ABM v The State of Western Australia
[2014] WASC 424
•14 NOVEMBER 2014
ABM -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 424
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 424 | |
| 14/11/2014 | |||
| Case No: | INS:116/2014 | 7 OCTOBER 2014 | |
| Coram: | SIMMONDS J | 7/10/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | ABM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Application for bail pending trial Turns on own facts |
Legislation: | Bail Act 1982 (WA), sch 1, pt C, cl 3C |
Case References: | EAGD v The State of Western Australia [2013] WASCA 81 Hedgeland v The State of Western Australia [2011] WASC 181 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Ribot-Cabrera v The Queen [2004] WASCA 101 Roberts v The State of Western Australia [2011] WASC 118 Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Application for bail pending trial - Turns on own facts
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 3C
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Ms L B Black
Respondent : Ms A L Forrester
Solicitors:
Applicant : Kate King Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
EAGD v The State of Western Australia [2013] WASCA 81
Hedgeland v The State of Western Australia [2011] WASC 181
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Ribot-Cabrera v The Queen [2004] WASCA 101
Roberts v The State of Western Australia [2011] WASC 118
Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303
- SIMMONDS J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Introduction and background
1 These are the reasons for my determination of the bail application. It is important I say two things at the outset. First, as they are being delivered orally, they will, of course, be subject to editing from the transcript. Second, it may very well be the case that one, or even both, parties are of the view, given the relative proximity of the trial and the nature of the offence, that a suppression, or at least restriction, on the availability of the reasons would be appropriate. However, I do not think that this is an appropriate matter to be addressed until the reasons have been delivered.
2 This is an application for bail in relation to one charge of murder pending in this court. There is no indication of any prior application for bail. It is an application for bail in respect of which I must be satisfied that there are exceptional reasons why the applicant should not be kept in custody, in addition to the matters which would normally be addressed on a bail application without such a requirement.
3 In my reasons, I first set out the background to the present application. I then describe the present application and the information before me. I then describe, in brief, what I consider to be the well understood approach to the decision as to bail I am called on to make before I apply that approach. In the last section of my reasons I indicate my overall conclusions.
Background
4 The charge of murder is that on 29 April 2011, that is to say now some 4 1/2 years ago, at Baldivis, RAH and the applicant murdered DLM.
5 There is a statement of material facts in the prosecution brief.
6 On 29 April 2011, a Friday, the applicant and the co-accused contacted the deceased on several occasions in an attempt to source a quantity of drugs.
7 The first meeting between the three occurred at about 6.20 pm on 29 April 2011, at a park at the intersection of Birdsville Drive and Tamworth Boulevard in Baldivis. This was in a blue Toyota Tarago van belonging to the applicant. Both the applicant and the co-accused purchased a quantity of illicit drugs.
8 During the purchase of the illicit drugs the applicant and the co-accused became aware that the deceased was in possession of a large quantity of drugs and money.
9 After purchasing the drugs the applicant and the co-accused drove to the home address of the applicant where they used the drugs purchased. At this location the applicant the co-accused agreed to steal illicit drugs and money from the deceased.
10 At 7.50 pm on 29 April 2011 the applicant and the co-accused went back to the park in the Tarago and again spoke with the deceased. This exchange was under the guise of a drug purchase.
11 A cover story was provided to the deceased to encourage her to accompany the applicant and the co-accused in the vehicle.
12 While the vehicle was being driven away from the park, the applicant placed a wire around the neck of the deceased, restricting her airway and causing her death.
13 The co-accused continued to drive the vehicle to the Rockingham Regional Memorial Park.
14 The applicant and the co-accused placed the deceased in a large man-made lake.
15 The applicant and the co-accused left in the vehicle and returned to the applicant's home.
16 The vehicle was cleaned and the applicant obtained a quantity of illicit drugs and cash that had been stolen from the deceased.
17 The applicant participated in an electronically recorded interview conducted on 11 October 2011, of 207 minutes, at the offices of the Major Crime Squad. In that interview the applicant made no admissions to the offence. However, he admitted being in the vehicle with the deceased after leaving the park, with the co-accused driving.
18 On Saturday 7 September 2013 the applicant was arrested in Northbridge on suspicion of murder. He participated in another electronically recorded interview (203 minutes) in which he made no admissions to the offence. However, he confirmed his previous account given in the interview conducted on 11 October 2011.
19 I note that the allegations contained in the statement of material facts are unproven and it is important that I remind myself here, as I will from time to time, if not expressly, then by implication, of the presumption of innocence which applies in respect of the applicant which is a bedrock aspect of the criminal justice process.
20 On 4 May 2011 the applicant provided a witness statement to police and on 11 October 2011, he participated in an electronically recorded interview as an arrested suspect. Sometime from the first of those two dates it would have been apparent, and there seems to be no dispute on this, that the applicant would have become aware that he was, at the very least, a person of interest and, indeed, likely a suspect in relation to the death of the deceased. It is not contended, however, that the record of interview on 11 October 2011 is admissible in the trial of the applicant, which is to occur, as I was told, towards the end of April 2015.
21 On 7 September 2013, the applicant was arrested for the present offence. He participated in an electronically recorded interview on that day. The applicant has been in custody since that date mostly at Hakea Prison.
The present application
22 The present application and the information before me I can describe, as follows:
(a) the present application is expressed to be made pursuant to the Bail Act 1982 (WA), s 14;
(b) it is dated 26 August 2014;
(c) the applicant has sworn an affidavit in support of the application of 29 August 2014, and I was also provided at the hearing today with a further unsworn affidavit, one which counsel undertook in the normal way to provide to the court in sworn form, setting out the matters that it did, made by the applicant on today's date, 7 October 2014;
(d) the mother of the applicant, KMM, has sworn an affidavit of 6 October 2014 and that was provided, as was the case with the affidavits - I call them that - of the applicant by his legal representatives;
(e) the solicitor for the applicant provided written submissions in support of the application;
(f) there are three affidavits that were provided by the respondent:
(i) one is that of Detective David Leslie Gannaway dated 8 September 2014. Detective Sergeant Gannaway is the investigating officer with the conduct of the investigation into the death of the deceased. Among the annexures to the Gannaway affidavit is a criminal history for the applicant compiled 7 September 2013 at 18:59:19. I did not understand there was anything of significance or, indeed, anything at all to add to that criminal history;
(ii) another affidavit is that of Craig Anthony Hey of 12 September 2014. Mr Hey is employed by the Department of Corrective Services as a VBS-02 officer in the Official Interviews area. Mr Hey also appeared before me and gave evidence by testimony on affirmation;
(iii) the third affidavit is of ALW dated 8 September 2014. ALW was formerly a partner of the applicant and the person by whom he had the five children I will ultimately refer to;
(g) the respondent's counsel has also provided written submissions; and
(h) finally, I note references were made to certain contents of the prosecution brief and, in due course, I will reach those matters.
23 I will return to the reason why I call all of this the 'information before me' by reference to the provision in the Bail Act as to material upon which I may rely.
The applicable principles
24 There can be no contest as to the principles applicable, on at least the general ones, as counsel for the respondent put them, if not some matters of detail, including one I will reach. The general approach to the grant of bail as determined by, in this case, the Bail Act, sch 1, pt C, cl 3C, That clause applies because the alleged offence is murder.
25 The Bail Act, sch 1, pt C, cl 3C requires me to refuse bail unless I am satisfied as to both of the two matters in cl 3C(c) and cl 3C(d). They are, respectively, that there are exceptional reasons why the applicant for bail should not be kept in custody and that bail may properly be granted having regard to the provisions of cls 1 and 3. The effect of the requirements under the Bail Act, sch 1, pt C, cls 1 and 3, as well as certain other provisions like cl 3C, is described in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [36] - [37] (McLure P, Pullin JA & Hall J agreeing) Those paragraphs are as follows:
Only cls 3A, 3C and 4A of pt C sch 1 of the Bail Act provide for a (rebuttable) statutory presumption against the grant of bail. That is indicated by the statutory expression that the judicial officer 'shall refuse to grant bail for the offence' unless satisfied of the specified matters.
The statutory presumptions against the grant of bail in cls 3A, 3C and 4A require that the judicial officer be satisfied of two matters. The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3. In addition the judicial officer must be satisfied that there are exceptional reasons why the accused should not be kept in custody. If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are relevant exceptional reasons. This structure reflects the possibility that the exceptional reasons may not be relevant to or inform the answers to the mandatory questions in cl 1(a) to (g). There is no scope for the application of an exceptional reasons or circumstances test beyond those statutorily specified in cls 3A, 3C and 4A [36] - [37].
26 That may explain why their Honours indicated an approach to bail that inverted the order of (c) and (d) in a provision like cl 3A.
27 It follows, I think, from Milenkovski that I should begin these reasons by considering the Bail Act, sch 1, pt C, cl 1, read with cl 3, being the requirement in cl 3C(d). Clause 1, read with cl 3, is to be approached, as stated in Milenkovski [39] - [43], read with [34].
28 In Hedgeland v The State of Western Australia [2011] WASC 181 [16], I extracted what I call 10 principles from that authority, and I will not repeat them here. I also note in Hedgeland [15], by reference to Milenkovski [34], read with [35], that the Bail Act is to be approached as a comprehensive code on the subject of bail. Authorities, including Court of Appeal authorities that might be read to a different effect prior to Milenkovski should not be relied upon.
29 In this application, as I already said several times, there is the further matter of exceptional reasons. I consider the approach I should take to exceptional reasons as that stated, perhaps most conveniently and recently, in EAGD v The State of Western Australia [2013] WASCA 81 [8], Mazza JA, on exceptional reasons for the purpose of cl 4A. However, I consider these remarks equally applicable to cl 3C. The use of the word 'exceptional', his Honour says,
denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case [8].
30 I also note Roberts v The State of Western Australia [2011] WASC 118 [10], in which his Honour, Murray J, refers to Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 [15] (Murray J, Steytler & Templeman JJ agreeing).
31 One of the matters raised with me in this application was whether 'exceptional' required something to be unusual in a sense approaching, if not necessarily determined by, a description like 'one-off'. That question is surprisingly difficult to answer because it seems to me it depends on what is meant in EAGD and other authorities by the general run of cases. Does one mean the general run of murder cases or the general run of cases more broadly than that?
32 It seems to me that, although I do not believe the matter is something upon which I am required to reach a final view in these reasons, the general run of cases means cases of applications for bail more generally, and that the character of the offence in relation to which bail is being sought and various other considerations which I will reach, at least in combination, might be ones that make for exceptional reasons in any given case.
33 I note, also, in determining the present application for the purpose of either cl 3C(d) or cl 3C(c), that I may receive and take into account such information as I see fit 'whether or not the same would normally be admissible in a court of law' (Bail Act, s 22).
34 However, the weight of such information is a distinct consideration, of course.
35 Now, I note the basis for the present application appears to be that, in the language of Milenkovski, on the information which I may take into account, the answers to the applicable questions in the Bail Act, sch1, pt C, cl 1, read with cl 3, all either point towards the grant of bail or do not sufficiently point away from it.
36 Further, there are exceptional reasons why bail should be granted. I will consider that basis as I have restated it in that order.
Clause 3C(d), the questions in cl 1(a)(i) - (iv), read with cl 3
37 I should begin with cl 1(a). Those are the questions listed in cl 1(a)(i) - cl 1(a)(iv). The Bail Act directs me, in cl 3, as it does cl 3(d), in considering whether the applicant may do any of the matters mentioned in cl 1(a) to have regard to the matters listed in cl 3(a) - cl 3(d), as well as any others I might consider relevant.
38 I should immediately begin by noting the respondent does not contend that there is a significant possibility the applicant would fail to appear and thus not answer his bail, which is the question in cl 1(a)(i). I should, and this is a convenient point at which I should do this, note that there has indeed been a substantial time, as counsel for the applicant reminded me, since the death of the deceased and since the date at which the applicant would have realised he was a person of interest, and became a suspect. There can be no suggestion he sought to flee or, indeed, interfered with witnesses or otherwise obstructed the course of justice.
39 Indeed, as is apparent in this matter, as I will reach shortly, both the co-accused, RAH, and the applicant's ex-partner gave witness statements to the police not long before the applicant was taken into custody on 7 September 2013, in which, for the first time, they gave accounts implicating the applicant in the death of the deceased. As counsel for the applicant indicated, this does not point to - and there is no indication in their material of this - any attempt by the applicant to interfere with their accounts.
40 There is, however, as I will indicate, rather more to be said in relation to this as I will indicate below.
41 The respondent, rather, submitted to me that the questions in cl 1(a)(ii) - cl 1(a)(iv) were applicable, and that, in the language that I draw from Milenkovski, there was a significant possibility of the event described in each subparagraph. The respondent so submitted, as I understood the respondent's submissions, by reference to three matters.
42 First, the relationships between the applicant and the persons who may be the principal witnesses for the prosecution, taken with the location at which the applicant intends to reside, mean it is inevitable the applicant will come into contact, directly or indirectly, with those witnesses. Secondly, the applicant was convicted of breaching a violence restraining order very shortly before he was taken into custody on 7 September 2013, offending which instances wilful disregard of a court order, which is as the written submissions of the respondent states,
the best indicator of the likelihood that the interactions between the applicant and witnesses are a risk to the integrity of the trial.
43 There was also a reference to a further violence restraining order taken out against the applicant. But I know very little about it, counsel for the respondent did not rest emphasis upon it in her oral submissions, and there is no emphasis upon it in her written submissions. So, other than noting it, I will put it to one side.
44 Finally, there is a statement by the applicant in a covert recording made on 6 September 2013, apparently with the cooperation of the applicant's co-accused. This is a covert recording of a conversation between the applicant and the co-accused, in which the applicant is heard to say - and I have listened to the recording in the respects to which my attention was drawn as well as read the passage in the transcript of the recording in the prosecution brief to which counsel for the respondent drew my attention - that he 'beat the fuck' out of a person, apparently with a steel pole after that person had allegedly broken a window of the applicant's.
45 It seems to me that, on the basis that I will now go into from the three matters I have referred to, that there is indeed a significant possibility of the events described in each of cl 1(a)(ii) - cl 1(a)(iv) occurring.
46 The matter to which I have had regard in that respect is that there is no or very little forensic evidence expected in this prosecution. The evidence against the applicant is in three principal forms and a further possible form, and I stress 'possible'.
47 One principal form is the admissions by the applicant in his electronically recorded interview of 7 September 2013 which I took to be of his prior acquaintance with the deceased, and of last seeing her when he was present with her at a park in Baldivis on 29 April 2011.
48 Another principal form is the expected evidence of the ex-partner of the applicant. That evidence is of conversations which were either with the ex-partner or which the ex-partner was privy to, in which the applicant admitted his responsibility or admitted a responsibility for the death of the deceased.
49 The third principal form is the covert recording of a conversation between the co-accused and the applicant to which I already referred, and that conversation contains, as well as the material I have already referred to, a number of statements by the two tending to indicate their involvement, and, in particular, the involvement of the applicant, in the death of the deceased.
50 There is a further form of possible evidence which raises admissibility issues of the kind to which counsel for the applicant drew to my attention. This is the possibility that the co-accused will testify. Whether the co-accused testifies will depend, as the written submissions for the respondent indicate, on what occurs before and at the trial. Of course, if the co-accused were to testify, there would naturally likely be very strong accomplice warnings called for from the presiding trial judge.
51 It is important, however, that I note, and this is not in contest, that the co-accused is the wife of the brother of the ex-partner of the applicant. The co-accused may, on the basis of material referred to in the written submissions of the respondent, testify that she and the applicant formed a plan to rob the deceased and, in the course of the meeting that followed, the applicant strangled the deceased. Thereafter, the co-accused and the applicant disposed of the body of the deceased in the man-made lake at the Baldivis Memorial Cemetery. The co-accused and the applicant then returned to the applicant's house where the two divided the proceeds of the robbery and the applicant burned various items belonging to the deceased.
52 The applicant has proposed as the place where he would reside on bail the residential address of his mother in Rockingham, which I will call the address in Rockingham. The applicant's mother spends some time with the five children of the applicant by his ex-partner, to whom I have already referred, and provides for them in a variety of ways. The children are aged respectively 16, 14, 12, 9 and 7.
53 The children are living with the mother of the applicant's ex-partner. The applicant's ex-partner is unable, at present, to care for them. It was indicated to me that this inability is derived from a drug problem of her own. The applicant puts forward his concern for his children as an aspect, not as it was stressed to me the fundamental basis, of the application for bail, which, as I will indicate, I consider to go at least, in part, to the matter of exceptional reasons, and also, in part, to the extent of the risk of events occurring of the kind referred to in cl 1(a)(ii) - cl 1(a)(iv). That part is the role of the applicant as a financial support for the children, which he would be unable to perform if in custody, and his concern for their suffering since his incarceration, which is referred to in his original affidavit with additional detail in the further affidavit concerning limitations on, indeed prevention of, the visits by the children to him while he is in custody because of the position taken by the mother of his ex-partner. The mother of the ex-partner is the principal caregiver for the five children as I understand it.
54 On 7 September 2013, the Perth Magistrates Court convicted the applicant on his pleas of guilty of two offences of breaching a violence restraining order. That violence restraining order named his mother as the protected person. The violence restraining order was served on the applicant on 30 July 2013. One offence was that on 26 August 2013 he approached the address in Rockingham to collect his children. He had a conversation with his mother in which he verbally abused her, including in respect of her maintaining a violence restraining order. The other offence was that on 31 August 2013 and again, as I understand it, on 1 September 2013 the applicant went to the address in Rockingham.
55 I note, as counsel for the applicant reminded me, that there was no actual violence directed by the applicant to his mother. Indeed, the applicant, on both occasions, left the address in Rockingham without, at least so far as is apparent from the statement of material facts upon which I have based this account, any significant delay. However, in connection with those breaches I note the matter in the prosecution brief to which counsel for the respondent directed my attention, being a witness statement of the mother. In particular, counsel drew attention to [25] - [33] and [44] - [45] from that witness statement.
56 In those paragraphs the mother describes the applicant in strong terms indicating a violent person, very strongly aggressive to her with indications of a call on the ex-partner to belt the mother and of serious threats to the mother. Those circumstances, of course, I immediately note, are beyond what appears in the statement of material facts for the two offences.
57 I further note that the affidavit of the applicant's mother, provided for the purpose of the hearing, before me makes no reference to these matters from the witness statement I have referred to, stating that the violence restraining order was taken out because of the drug problems which the applicant was suffering from.
58 However, I further must note the applicant's criminal history does not include, so far as can be told from its terms, any offences of actual violence. Most of the offending is of the traffic kind. At the same time I must also note that the affidavit of the applicant's ex-partner provided for the purpose of the hearing before me today describes him in terms of violence towards her. Those matters are spelt out in more detail in the ex-partner's witness statement in the prosecution brief, particularly at [122] - [134] to which my attention was drawn.
59 I note again the witness statement of the mother of the applicant referred to in the respects I have noted above. I have noted what I was told about what I understood to be reason to doubt the veracity of the ex-partner, particularly because of her drug difficulties. But I must note the alignment between the witness statement of the mother and the witness statement of the ex-partner, allowing for the divergence with the affidavit and allowing also for the criminal history.
60 I also note what I was told by counsel for the respondent, without condescending to detailed references, of witness statements of others who knew both the applicant and the ex-partner in which they confirm statements by the ex-partner concerning the applicant as a murderer made in terms sufficient for the others to hear. I have also noted, as counsel for the applicant directed my attention to this, what I was told about the applicant's address of his own drug problems.
61 The matter is not altogether straightforward because of the date as at which - 30 July 2013 - the violence restraining order was taken out for reasons that I must take, at least, included matters of drug use. I have also noted that there is no indication that the applicant has been taking courses while in custody devoted to drug use. I further note what appears in the covert recording transcript to which my attention was drawn from the prosecution brief by counsel for the respondent about indications of significant alcohol use issues.
62 I finally note in all of these respects the covert recording in which the applicant is heard to state that on the second occasion on which a person from 'down the road' smashed his window, and after the applicant's complaint to the police of the previous occasion had not, in the applicant's view, produced a response, the applicant 'chased [that person] down with a Steel pole, to beat the fuck out of him'.
63 When I consider all of those matters together I arrive at the conclusion in respect of cl 1(a)(ii) - cl 1(a)(iv) that I have previously described.
64 That then takes me to the question in cl 1(b).
The questions in cl 1(b) and (c)
65 There was reference to that question in the written submissions, although not in the oral ones, made for the respondent. This is the question of whether the applicant needs to be kept in custody for his own protection. In that respect, the written submissions for the respondent refers to the fact that a number of other people have been arrested and questioned by police in relation to the murder of the deceased.
66 In addition, there were a number of people whose illicit drug activities have been substantially exposed as a result of this investigation. I note it is common ground the deceased had been a drug dealer. The respondent's written submissions put to me that it is highly likely there is a significant degree of resentment against the applicant in the community in which it is intended he reside.
67 I note again what I was told about the geographic proximity of the applicant to others in what I took to be a drug using group connected with one another and formerly connected with the deceased. However, I also note there is no evidence of any threats against the applicant having been expressed by any person, and other than the generalised terms in the written submissions for the respondent there does not appear to be, it seems to me, material that would point to a substantial risk of retribution or other similar behaviour towards the applicant.
68 I do not consider then that the answer to this question is one pointing to a significant risk that I should bear in mind.
69 There is the question in cl 1(c) which is whether the prosecutor has put forward grounds for opposing the grant of bail, and I have referred to four grounds thus far. But there is a further ground, being the ground in cl 1(g). I turn to that ground before proceeding to the question in cl 1(e) below.
The question in cl 1(g)
70 This question is whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. It seems to me it is the alleged circumstances of the offending upon which the engagement of cl 1(g) rests, not simply the maximum penalty for or classification (of the offence charged) as a serious offence in the Criminal Code (WA).
71 There is reliance on cl 1(g) but not, as I understood the position of the respondent after a fairly lengthy exchange with counsel for the respondent, substantial reliance. The subclause is not set aside, but it is not substantially relied upon. In that context, I should note that it is not apparent to me that this is a matter in which the mandatory question in cl 1(g) would result in the return of an affirmative answer.
72 I have noted what I was told about the circumstance of the offending as pointing to cold calculation. But as counsel for the respondent pointed out, that is not, at least of itself, sufficient to indicate this is the most serious of cases or the easiest case in respect of which an affirmative answer could be returned. For my part, I consider it is one in which, as I have indicated, an affirmative answer would not be appropriate.
73 I must leave to another day the difficulty which I have flagged on a number of occasions but have never had occasion or seen others have occasion to resolve namely whether cl 1(g) is simply a part of the wider principle enunciated by EM Heenan J (Steytler P & Le Miere J agreeing) in Ribot-Cabrera v The Queen [2004] WASCA 101, or whether cl 1(g) must be approached as there is some indication from Milenkovski [29], [39] it should be approached, in its own terms with constructional assistance to be drawn upon from the second reading speech of the Attorney-General for the Bill which became that introducing cl 1(g).
74 That then takes me to the question in cl 1(e).
The question in cl 1(e)
75 This question is whether there is any condition or set of conditions which could reasonably be imposed under the Bail Act sch 1 pt D which would sufficiently remove the possibilities in cl 1(a). In considering this question I, as I say, leave aside cl 1(g).
76 Counsel for the applicant, as I understood her, put to me that suitable bail conditions that would neutralise wholly, or at least sufficiently, any positive grounds I might find for refusing bail are ones that would include:
(a) the applicant's personal undertaking in a significant amount;
(b) a surety in a not insignificant amount;
(c) a curfew;
(d) residence with the applicant's mother at an address in Rockingham;
(e) daily reporting to the officer in charge of a suitable police station;
(f) not to approach any exit port;
(g) electronic reporting, which I will take to be worn GPS devices; and
(h) suitable protective conditions including:
(i) not to contact in any way, directly or indirectly, any of the witnesses I have already referred to or any other person who may be called as a witness by the State;
with the possibility of further supportive conditions to address the matter to which counsel for the respondent drew specific attention, namely indirect contact with the applicant's ex-partner through his children. One protective condition suggested as a possibility, without necessarily indicating this was the only way the matter might be suitably addressed, was a requirement for any contact by the applicant with the children to be solely in the presence of the applicant's mother.
78 I further note that, of course, no conditions could entirely remove, save perhaps in exceptional cases, risks of the kinds that I have identified or other similar risks.
79 However, in view of the breaches of the violence restraining order and the matters of concern as to the applicant's character to which I have referred considered with the interrelationships that the State relies upon, of a social or familial or geographic kind, the reduction is one that must be seen most emphatically to be relative only.
80 I have noted in this regard the matters put to me by counsel for the applicant having to do with the applicant's undoubted concern not to find himself in a position, were he be to be released, to be returned to custody, with the implications that would have, as I will shortly reach, for his ability to properly prepare his defence in a matter of upmost seriousness, where, of course, events now have unfolded over a period of some 4 1/2 years since the death of the deceased.
81 In that regard I should note that the applicant has changed his solicitors because of concern about preparation for the trial and has, I do not doubt, taken a particularly close interest in, and had concern for, the quality of that preparation. Those are matters also to be weighed with the matters I have previously referred to as the cl 1(e) conditions.
82 That then takes me to the remainder of cl 1 read with cl 3.
Any other question in cl 1
83 There are no other questions from the Bail Act, sch 1, pt C, cl 1 relevant, save, it seems to me, for the matter of delay, when delay is considered with the other matters that I now need to reach.
84 I should indicate that this is an area where there is overlap between cl 1 and cl 3 on the one hand, and exceptional reasons on the other. The overlap is manageable because the way in which the matter is to be approached differs. It is undoubtedly the case that delay in relation to time in custody to expected time of trial considered in combination with other matters has been seen to be relevant in bail applications to which the exceptional reasons requirement does not apply. Those considerations in this case are not insignificant. The applicant has been in custody since 7 September 2013 for reasons that, it was common ground, had nothing to do with fault by the applicant and nothing to do with fault by the respondent.
85 I do note in passing that there was a reference to a lack of response to the State's request concerning expected length of the trial which had led to a default which in turn had led to the listing of the trial for late April. But I do not see that as a matter into which I need to go as a question of fault. This is because that was not, it seems to me, explored in enough detail for that purpose.
86 The matter of delay here then is one in which the expected delay to trial is in the order of 19 months, and that gives rise to a concern of the kind which has been expressed by other judicial officers in relation to other bail applications, both as a matter in present context and as a matter going to exceptional reasons.
87 Counsel for the respondent frankly acknowledged that a delay of that order was unacceptable. The reason for the delay, as far as that was gone into before me, and I simply record this, was a shortage of judicial officers for trials of the length involved here, some weeks, and that meant that the listing that the court was able to give at the earliest was the one I have repeatedly described.
88 Whether or not that delay on its own would be sufficient to be another question relevant to the present application for the purpose of cl 1 and cl 3 by reason of the closing words of cl 1 is a matter, counsel for the applicant indicated, that should be considered in conjunction with at least the following matters. I list these off in order of the emphasis that they appeared to me to receive in submissions by counsel for the applicant. Counsel for the applicant stressed that these were all matters which I should properly take into account, and I do.
89 The first of these were the conditions at Hakea Prison significantly impairing the ability of the applicant to prepare for trial.
90 The evidence of Mr Hey was that this was the case. I am satisfied that the problem of that impairment arises from the size of the present muster at Hakea relative to the muster size for which Hakea Prison was designed and intended to be operated. There are, as well, the facilities available both for consultation between those in custody and their legal representatives, in addition to the ability of those in custody to do their own work. That work, at least of the kind as referred to before me, was of the applicant himself contacting persons who might be of assistance to his legal representatives, which poses a problem of its own because of what is widely understood, and there was no contest on this, the monitoring of conversations for understandable operational reasons in the prison.
91 Secondly, there are limitations on the self-study, if I can call it that, capabilities of inmates arising from the sharing of prison space and at the least limitations on access to paperwork. In that regard, I note the further affidavit of the applicant. In particular, there was a question whether the applicant would have any possibility of access to a laptop computer. Counsel for the applicant indicated that, if necessary, evidence could be put on, but that was not a realistic immediate prospect. Counsel for the respondent, for her part, indicated that her own inquiries suggested that it was at least a realistic prospect without, as I understood her, telling me that it would necessarily be granted. I do not believe I need to resolve that because, it seems to me from the evidence of Mr Hey, that in respect of dealings with legal representatives, which would I accept would need to be at least as frequent and detailed as in any other criminal prosecution, and quite possibly more detailed and frequent, the self-study capabilities were impaired.
92 That is a matter that I should take into account together with two further matters. The further matter is the matter of delay and its impact on access the applicant has to his children. That is evident from the supplementary affidavit, the unsworn one, of the applicant. I should, however, note that is it not evident from that affidavit what the effect of the restrictions he has described has been on the children, and his original affidavit is not altogether clear on that account either.
93 However, it seems to me that I have information before me indicating there is the prospect of a significant effect, or there is likely to have been and will continue to be a significant effect on the children, particularly when I note the uncontested references made to me involving the applicant having removed his children from the family home and taken them to where they presently are.
94 That finally takes me to the matter of the weighing or balancing process referred to in Milenkovski, the exercise of the discretion that the Bail Act provides for.
Bail disposition
95 I consider that discretion is fully imported by the words 'properly be granted' in cl 3C(d). That weighing or balancing process is, as the length of the reasons thus far may well have indicated, a very difficult one. I have had to weigh and balance the matters I have referred to. I should particularly note in respect of the delay point when considered in conjunction with impairment of preparation that it was not put to me, that I do not consider, that the evidence supports the view that the applicant is prevented from preparing for his trial and that the applicant's legal representatives are prevented from undertaking the advice work and exchange work associated with responsible representation. Undoubtedly, however, it will be more difficult than otherwise for the reasons I have described.
96 Undertaking the balancing and weighing process that I have, I consider that bail would not be properly granted in this case, having regard to the provisions of cl 1 and cl 3.
97 That makes it, in the language of Milenkovski, unnecessary for me to go to exceptional reasons save for the fact - and this too Milenkovski acknowledges - that matters that are relevant to exceptional reasons may also be relevant to the grant of bail under cls 1 and 3 as I have already indicated.
98 I should briefly note in respect of exceptional reasons that the exceptional reasons were placed on delay in the larger context that I have already referred to, including the health of the applicant, which I have not previously referred to.
99 I should note, however, that on the evidence before me, it is not apparent to me that the health of the applicant has a significant role to play in the weighing or balancing process that I have described. It does not seem to me on any of the information available to me that the applicant's incarceration has had a significant effect on the adequate treatment of the applicant such that it has, as I say, a significant role to play in the weighing or balancing process.
100 I should say that, had I had to arrive at a final view on exceptional reasons, I might well have been inclined to find exceptional reasons having regard to the matters that I have described without, however, having arrived at a final view on the matter.
101 It is for these reasons I am determined that I would not grant bail on the present application.
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