Bail Act 1982 (WA), Sch 1, Pt C, cl 3A(1) and (2)

Lim v Gregson [1989] WAR 1

WCVB v R [1989] 1 WAR 279

1 BARKER J: By an application made under the Bail Act 1982 (WA) and the Criminal Code and the Criminal Procedure Rules 2000 and dated 10 December 2002, the applicant applies for bail on such terms as this Court thinks fit.

2 The applicant is presently in custody on a charge of detaining another with intent to gain a benefit under s 332(2)(a) of the Criminal Code. The matter with which he is charged is a "serious offence" as that expression is defined by the Bail Act. The applicant has been in custody since his arrest on this charge on 28 October 2001, that is to say, for nearly 14 months. The matter is set down for an eight-day trial due to commence on 17 March 2003. Should the applicant not be granted bail, he will, by the date of commencement of the trial, have spent some 17 months in custody awaiting trial.

3 At the time the Crown allege the applicant committed this offence, the applicant was on bail in respect of a charge of unlawfully detaining a woman contrary to s 333 of the Criminal Code. He had been arrested on this earlier charge on 14 February 2001, and he was admitted to bail on that charge soon after arrest. As in the case of the matter upon which he is presently in custody, this earlier charge was also a "serious offence" for the purposes of the Bail Act.

4 On 1 March 2002, in this Court, Pullin J rejected the application of the applicant for bail on the present charge. His Honour noted that, because the application was for bail in respect of a serious offence alleged to have been committed while the defendant was on bail for another serious offence, bail must be refused unless the Court were satisfied that there were "exceptional reasons" why the defendant should not be kept in custody: Bail Act 1982, Sch 1, Pt C, cl 3A(1). His Honour was not so satisfied.

5 Since that application for bail in respect of the present charge was refused, the applicant has been acquitted at a trial of the earlier charge. He stood trial and was acquitted on or about 1 November 2002.

6 The applicant now comes before the Court on the present application claiming that, since the hearing of his first application for bail on the present charge, new circumstances have arisen, or his circumstances have changed and there are now exceptional reasons that would not have been apparent to Pullin J as to why he should not be kept in custody.

7 In dealing with the present application, it is accepted by counsel for the applicant and the Crown that not only does cl 3A(1) of Pt C of Sch 1 of the Bail Act apply to the application, but so too does cl 3A(2). The latter clause provides that:

"(2) Notwithstanding section 7(1), where a defendant is refused bail under subclause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for that offence unless he satisfies the judicial officer who may order his detention that -

(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or

(b) he failed to adequately present his case for bail on the occasion of that refusal."

8 Because Pullin J refused bail under subcl (1) of cl 3A on the previous occasion, subcl (2) applies. However, the applicant says that, by reason of his acquittal of the earlier charge, either new circumstances have arisen, or his circumstances have changed and the Court should consider his case for bail on this occasion.

9 Counsel for the Crown did not strongly resist this contention. I agree that, in circumstances where a person has been acquitted of a serious offence that caused the invocation and application of cl 3A(1) on an earlier occasion, it is proper to find that new circumstances have arisen, or the circumstances have changed which make it appropriate for the Court to consider that person's case for bail on the later charge. I should note in passing that subcl (2) of cl 3A does not, in fact, prevent the Court from considering a person's case for bail on a subsequent occasion. It merely provides that, unless the matters set out in (a) and (b) are satisfied, that person's "case for bail need not be considered". In any event, in these circumstances, as I say, it appears to me that there are new circumstances that have arisen, or circumstances have changed such that it is appropriate for the Court to consider the applicant's case for bail. I note that, in Outman v The Queen [2001] WASC 162, Roberts-Smith J at [20] appears to have thought that an acquittal of an earlier charge may well constitute a relevant change in circumstance sufficient to enable a further application for bail to be made in circumstances such as these.

10 In those circumstances, the question before the Court on this application is the same as that before Pullin J on the last occasion, namely, whether there are "exceptional reasons" to satisfy the Court why the defendant should not be kept in custody.

11 In some ways, it may seem a little odd that this question can arise in this same way again, there having been an acquittal of the earlier charge. However, there is no express provision that says cl 3A(1) ceases to apply where a person has subsequently been acquitted of the serious offence of which he or she was then on bail at the time of the alleged commission of the later serious offence. Clause 3A(1) relevantly provides that:

"(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 -

(i) on bail for; or

(ii) at liberty under an early release order made in respect of,

another serious offence,

the judicial officer ... shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer ... -

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

12 The fact is that the second serious offence is alleged to have been committed while the defendant was on bail for another serious offence. The fact that the earlier serious offence has now been tried and the applicant acquitted does not thereby render cl 3A(1) inapplicable. I note the same view was adopted in Wright v The Queen [2000] WASC 236 per Scott J and in Firkins v Director of Public Prosecutions [2002] WASC 203 per Pullin J.

13 However, an important question does arise whether, for the purpose of cl 3A(1)(c), the fact of acquittal may be considered a relevant "exceptional reason", either alone or in combination with others, to justify a grant of bail. If it can be, then it is clear that in this case there is a relevant reason open to be considered by this Court in determining this bail application that was not open to be considered when the earlier application for bail on the present charge came before Pullin J.

14 I note that, in Williams v The Queen [2001] WASC 308, at [13], Scott J expressed the view that the disposition of the original matter cannot of itself constitute an "exceptional reason" for the granting of bail in relation to the subsequent serious offence. In Firkins v Director of Public Prosecutions, at [6], Pullin J agreed with this view.

15 In Williams v The Queen, the exceptional circumstances contended for were the fact that, when the earlier charges had come on for hearing in the Court of Petty Sessions, the applicant had pleaded guilty to those charges, together with a breach of an intensive supervision order. He was then placed on a further intensive supervision order for 18 months. At [11], Scott J found that the fact that he was placed on an intensive supervision order for the first charges did not constitute exceptional circumstances. Scott J said, at [12]:

"The reason, in my opinion, why the applicant has to show exceptional circumstances for bail to be granted in the circumstances set out in cl 3A above is that bail is regarded as a privilege. Where it is alleged that a defendant committed a further serious offence whilst on bail the privilege conferred by the original bail has been abused. In those circumstances the legislature has said that further bail should not be granted unless exceptional reasons are demonstrated.

In my opinion, the original disposition of the earlier charges is irrelevant to that question, except to the extent that the disposition of that matter may form part of the applicant's antecedents. For example, an applicant may have been acquitted for the earlier charges but still be refused bail on the basis that whilst on bail for those earlier charges it was alleged that he committed a further serious offence or offences. It follows in my opinion that the disposition of the original matter, irrespective of what that disposition may be, cannot of itself constitute an exceptional reason for the granting of bail in relation to the subsequent serious offence."

In dealing with the application I should emphasise that the only basis upon which it is said that exceptional reasons have been demonstrated is because of the disposition of the earlier charges. No other exceptional reason has been placed before the Court."

16 In Wright v The Queen (supra), however, Scott J found that there were exceptional reasons for granting bail under cl 3A(1) in the case of an applicant who applied for bail pending his trial on a charge of armed robbery in company, with an additional circumstance of aggravation which alleged that the applicant did bodily harm to the victim. The earlier charge had become the subject of a nolle prosequi at the time of the hearing of the bail application before his Honour. After regarding the facts put forward in support of the application before him, which included the applicant's contention that he was the only person who would be likely to locate a missing witness, his Honour came to the conclusion that bail should be granted. His Honour stated at [12] that the two "exceptional matters" which led him to that conclusion were:

(1) That the original charge upon which the applicant was on bail has been the subject of a nolle prosequi; and

(2) the applicant may have difficulty in finding a relevant witness for the trial unless he is at liberty to make inquiries about the person's whereabouts.

17 His Honour, therefore, appears to have accepted that the fact that an earlier charge is no longer pending, because of a nolle prosequi, could be, at least in combination with other reasons, and in this case was, a relevant "exceptional reason" for the purposes of cl 3A(1)(c). I am content to adopt this approach in this case.

18 On the one hand, it might be contended that it is the fact of the first serious offence that brings about the application of cl 3A(1) and so it is impermissible to have regard to the fact of the acquittal of the applicant on that earlier charge when applying cl 3A(1)(c) in a case such as this. The argument might be advanced that Parliament has made a strict rule that, whenever the circumstances of cl 3A(1)(a) and (b) are satisfied, exceptional reasons must be shown before a person can be considered for bail and it would be illogical if the fact of an acquittal on that earlier charge could be considered in those circumstances. On this view, "exceptional reasons" could never include the fact that the applicant had been acquitted on the very serious offence that required the invocation and application of cl 3A(1).

19 On the other hand, the view might be taken that Parliament intended, by cl 3A, that persons who were awaiting trial on one offence of a serious nature and who are alleged, whilst on bail, to have committed another offence of a serious nature, should ordinarily not be granted the "privilege" of bail, as Scott J put it in Williams (supra). Rather, exceptional reasons would need to be shown why they should be granted bail. The policy behind such a provision might be said to be that it is more probable that a person alleged to have committed a second serious offence in such circumstances is a higher bail risk than other offenders and can be trusted less easily to honour an undertaking to appear in court. If this is, in a general sense, the case, then if it is shown that an accused has been acquitted of the earlier serious offence, the policy basis for excluding consideration of the acquittal as a possible "exceptional reason" for granting bail is difficult to justify.

20 I prefer the latter approach to the question at hand. It seems to me that, if a person has been acquitted of the earlier serious offence that brought cl 3A(1) into play, the fact of acquittal is a reason that might be taken into account by a Court in determining whether there are "exceptional reasons" why the defendant should not be kept in custody for the purposes of cl 3A(1)(c). That is not to say that proof of acquittal of the earlier serious offence should automatically result in the Court being satisfied that there are exceptional reasons. Rather, it is a factor that might be taken into account. In some circumstances, it may be telling, in others, it may be sufficient when taken into account with other reasons that might be considered exceptional. In some cases, it may have no influence on the determination to be made; as in Firkins v Director of Public Prosecutions (supra).

21 In this case, the applicant further contends that there are other reasons which should be considered exceptional for the purposes of this clause, including:

(2) A combination of circumstances, including delay before the trial and the unlikelihood of the applicant failing to appear when called upon to do so.

(3) A combination of the acquittal of the applicant on the original charge.

22 In relation to the question of delay before trial, as noted above, the trial has been set down for hearing on 17 March 2003. If the applicant remains in custody until trial, he will have spent approximately 17 months in custody. It is generally accepted that, with an eligibility for parole, such a period in custody is approximately equivalent to a term of imprisonment of 4 years. At the time Pullin J heard the earlier application for bail on 1 March 2002, the applicant had been in custody on this charge for approximately 5 months, or a little less. The length of his period in custody is now materially different from what it was then.

23 It is well understood that persons charged with offences are presumed innocent. Nothing in cl 3A of the Bail Act contradicts that presumption. Because of the presumption, Courts have consistently said that the detention of a person presumed innocent by law for excessive periods must be regarded with grave concern. In Outman v The Queen (supra), Roberts-Smith J surveyed a number of relevant dicta on this topic. He referred to what he had said in Pinkstone v The Queen [2000] WASC 321 by reference to the unreported decision of Hampel J in the Victorian Supreme Court in Alexopoulos v The Queen, unreported; SCt of Vic; 23 February 1998. His Honour also referred to the following dicta of McKechnie J in Saka v The Queen [2001] WASC 92 at [38] - [40]:

"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.

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

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."

24 In Outman at [49] Roberts-Smith J concluded that, because the applicant had already spent 15 months in custody on a drug-related charge, the length of delay between the applicant's arrest and the possible date of trial constituted an "exceptional reason" for the grant of bail. Bail was granted subject to stringent conditions.

25 In Broad v Haas [2002] WASC 155, White AUJ had before him an application for bail pending trial on charges of possessing a prohibited drug. Clause 3A was applicable to the application. White AUJ cited Pinkstone v The Queen [2000] WASC 199 at [5] per Heenan J and Saka v The Queen (supra) at [38] - [40] per McKechnie J, as well as what Roberts-Smith J said in Outman v The Queen (supra), in also accepting the proposition that the delay between an applicant's arrest and the possible date of trial could constitute exceptional circumstances. In the case before White AUJ, the applicant had been arrested on the later charge of a serious offence on 1 April 2002. His application was heard by White AUJ on 14 June 2002, some two months later. A trial date had not been fixed, but was expected to be at some date in 2003. At [15], White AUJ concluded that the "combination" of the following facts constituted "exceptional circumstances" warranting the grant of bail:

(1) The length of the likely delay before the applicant is brought to trial at some date in 2003.

(2) The ill health of the applicant's de facto spouse.

(4) The unlikelihood of the applicant failing to appear when called upon to do so.

26 It seems to me that, notwithstanding in this case that a trial has been fixed for March next year, the question of delay remains real. The authorities I have cited concerning the relevance of delay before trial as a relevant exceptional reason for granting bail are not, when properly analysed, dependent on there being no date yet fixed for a trial. It is the fact of delay itself which is objectionable, not just the prospect of continued delay.

27 In this case, as in Broad v Haas (supra), the evidence before me suggests that it is unlikely that the applicant will not appear at trial. While his criminal record was produced by counsel for the Crown and verified by counsel for the applicant, there is nothing in it that particularly suggests that the applicant will fail to honour his bail undertaking. The only matter that might give rise to some disquiet in that regard is a conviction in 1977 of escaping legal custody. It appears the applicant then left a work release programme, due to domestic difficulties. He received 6 months' imprisonment, cumulative upon his then sentence, according to the record shown to me. Apart from that, he has no offences of breach of bail on his record, nor any other offences of escaping legal custody. The other offences for which he has been convicted include a range of minor matters in the period 1969-1974. In 1975, he was convicted on break and enter with intent and in 1976 with robbery whilst armed in company. The applicant was born in 1951, so these various offences were committed whilst he was still in his twenties. He was also fined for damage in a drug-related offence in 1980 and 1981 respectively. A letter signed by the applicant's ex-de facto wife, that I received without the objection of the respondent, indicates she is prepared to act as a surety for the applicant.

28 I am satisfied, in all of these circumstances, that the acquittal of the earlier charge, together with the length of the delay before trial and the unlikelihood of the applicant failing to appear when called upon to do so, comprise, in combination, exceptional reasons why the defendant should not be kept in custody, for the purposes of cl 3A(1)(c) of Pt C of Sch 1 of the Bail Act.

29 It follows I am also satisfied, having regard to the matters referred to in cl 1 and cl 3 of Pt C of Sch 1, that, if the defendant is not kept in custody, he will not fail to honour his bail commitment to appear in Court on the present charge. In particular, I am satisfied that, with appropriate bail conditions, he will not commit an offence or endanger the safety, welfare or property of any person or interfere with witnesses, or otherwise obstruct the course of justice in relation to himself, or any other person. None of the other factors set out in those clauses, in my view, should prevent the grant of bail in this case, subject to the imposition of appropriate conditions.

30 While the nature and seriousness of the offence with which the applicant has been charged militates against the view that the applicant might fail to appear in court in accordance with his bail undertaking and the other factors mentioned in cl 1(a), and indeed appears to have been an important reason why Pullin J refused bail on that previous application, on balance I am satisfied that, taken with the exceptional reasons set out above, it is not a factor that should lead to the refusal of a grant of bail on this occasion.

31 The question of the nature and seriousness of the offence is also connected with the question of the strength of the evidence against him. Counsel for the applicant, as did counsel for the Crown, took me to the facts as alleged in this case. The applicant is alleged to have been one of two men, who had covered their faces with balaclavas, who first broke into a house where the complainant woman was with another man. He is alleged to have been wielding a sword. It appears to be alleged that the applicant and others later held the complainant in a motel room against her wishes and then, later again, with others, took her to bushland in search of certain property. The applicant, it is said, was eventually apprehended by the police in or near a vehicle from which the complainant escaped and was able to alert police. The applicant says that he had a broken arm and a broken leg at the time and required hospitalisation and could not have done the physical acts alleged of him. He contends neither principal Crown witness purports to identify him as having been involved in the offence. A "man with a sword", alleged by the Crown to have been him, is said to have had yellow, broken teeth. He says that he does not and did not at the time have any yellow, broken teeth. He says a fingerprint of his was located in a bathroom basin at the motel where the complainant is alleged to have been detained, but he says none of his fingerprints were located in the car in which or near where he was apprehended. He says there are no telephone charge records in the election papers linked to him. He contends that the extent of the evidence against him is slight.

32 On an application like this, it is difficult for the Court to make any realistic assessment of the strength of the evidence against him, but, in an impressionistic way, it might be said that one can imagine stronger cases.

33 In all of the circumstances, I believe there are exceptional reasons why the defendant should not be kept in custody and bail should not be refused on this occasion. Bail will be granted pending trial, but subject to conditions. I will hear counsel on the terms of those conditions.