Akhbari Sadiqi v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   AKHBARI SADIQI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 111
CORAM:   DERRICK J
HEARD:   30 MARCH 2020
DELIVERED          :   3 APRIL 2020
FILE NO/S:   INS 241 of 2018
BETWEEN:   PORIA AKHBARI SADIQI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Applicant charged with murder - Application for bail under s 7B(3) and s 15(1) of the Bail Act 1982 (WA) - Whether exceptional reasons for not keeping applicant in custody - Whether bail may be properly granted having regard to questions posed in cl 1 of pt C of sch 1 of the Bail Act 1982 (WA)

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)

Result:

Application for bail on proposed conditions refused
Application adjourned for consideration of release on home detention conditions

Category: B

Representation:

Counsel:

Applicant	:	Ms H E Prince
Respondent	:	Ms L E Christian SC

Solicitors:

Applicant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Bertolami v The State of Western Australia [2009] WASC 269
Broad v Haas [2002] WASC 155
De Faria v The Queen [2012] WASCA 256
Emile-Bruning v The State of Western Australia [2016] WASC 211
Fazzari v The State of Western Australia [2004] WASC 71
Hedgeland v The State of Western Australia [2011] WASC 181
Hoddy v Hawes [2003] WASC 22
James v The State of Western Australia [2013] WASC 235
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 238
Rayney v The State of Western Australia [2011] WASC 3
Shrivastava v The State of Western Australia [2010] WASCA 96
The State of Western Australia v Samura [2019] WASC 210
The State of Western Australia v Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34
YSN v The State of Western Australia [2017] WASCA 155

DERRICK J:

Introduction

Mr Poria Akhbari Sadiqi (the applicant) is charged jointly with Mr Sannah Samura (Samura), Mr Amirali Farsijani (Farsijani) and Mr William Wade Kickett (Kickett) with one offence of murdering Mr Dejan Dimitrovski (the deceased) contrary to s 279 of the Criminal Code (WA) (the Code).[1]
[1] Throughout these reasons I will refer to the applicant's co-accused, and the applicant's uncharged alleged co‑offender Mr Saied Akbar Hussaini, by their surnames only. This will be done for convenience. No disrespect is intended.
The applicant is currently remanded in custody. He has been in custody since he was charged with the offence of murdering the deceased on 31 August 2017.
The trial of the applicant and his three co‑accused is listed to commence on 15 February 2021. The trial has been set down for approximately three months.
The applicant now makes an application to be released on bail pursuant to s 7B(3) and s 15(1) of the Bail Act 1982 (WA) (the Act). The applicant has not previously applied to be released on bail.
The applicant has filed in support of the application a copy of an affidavit yet to be sworn by him dated 23 March 2020 (the unsworn affidavit), an affidavit sworn by one of his counsel, Mr Rishi Kashyap, on 24 March 2020, a copy of an affidavit yet to be sworn by Mr Kashyap dated 26 March 2020 and an affidavit sworn by Mr Hardi Sarmi on 23 March 2020.
In his sworn affidavit Mr Kashyap explains why the applicant has not sworn an affidavit in support of the application. In this regard Mr Kashyap deposes as follows:
1.In the course of taking instructions from the applicant for the making of the bail application he prepared an affidavit for the applicant to swear in support of the application;
2.In light of the current situation with the COVID‑19 pandemic it is unsafe for him to attend Casuarina Prison (Casuarina) where the applicant is currently incarcerated in order to facilitate the applicant's swearing of the unsworn affidavit;
3.At approximately 3.55 pm on 23 March 2020 the applicant telephoned him and he read to the applicant the contents of the unsworn affidavit; and
4.During the phone call on 23 March 2020 the applicant understood the contents of the unsworn affidavit as read to him, and adopted the contents of the unsworn affidavit as being true and correct.
Mr Kashyap has not formally sworn his affidavit dated 26 March 2020 because he has, due to the COVID‑19 pandemic, been working from home.
The State does not take issue with the contents of the unsworn affidavit or Mr Kashyap's unsworn affidavit. Nor does the State, subject to one qualification to which I will refer further below, take issue with the contents of the affidavits sworn by Mr Kashyap and Mr Sarmi. I will therefore, for the purposes of dealing with the application and subject to the one qualification, accept as true and correct the contents of the unsworn affidavit, Mr Kashyap's unsworn affidavit, and the sworn affidavits of Mr Kashyap and Mr Sarmi.

The State's position in response to the application

By an email to the court dated 26 March 2020 counsel for the State, Ms Christian SC, advised the court as follows:
1.The State 'opposes the application based on the seriousness of the charge' but acknowledges the views that I expressed in relation to 'exceptional circumstances' in dealing with an application for bail made by Samura in June 2019;[2]
2.The State is unable to advance any submissions as to why the applicant's situation differs from Samura's with respect to 'exceptional circumstances'; and
3.The State submits that bail conditions proposed by the applicant are inadequate to address the risk of him failing to appear in answer to his bail.
[2] The State of Western Australia v Samura [2019] WASC 210.
Senior Counsel's advice that the State opposed the application 'based on the seriousness of the charge' was not, with respect, particularly helpful in that it did not reveal precisely why the State contended that the seriousness of the charge was, in the applicant's case, relevant to the determination of any of the questions that the court is, by reason of the provisions of the Act (referred to below), required to consider in determining the application. In any event, and for reasons that are apparent from my below expressed reasons in relation to the 'exceptional circumstances' issue, I requested that the State file submissions dealing with the issue of the strength of the State's case against the applicant.
On 27 March 2020 the State, in response to my above referred to request, filed an outline of submissions dealing with not only the issue of the strength of its case against the applicant, but also the asserted inadequacy of the proposed bail conditions.
On 27 March 2020 the State also filed an affidavit sworn by Ms Sharni Maree Lawler on 26 March 2020. Ms Lawler is a police officer with the Western Australian Police Force. She is involved in the investigation into the alleged murder of the deceased.
At the hearing of the application the State substantially maintained the position as set out by Ms Christian in her email. During the hearing I took the opportunity to ask Ms Christian to clarify the State's position in relation to the precise relevance of the seriousness of the charged offence to its opposition to the application. Ms Christian did so by stating that the reference in her email to the State opposing the application on the basis of the seriousness of the charged offence was a shorthand way of stating that the State opposed the application on the ground that 'the more serious the charge is…the greater … the consequences if convicted and the greater the risk … that a charged person would flee …'[3]
[3] ts 534, 30 March 2020.

The alleged facts of the charged offence

The alleged facts of the charged offence, briefly stated, are as follows.
In August 2017 the applicant, Samura, Farsijani and Kickett were known to the deceased.
Between around 8.00 pm and 8.30 pm on Friday 4 August 2017, the deceased was at his home address of 43 Dallington Crescent in Balga.
On the evening of Friday 4 August 2017 Samura and the applicant drove in convoy to Dallington Crescent.
Samura drove to Dallington Crescent in his 2007 white Mercedes SUV ML280 cdi model, registration 1 CNS 104. Samura arrived in Dallington Crescent at approximately 7.55 pm. He parked his vehicle close to the deceased's house. Also in the vehicle with Samura was Farsijani.
Kickett may also have been in the vehicle with Samura and Farsijani at the time that Samura drove to Dallington Crescent.
The applicant drove to Dallington Crescent in a vehicle that he was in possession of and made use of at the relevant time, namely a 2012 white Lexus sedan IS250X model, registration 1 DZM 236. The applicant also arrived in Dallington Crescent at about 7.55 pm. He parked his vehicle in Balney Place, Balga near to the intersection of Balney Place and Dallington Crescent and close to the deceased's house.
On arriving in Dallington Crescent the applicant, Samura, Farsijani, and perhaps also Kickett walked to and entered the deceased's house. At the time that they arrived at the house another male, Mr Saied Akbar Hussaini (Akbar Hussaini), was already with the deceased in the house.
If Kickett did not travel to Dallington Crescent with Samura in Samura's vehicle, he arrived at the deceased's house earlier that evening with Akbar Hussaini.
At some point the applicant, Samura, Farsijani, Kickett, Akbar Hussaini and the deceased, and possibly one or more other persons also, were in the theatre room on the second floor of the deceased's house. While in the theatre room one or more of the applicant, Samura, Farsijani, Kickett and Akbar Hussaini, and any other person present, restrained and severely assaulted the deceased. The assault caused significant injuries to the deceased.
At approximately 8.28 pm the applicant, Samura, Farsijani, and Kickett left the deceased's house. The applicant and Samura drove away in their respective vehicles. Akbar Hussaini remained at the house.
At approximately 8.29 pm Akbar Hussaini made a triple 0 call which resulted in the police attending the deceased's house. When the police arrived at the deceased's house Akbar Hussaini was present and was performing cardiopulmonary resuscitation on the deceased.
At the time of the arrival of the police the deceased was lying on the floor in the theatre room. He was lying on his back. He was wearing underpants, grey tracksuit pants and socks. He had visible significant injuries to his body. He was wet.
Underneath and near to the deceased were lengths of rope and duct tape. A pillow next to the deceased's head was significantly soiled with blood. Numerous empty 600 ml plastic water bottles were scattered near the deceased.
There was a large amount of blood near the deceased and on two couches that were close to where he was lying.
An ambulance attended the deceased's address. At about 8.45 pm the ambulance officers declared the deceased to be dead.

The cause of the deceased’s death

On 8 August 2017 forensic pathologist, Dr C T Cooke, performed a post‑mortem examination on the deceased.[4] On the post‑mortem examination Dr Cooke found the deceased to be suffering from widespread injuries to the surface of his body, particularly to the central part of his face. The injuries identified by Dr Cooke included fractures to the nose and both of the cheeks, a penetrating stab type injury to the right side of the torso, a penetrating stab type injury to the top of the right foot, bruising to the muscle at the top of the neck, a thin fracture of the main throat cartilage (fractured right superior horn of the thyroid cartilage), and fractured ribs at the front of the chest (most likely the result of CPR). Dr Cooke also found that the deceased had congested lungs with aspiration into the airways as well as early arteriosclerotic hardening of the arteries.
[4] Prosecution Brief (PB), 770 ‑ 779, 784.
On 29 November 2017 Dr Cooke, following the receipt of results of further investigations, formed the opinion that the cause of the deceased's death was 'injuries to the face and neck in a man with focal coronary arteriosclerosis and amphetamines effect'.

The legal basis for the State's case against the applicant

The State's case is that the applicant, Samura, Farsijani, Kickett, Akbar Hussaini and possibly one or more other persons were all present when the deceased was assaulted and killed, and that it was one or more of the applicant, Samura, Farsijani, Kickett, Akbar Hussaini and any others present who assaulted the deceased and inflicted the various injuries to him which in combination caused his death. Therefore the State's case against the applicant will be put on three alternative bases. First, that if he inflicted any of the injuries which in combination with other injuries caused the deceased's death he was a principal offender within the meaning of s 7(a) of the Code. Second, that if he did not inflict one of the injuries which in combination with other injuries caused the deceased's death and was therefore not a principal offender, he aided the principal offender or principal offenders in the commission of the offence within the meaning of s 7(c) of the Code by restraining or assisting to restrain the deceased, or by assaulting or assisting in the assault of the deceased, or by obtaining items used to restrain the deceased, or by otherwise rendering the deceased incapable of defending himself, or by being physically present and available to overcome any resistance by the deceased or to prevent the deceased escaping or to prevent the deceased obtaining assistance. Third, if he was neither a principal offender nor an aider, he was criminally responsible for the murder by reason of s 8 of the Code in that he formed a common intention with at least one of the other persons present to prosecute an unlawful purpose, specifically to inflict serious physical harm to the deceased or to demand something from the deceased with the threat of violence, and that in the prosecution of this unlawful purpose an offence was committed, namely the murder of the deceased, that was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
I note that my above statement of the legal basis for the State's case against the applicant is in accordance with the State's email response dated 9 January 2020 to a request by Farsijani's counsel for the particulars of the State's case.

The applicant's defence

The applicant has not disclosed to the court the substance of his defence to the State's case against him.

The current status of Akbar Hussaini

On or about 20 August 2017 Akbar Hussaini left Australia. He was under investigation but had not been charged at the time that he left Australia. He is currently believed to be in Iran.

The procedural history to the application

On 31 August 2017 the applicant and Farsijani were charged with the offence of murdering the deceased.
On 17 November 2017 Samura was charged with the offence of murdering the deceased.
On 3 October 2018 the applicant was committed together with Farsijani and Samura to appear in this court on the murder charge.
On 18 January 2019 the State filed an indictment charging the applicant, Samura and Farsijani with the offence of murdering the deceased.
On 21 January 2019 the applicant, Samura and Farsijani appeared for the first time in this court. On that date the court informed the parties that trial dates of 13 May 2019 to 24 June 2019 were being held on a provisional basis.
On 8 February 2019 the applicant, Samura and Farsijani appeared at a status conference. They were arraigned on an indictment dated 18 January 2019 containing the charge that they had murdered the deceased. They all pleaded not guilty to the charge.
On 12 March 2019 Kickett was charged by the police with the offence of murdering the deceased.
On 13 March 2019 the applicant, Samura and Farsijani appeared at a status conference.
On 21 March 2019 the applicant, Samura, Farsijani and Kickett appeared at a status conference (although Kickett had not at this time actually been committed by the Magistrates Court to appear in this court). At the status conference the provisional May to June 2019 trial dates were vacated and January to April 2020 trial dates were allocated on a provisional basis. The provisional May to June 2019 trial dates were vacated due to the inability of Kickett's legal representatives to properly prepare for a trial in May 2019.
On 27 March 2019 Kickett was committed to appear in this court on the murder charge.
On 30 April 2019 the applicant, Samura, Farsijani and Kickett appeared at a further status conference. At this hearing the State discontinued the prosecution on the indictment dated 18 January 2019 and presented a fresh indictment dated 29 April 2019 jointly charging the applicant, Samura, Farsijani and Kickett with the murder of the deceased.
In January and February 2020 the commencement date of the trial was, for various reasons none of which are material to the determination of the application, pushed back to 24 February 2020.
On 19 February 2020 the applicant, Samura, Farsijani and Kickett appeared at a directions hearing. At the directions hearing an application was made by Kickett to adjourn the trial. The application was made in light of the very late disclosure by the State (not due to the fault of the State) of a supplementary statement provided by a prosecution witness, Ms Jade Stillwell, the contents of which materially impacted upon Kickett’s defence to the charge. The application for the adjournment of the trial was not opposed by the State. Nor was it opposed by the applicant, Samura or Farsijani. The application was ultimately allowed.
The most recent adjournment of the trial was in no way due to the fault of the applicant. Nor was it due to the fault of the State.
On 28 February 2020 the trial of the applicant, Samura, Farsijani and Kickett was listed to commence on 15 February 2021.

The applicable statutory provisions and legal principles

Section 13 of the Act provides that the jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Act and pt B, pt C and pt D of sch 1 of the Act.
Of particular relevance in the present context is cl 3C of pt C of sch 1 of the Act which relevantly provides as follows:
Notwithstanding clause 1 … or any other provision of this Act, where an applicant is in custody ‑
(a)awaiting an appearance in court before conviction for an offence of murder; or
(b)waiting to be sentenced or otherwise dealt with for an offence of murder of which the applicant has been convicted,
the judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that ‑
(c)there are exceptional reasons why the applicant should not be kept in custody; and
(d)bail may properly be granted having regard to the provisions of clauses 1 and 3 ...
The Act does not define the term 'exceptional reasons'. Moreover, the courts have refrained from attempting to provide any sort of list of 'exceptional reasons'. However, in Shrivastava v The State of Western Australia[5] Mazza J said that the use of the word 'exceptional' denotes something which is unusual, out of the ordinary, in some way special or an exception to the general trend of cases. His Honour said that what might constitute exceptional reasons would depend upon the facts in each particular case.
[5] Shrivastava v The State of Western Australia [2010] WASCA 96 [28] ‑ [32].
Mazza J's comments were confirmed in De Faria v The Queen.[6]
[6] De Faria v The Queen [2012] WASCA 256 [13].
A single matter or a combination of matters may constitute exceptional reasons.[7]
[7] Broad v Haas [2002] WASC 155 [15]; Hoddy v Hawes [2003] WASC 22 [61] Bertolami v The State of Western Australia [2009] WASC 269 [9]; Mansell v The State of Western Australia [2011] WASC 170 [3]; Emile-Bruning v The State of Western Australia [2016] WASC 211 [6].

The rationale for the requirement that bail should only be granted in murder cases if there are exceptional reasons for not keeping an accused person in custody is that there is a strong inference that a person facing a murder charge is likely to abscond or fail to appear in accordance with his bail undertaking given the severity of the sentence of imprisonment likely to be imposed if guilt is proven.[8]
[8] Fazzari v The State of Western Australia [2004] WASC 71; Emile‑Bruning v The State of Western Australia [7].
The strength of the prosecution case may be a relevant consideration in determining if there are exceptional reasons for not keeping an accused person in custody. If the prosecution case is a particularly weak one or it can be said that there is a high probability of acquittal, it may be that exceptional reasons for granting bail will exist.[9] In such a case the inference that there is a strong incentive for an applicant to abscond may not be able to be so readily drawn. However, to suggest that the prosecution case is merely not strong or not an overwhelming one is unlikely to meet the criteria of exceptional reasons.[10]
[9] Bertolami v The State of Western Australia [16]; Emile‑Bruning v The State of Western Australia [8].
[10] Emile‑Bruning v The State of Western Australia [8].
In cases involving a charge of murder a lengthy delay in proceeding to trial is a regrettable common experience for accused persons. Nonetheless, an unusually long delay before an accused charged with murder can be tried may, in some circumstances, either by itself or in combination with other factors (such as the degree of strength of the prosecution case), amount to an exceptional reason for not keeping an accused in custody.[11] The strength of the prosecution case will be relevant to the determination of whether an unusually long delay before an accused charged with murder can be tried amounts, either by itself or in combination with other factors, to an exceptional reason for not keeping him or her in custody pending their trial.[12]
[11] The State of Western Australia v Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34 [50]; Mikhail v The State of Western Australia [2010] WASC 238; Rayney v The State of Western Australia [2011] WASC 3; Hedgeland v The State of Western Australia [2011] WASC 181.
[12] Mikhail v The State of Western Australia [10] ‑ [11].
A common approach to take to cl 3C is to first consider whether there are exceptional reasons why an accused should not be kept in custody and then, if exceptional reasons are established, to consider if bail may properly be granted having regard to the provisions of cl 1 and cl 3.[13]
[13] James v The State of Western Australia [2013] WASC 235 [23].

Clause 3C(c): Are there exceptional reasons for not keeping the applicant in custody?

The applicant submits that there are a number of circumstances which, considered in combination with each other, justify the conclusion that there are exceptional reasons for not keeping him in custody. The circumstances pointed to by the applicant are as follows:
1.The amount of time that he will spend in custody prior to the completion of his trial if he is not granted bail;
2.The strength (or lack thereof) of the State's case; and
3.The impact which the conditions that he is currently subject to while in custody are having on his ability to adequately prepare his defence.
I will address each of these circumstances in turn.

Delay

By the time of the commencement of the applicant's trial he will have been in custody for approximately three years and five months. By the end of the trial he will, in light of the current estimate of its length, have been in custody for approximately three years and eight months.
The delay between the date that the applicant was charged and the date of his trial is not due to the fault of the State. Nor, however, is it in any way due to the fault of the applicant. It has come about in the first instance by reason of Kickett being charged as a co‑accused, and more recently as a result of the decision by a prosecution witness to provide additional material information which she could have provided at an earlier point in time but refrained from doing so.
I note in this context that the delay in this case is not connected with the COVID‑19 pandemic. The applicant's trial was adjourned before the Chief Justice and the Chief Judge of the District Court issued their joint direction on 16 March 2020 suspending the commencement of new jury trials in this State. Moreover, the allocated February 2021 trial dates were, as at the date of their allocation and given the state of the court's lists at that time, the earliest dates which the court could allocate to the three month trial of this matter.
As I have already acknowledged, accused persons charged in this court with the offence of murder will commonly spend relatively significant amounts of time in custody as an unconvicted person prior to their trial. This is of course not something that is in any way desirable. It is simply an unavoidable consequence of the time that it takes to prepare a murder case for trial and the competing demands on the court's resources.
What constitutes an unusually long time for a person charged with murder to be remanded in custody pending the completion of their trial may obviously change over time. A period that was previously unusually long may, due to the extent of the court's lists or factors beyond the court's control, unfortunately become the norm.
A period of approximately three years and five months is on any view of the matter an inordinately lengthy period of time for an accused charged with murder to be remanded in custody prior to the completion of their trial. It is, to the best of my knowledge, a length of time that is well and truly in excess of the amount of time usually spent in custody by persons awaiting their trials in this court on charges of murder.[14] It is certainly a length of time that is far greater than the periods of time that have, in the cases to which I have referred earlier in these reasons, been accepted, either alone or in combination with other factors, as constituting an exceptional reason for granting bail. In short, in my view the length of time that the applicant will spend in custody pending the completion of his trial if he is not granted bail must be accepted as constituting a exceptional reason for not keeping him in custody unless it can be said that the prosecution case against him is an overwhelmingly strong case.

Strength of the State's case

[14] As at 1 March 2020, the median time to trial in this court from the date of an accused being charged was approximately 19 months.

In relation to the issue of the strength of the State's case, it is important to recognise at the outset that it is simply not, given the nature of both the application before the court and the material before the court, either possible or appropriate for me to attempt to engage in some form of highly refined analysis of the evidence and the various strengths and weaknesses thereof. Further, it needs to be borne in mind that in considering the strength of the State's case for the purpose of determining if there are exceptional reasons for not keeping the applicant in custody, it is the strength of the State's case on the charge of murder as opposed to a statutory alternative (for example, manslaughter) that is relevant.[15]
[15] James v The State of Western Australia [28].
Having made the above points I turn to the submissions of the parties on the issue of the strength of the State's case.
The State acknowledges that its case against the applicant is circumstantial. The State submits that its case against the applicant on the murder charge is a strong circumstantial case. The evidence that has been disclosed by the State and which the State points to in support of its submission that its case against the applicant is a strong case is in summary as follows:[16]
[16] In the State's written outline of submissions dated 27 March 2020 the pages in the PB and the exhibits comprising the evidence to which I refer are stated. It is not necessary for me to make express reference to the relevant PB page numbers herein.
1.Evidence that more than one person was present at the time that the deceased was assaulted;[17]
[17] The evidence is comprised in part of evidence relating to the deceased's size, the nature of the assault inflicted on him, and shoe impressions found at the scene.
2.Evidence that the applicant, the co‑accused and Akbar Hussaini were known to the deceased;
3.Evidence that the deceased knew the persons who entered his house and attacked him;[18]
[18] The evidence is comprised in part of evidence that there was no sign of forced entry into the house, evidence that the motivation for the entry into the house and attack on the deceased was something other than the theft of valuables, evidence that the deceased was extremely security conscious and evidence that it is extremely unlikely that the deceased would have permitted people that he did not know to enter his house.
4.Evidence that the applicant's mobile phone was not communicating with a cell tower and was therefore turned off between approximately 7.20 pm and 8.32 pm on 4 August 2017, this being the period during which the deceased was killed;
5.Evidence that the first communication from the complainant's phone after 8.32 pm was a 26 second outgoing call at 8.35 pm which used a Balcatta South cell tower, Balcatta being proximate to the deceased's house;
6.Evidence that in August 2017 the applicant was the owner, albeit not registered owner, of a 2012 white Lexus IS250 registration number 1DZM 236;
7.Evidence that:
(1)at approximately 7.55 pm on 4 August 2017 a 2010‑2013 white Lexus IS250 was driven along Dallington Crescent in the direction of the deceased's house and was parked in Balney Place, which intersects with Dallington Crescent, a short distance from the intersection with Dallington Crescent;
(2)once the Lexus was parked in Balney Crescent a person left the vehicle and walked across Dallington Crescent;
(3)at approximately 8.30 pm a person returned to the Lexus; and
(4)at approximately 8.30 pm the Lexus was driven out of Balney Place, turned right onto Dallington Crescent and was driven away;[19]
8.Evidence that the majority of the 261 2008‑2013 white Lexus IS250s that were in existence as at 4 August 2017 were not in Dallington Crescent on 4 August 2017;[20]
9.Evidence that in the early afternoon of 4 August 2017 the applicant left his apartment complex wearing camouflage pants, that he was wearing these pants when he reported later that afternoon to Mirrabooka Police Station to comply with bail conditions, and that when he returned home at 9.27 pm he was wearing different pants that appeared to be too small for him;
10.Evidence that the camouflage pants referred to above have never been located;
11.Evidence that in the early afternoon of 4 August 2017 the applicant left his apartment complex wearing black or dark coloured Nike shoes, that he was wearing these shoes when he reported to Mirrabooka Police Station to comply with his bail, and when he returned to his apartment at about 9.27 pm he was wearing different shoes that appeared too small for him;
12.Evidence that some of the outsole shoe impressions found at the deceased's house were made by Nike shoes;
13.Evidence that when the applicant left his apartment complex at approximately 10.00 pm on 4 August 2017 he had changed his clothing and was carrying a plastic bag that appeared to contain something; and
14.Evidence that when the applicant returned to his apartment complex around 1.09 am on 5 August 2017 he was not in possession of the plastic bag.
[19] The evidence consists of closed circuit television (CCTV) footage obtained from three houses on Dallington Crescent and evidence of Mr David Jeary, the Managing Director of Lexus of Perth, identifying the vehicle shown in the CCTV footage as a 2010-2013 white Lexus IS250 sedan. I have viewed the CCTV footage. On the State's case the vehicle is alleged to have arrived in Dallington Crescent and to have left Dallington Crescent in convoy with a second vehicle belonging to Samura.
[20] The police officer responsible for the investigation into the alleged murder of the deceased has conducted searches of police systems and has ascertained that there were at the relevant time 261 registered 2008-2013 white Lexus IS250 sedans. The officer has obtained statements from the owners of the majority of the 261 vehicles the contents of which are to the effect that each of the vehicles was not in Dallington Crescent on 4 August 2017.
In response to the State's submission as to the strength of its case against him, the applicant makes the following points.
First, there is no forensic evidence that links the applicant to the scene of the alleged murder at the time of the alleged murder.
Second, there is no evidence of any admissions made by the applicant.
Third, the Balcatta South cell tower is not the closest mobile phone cell tower to the deceased's house.
In making an assessment of the strength of the State's case against the applicant I must consider the evidence to be adduced as a whole and not on a piecemeal basis. Doing the best I can on the material before me and considering the evidence that the State is intending to adduce as a whole, I am persuaded that the State's case against the applicant on the murder charge is a reasonably strong case. I would not, however, go so far as to say that the State's case against the applicant is an overwhelmingly strong case and that the applicant does not have any realistic prospect of being found not guilty. I think that there is some prospect, albeit not a strong prospect, of the applicant being acquitted.
In light of my conclusion that the State's case against the applicant is a reasonably strong case it necessarily follows that in my view the State's case against the applicant is a long way short of being sufficiently weak to of itself constitute an exceptional reason for not keeping him in custody pending his trial.

Impact on ability to prepare defence

In relation to the impact that the applicant’s incarceration is having on his ability to adequately prepare his defence Mr Kashyap, in his unsworn affidavit, asserts as follows:
1.The applicant is currently remanded in custody at Casuarina;
2.As a result of the threat posed by the COVID‑19 pandemic all face to face meetings at Casuarina between lawyers and their clients are taking place in the non‑contact area;
3.The non‑contact area rooms in Casuarina are small, approximately 1.5 m by 1.5 m. The lawyer and client are separated only by open bars which will not prevent the transmission of saliva and air borne particles. Further, the distance between the lawyer and client is less than approximately 70 cm;
4.Personal protective equipment is not available and not provided to prisoners or any visitors, including lawyers;
5.Casuarina does not have a Skype facility;
6.There are only seven non‑contact rooms available at Casuarina for lawyers and all other official visitors such as writers of pre‑sentence reports, bail reports, psychological reports and psychiatric reports;
7.Casuarina allows telephone calls to be made by lawyers to their clients. However, the telephone does not have any video facility enabling exhibits or video footage to be shown to the client; and
8.There is a video link available at Casuarina but it is being used by courts throughout the State more and more as a result of COVID‑19. Consequently, the likelihood of the video link being made available for official visits is remote and the time available to each prisoner will be limited to short periods of time. It is not known if the video link will ever become available for lawyers to take instructions from their clients.
I do not doubt that the existence of the COVID‑19 pandemic is currently serving to increase the difficulties that are already faced by lawyers in obtaining instructions and preparing for trial when their clients are in custody. I accept that in the current COVID‑19 climate there are very good health reasons for the applicant's legal representatives wanting to avoid visiting the applicant in person. However, as I have already pointed out the trial for this matter was listed to commence in February this year. At the time that the application to adjourn the trial was made by Kickett, counsel for the applicant made clear that the applicant was ready to proceed to trial and wanted to proceed to trial. It is therefore reasonable to infer that the applicant's defence to the charge was fully and adequately prepared at that time. There is no reason to think that this is not still substantially the position.
I accept that it may be necessary to undertake some additional trial preparation work in light of the material disclosed by the State at around the time of the most recent adjournment of the trial (even though the disclosed material relates primarily to the case against Kickett). I accept that there may be some ongoing disclosure by the State between now and the date of the applicant's trial which will necessitate some additional trial preparation work. I also accept that in the period leading up to the applicant's trial there will, to use counsel's words, need to be 'a refresher aspect'. [21] However, the trial is still in excess of 11 months away. Therefore, accepting that the additional difficulties arising from the existence of the COVID‑19 pandemic will persist for a significant period of time, the applicant's legal representatives will still, in my view, have more than enough time to obtain any necessary further instructions from the applicant and prepare his defence for trial even if these instructions have to be obtained by means other than in person visits. It follows, that I do not consider that these additional difficulties amount to a factor that is capable of supporting the conclusion that there are exceptional reasons for not keeping the applicant in custody.

Decision

[21] ts 518, 30 March 2020.

As I have already stated, the length of time that the applicant will spend in custody prior to the conclusion of his trial if he is not granted bail will, due to no fault of his own, be inordinate. If the applicant is kept in custody until the completion of his trial but is ultimately acquitted he will, by reason of having spent such a lengthy period of time in custody, suffer a very significant injustice. Moreover, and as I have already stated, the prospect of the applicant being acquitted, while not strong, cannot be discounted. It cannot, in my view, be said that there is no realistic prospect of this occurring.
Ultimately, I have come to the conclusion that the length of time that the applicant will spend in custody as an unconvicted person prior to the completion of his trial, when considered in light of the strength of the State's case and the applicant's prospects of acquittal, constitutes an exceptional reason for not keeping him in custody within the meaning of cl 3C(c). In my opinion the length of time that the applicant will spend in custody as an unconvicted person prior to the completion of his trial, when considered in light of the strength of the State's case, makes his case unusual, out of the ordinary or an exception to the general trend of cases.

Clause 3C(d): Should bail be granted having regard to cl 1 and cl 3?

The fact that I have found that there is an exceptional reason for not keeping the applicant in custody is not, of course, the end of the matter. As I have already pointed out, by cl 3C(d) I must also be satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act. This requires me to have regard to the questions specified in cl 1 and also any other matters that I consider to be relevant.

I turn then to deal with each of the questions specified in cl 1 of pt C of sch 1 to the extent that they are relevant. In dealing with the questions I will apply the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia[22] and YSN v The State of Western Australia.[23]

The questions posed by cl 1

Clause 1(a)

[22] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [44].

[23] YSN v The State of Western Australia [2017] WASCA 155 [16] – [21].

The first question specified in cl 1(a) of pt C is whether, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence, or endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Clause 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with the offence with which the applicant is charged. Rather, the risk or possibility must be actual or real, as distinct from theoretical and hypothetical.[24]
[24] YSN v The State of Western Australia [17].
By cl 3 of pt C I am required, in considering whether the applicant may do any of the things mentioned in cl 1(a), to have regard to a number of matters as well as to any other matters which I consider to be relevant. The matters that I am required by cl 3 to have regard to are as follows:
1.The nature and seriousness of the offence and the probable method of dealing with the applicant for the offence if he is convicted;
2.The character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant;
3.The history of any previous grants of bail to the applicant; and
4.The strength of the evidence against him.

Nature and seriousness of offence and probable outcome

As to the first of the matters specified in cl 3, the applicant is obviously charged with a very serious offence the maximum penalty for which is life imprisonment. Accordingly, and taking into account the alleged circumstances of the offence, if the applicant is convicted of the charged offence he will inevitably be sentenced to a very lengthy term of imprisonment.

Current circumstances, antecedents and history of grants of bail

I turn to the second and third of the matters specified in cl 3.
The applicant is 24 years old. He was born in Tehran, Iran. He is an Iranian national. However, he holds an Australian Permanent Resident Visa (refugee). He does not hold a current passport.
The applicant's parents and his only sibling, a sister, live in Tehran.
The applicant came to Australia in 2010 when he was approximately 15 years old. He came to Australia as a refugee seeking asylum.
Given that the applicant was a child when he arrived in Australia he was cared for by a guardian, Mr Sarmi. Mr Sarmi was a youth worker. Mr Sarmi acted as the applicant's guardian until the applicant turned 18.
On 13 August 2017 the applicant's Convention Travel Document (CTD) expired.[25] A CTD is a travel document issued to non‑Australian citizens which replaces an Australian passport and which allows them to travel overseas. The applicant's CTD had been in force since 13 August 2015.
[25] My account of the applicant’s CTD history is derived from the affidavit of Ms Lawler.
At some time shortly prior to 15 August 2017 the applicant applied for a new CTD. The new CTD was printed on 22 August 2017 but was not collected by the applicant prior to his arrest for the alleged murder of the deceased. The document was destroyed by the Australian Passports Office on 19 February 2018.
On 20 March 2020 Mr Sarmi signed a lease for a residence at 8/12 Murray Avenue in Mosman Park (the Mosman Park residence). Mr Sarmi obtained the lease in order to provide a place for the applicant to live in the event that he is granted bail.
The lease is for the period 19 March 2020 to 18 July 2020. The lease provides that if both parties agree a periodic tenancy may be signed to commence on 19 July 2020.[26]
[26] In par 7 of his affidavit Mr Sarmi asserts, contrary to the terms of the lease, that the lease is for 12 months. It is this one assertion that the State understandably took issue with.
During the course of the hearing of the application I was informed by the applicant’s counsel, without objection from the prosecutor, that the position as conveyed by Mr Sarmi to Mr Kashyap on the morning of the hearing is that Mr Sarmi sought a 12 month lease from the landlord, that the landlord would agree only to a six month lease on a trial basis, but that it is anticipated that if there were no difficulties with the lease during the trial period it would continue for at least 12 months.[27] In any event, the position is that the applicant will be able to live in the Mosman Park residence while the lease is on foot if he is released on bail.
[27] Counsel was unable to explain the discrepancy between the term of the lease as specified in the lease and Mr Sarmi's assertion that the landlord agreed to a six month lease.
The applicant does have a criminal record, albeit one that is not particularly extensive.
In May 2014 the applicant was convicted of an offence of reckless driving and an offence of failing to stop. The offences were committed on the same day. The applicant was sentenced to a total of 6 months imprisonment for the offences.
In August 2016 the applicant was convicted of an offence of stealing. He was fined $500 for the offence and granted a spent conviction order.
In May 2017 the applicant was convicted of an offence of criminal damage and an offence of fighting in public. The offences were committed on the same day. The applicant was fined a total of $2500 for the offences.
Finally, in October 2017 the applicant was convicted of a further offence of criminal damage. He was fined $500 for the offence.
The applicant has no prior convictions for breaching bail.

Strength of evidence against the applicant

The last of the matters specified in cl 3 is the strength of evidence against the applicant. I have dealt with this issue earlier in these reasons.

Determination of the question posed by cl 1(a)

I come back, in light of the observations that I have made in relation to the matters specified in cl 3, to the question posed by cl 1(a) for determination.
The State submits that if the applicant is not kept in custody he will be a flight risk. In support of this submission the State points to the inevitable outcome for the applicant if he is convicted of the charged offence (specifically, a lengthy term of imprisonment), the fact that the applicant was born in Iran and has family ties to that country, the fact that the applicant does not appear to have any significant ties to this country, and the fact that the applicant applied for the CTD after the alleged commission of the charged offence and prior to his arrest.
The submission made on behalf of the applicant is that he is not, in any realistic sense, a flight risk.
Given what I have said about the strength of the State's case, it necessarily follows that there is, in my view, a real prospect of the applicant being convicted of the charged offence. The prospect of the applicant being convicted of the charged offence, and the inevitable outcome of the imposition on him of a very lengthy term of imprisonment if he is convicted, supports the conclusion that there is a risk that if the applicant is not kept in custody he will abscond and/or fail to appear in court.
The applicant has now lived in this country since the age of 15 and for a period of approximately 10 years. There is nothing before me to suggest that he made any attempt to return to Iran during the time that he was in possession of a valid CTD. Further, the fact that he came to this country from Iran as a refugee seeking asylum arguably suggests that he would have no particular desire to return to that country. On the other hand, he does not appear to have any strong ties to this country in the form of social connections or employment, his closest family members remain in Iran and he does have a strong incentive to abscond, specifically the prospect of conviction for the charged offence. In all these circumstances I do not think it can be said that the risk of the applicant attempting to flee to his country of birth or elsewhere (by whatever means are available to him) can be discounted.
With respect to the applicant's conduct in making his application for the CTD, the following matters are relevant. First, for a short period of time after the alleged murder of the deceased (up until 13 August 2017), the applicant possessed a valid CTD and was therefore presumably in a position to leave the country. Second, there is an explanation for the applicant having made the application for the new CTD other than an urgent desire to leave the country, namely that his existing CTD had expired. Third, after having made the application for the new CTD shortly prior to 15 August 2017, he did not demonstrate any apparent urgency in relation to collecting the document. This is despite the fact that the police executed search warrants on his residence on 17 August 2017 and 24 August 2017 and thereby alerted him to the fact that he was a person of interest in the investigation into the deceased's alleged murder. Taking all these circumstances together, I do not consider that the applicant's conduct in applying for the CTD provides much, if any, support for the State's contention that he is a flight risk.
The applicant does not have a passport. He is not in possession of documents establishing his identity which he would need to apply for a passport.
I do need to make reference in this context to the restrictions that have been imposed by the State and Federal governments in an attempt to combat the spread of the COVID‑19 virus. Most if not all states in Australia have imposed restrictions on border crossings. On 25 March 2020 the Commonwealth government introduced a ban on Australians travelling overseas save in a very limited number of circumstances none of which apply to the applicant. Further, as of midnight on 1 April 2020 the State government introduced significant restrictions on people travelling between various designated regions within the State.
The restrictions to which I have referred, while they are in place, will make it extremely difficult for the applicant, if he is released on bail, to abscond to another state, and near on impossible for him to abscond overseas. However, some or all of these restrictions may well not remain in place right through until the time of the applicant's trial. This being the case, I propose to put to one side the current COVID-19 pandemic restrictions in determining if there is a risk of the applicant absconding and/or failing to appear in court if he is released on bail.
Ultimately, taking the various considerations to which I have referred into account, and putting to one side the COVID‑19 pandemic travel restrictions, I am satisfied that there is an appreciable or moderate risk of the applicant absconding from the jurisdiction and/or failing to appear in court in answer to his bail if he is not kept in custody.
I turn to the risk that the applicant, if he is not kept in custody, will commit further offences (which for present purposes I treat as encompassing endangering the safety, welfare or property of any person).
The nature and extent of the applicant's criminal record is such that it cannot, in my view, be said that there is no risk of the applicant committing further offences if he is not kept in custody. I am satisfied that the risk does exist. However, I am not persuaded that the risk is anything other than relatively low.
There is no basis on the evidence before me for concluding that if the applicant is not kept in custody there will be an appreciable risk of him interfering with witnesses or otherwise obstructing the course of justice in relation to himself or any other person.

Clause 1(b)

The question specified in cl 1(b) is whether the applicant needs to be held in custody for his own protection. There is nothing before me which provides a basis for concluding that the applicant does need to be held in custody for his own protection.

Clause 1(c)

The third question that I must consider, specified in cl 1(c), is whether the prosecutor has put forward grounds for opposing the grant of bail.
I have already addressed in part the State's grounds for opposing bail in dealing with the question posed by cl 1(a). I will deal with the balance of the State's argument for opposing bail in dealing with the question posed by cl 1(e).

Clause 1(d)

The fourth question that I must consider, specified in cl 1(d), is whether, as regards the period when the applicant is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial might be prejudiced. On the material before me there are no grounds for holding such a belief.

Clause 1(e)

The fifth question for my consideration, specified in cl 1(e), is, so far as is relevant in the present context, whether there is any condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the possibilities of the applicant failing to appear in answer to his bail and committing any further offence or offences. I will return to this question shortly.

Clause 1(g)

The final relevant question, specified in cl 1(g), is whether the alleged circumstances of the offence with which the applicant is charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Clearly, and as I have already stated, the applicant is alleged to have committed a very serious offence. However, if the fact that a person is charged with murder was of itself sufficient to justify the conclusion that the alleged circumstances of the offence amounted to a wrongdoing of such a serious nature as to make a grant of bail inappropriate, no person charged with murder could ever be granted bail. In this respect it is, I think, fair to say that while the alleged circumstances of the applicant's commission of the charged offence are self‑evidently very serious, they are not such as to elevate the level of seriousness of the alleged conduct to something above and beyond the level of seriousness ordinarily associated with a charge of murder. The State did not contend to the contrary. Moreover, whether the alleged circumstances of the charged offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate cannot be considered in a vacuum. The question must be considered in light of all of the other circumstances bearing on the exercise of the discretion as to whether or not to grant bail.

Other relevant matters

As I have already indicated, in dealing with the application I am required by cl 1 to have regard not only to the questions specified in the clause but also any other matters that I consider to be relevant. One such other relevant matter is the amount of time that the applicant will spend in custody if he is not granted bail prior to being finally dealt with for the charge.
I have already dealt with this issue in determining that the applicant has demonstrated exceptional reasons for not being kept in custody. In this context it suffices to say that the risk to which I have already referred of the applicant suffering a significant injustice by reason of spending such a lengthy period of time in custody as an unconvicted person pending the final determination by trial of the charge laid against him, is a factor that points in favour of him being granted bail.

The imposition of conditions to sufficiently remove the risks

I come back now to the question specified in cl 1(e), specifically whether there are any conditions that can reasonably be imposed which will sufficiently remove the possibilities of the applicant, if he is not kept in custody, absconding and/or failing to appear in court, and committing further offences. I note that the question is not whether the imposition of conditions will completely remove the possibility of the applicant engaging in such conduct, but rather whether the imposition of conditions will sufficiently reduce the possibility of this occurring.[28]
[28] YSN v The State of Western Australia [20].
The possibilities of the applicant, if he is not kept in custody, absconding and/or failing to appear in court and committing further offences will be sufficiently removed by conditions where the remaining risk of him engaging in such conduct no longer constitutes a proper ground for refusing him bail.[29] The question whether the remaining risk no longer constitutes a proper ground for refusing bail must be assessed by reference to the nature and extent of the risk to the integrity of the criminal justice system and community safety, and also in light of the possibility that the applicant will suffer an injustice if he is held in custody but is ultimately acquitted of the charge.[30] As was stated by the Court in YSN v The State of Western Australia[31] this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
[29] YSN v The State of Western Australia [20].
[30] YSN v The State of Western Australia [19].
[31] YSN v The State of Western Australia [20].
Save for the issue of the amount of any surety, the applicant has indicated that he is willing to abide by conditions of bail mirroring the conditions on which Samura was released as well as any conditions of bail considered by the court to be appropriate. The conditions proposed by the applicant include a $100,000 personal undertaking, a condition requiring the provision by Mr Sarmi of a surety in the amount of $5,000, a residential condition requiring the applicant to live at the Mosman Park residence, a curfew condition, a reporting condition requiring the applicant to report twice every day to a police station, non‑contact conditions, conditions relating to the applicant's use of a mobile phone, a condition preventing the applicant from applying for a passport, a condition preventing the applicant from using illicit substances and a condition requiring the applicant to undertake urinalysis.
The applicant has further indicated that if the court does not consider that the conditions outlined above will sufficiently remove the relevant risks, he is willing to abide by a home detention condition.
As I have already indicated, the State submits that the proposed bail conditions do not sufficiently reduce the risk of the applicant absconding and/or failing to appear in court if he is not kept in custody. The State's reasons for making this submission are as follows.[32]
[32] Prior to the hearing of the application the State in its written outline of submissions advanced as one of the reasons for the asserted inadequacy of the bail conditions the fact that Mr Sarmi was a significant prosecution witness in its case against the applicant. However, during the hearing of the application the applicant undertook to make at trial certain specified admissions under s 32 of the Evidence Act 1906 (WA). In light of this undertaking the State conceded that it would no longer be necessary to call Mr Sarmi as a witness at the applicant's trial.
First, it is unclear on Mr Sarmi's affidavit evidence if he is going to be residing in Western Australia. Given the seriousness of the charged offence it is not appropriate for the applicant's proposed surety to be living in another state. A surety living in another state will not be able to take steps to ensure that the applicant does not abscond and attends court as required.

Second, a surety in the amount of $5,000 is, having regard to the seriousness of the charge, inadequate in the sense that it would not provide a substantial disincentive for the applicant to abscond, and would provide only a limited incentive for the surety to ensure the applicant's attendance at trial.
Third, the availability of the Mosman Park residence as a place for the applicant to live if he is granted bail is only guaranteed until 18 July 2020. After that date Mr Sarmi will only be able to lease the Mosman Park residence on a periodic tenancy basis if the landlord agrees to this occurring. If the lease does come to an end on 18 July 2020 it is not clear that the applicant would have a place to live. Nor is it clear how he would be able to support himself in the community.
The State further submits that if contrary to its position I do decide that the proposed conditions with or without other conditions do sufficiently reduce the risk of the applicant absconding and/or failing to appear in court, a further condition should be imposed prohibiting the applicant from disclosing the prosecution brief to any person. The applicant does not object to the imposition of the additional condition sought by the State.
As to the first of the reasons put forward by the State in support of its submission that the proposed bail conditions are inadequate, it is the case that it is not clear from the affidavit of Mr Sarmi whether he will be living in Western Australia. In his affidavit Mr Sarmi deposes to the following:
1.He is currently employed as a youth worker on a casual basis;
2.He currently lives in Melbourne with his wife and four children; and
3.Up until recently it was his plan to relocate himself and his family to Perth in order to live at the Mosman Park residence with the applicant,[33] but that in light of issues arising from the COVID‑19 pandemic he is reconsidering this proposal.
[33] Mr Sarmi's stated plans in this regard appear contrary to the provisions of the lease for the Mosman Park residence which provide that 'No more than TWO persons may ordinarily live at the premises at any one time.'
However, during the hearing of the application the applicant's counsel informed me, without objection from the prosecutor, that despite the statements made by Mr Sarmi in his affidavit Mr Sarmi will, if the conditions of any bail granted to the applicant require him to do so, move to live in this State in the Mosman Park residence so as to enable him to engage in appropriate supervision of the applicant. The applicant's counsel conceded that it would be appropriate to impose as a condition of any bail granted to the applicant that Mr Sarmi reside in this State in the Mosman Park residence. In my view the imposition of such a condition, if the applicant is to be released on bail, will be essential.
As to the second of the reasons advanced by the State in support of its submission that the proposed bail conditions are inadequate, it is accepted by the applicant that the amount of the proposed surety is 'way outside the bounds' of surety amounts commonly required in cases in which the accused person is charged with murder.[34] However, it is submitted that the deficiency in the surety amount will be effectively counteracted by the imposition of the other proposed stringent conditions, in particular, the condition requiring the applicant to report twice daily to a police station. It is further pointed out in this context that the applicant, given his situation, is simply not in a position to arrange for the provision of a surety of a greater monetary amount to that being offered by Mr Sarmi, and that accordingly if bail is set on conditions requiring the provision of a more substantial surety he will not be in a position to take up any bail granted to him.
[34] ts 549, 30 March 2020.
In relation to the third of the reasons advanced by the State in support of its submission that the proposed bail conditions are inadequate, the short answer to the submission is that if the lease of the Mosman Park residence does come to an end prior to the date of the applicant's trial with the result that he cannot comply with the residential condition of any bail granted to him, his bail will be revoked and he will be taken back into custody.
The conditions proposed by the applicant, which I will take as including a condition that Mr Sarmi reside at the Mosman Park residence, are undoubtedly stringent. I am satisfied that the conditions that the applicant is willing to submit himself to will sufficiently reduce the risk of him committing further offences. However, I am not persuaded that the conditions will reduce the risk that I have found to exist of the applicant absconding and/or failing to appear in court to a sufficient extent to justify the conclusion that the remaining risk no longer constitutes a proper ground for refusing him bail.[35] The difficulty in this regard arises, in my view, from the proposed monetary amount of the surety. In my opinion, when one has regard to the seriousness of the offence with which the applicant is charged and the importance to the criminal justice system of ensuring that the trial of the applicant and the co‑accused on the charge is able to commence on the allocated dates, the absence of a condition of bail requiring the provision of a substantial surety by a person who is in a position to take steps to ensure that the applicant does not abscond and does attend court as required, precludes the conclusion that the risk of the applicant absconding and/or failing to appear in court will be reduced to such an extent that the remaining risk of this occurring no longer constitutes a proper ground for refusing bail. I am of this opinion even taking into account the remaining proposed stringent conditions of bail and the risk of the applicant suffering an injustice by reason of being kept in custody as an unconvicted person pending his trial. In my view, the provision by Mr Sarmi of a surety in the amount of $5,000 is simply, in all the circumstances, inadequate.
[35] YSN v The State of Western Australia [20].
I am, however, willing to consider releasing the applicant on home detention bail pursuant to cl 3 of pt D of sch 1 of the Act to the Mosman Park residence. In my view, imposing as a condition of bail a home detention in addition to the conditions that are currently proposed by the applicant and the State (save obviously for those that are inconsistent with home detention such as the curfew and reporting conditions) will sufficiently reduce the risk of the applicant absconding and/or failing to appear in answer to his bail such that the remaining risk will no longer constitute a proper ground for refusing to release the applicant on bail.

Conclusion

For the reasons I have given I refuse the application to the extent that it seeks the release of the applicant on bail on conditions that do not include a home detention condition.
I cannot impose a home detention condition in the absence of a report from a community corrections officer dealing with the suitability of the applicant for release on home detention bail and the suitability of the address that it is proposed that he be released to. I will therefore, if the applicant requests me to do so, order pursuant to s 24A(2) of the Act that a report be prepared dealing with the matters specified in cl 3(2) of pt D of sch 1 of the Act, the relevant address the subject of the report to be 8/12 Murray Avenue, Mosman Park.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
3 APRIL 2020

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established