Bail Act 1982 Sch 1 cl 3A(1), Sch 1 Part C cl (1)

Misuse of Drugs Act s 6(2)

1 SCOTT J: By a complaint made on 22 November 1999 the applicant was charged with an offence which alleged that on 17 November 1999 at Warwick, the applicant had in his possession a prohibited drug, namely, heroin, contrary to s 6(2) of the Misuse of Drugs Act. Whilst the complaint is not clear, it would appear that the applicant came before the Court of Petty Sessions at Perth on 23 November 1999 and that the matter was adjourned until 1 December 1999 upon which date he pleaded not guilty. The charge was further adjourned until 15 December 1999 when the applicant failed to appear and a bench warrant issued. It is common ground, for reasons that I will outline, that as at 15 December 1999 the applicant was in custody on other charges and for some reason was not brought before the court. It was no fault of the applicant's that he failed to appear on 15 December 1999 in relation to that charge.

2 Further charges were preferred against the applicant on 8 December 1999 when he was charged with eleven offences which can be summarised as follows:

(h) Possession of ammunition without being licensed.

(i) Possession of a weapon (Tayzer) without lawful excuse.

(j) Possession of heroin with intent to sell or supply.

3 On all of those charges the applicant was granted bail on 8 December 1999 and was released.

4 On 14 December 1999 the applicant appeared before the Court of Petty Sessions when his bail was renewed on all charges except the charge of driving without a motor driver's licence, in relation to which he was remanded in custody.

5 The following day, 15 December 1999, a warrant was issued in the Perth Court of Petty Sessions for the arrest of the applicant, following his failure to appear on the original charge of possession of heroin. The applicant was unable to appear on that date because he was in custody.

6 On 29 December 1999 the applicant appeared in the Perth Court of Petty Sessions on a bail application in relation to the charge of driving without a driver's licence and bail was refused.

7 On 26 January 2000, the applicant was charged with two further serious charges, namely:

"(a) that on 21 November 1999 at Perth he conspired with another to commit an indictable offence, namely, to launder money contrary to s 563A of the Criminal Code; and

(b) that between 27 November 1999 and 30 December 1999 at Perth he conspired with other to commit an offence, namely, the manufacture of a prohibited drug, namely, Methylamphetamine."

8 To complete the chronology, on 11 February 2000, the applicant pleaded guilty to the charge of driving without a motor driver's licence and was sentenced to a term of 10 months' imprisonment to run from 14 December 1999. It is common ground that the applicant is now eligible to apply for work release in relation to the sentence then imposed and thus this bail application is now brought before the court.

9 Bail was fixed in relation to charges (a) to (k) mentioned above but has been refused in relation to the two conspiracy charges which fall for consideration in this application.

10 There is some dispute between the parties as to the appropriate legal principles to apply to the application. In circumstances where it is alleged that an applicant has committed a serious offence or serious offences whilst on bail for other serious offences, the applicant must demonstrate some exceptional circumstances to persuade a court that a further grant of bail is appropriate. There is an argument as to whether or not the provision in cl 3A of Sch 1 of the Bail Act 1982 applies in this case.

"3A Bail where serious offence committed while defendant on bail for another serious offence.

(1) Notwithstanding clause 1 or 2 or any other provision of this Act, where -

(a) a defendant is in custody awaiting an appearance in court before conviction for a serious offence; and

(b) the serious offence is alleged to have been committed while the defendant was on bail for another serious offence or for a group of offences which includes a serious offence,

the judicial officer or authorized officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless he is satisfied that -

(c) there are exceptional reasons why the defendant should not be kept in custody; and

(d) he may properly grant bail having regard to the provisions of clauses 1 and 3 or, in the case of a child defendant, clauses 2 and 3."

12 It is common ground that the applicant is presently in custody awaiting an appearance in court in relation to the two conspiracy charges referred to earlier in these reasons. The dispute in this case arises because there is an argument as to whether the applicant was on bail for other serious offences or for a group of offences which included a serious offence when those offences were alleged to have been committed. In that respect, the applicant was on bail in relation to the charges preferred on 8 December 1999 when he was charged with the two conspiracy offences, namely, the conspiracy to launder money and the conspiracy to manufacture Methylamphetamine, referred to earlier in these reasons. The dates of each of those charges, particularly the conspiracy to manufacture Methylamphetamine indicate that the conduct is alleged to have occurred over a period between 27 November 1999 and 30 December 1999.

13 In relation to this conspiracy charge, the Crown has produced evidence from Detective Graham Michael Cotton, who in a statement of 10 March 2000 said:

"On 9 December 1999, a communication between TOWNSEND and another conspirator was intercepted where TOWNSEND was attempting to obtain pre-cursor chemicals.

On December 11, 1999, 6 communications were intercepted between TOWNSEND and another conspirator where TOWNSEND was attempting to obtain 10 kg of Ephedrine."

14 It follows that the Crown alleges that whilst the applicant was on bail for serious offences, he was taking steps in furtherance of the conspiracy directed towards the laboratory production of amphetamine.

15 Whilst I accept the submission made by senior counsel for the applicant in relation to those paragraphs in the statement of Cotton, namely that the paragraphs express conclusions from a recorded intercepted conversation, it nonetheless is evidence which, if accepted, would establish that the conspiracy was on-going at a time when the applicant was on bail for serious offences.

16 As can be seen from cl 3A of the Bail Act 1982 set out earlier in these reasons, the relevant question is whether the relevant conspiracy charge is "alleged to have been committed whilst the defendant was on bail for another serious offence or for a group of offences which includes a serious offence".

17 Counsel has been unable to refer to any previous authority on this issue, nor have I been able to uncover any decision on the subject.

18 In cases of conspiracy it is commonly alleged that the conspiracy occurs over a period of time. That is particularly so in circumstances where the conspiracy alleged relates to the manufacture of a drug or a course of conduct which constitutes criminality.

19 In determining whether or not cl 3A of Sch 1 of the Bail Act 1982 applies, in my opinion it is necessary not only to look to the terms of the complaint, but to look to the circumstances surrounding the offence, which is said to have occurred whilst the applicant was on bail for another serious offence. The court should look to the question of whether the applicant has, during the time that he was on bail for the serious offence, committed acts which either by themselves or in combination with other conduct can be said to constitute the second serious offence. In this case, in my opinion, the two passages from the evidence of Cotton, which I have set out earlier in these reasons, would, if accepted, suggest that the applicant was involved in overt acts evidencing conspiratorial conduct whilst on bail for other serious offences. In saying that, I do not in any sense derogate from the presumption of innocence. I also accept the contention of senior counsel for the applicant that this evidence is likely to be seriously challenged at trial. In addition, there has been no production of transcription of the intercepted telephone conversations and the two passages from the evidence of Cotton, set out earlier in these reasons, are clearly conclusions drawn from the conversations said to have been recorded.

20 Taking all of those matters into account however, I have come to the conclusion that this is a case in which the applicant is required to demonstrate exceptional circumstances before bail should be granted.

21 The primary basis of the submission by counsel for the applicant that exceptional circumstances have been established is the period the applicant will be held in custody pre-trial. The applicant seeks to have a committal hearing and following that hearing submits that it is unlikely that a trial for these offences would be completed in the District Court in less than a year from that date. It is said that the reason for such a delay is that there are three co-conspirators in relation to one of the conspiracy charges and that time will be taken in dealing with each of the co-conspirators so that the matter can progress to trial. It is well known in this State that the District Court, which is likely to be the trial court, has a substantial backlog and the assessment by senior counsel for the applicant that there will be a delay of some twelve months from the date of committal (should that occur) cannot be said to be an unreasonable estimate on the probabilities in this case. In addition, it is also said that the applicant would suffer financial hardship by being in custody in that he would be unable to carry on his occupation as a brick paver and earn income to support his pregnant de facto wife and in addition, would be unable to assist his wife during her pregnancy in relation to the child due to be born on 12 June 2000.

22 The evidence before me indicates that the applicant has an election date on 7 April 2000 in relation to the conspiracy charges and a preliminary hearing is unlikely to be conducted in the Court of Petty Sessions before June 2000. Assuming that a committal order is made, and that all four co-conspirators can be joined together, it is said that it is unlikely that the conspiracy trial would take place before June 2001.

23 The appellant has a very bad criminal record, particularly in relation to drug matters. He has convictions for possessing cannabis and a smoking implement in 1990; cultivating and possessing cannabis in May 1991; possessing cannabis and a smoking implement in September 1991; cultivating cannabis and possessing cannabis and a smoking implement in February 1992; cultivating cannabis in March 1994; possessing cannabis and a smoking implement in September 1996; possession of a prohibited drug in May 1997; possession with intent to sell or supply amphetamine in the District Court on 10 October 1997, for which he was sentenced to 12 months' imprisonment; possessing a quantity of cannabis and a prohibited drug on 5 November 1997.

24 In considering an application for bail, the court is bound to consider the provisions of Part C of Sch 1 of the Bail Act 1982 and in particular cl 1, which provides:

"(a) whether, if the defendant is not kept in custody, he may -

(i) fail to appear in court in accordance with his bail undertaking;

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

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) whether the defendant 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, as regards the period when the defendant is on trial, there are grounds for believing that, if he 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 under Part D which would -

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

(ii) obviate the need referred to in paragraph (b); or

(iii) remove the grounds for opposition referred to in paragraph (c);

(f) where the defendant is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the defendant to reside at a place other than the place where the child resides;

(g) 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."

25 In dealing with those considerations, the applicant has satisfied me that providing appropriate bail conditions are fixed, he would appear in court in accordance with his bail undertaking. There is no evidence before me to suggest that the applicant has absconded from bail or failed to appear in accordance with a bail undertaking.

26 As to the second consideration, namely, whether the applicant would commit further offences, a perusal of the applicant's record and the history of the matter, including the alleged facts surrounding each of these offences, is indicative of the fact that the applicant is likely to commit a further offence or offences if released on bail.

27 There is no suggestion that the applicant is likely to endanger the safety, welfare or property of any person, or interfere with witnesses should he be released on bail.

28 There is no other matter in par (b) through to par (f) of the Schedule which requires comment.

29 The final matter, however, for consideration is whether the alleged circumstances of the offences amount to wrong doing of such a serious nature as to make a grant of bail inappropriate. Here again, the court is forced to rely upon such information as is available at this stage of the proceedings, particularly in relation to the allegation of the conspiracy to manufacture amphetamine. There is hearsay evidence to suggest that the quantities of pre-cursors of amphetamine with which the applicant was involved would have been sufficient to manufacture 90 kg of Methylamphetamine, which would be valued at $4.6M. That is evidence of a hearsay nature and based upon projected calculations from the quantities of chemicals involved. The court cannot place any particular weight upon that evidence or those calculations, but nonetheless if accepted, it would indicate that the manufacture of amphetamine would have been on a substantial scale.

30 It is necessary to evaluate all of those factors. On the one hand, as I have said during the course of argument, a delay of 12 months between committal and trial is totally unacceptable, in that it is an unacceptably long period for a person to be in custody awaiting trial where the presumption of innocence runs with him. On the other hand, looking at all of the facts of each of the offences, there is a reasonably strong case that the applicant may be convicted of some offences. Whilst the question of an intent is likely to be challenged, there is evidence to suggest that the applicant was in possession of the drugs alleged in the charges preferred on 8 December 1999. Of course bail has been granted in relation to those charges but the prospect of the applicant receiving a significant custodial term for those offences cannot be discounted.

31 As to the evidence on the conspiracy charges, the subject of the present application, it is not possible to make an accurate evaluation of the strength of the Crown's case. Without the benefit of a transcription of the intercepted telephone communications, it is difficult to make an objective evaluation of the prosecution case. Nonetheless, if there is evidence to substantiate the allegations contained in Cotton's statement, the Crown's case may have reasonable prospects of success.

32 Evaluating all of those circumstances, I am not persuaded that the applicant has established sufficiently exceptional circumstances to justify the grant of bail in this case. The matter may, however, take on a different complexion after the committal proceeding when the prosecution's evidence is available for assessment. That stage has not yet been reached.

33 At this stage I would refuse the application, but the matter may require re-evaluation after the committal proceedings when the prosecution brief is available. On the present information, however, the applicant has failed to satisfy me that bail should be granted. The application will be dismissed.

34 I would add that even if I am incorrect in reaching the conclusion that exceptional circumstances have to be established for this application to succeed, I would refuse the application in any event at this stage of the proceedings.

35 I am not satisfied that the applicant would refrain from committing further offences if released to bail. This conclusion is, in my view, inevitable when the applicant's record is considered together with the number and nature of the charges presently pending against him.