of the charges, and no doubt the seriousness of the matters in question including the likely range of potential sentence."

23 I respectfully agree with all that is contained in those three paragraphs. His Honour then referred to a number of Victorian cases which he thought provided some guidance. They included Director of Public Prosecutions (Cth) v Tang & Ors (1995) 83 A Crim R 593 at 596 (12 to 14 months' delay between arrest and trial being not exceptional nor unusual); R v Kantzides, unreported; SCt of Vic; 9 August 1996 (a period of at least 20 to 21 months was in the circumstances of that case exceptional); In the Matter of an Application for Bail by Alexopoulos, unreported; SCt of Vic; 23 February 1998 (a delay of at least one and a half years from arrest to trial held to be inordinate and an exceptional circumstance); R v Medici, unreported; SCt of Vic; 27 September 1993 (two years in custody between arrest and conclusion of trial said to be "simply unacceptable and must be regarded as exceptional"); and R v Mantase, unreported; SCt of Vic; 21 September 2000, referred to above (a period of 18 months between the bail application and trial together with other circumstances amount to exceptional circumstances).

24 Kellam J then turned to the circumstances of the case before him and concluded that despite the anticipated delay the unacceptable risk constituted by the applicant was so great bail ought not be granted, but his Honour went on to say (at [42]) that if there was further delay beyond that then anticipated the question whether the risk continued to be unacceptable might well have to be re examined in light of the circumstances then obtaining.

25 In fact, that did eventuate. On 4 September 2002, his Honour granted bail to that applicant because it had become apparent that the pre trial delay would be considerably longer than previously thought and indeed was likely to be indefinite (see Mokbel v Director of Public Prosecutions (No 3) [2002] VSC 393; (2002) 133 A Crim R 141).

26 In my view it must be accepted that the degree of unacceptable risk of flight as well as the other factors pertinent to a consideration of an application for bail is to be weighed against the other relevant criteria including that of delay before trial. I respectfully agree with what his Honour said at [10] of his reasons in Mokbel (No 3):

"The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay."

27 In Outman v R [2001] WASC 162, I granted bail where the applicant would have spent 18 months in custody before his trial was brought on and concluded. That would have been equivalent to the non-parole portion of a sentence of 4-1/2 years' imprisonment. His co-accused had already been convicted and sentenced to a term of 18 months' imprisonment. I accepted in that case that there can be a point in which delay in bringing an accused to trial can be an exceptional circumstance or reason for granting bail and at [44] to [46] made mention of what I had said in Pinkstone v R (2000) 119 A Crim R 462 about Alexopoulos, already referred to.

28 As I observed in Outman at [45], Hampel J said at 2 of Alexopoulos:

"In my opinion, where exceptional circumstance which substantially depend on delay are raised, they cannot be measured simply by what may be normal or usual. There was a time when senior judges in this court thought that anything over a year, as a rule of thumb, would be treated as being exceptional and inordinate. I think there must be some objective criteria which does not depend purely on what the position is at the particular time because of delays in the system or lack of resources. It must be objective criteria based on the concept that we are a humanitarian society which respects the presumption of innocence and finds abhorrent the idea that people are kept in custody for undue time without trial. The Bail Act, I think, must be interpreted in that context and not simply by reference to what happens to be the unhappy norm at this time."

"As I said during argument, if at some time in the future the backlogs became such that it became the norm to have two or three year delays, it could not be said that that is not inordinate when one looks at fundamental principles and concerns with the liberty of the subject.

Of course, there cannot be arbitrary times and each case depends on its own circumstances. ..."

"It is not good enough, I think, to say we will wait and see what happens. There have been cases recently where bail was granted after a year and a half or two years, because what was feared had actually occurred, namely an inordinate delay. But by then an accused who has not been tried had been in custody for an extraordinary time. That is unacceptable.

Having said all that, of course, the system must accept that some time will have to pass before accused are tried. One cannot bring cases on immediately. However, when there is tension between resources and systems on the one hand and fundamental principles which I have mentioned, fundamentals must prevail. The system has to change and more resources be made available."

31 At [46] of my reasons in Outman, I then made the observation that similar sentiments were expressed in this State by McKechnie J in Saka v R [2001] WASC 92. His Honour was there concerned about the prospect of the applicant being in custody for over a year before he could be brought to trial. At [38] to [40] his Honour said:

"38 The detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.

39 A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice.

40 The State, using this term in its widest sense, brings the charge against an accused person and the State, in consequence, bears the burden of providing sufficient resources to enable the trial of a person to take place with reasonable expedition. Where, as here, the State objects to the release of an applicant on bail on the ground that the administration of justice may thereby be imperilled, it is incumbent on the State to provide the resources necessary to minimise the consequent injustice of a continued detention of a person who is at law presumed innocent of the charge. Consequently, where there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention."

32 Saka and Outman were both referred to with approval by Pullin J in Firkins v Director of Public Prosecutions [2002] WASC 203; (2002) 132 A Crim R 321 at [24] and [25], although in the circumstances of that case his Honour concluded that a delay of 13 to 14 months before trial was not so excessive as to constitute an exceptional reason why the applicant should not be held in custody.

33 Returning to the circumstances of the present case, so far as the strength of the prosecution case is concerned, I am now in the position of having heard the complete prosecution case plus three days of evidence from the accused himself (one of those under cross-examination), over a period of some nine weeks. Given that there is to be a retrial, I express no particular view about it, other than in the limited way the law requires on an application for bail. It is sufficient for me to say there is a reasonable prospect of conviction but it could not be said the case is so strong as to give rise to a reasonable apprehension that there is a significant risk the accused would abscond because he could have no expectation of successfully defending it.

34 I do not accept the submission of Ms Fullerton SC that the fact the accused now has a prospect that he will recover the costs of his retrial as a consequence of me having granted a certificate under s 14 of the Suitors Fund Act 1964 (WA) should bear significance or should bear significant weight as removing what would otherwise be an additional incentive not to attend for his trial. That, in my view, is not a factor which carries any real weight on this application.

35 That said, I do consider there are still grounds for regarding the accused as a potential flight risk. These essentially remain, as explained by Miller J at [23] to [25] of the judgment of the Full Court on 19 December 2003. His Honour there said:

"23 The reasons why I consider the appellant poses a considerable flight risk are these. Firstly, for objective reasons it would plainly be in the interests of the appellant to flee Australia for these reasons: he faces charges of very serious offences; two co-offenders have already received significant terms of imprisonment after pleas of guilty; the prosecution case establishes for present purposes there is a case to answer; the appellant has some family connections with Australia but has not lived here since 1991 and does not have ties which would be such to make it difficult for him to sever connection with Australia.

24 The appellant's closest ties are with Poland, where he went for legitimate business reasons and where he remained in due course for both business and personal reasons. The appellant's wife and home are in Poland. Under Polish law, there is the complication of limitation periods, according to which some charges might be spent if the appellant were to return to Poland, making his extradition back to Australia impossible if that occurred.

25 For subjective reasons it would also be in the appellant's interests to flee. The reasons are that there are no sufficient family links to require him to stay in Australia; he has ties in Poland which do not exist in Australia; and he has engaged in a lengthy course of litigation both in Poland and Australia to challenge extradition proceedings. Whilst no criticism can be made of the appellant for doing that, it is relevant in that it shows that the appellant is unwilling to face trial in Australia."

36 In light of the submissions made to me relating to the accused's family connections in Australia, I would point out that there was no misapprehension previously about the fact that the accused does have family connections in Australia.

37 They were before the court in December 2003 and may be found at 34 and 35 of the appeal book, where the appellant on that occasion deposed that his sister and brother-in-law live in Western Australia, his three children and various grandchildren all live in Perth, as does his elderly stepmother, and he refers to his lack of travel documentation.

38 What is apparent from the passages I have just quoted from the judgment of Miller J in December last year is that the accused had lived in Poland since 1991 where his wife is, and his family links in Australia are not sufficient to require him to remain in Australia should he feel pressured otherwise to avoid trial by remaining out of the country.

39 In my view, that remains the position. Furthermore, I accept the submission of Mr Hall that there is now a very powerful incentive for the accused to abscond from Australia and return to Poland, and that is because the extradition agreement between Australia and Poland contains certain limitation provisions which, applied to the circumstances of this case, would mean that the relevant limitation periods in Poland would have expired so as to render it impossible for him to be extradited from Poland back to Australia now should he leave this country and return there.

40 Despite that though, for the reasons I have already expressed, I consider the factor of delay before the accused's retrial with the unacceptably long period of time he would have served in custody by then to outweigh those factors militating against the grant of bail. Whilst I accept that if the flight risk is so great as to be unacceptable or is, to use Mr Hall's expression, "real and unanswerable", delay can never prevail over it, that proposition must be considered in the context to which I have already referred as articulated in Mokbel.

41 The proposition, baldly expressed, must be correct, but I have come to the conclusion that although I believe there to be an appreciable risk the accused might seek to return to Poland, I do not regard it as so great as to outweigh the factor of delay having regard to the stringent conditions which I am presently minded to impose.

42 I would accordingly grant the application and grant bail subject to conditions which I would presently contemplate as being as follows:

(1) the accused enter into a bail undertaking in the sum of $500,000 and of that amount give cash surety in an amount of $170,000;

(2) there be four sureties in the sum of $200,000 each, they being those named in [4], [9], [12] and [13] of Mr Zilkens' affidavit filed today, and that each provide security in that sum for the performance of their respective obligations and comply with cl 1(2)(e) of Pt D of sch 1 of the Bail Act to render any security effective and enforceable by the State;

(3) the accused not be in possession of and not seek to obtain a passport, whether an Australian passport or one from any other country;

(4) the accused reside at Lot 2, Yule Avenue, Middle Swan in the State of Western Australia;

(5) the accused report to the officer in charge, Midland police station daily between 10 am and 12 noon;

(6) the accused not contact directly or indirectly any prosecution witness;

(7) the accused not to be within one kilometre of any point of international departure.

43 As I have indicated, those are the conditions I would presently be minded to apply but I will hear counsel as to that.