Bertolami v The State of Western Australia - [2009] WASC 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BERTOLAMI -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 269

CORAM: HALL J

HEARD: 4 SEPTEMBER 2009

DELIVERED : 4 SEPTEMBER 2009

PUBLISHED : 16 SEPTEMBER 2009

FILE NO/S: MCS 63 of 2009

BETWEEN: JAMES LEE FREDERICK BERTOLAMI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Murder - Exceptional reasons - cl 3C Bail Act 1982 (WA)

Legislation:

Bail Act 1982 (WA), s 13, s 15, sch 1 pt C cl 3C

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr T F Percy QC
Respondent: Mr B Fiannaca SC

Solicitors:

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

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

Fawcett v The Queen [2002] WASC 285
Fazzari v The State of Western Australia [2004] WASC 71
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Mercanti v State of Western Australia [2005] WASCA 254
Pinkstone v The Queen [2000] WASC 321; (2000) 119 A Crim R 462
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v McDowell [1954] QWN 47
R v Sefton [1917] VLR 259
R v Street [1944] QWN 24
Rauch v The State of Western Australia [2005] WASC 241
Sabau v The State of Western Australia [2007] WASC 183; (2007) 173 A Crim R 401
Saka v The Queen [2001] WASC 92
State of Western Australia v Oates [2004] WASC 214
The State of Western Australia v Sturgeon [2005] WASC 256
WCVB v The Queen (1989) 1 WAR 279

HALL J: On 4 September 2009 I heard this application for bail. At the conclusion of the hearing I dismissed the application, gave brief oral reasons and stated that I would publish more detailed reasons subsequently.
The applicant is charged with one count of murder pursuant to s 279 of the Criminal Code (WA). He is also charged with two counts of aggravated burglary pursuant to s 401(2)(a) of the Criminal Code. The offences all arise out of the same factual circumstances, but the charges were preferred at different times. The applicant was charged with the burglaries in late February 2009 and appeared on those charges both in the Magistrates Court and the District Court until 31 July 2009. He pleaded guilty to the burglary charges on 25 March 2009. Until 31 July 2009 he was on bail but on that date he was charged with murder and bail on the other charges was revoked.
Section 15 of the Bail Act 1982 (WA) provides that when an accused is in custody for murder, the power to grant bail can only be exercised by a judge of the Supreme Court (other than in the case of a child). Section 7B of the Bail Act provides that an accused person charged with murder may make an application to a judge for bail at any time prior to conviction. Section 13 of the Bail Act provides that the jurisdiction to grant bail is exercised subject to, and in accordance with, Part 3 of the Bail Act and Parts B, C and D of Schedule 1 to the Act. Schedule 1, Part C, cl 3C relevantly provides that where an accused is in custody on a charge of murder, bail must be refused unless the court is satisfied that there are exceptional reasons why the accused should not be kept in custody and that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of Part C.
Although cl 3C is a comparatively new provision, bail in murder cases was previously viewed as only appropriate in exceptional circumstances. The rationale for that requirement has been considered in previous decisions of this court. In Mercanti v State of Western Australia [2005] WASCA 254 McLure JA, with whom Pullin and Murray JJA agreed, referred to the statement of Pidgeon J (with whom Owen and White JJ agreed) in Jemielita v The Queen (1994) 12 WAR 362 that:
In the case of murder and other very serious crimes the gravity of the crime and the nature of the penalty on conviction increases the risk of a failure to appear in court to the extent that special or unusual circumstances must be shown (367).
In Mercanti McLure JA stated [17] that there is no relevant distinction between special or unusual circumstances and exceptional circumstances.
The use of the word 'exceptional' in cl 3C implies that the reasons justifying a grant of bail in a murder case must be unusual or out of the ordinary. In Lim v Gregson [1989] WAR 1 Malcolm CJ referred to a number of cases in which exceptional circumstances had been found. They included where a child of 13 years of age was committed for trial on a charge of murder: R v McDowell [1954] QWN 47; a protracted trial where the applicant was in ill‑health: R v Street [1944] QWN 24; and where an applicant was accused of murdering an infant about 4 weeks old: R v Sefton [1917] VLR 259.
Lim v Gregsonwas itself a case where exceptional reasons were held to be present. It involved a medical practitioner with no prior convictions who was said to have caused the death of a patient by administering a dose of intravenous morphine. There was unrebutted expert evidence to the effect that the dose that had been administered was within the range suggested by the Commonwealth Department of Health and that the patient had suffered from gross coronary artery disease. There was also evidence that the appellant in that case owned substantial assets in Western Australia.
The State of Western Australia v Sturgeon [2005] WASC 256 was a case in which bail was granted following a trial at which the jury were unable to reach verdicts and where there was a prospect of the accused remaining in custody as a result for some 17 months. It should also be noted that in Sturgeon E M Heenan J referred to the absence of a statutory requirement for exceptional circumstances to be established other than where cl 3A or cl 3B were applicable. Schedule 1 did not, at that point, include cl 3C. There had been different views expressed as to the need for exceptional reasons in respect of charges for serious offences (including murder): WCVB v The Queen (1989) 1 WAR 279; Jemielita v The Queen; Pinkstone v The Queen [2000] WASC 321; (2000) 119 A Crim R 462; Fazzari v The State of Western Australia [2004] WASC 71; Rauch v The State of Western Australia [2005] WASC 241; and Sabau v The State of Western Australia [2007] WASC 183; (2007) 173 A Crim R 401. Whatever doubt existed in that regard has been clearly resolved in respect of murder by the introduction of cl 3C which became operative on 1 March 2009. That clause applies to any consideration of a case for bail that occurs after the commencement date: s 41(7) Bail Amendment Act 2008 (WA).
The cases referred to provide some examples of exceptional circumstances, but there is no closed list. Each case must be considered on its merits subject to the requirements that the reasons for granting bail where a person is charged with murder must qualify as being exceptional and that bail must be otherwise appropriate. It is possible for a number of circumstances that are unexceptional when taken individually to amount to exceptional reasons when taken together.
It was submitted that the following factors, either separately or in combination, provided exceptional reasons for a grant of bail in this case:
1.the relative strength of the prosecution case;
2.the anticipated delay before this matter comes to trial;
3.the personal circumstances of the applicant;
4.the availability of a significant surety; and
5.past assistance and a desire to assist the prosecution in the future.
The applicant has filed affidavits from himself, his mother, his previous employer and his partner. They set out his personal circumstances, his version of the relevant events giving rise to the charges, the availability of employment if released, and the availability of a substantial surety.
As regards the strength of the prosecution case, the respondent provided a file of materials containing selected witness statements and the transcript of an interview by the applicant with the police. The prosecution case is that on 18 February 2009 the applicant, together with three others, attended at an address in Clarkson with a view to seeking retribution against an occupant who had stabbed their friend earlier that day. I should note that all four men have been charged with the murder. The applicant told the police that in the car trip to the house one of the co‑accused had shown him a knife that he was carrying. The applicant stated that the co‑accused laughed about having the knife and that he did not believe that the co‑accused intended to use it. At the house there was an altercation with a female occupant and the knife was produced by the co‑accused and brandished in a threatening manner. The prosecution case is that the applicant was present when this occurred. The deceased was present at the house but had nothing to do with the earlier stabbing incident. When the altercation with the woman occurred, the deceased said that he was not involved but then ran to a shed in the backyard. He was pursued by the three co‑accused who broke down the shed door. The deceased was then assaulted and stabbed and died shortly thereafter of his injuries. The prosecution case is that the applicant was present when this occurred, though not directly involved in the assault, and there is fingerprint evidence which is consistent with him having touched the frame of the shed door.
The prosecution will rely on s 8 of the Criminal Code to allege that the applicant and the three co‑accused formed a common intention to prosecute an unlawful purpose, namely the infliction of serious harm on persons who were involved in the earlier altercation in which the applicant's friend was stabbed in the arm. The prosecution will assert that it was a probable consequence of that unlawful purpose that one or more of the applicant's group would intentionally inflict grievous bodily harm on another person and that such violence could result in a victim's death. Such a case would not require proof that the applicant intended or foresaw the death of the deceased, it would only require that such an event was a probable consequence of the common intention that had been formed with the co‑accused: R v Keenan [2009] HCA 1; (2009) 236 CLR 397.
On behalf of the applicant it was submitted that his intention was to commit a burglary by attending the home and to seek revenge upon the occupant for the unlawful wounding that had been committed against his friend earlier that day. It was submitted that the common intention was to punch and fight the group involved in the earlier incident, but not to do anything that would cause serious injury. As against this, the prosecution points to evidence that the applicant was aware that one of his co‑accused had a knife; that he was present when that knife was drawn at the house; and that he had an opportunity to withdraw at that stage but did not. The prosecution will also rely on evidence that in the car one of the group said words suggestive of an intention to use violence; that after the stabbing in the shed one of the group said words to the effect that a person had been killed and another person would be; and that the following day the applicant telephoned his friend, who had been stabbed in the earlier incident, and made a statement which suggested he shared responsibility for what had occurred in the shed.
It is not necessary for the purposes of this application for me to make any findings as to the nature of the common intention. Nor would it be appropriate to do so. I would, however, note that on the information provided to me, there is evidence upon which a jury could find that the applicant was a party to a common intention that was of the type alleged by the prosecution. It would also be open to a jury to find that the causing of grievous bodily harm to the deceased, which resulted in his death, was a probable consequence of the carrying out of the unlawful purpose. Whether a jury ultimately makes such findings depends upon their assessment of the evidence and the credibility of the witnesses. Suffice to say, I am not prepared to conclude that the prosecution case is so weak as to constitute exceptional reasons to grant bail.
On the hearing of the application, senior counsel for the applicant submitted that the prosecution case was 'not an overwhelming one'. Even if this was a correct characterisation, a less than overwhelming case does not provide exceptional reasons to grant bail. If the prosecution case was a particularly weak one or there was a high probability of acquittal, the position might be different.
As regards delay, it was submitted that there was likely to be significant delay before the matter is listed for trial. This was said to be exacerbated by the fact that there are four co‑accused and that forensic evidence reports had not yet been completed. The applicant has been in custody since 31 July 2009. Counsel for the prosecution stated that forensic reports will not play a significant part in the prosecution case either against the applicant or the co‑accused and that, in any event, it was anticipated that they would be completed within the next two months. It was further submitted that it was speculative to suggest that there would be a significant delay.
Delay is rarely a factor that in isolation will justify a grant of bail for a charge as serious as murder. Where delay has been a factor it is usually in circumstances where the accused has already been remanded in custody for an extended period: State of Western Australia v Oates [2004] WASC 214. The applicant also relied upon Saka v The Queen [2001] WASC 92, but I note that that case did not involve a murder charge and that, notwithstanding an anticipated delay before trial of some 12 months, bail was refused due to other considerations. To the extent that Sturgeon is relevant, I note that the delay in that case was of a significantly greater order of magnitude and that other factors, such as the occurrence of a trial at which verdicts were not reached, were also taken into account.
There is no evidence from which I could safely conclude that the trial of the applicant will be unduly delayed. The time spent in custody to date is a little over five weeks and does not, in itself, amount to an unreasonable period.
I have had regard to the applicant's personal circumstances. In particular, that he has lived in Western Australia all his life, has extensive family connections in this state, and that he does not have an extensive criminal record. I also recognise that he was on bail from February 2009 to July 2009 in respect of the two aggravated burglary charges and that they arise out of the same events as the murder. There were no incidents of non‑compliance with the bail conditions during that period. However, the applicant is now charged with murder and that raises very different considerations, not least of which is that exceptional reasons are required before bail can be granted. Furthermore, compliance with bail when facing comparatively much less serious charges is not an assurance that bail will be complied with when the stakes are higher.
An affidavit has been filed by the applicant's mother that indicates that she owns substantial assets and is in a position to provide a significant surety if the applicant were released to bail. I have taken that fact into account. The applicant relies on Fawcett v The Queen [2002] WASC 285. That was a case involving charges of attempted murder, not murder, and in which the applicant had already spent 12 months in custody on remand. The availability of a substantial surety in that case was described as being a significant consideration 'in the circumstances'. It is not, however, a matter that justifies a grant of bail in the present circumstances where no delay has yet occurred and the charge is more serious.
It was submitted that the applicant has assisted the authorities to the extent he is able, and continues to be willing to assist. Even if that were so, it was not explained to me why that factor favours a grant of bail. Bail is not a reward; it is granted in circumstances where it is consistent with the need to ensure that the accused person attends his trial. In respect of murder charges, the public interest in ensuring that trials proceed usually requires that accused persons are remanded in custody other than in exceptional circumstances. In any event the claim of assistance is a self‑assessment and it is apparent that the prosecution does not accept parts of the applicant's interview where he has sought to explain or minimise his involvement.
Having considered all of the factors in this case, both individually and in combination, I was not satisfied that exceptional reasons existed for granting bail. Accordingly, cl 3C required that I refuse to grant bail.