Bail Act 1982, cl 3A, Pt C

Pallister v The Queen [2001] WASC 295

1 SCOTT J: The applicant has applied for bail. Bail was refused in the Court of Petty Sessions on 19 October 2001. The applicant was originally granted bail in relation to offences of stealing a motor vehicle, breach of bail and possessing amphetamines ("the first charges").

2 On 31 October 2001 the applicant pleaded guilty to those charges and in addition he admitted breaching an intensive supervision order. He was placed on a further intensive supervision order for 18 months with 100 hours community service work and with other conditions, including an obligation that he submit to drug counselling.

3 Whilst on bail in relation to the first charges and before his guilty plea it was alleged that the applicant stole a 1997 Holden Commodore sedan valued at $25,000. Bail was refused in relation to this matter.

4 It is common ground that the first charges included an offence which was a "serious offence" within the meaning of that term in the Bail Act 1982 ("the Bail Act") and that the allegation of the subsequent offence, that is the stealing of a motor vehicle, was also a "serious offence" within that definition.

5 Because the applicant was alleged to have committed a serious offence whilst on bail, cl 3A of Sch 1 of the Bail Act applied to him and it was therefore necessary for him to demonstrate on this application that there were "exceptional reasons" why he should not be kept in custody.

6 Counsel for the applicant contended that exceptional circumstances were demonstrated by reason of the fact that when the first charges came on for hearing before the Court of Petty Sessions on 31 October 2001 the applicant pleaded guilty to those charges together with the breach of an intensive supervision order. He was placed on a further intensive supervision order for 18 months with the conditions as outlined earlier in these reasons.

7 In relation to the charge of stealing the motor vehicle bail was refused on 19 October 2001 and the applicant was remanded in custody to an election date on 14 December 2001. The learned Magistrate did not accept that the applicant had demonstrated sufficiently exceptional circumstances. In his extempore reasons of 2 November 2001 the learned Magistrate said:

"Mr Young (counsel for the applicant) has said that the exceptional circumstances which now exist are that another Magistrate, Mr Jones, in Perth I presume, imposed a second ISO, intensive supervision order, upon the defendant for matters upon which he was previously on bail and whilst on that bail he committed this offence.

In respect of the matter, the exceptional circumstances in my view do not apply. There is no list of things laid down which show the Court as to what exceptional circumstances are. That is left to the discretion of the Court."

9 The applicant has now applied for bail to this Court relying upon the same exceptional circumstances as placed before his Worship.

10 The applicant is required to demonstrate exceptional circumstances pursuant to the provisions of cl 3A of Pt C of the Bail Act. That clause provides:

"3A(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 or (if section 16A does not apply) the authorised officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer or authorized officer -

(c) is satisfied that there are exceptional reasons why the defendant should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; and

(d) is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child defendant, clauses 2 and 3."

11 As I have already said the applicant contends that the fact that he was placed on an intensive supervision order for the first charges constitutes exceptional circumstances. In my view that is not so.

12 The reason, in my opinion, why the applicant has to show exceptional reasons 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.

13 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 of 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 alleged serious offence.

14 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.

15 In determining the matter I have taken into account both the statement of material facts in relation to the subsequent charge as placed before me by the Crown and the Crown submissions as to the evidence that is likely to be led in relation to that charge. It cannot be said that there is no evidence to support the charge nor can it be said that the evidence referred to by the Crown is so weak that the charge is unlikely to succeed. Beyond that however it is not necessary to comment, as I am told by counsel for the applicant that this charge will go to trial.

16 Under cl 3A Pt C of Sch 1 of the Bail Act, the applicant has the obligation of demonstrating that there are exceptional reasons why he should not be kept in custody. As I have said the only matter upon which counsel for the applicant relies is the disposition of the first charges, and that in my view is not relevant to the issue in any respect other than as part of the applicant's antecedents. It follows therefore that the applicant has failed to demonstrate exceptional circumstances sufficient to justify the granting of bail to him on this matter.

17 I would finally add that the appellant's criminal history is not good in that he has a significant record notwithstanding the fact that he is now 26 years of age. Whilst he has never previously been imprisoned, as an adult he has had many convictions in the Court of Petty Sessions, including 3 convictions for breach of bail on 24 November 2000.

18 I am told by counsel for the applicant that the applicant is next to appear in the callover in the Joondalup Court of Petty Sessions in January 2002 with a trial date expected in February or March of that year.

19 In all the circumstances of the case I am not persuaded that the applicant has demonstrated any exceptional reasons why he should be released to bail. The affidavit material placed before this Court is very limited. Little is said about the applicant's personal circumstances, apart from the fact that the applicant has a wife and three children and a place to live. It may be that if more comprehensive material was to be placed before the Court exceptional circumstances may be demonstrated, but absent that material there is nothing presently before the Court which could lead the Court to reach that conclusion.

20 In all the circumstances therefore, the application must be dismissed.