JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BICE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASC 466
CORAM: FIANNACA J
HEARD: 18 OCTOBER 2022
DELIVERED : 2 NOVEMBER 2022
PUBLISHED : 4 JANUARY 2023
FILE NO/S: INS 9 of 2022
BETWEEN: TERRENCE JOHN BICE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Applicant charged with murder - Application for bail under s 7B, s 13 and s 15 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) - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Bail refused
Representation:
Counsel:
| Applicant | : | Mr S Watters & Mr J Cox |
| Respondent | : | Mr D Davidson & Mr M Thompson |
Solicitors:
| Applicant | : | Kate King Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Akhbari Sadiqi v The State of Western Australia [2020] WASC 111
Atherton v The State of Western Australia [2005] WASC 15
Austic v The State of Western Australia [2020] WASC 211
Bertolami v The State of Western Australia [2009] WASC 269
De Faria v The Queen [2012] WASCA 256
Donaldson v The State of Western Australia [2010] WASC 264
Emile-Bruning v The State of Western Australia [2016] WASC 211
Fazzari v The State of Western Australia [2004] WASC 7
Goodwyn v The State of Western Australia [2011] WASC 328
Hedgeland v The State of Western Australia [2011] WASC 181
Hishmeh v The State of Western Australia [2019] WASC 188
Kickett v The State of Western Australia [2020] WASC 110
Lim v Gregson [1989] WAR 1
Mikhail v The State of Western Australia [2010] WASC 201
Mikhail v The State of Western Australia [2010] WASC 238
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Rayney v The State of Western Australia [2011] WASC 3
Roberts v The State of Western Australia [2011] WASC 118
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
Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303
FIANNACA J:
The application and its history
Terrence John Bice (the applicant) is charged on indictment that, on 1 June 2020, at Nedlands, he murdered Teagan Jade Ferguson (the deceased). He was arrested and charged by police on 23 November 2021, and was indicted in this court on 22 April 2022. On 16 May 2022, he entered a plea of not guilty. His trial is listed, provisionally, to commence on 17 July 2023.
The applicant has applied for bail before trial. He has been in custody on remand since his arrest on 23 November 2021. He has not previously applied for bail.
It is an unusual case. The applicant's acts, which are alleged to have caused the deceased's death, occurred on 12 March 2005. The deceased was the applicant's daughter. She was nearly three years old. The applicant caused her permanent injuries that left her in a severely disabled condition. The applicant was convicted on his plea of guilty, on 17 June 2005, of the offence of aggravated grievous bodily harm (contrary to s 297(1) and s 297(3) of the Criminal Code (WA)), the circumstance of aggravation being that he was in a family and domestic relationship with the deceased. On 30 June 2005, he was sentenced to a term of 5 years' imprisonment for that offence, with eligibility for parole.
The deceased lived for another 15 years. She died on 1 June 2020. It is alleged that the deceased's death is causally linked to the injuries caused to her by the applicant in 2005, so that he is criminally responsible for her death, despite the length of time between the applicant's alleged culpable acts and the deceased's death.
Notwithstanding the unusual circumstances, the application for bail comes to be dealt with as any other case in which an accused is charged with murder. Bail must be refused unless the court is satisfied there are exceptional reasons why the accused should not be kept in custody.
I heard the application on 18 October 2022. I gave my decision on 2 November 2022, at which time I refused bail, as I was not satisfied there were exceptional reasons why the applicant should not be kept in custody. I gave brief reasons, with detailed reasons to follow. These are my reasons.
The legal framework
Legislative provisions
As the applicant is charged with the offence of murder, pursuant to s 279 of the Criminal Code, the application is governed by s 7B, s 13 and s 15 of the Bail Act 1982 (WA) (the Act). 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 provides, relevantly:
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 principles that apply in determining those issues are not in dispute. It is convenient to deal with the two requirements in paragraphs (c) and (d) in that order.
Exceptional reasons
The Act does not define the term 'exceptional reasons'. However, it has been held 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 run of cases.[1] There is no closed list of circumstances which might constitute exceptional reasons.[2] What might constitute exceptional reasons may depend upon the facts in each particular case.[3] A single matter or a combination of matters may constitute exceptional reasons.[4] It is possible that a number of circumstances that are unexceptional when taken individually will amount to exceptional reasons when taken together.[5] As with bail applications generally, it is necessary to look at the circumstances as a whole, weighing competing factors in determining whether exceptional reasons have been established.[6]
[1] Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303 [15]; Shrivastava v The State of Western Australia[2010] WASCA 96 (Shrivastava) [28] - [32]; De Faria v The Queen [2012] WASCA 256 [13].
[2] Roberts v The State of Western Australia [2011] WASC 118 [9].
[3] Shrivastava.
[4] Bertolami v The State of Western Australia [2009] WASC 269 (Bertolami) [9].
[5] Bertolami [9].
[6] Atherton v The State of Western Australia [2005] WASC 15; Donaldson v The State of Western Australia [2010] WASC 264 (Donaldson) [57].
In Donaldson,[7] in the context of an application for bail governed by cl 3A of sch 1 pt C of the Act, which also requires the court to be satisfied that there are exceptional reasons why an accused should not be kept in custody, before bail can be granted, Murray J elucidated what would constitute exceptional reasons in the following terms, which, in my respectful opinion, provide helpful guidance:[8]
Those are not reasons different in character from the considerations which would ordinarily affect the exercise of the discretion to grant bail. They are the same considerations, but their exceptional nature lies in their power to overcome the considerations which tend toward a decision that bail should be refused. The reasons favouring the grant of bail will not be 'exceptional', only because they are rarely encountered. Their exceptional quality is derived from their persuasive power in favour of the grant of bail in the particular circumstances of the case before the court.
[7] See footnote 6.
[8] Donaldson [58].
The principal rationale for the need for exceptional reasons before bail can be granted in murder cases 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 or her bail undertaking, because of the severity of the sentence of imprisonment likely to be imposed if the person is convicted.[9] However, as I noted in Hishmeh v The State of Western Australia,[10] a further rationale may be that a charge of murder gives rise to concerns that the accused may pose a danger to human life, notwithstanding the presumption of innocence. Whether the risk of danger to society, or to some particular person or persons, is a significant consideration in any particular case will depend on the circumstances of the case.
[9] Fazzari v The State of Western Australia [2004] WASC 7 [13]; Emile-Bruning v The State of Western Australia [2016] WASC 211 (Emile-Bruning) [7].
[10] Hishmeh v The State of Western Australia [2019] WASC 188 (Hishmeh) [24] - [26].
Of course, the seriousness of the offence, the circumstances in which it is alleged to have been committed, and the risk posed to the safety of any person are also factors that must be taken into account in considering the second limb of cl 3C.
As I also noted in Hishmeh, insofar as the rationale for cl 3C rests on the presumed enhanced risk of flight because of the statutory penalty, the presumption is not displaced by demonstrating that, upon the ordinary consideration of the factors in cl 1 and cl 3, the applicant might be regarded to be a low flight risk if stringent bail conditions are imposed.[11] If the argument for the existence of exceptional reasons relies on the applicant being a low risk of absconding, there would need to be evidence of exceptional circumstances that satisfied the court positively that the applicant was likely to answer his bail.[12] While factors such as ties to the jurisdiction, suitable accommodation or relatively good recent antecedents will be relevant considerations, there would need to be something unusual or out of the ordinary about the applicant's circumstances before they could be regarded as exceptional.
[11] Hishmeh [27].
[12] Hishmeh [27], referring to Lim v Gregson [1989] WAR 1, at 18, where Malcolm CJ formulated the question as 'whether … the circumstances were sufficiently exceptional to make it probable that the appellant would not abscond, but would respond to his bail'.
Significant delay before trial may, in some circumstances, constitute an exceptional reason for the purposes of cl 3C.[13] In Hishmeh, I discussed the relevant considerations in that regard in some detail.[14] For present purposes, it is sufficient to note that, while delay in a matter proceeding to trial is a relevant consideration generally under cl 1 of sch 1 pt C of the Act, in order for delay to constitute an 'exceptional reason' under cl 3C, it must be of a kind that is 'additional' and has occurred unnecessarily, in that the accused ought to have been tried earlier. Such delay may constitute an exceptional reason because of the potential for injustice as a result of the accused spending unnecessary time in custody, in the event that the accused is ultimately acquitted.[15] As Hall J pointed out in Emile-Bruning:[16]
Regrettably, delays to trial in homicide matters are often much longer than those referred to. As was noted by Blaxell J in Mikhail,[17] some period of time in custody between being charged and coming to trial must have been contemplated when the provision requiring that bail on murder charges not be allowed other than in exceptional circumstances was introduced.
[13] The State of Western Australia v Sturgeon [2005] WASC 256 (Sturgeon) [50]; Hedgeland v The State of Western Australia [2011] WASC 181 [26]; Mikhail v The State of Western Australia [2010] WASC 201; Mikhail v The State of Western Australia [2010] WASC 238 [10] ‑ [11]; Emile‑Bruning [9].
[14] Hishmeh [19] - [23].
[15] Mikhail v The State of Western Australia [2010] WASC 238 [10].
[16] See footnote 9 above.
[17] Referring to Mikhail v The State of Western Australia [2010] WASC 238.
In determining whether delay constitutes an exceptional reason in a particular case, the court will have regard to the strength of the prosecution case. While there are limitations to the court's ability to assess the strength of the prosecution case on a bail application, that assessment is nevertheless a necessary aspect of the court's task.
As I explained in Hishmeh, I consider that, when weighing the strength of the prosecution case in the context of determining whether there are exceptional reasons why the applicant should not be kept in custody, it is relevant to take into account the prospect of the applicant being convicted of an alternative offence open on a charge of murder. In other words, the context for the assessment of the strength of the case under the first limb of cl 3C is the potential injustice to the accused of remaining in custody if subsequently he is not convicted of any offence open on the charge of murder that would require him to be sentenced to a term of imprisonment commensurate with, or longer than, the time he has spent in custody. More particularly, although the need to find exceptional reasons arises because the accused is charged with murder, the strength of the evidence, and therefore the prospect of conviction, in relation to the alternative offence of manslaughter, for which the maximum penalty is life imprisonment, would have a bearing, as a matter of logic, on whether the potential for injustice resulting from delay is such as to constitute an exceptional reason why the accused should not be kept in custody
The cases in which bail has been granted on a murder charge have been rare, which tends to underline the exceptionality of the circumstances that must be established. Generally, there has been some factor, or a combination of factors, of an exceptional nature that has or have informed the decision, positively reached, that the applicant was likely to answer bail, or which operated independently of such an assessment to make the grant of bail appropriate.
For instance, in Lim v Gregson,[18] the accused had sworn an affidavit in the bail application putting his defence in detail, and the majority of the Full Court was satisfied that he was motivated to attend his trial to defend the charge against him. The unusual circumstances of that case, in which a possible defence was readily apparent, in combination with the accused's personal circumstances, satisfied the majority that he was likely to appear when required and defend the charge.
[18] Lim v Gregson [1989] WAR 1.
In Sturgeon, the applicant applied for bail pending a retrial, after the jury at his first trial was discharged, having been unable to reach a verdict. The accused had been in custody since October 2004, when he was arrested.[19] The first trial was held in October 2005, and it had been ascertained that it was most unlikely that a retrial would be possible before May 2006.[20] In finding that there were exceptional reasons why the accused should not be kept in custody, EM Heenan J relied primarily on the prospect that the accused would be detained in custody for a further seven months, which his Honour considered to 'plainly [transcend] any tolerable limit' of delay.[21] However, that was in the context of the jury being unable to reach a verdict at the first trial in the context of a circumstantial case. Although his Honour considered the prosecution to have a strong circumstantial case, he noted that it was not successful at the first trial and 'it [was] yet to be seen whether or not it [would] be conclusive'.[22]
[19] Sturgeon [3].
[20] Sturgeon [1], [3].
[21] Sturgeon [56].
[22] Sturgeon [25].
In Mikhail v The State of Western Australia,[23] Blaxell J found exceptional reasons and granted bail to one of the two co-accused in circumstances where the accused would be in custody for more than two years before coming to trial. However, his Honour took into account the strength of the case against each of the two accused and refused bail in respect of the co-accused, notwithstanding the delay, because the case against him was strong.
[23] Mikhail v The State of Western Australia [2010] WASC 238.
In Rayney v The State of Western Australia,[24] Anderson AUJ concluded there were a number of factors which, together, constituted exceptional reasons justifying a grant of bail.[25] The first was that the applicant would spend an 'exceedingly long time' in custody before trial.[26] Secondly, there was a need for the applicant 'to work more extensively than usual with his lawyers in order to properly and effectively instruct them in the preparation of his defence', because of the 'mountain of evidence' and the 'nature, size and complexity of the prosecution case'.[27] The degree of difficulty of doing so while in custody was considered by Anderson AUJ to be 'beyond mere inconvenience and could seriously hamper the full and timely preparation of the defence'.[28] Thirdly, in combination with the likelihood of a long delay before the applicant was able to be tried, the welfare of the applicant's children and the desirability of keeping the family together was also considered to be an exceptional reason why the applicant should not be kept in custody.[29] That conclusion was reached against the background of a long and well publicised investigation, which was considered by his Honour to have caused the children strain and insecurity over a considerable period.[30]
[24] Rayney v The State of Western Australia [2011] WASC 3 (Rayney).
[25] Rayney [9], [15].
[26] Rayney [9].
[27] Rayney [9].
[28] Rayney [9].
[29] Rayney [15].
[30] Rayney [15].
In the present application, while counsel for the applicant did not suggest there was any comparison to the circumstances of Rayney to which I have just referred, he suggested the case was comparable because of the finding by Anderson AUJ that Mr Rayney did not pose a serious flight risk. I will deal with the merits of that argument later in these reasons. At this stage I note that, in Rayney, the assessment of flight risk appears to have been made by Anderson AUJ in the context of considering the factors under cl 1 and cl 3, pursuant to the second limb of cl 3C,[31] having concluded there were separate exceptional reasons why the accused should not be kept in custody.
[31] Rayney [25] ‑ [44].
In Goodwyn v The State of Western Australia,[32] Commissioner Sleight found there were exceptional reasons why the accused should not be kept in custody because of a combination of factors, in particular the significant delay that had occurred and the nature of the case against him.[33] In that case, the trial had been twice listed for trial and adjourned. Although that had occurred at the request of the accused, the requests were considered by his Honour to be legitimate.[34] His Honour was of the view that the accused's remand in custody was significantly longer than would normally occur.[35] His Honour was also of the view that the State's case could not be classified as a very strong case.[36] His Honour also took into account the respondent's strong ties to the jurisdiction, including his two young children for whom he had been fighting to obtain access to during his period in custody, his supportive parents and the availability of employment.[37] However, it is apparent from the decision that the factors of delay and the nature of the prosecution case were the most significant factors.
[32] Goodwyn v The State of Western Australia [2011] WASC 328 (Goodwyn).
[33] Goodwyn [44].
[34] Goodwyn [38].
[35] Goodwyn [38].
[36] Goodwyn [40].
[37] Goodwyn [42].
In Emile-Bruning,[38] exceptional reasons were found as a result of a combination of factors. The first was that the prosecution case did not appear to be strong, as the accused's claim of self-defence was considered by Hall J to be strongly supported by the existing evidence.[39] The second was the delay before trial, which alone would not have been sufficient to constitute an exceptional reason, but was relevant when coupled with the factor regarding the strength of the prosecution case.[40] The final factor was the need for the accused to care for and maintain dependents. Although his Honour noted that such a factor would rarely in itself meet the criteria of exceptional reasons, it was a relevant factor that could meet that requirement when coupled with other factors.[41]
[38] See footnote 8 above.
[39] Emile-Bruning [24].
[40] Emile-Bruning [26].
[41] Emile-Bruning [31].
In AkhbariSadiqi v The State of Western Australia,[42] Kickett v The State of Western Australia,[43] and The State of Western Australia v Samura,[44] all of which related to the same case in which the accused were jointly charged with the offence of murder, exceptional reasons were found by Derrick J in the combination of three factors in each case, being the period of time the accused would spend in custody before trial, the strength of the prosecution case against the accused, and the impact of the accused's custody on his ability to adequately prepare his defence. I note that two of the accused also relied on family hardship as an exceptional reason. His Honour was not persuaded that family hardship was an exceptional reason why the accused should not be held in custody in either case.
[42] Akhbari Sadiqi v The State of Western Australia [2020] WASC 111.
[43] Kickett v The State of Western Australia [2020] WASC 110.
[44] The State of Western Australia v Samura [2019] WASC 210.
Finally, in Austic v The State of Western Australia,[45] bail was granted pending the accused's re-trial, after his conviction for wilful murder was set aside by the Court of Appeal, on an Attorney General's reference under s 140(1)(a) of the Sentencing Act 1995 (WA), and a new trial ordered. The accused had been sentenced after conviction in 2009 to life imprisonment with a minimum term of 25 years. Including the portion of his life sentence already served, the accused had spent in excess of 12 years and 10 months in custody. Justice Derrick concluded that the length of time that the applicant would have spent in custody as an unconvicted person prior to the completion of his retrial (which his Honour noted was 'extraordinarily lengthy'), when considered in light of the strength of the State's case and the applicant's prospects of acquittal, constituted an exceptional reason for not keeping him in custody.[46] His Honour was of the view that those circumstances made the case unusual, out of the ordinary or an exception to the general trend of cases.[47]
Considerations under cl 1 and cl 3
[45] Austic v The State of Western Australia [2020] WASC 211 (Austic).
[46] Austic [60] ‑ [61].
[47] Austic [61].
The focus in this application, appropriately, was on the first limb of cl 3C. If that limb is satisfied, it is then necessary to consider the requirements of cl 1 and cl 3 of sch 1 pt C of the Act, which inform the second limb that must be satisfied under cl 3C.
Clause 1 requires the court to consider a number of questions which address, first, whether there are grounds to refuse bail (subclauses (a) ‑ (d) and (g)), and secondly, whether there are any conditions that the court can impose which would sufficiently remove the reasons for refusing bail (subclauses (e) and (f)).
Dealing only with those provisions that are relevant in this case, the first category of questions, in subclause (a), requires consideration of whether the applicant will appear at a future court date, will commit an offence, will endanger the safety or welfare of others, or will interfere with witnesses or obstruct justice.
In considering those questions, the court must have regard to the factors set out in cl 3 of sch 1 pt C, which include (a) the nature and seriousness of the offence and the probable method of dealing with the applicant for it if he is convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to him; and (d) the strength of the evidence against him.
The second category of questions, under cl 1(e), requires consideration of conditions that may alleviate the risks that would otherwise justify a refusal of bail.
Clause 1(g) falls into the first category of questions, but is concerned with circumstances in which bail may be refused independently of consideration of the questions in subclauses (a) and (e). It requires the court to consider 'whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate'.
The proper approach to be taken when considering the questions and factors in cl 1 and cl 3 is well known and was explained by McLure P in Milenkovski v The State of Western Australia.[48] The Court of Appeal has further elaborated on the proper approach in YSN v The State of Western Australia.[49] The principles that emerge from those cases apply in the consideration of the second limb of cl 3C in this case, in the event that the court is satisfied under the first limb that exceptional reasons exist why the accused should not be kept in custody.
[48] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25], [39] ‑ [41].
[49] YSN v The State of Western Australia [2017] WASCA 155 [15] ‑ [21].
Evidence in the bail application
A number of affidavits and annexures were received into evidence from both parties to the application, along with an undated and unsigned letter to the court, which I accepted to be from the applicant. In addition, I had before me the prosecution brief of evidence, which included witnesses' statements, expert reports, and other materials to which I will make reference in these reasons. Those materials included the transcript of the applicant's interview with the police on 13 March 2005, which was electronically recorded, and the transcript of the District Court sentencing proceedings on 17 and 30 June 2005 in relation to the charge of aggravated grievous bodily harm.
The application was supported by the affidavits of Jesse John Cox, the applicant's solicitor, dated 22 August 2022 (exhibit 1) and 17 October 2022 (exhibit 2), and the unsigned and undated letter from the applicant (exhibit 3). Exhibit 1 annexed seven documents to which I will make reference later. Exhibit 2 annexed handwritten notes made by the applicant in response to materials filed by the respondent.
The respondent relied on three affidavits (with annexures) of the investigating officer, Detective Sergeant Hugh Peregrine Scott, dated 29 September 2022 (exhibit 4), 6 October 2022 (exhibit 5) and 12 October 2022 (exhibit 6). One of the annexures to exhibit 4 was a USB drive containing prison calls between the applicant and various persons, which, as electronic files, were received as annexures HS 4, HS 11, HS 13, HS 14 and HS 15.
The facts of the alleged offending
In considering both limbs of cl 3C, it is relevant to have regard to the circumstances of the alleged offending. The alleged facts are stated briefly in the Statement of Material Facts served on the applicant by the police in respect of the murder charge, which is annexure JJC‑1 to exhibit 1. With respect, the statement does not adequately outline the State's allegations against the applicant. In outlining the circumstances of the alleged offending below, I have relied on the Statement of Material Facts, but have also drawn on other materials in the prosecution brief, including the facts stated in the sentencing proceedings in June 2005.
The applicant was the biological father of the deceased, who was born on 28 March 2002. She was born healthy and had no complications during birth.
On 12 March 2005, the applicant was at home with his ex‑partner, Kristy Ann Ferguson (Ms Ferguson), and their two daughters, the deceased and her sister, Courtney, who was nearly 4 years old. The deceased became restless and began to cry. Ms Ferguson was in the shower. The applicant tried unsuccessfully to settle the deceased down as she lay on her bed. He went to the shower and told Ms Ferguson that their daughter was crying and that he could not calm her. He then returned to the deceased's bedroom and became angry that he could not calm her. He picked her up, held her out at arm's length and said, 'Enough is enough'.[50] He then threw the deceased violently to the ground, which was a carpeted concrete floor. The deceased landed approximately three metres away from the applicant, hitting her head on the ground.[51] The force with which her head hit the ground was such that it caused an audible thump that was heard by Ms Ferguson in the shower. As a result of hitting her head on the ground, the deceased suffered a traumatic brain injury. She immediately lapsed into unconsciousness and became limp and unresponsive.
[50] Prosecution Brief (PB) 211. This was a fact relied upon by the State, and admitted by the applicant, at the applicant's sentencing in 2005.
[51] PB 211. This also was a fact relied upon by the State, and admitted by the applicant, at the applicant's sentencing in 2005.
The applicant picked up the deceased and carried her to the loungeroom. Ms Ferguson came into the loungeroom. The applicant told her that something had gone wrong with the deceased and that she was not breathing. Ms Ferguson called for an ambulance, and the applicant attempted to revive the deceased with mouth-to-mouth resuscitation.[52] When the ambulance arrived, the deceased was taken to Joondalup Hospital, before being transferred to the intensive care unit of Princess Margaret Hospital. She was in a critical condition and was placed on life support (intubated and put on ventilator support).[53] Scans showed a subdural haematoma and swelling of the brain.[54] She underwent emergency neurosurgery that evening, which required removal of skull bone to remove the haematoma and relieve the pressure on her brain.[55]
[52] PB 212.
[53] PB 212, 280.
[54] PB 280.
[55] PB 281.
As a result of the assault, the deceased was left with 16 chronic medical complications. They included a seizure disorder, cerebral palsy, profound intellectual disability, a swallowing disorder, respiratory illness, chronic pain, cerebral visual impairment, various skeletal and musculature conditions, contracture of the limbs, hormonal disturbance and thermoregulatory disturbance.
The deceased lived the remainder of her life in hospitals, respite, and rehabilitation clinics, and at home in the care of her mother. She was highly dependent, requiring care 24 hours a day.
When interviewed by police on 13 March 2005, the applicant initially lied about what had happened, claiming the deceased had fallen out of her bed, but he subsequently made admissions, essentially consistent with the outline of the facts in [40] and [41] above.[56] He denied having any intention to kill the deceased.[57] He claimed he threw her to the ground to make her stop crying, but said that otherwise he did not know what was going on in his mind.[58]
[56] PB 184 - 207 (transcript of electronic audio-visual recording of the interview).
[57] PB 193, 206 - 207.
[58] PB 207.
I note that the facts on which the State relied in the proceedings in 2005 were derived largely from the applicant's account to the police. Although that account was mostly consistent with the account now given by Ms Ferguson in a statement dated 28 October 2020, contained in the prosecution brief, Ms Ferguson's account has the applicant carrying the deceased in through the front door, suggesting the incident occurred outside.[59] There is a statement from Courtney Ferguson, dated 20 October 2020, made when she was 19 years old, in which she says she saw the incident in which the applicant threw the deceased to the ground on 12 March 2005, and that it took place on the footpath at the front of their house.[60] That is an account about events when she was approximately 4 years of age.
[59] PB 13 [68] - [70].
[60] PB 31 - 32 [32] - [35].
At the hearing of this application, the State did not indicate whether Courtney Ferguson will be called at trial, or whether the factual allegations at trial will be different to the facts relied on by the State at sentencing in 2005. I have proceeded on the basis that the State's case in relation to the applicant's physical acts constituting the offence of murder are as presented in 2005.
On 17 June 2005, the applicant pleaded guilty to unlawfully doing grievous bodily harm to the deceased, with the aggravating factor that he was in a family and domestic relationship with her. On 30 June 2005, he was sentenced to 5 years' imprisonment. It is apt to note that the learned sentencing judge determined that the term commensurate with the seriousness of the offence was 10 years' imprisonment before making reductions for the applicant's fast track plea of guilty and the mandatory statutory reduction of one third of the sentence that applied at that time.
On 1 June 2020, the deceased died at Perth Children's Hospital, 15 years after the incident in which the applicant caused her grievous bodily harm. As will appear below, there is medical evidence that her death was causally linked to the grievous bodily harm she suffered on 12 March 2005, and, therefore, to the applicant's acts on that day.
After the deceased's death, police commenced a homicide investigation. On 23 November 2021, the applicant was arrested and charged with murder.
The basis of the State's case
To prove the offence of murder, the State must prove that:
(1)the applicant killed the deceased – that is, he caused her death directly or indirectly;
(2)the killing was unlawful; and
(3)at the time of doing the act that caused the deceased's death, the applicant intended to kill the deceased or do her a bodily injury of such a nature as to endanger or be likely to endanger her life. Whether the injury the applicant intended to cause was of such a nature is an objective question.
The State's case, on the basis of medical expert evidence, is that 'the main or substantial cause of death of [the deceased], whether directly or indirectly, were the injuries she suffered at the hands of the [applicant], being the severe traumatic brain injury'.[61] The State will rely on the applicant's admissions, including his guilty plea to the offence of aggravated grievous bodily harm, and the evidence to be given by Ms Ferguson, as disclosed in the prosecution brief, to prove that the applicant caused the injuries that resulted in the deceased's death.
[61] Outline of State's Submissions as to Bail [8].
The expert medical evidence consists of the reports of:
(1)the forensic pathologists, Dr C Cooke and Dr J Ong;
(2)the neuropathologist, Dr Victoria Fabian;
(3)the clinical pharmacologist and toxicologist, Dr David Joyce;
(4)a consultant paediatrician at Perth Children's Hospital, Dr Anna Gubbay, who was involved in the deceased's care from 2005 until her death; and
(5)a consultant paediatrician at the Child Protection Unit in the Perth Children's Hospital, Dr Alice Johnson.
It is not necessary for present purposes to go into significant detail about the post mortem findings by Dr Cooke or Dr Fabian, Dr Joyce's analysis of the toxicological findings, Dr Gubbay's outline of the deceased's medical conditions from 2005 until her death, or Dr Johnson's opinions which, in essence, go to the foreseeability of the deceased's injuries and her death as consequences of the applicant's actions on 12 March 2005. The following outline is sufficient for the purposes of assessing the strength of the prosecution case.
After conducting a post mortem examination on the deceased on 4 June 2020, Dr Cooke and Dr Ong reported that the cause of death was 'Undertermined (Pending Investigation)'.[62] Following the receipt of the results of further investigations, they reported that they were of the opinion that the cause of the deceased's death was 'Bronchopneumonia in a young woman with multicystic encephalopathy, with terminal palliative care'.[63] They reported that the examination showed the body of a woman with low body weight (34 kg) and reduced muscle mass, with apparent contractures of limbs and congestion of her lungs. The multicystic encephalopathy, which was detected in the neuropathology examination, is an end-stage change in the brain.[64] The forensic pathologists further stated that the deceased had died in hospital whilst receiving terminal comfort care for multiple medical problems, including a severe brain disorder (the multicystic encephalopathy).[65]
[62] PB 252.
[63] PB 264.
[64] PB 264.
[65] PB 264.
Dr Fabian's report is largely of a technical nature and would require elucidation by her in evidence, in terms of the relationship of the finding of multicystic encephalopathy to the original traumatic brain injury. However, in light of the fact that the only evidence in the prosecution brief of trauma to the deceased's brain is the incident of 12 March 2005, it is appropriate to note the following comments in Dr Fabian's report:[66]
Multicystic encephalopathy is an end stage change in the brain. In multicystic encephalopathy the brain parenchyma is replaced by cysts of varying sizes. Multicystic encephalopathy has been associated with multiple causes. The common factor is the occurrence of severe cerebral hypoxic-ischaemic encephalopathy. Hypoxic-ischaemic encephalopathy is a reduction in oxygen and blood supply to the brain.
[66] PB 261.
The toxicology results from a blood sample taken from the deceased upon her admission to the mortuary showed elevated levels of free and total morphine.[67] The toxicology results from a sample from the post mortem examination showed the presence of Midazolam, which is a drug given for seizures.[68] In his report, Dr Joyce explains that morphine and Midazolam are the two most conventional medications prescribed in late palliative care.[69] They had been administered to the deceased in that context. Dr Joyce explains:[70]
Midazolam is a benzodiazepine drug, which gives it potential to interact with opioid drugs, like morphine and buprenorphine. A full consideration of the opioid's toxic potential in [the deceased] therefore also requires comment on midazolam.
[67] PB 258, 273, 275 - 276, 277.
[68] PB 258, 269, 272, 273, 277.
[69] PB 275.
[70] PB 273 [22].
His conclusions are stated as follows:[71]
The blood concentration of morphine is consistent with the reported administration schedules.
The blood concentrations of free and total morphine are above the range encountered during conventional safe treatment of pain in otherwise healthy people who have not acquired tolerance to opioid drugs. However, [the deceased] had demonstrated escalating drug tolerance over the weeks she was receiving morphine and midazolam, predicting tolerance for the further escalations of the final couple of days.
We cannot be absolutely sure that the morphine and midazolam did not bring forward death, simply because the collection of detailed clinical observations was, properly, suspended during [the deceased's] last hours. However, the drug administration history, the basic clinical observations and the post-mortem toxicology, in sum, would not support a concern that that the morphine and midazolam brought forward her death.
The conclusion on cause of death in the Confidential Report to the Coroner (Supplementary Report) of "Bronchopneumonia in a young woman with multicystic encephalopathy, with terminal palliative care" is consistent with the toxicological evidence.
[71] PB 277 [34] - [37].
The evidence that would be given by Dr Gubbay at trial is set out in three reports to the investigating officer, dated 2 September 2020, 14 September 2020 and 19 May 2021, in which she addressed specific issues and questions raised by the officer. Having set out the deceased's medical history since she was admitted to hospital after the incident on 12 March 2005, in particular the medical conditions suffered by the deceased as a result of the incident, Dr Gubbay states in her report of 2 September 2020:[72]
[72] PB 287 - 288. PMH refers to Princess Margaret Hospital (the children's hospital before the commencement of the Perth Children's Hospital) and PCH refers to the Perth Children's Hospital.
[The deceased's] treatments were aimed at improving her quality of life and reducing the burden of care on her family. Treatments were implemented in the context of family centred decision making processes and ethical considerations. Treatments were provided by a (sic) multiple specialties and disciplines via a coordinated team based approach within the Acquired Brain Injury Programme at PMH and PCH.
[The deceased's] overall health gradually declined as she became older. In 2015 she was referred to PMH Palliative Care Service for additional ongoing support around end of life care needs.
In the final weeks of her life, [the deceased's] complications escalated in severity and her clinical status declined significantly. Complications that arose at this point and indicating that she was at end of life included:
•Irreversible gut failure - [the deceased] developed worsening gut dysmotility and became unable to tolerate her enteral feeds and absorb nutrition.
•Worsening of her temperature instability - [the deceased] became unable to independently maintain a normal body temperature.
•Increasing periods of unresponsiveness.
•Peripheral vascular instability - [the deceased] was unable to maintain normal perfusion to her hands and feet which became cold and shut down.
•Intermittent bladder dysfunction.
•Increasing seizures.
•Respiratory failure with irregular breathing pattern, increased cough and increased secretions.
Dr Gubbay goes on to say that the treatments that were employed at that time were those of active end of life cares to manage the deceased's symptoms.[73] She also states that, in total, from the time of her initial presentation to Princess Margaret Hospital with a brain injury on 12 March 2005 until her death on 1 June 2020, the deceased had 57 presentations to the Emergency Department, 138 hospital inpatient admissions and attended 360 outpatient appointments at Princess Margaret Hospital and Perth Children's Hospital.
[73] PB 288.
In her report of 14 September 2020, Dr Gubbay states that the abovementioned admissions were required to treat the deceased's multiple chronic medical conditions that resulted from the traumatic brain injury.[74] She states further:[75]
It is my opinion, the injuries sustained at the time of the traumatic brain injury directly contributed to her death. [The deceased] sustained a severe traumatic brain injury, and as a consequence developed multiple severe chronic medical complications. Although the brain injury was non-progressive, the complications were progressive over time, and, ultimately led to her death
[74] PB 290.
[75] PB 290.
Dr Gubbay concludes:[76]
It is my opinion that [the deceased] died from complications related to the traumatic brain injury sustained on 12 March 2005.
[76] PB 290.
Dr Gubbay's report of 19 May 2021 addresses the question of whether an incident that occurred in 2008 might have been an intervening act that caused her death in the long term.[77] In that incident, the deceased suffered an accidental mild head injury when another student at the school she was attending tipped her wheelchair over while the deceased was seated in the chair.[78] Dr Gubbay says in respect of the incident:[79]
My clinical assessment was that [the deceased] had sustained a mild concussion however, to be certain of this I requested a CT head scan to fully rule out the presence of a significant new brain injury. The scan (performed at 9:02 pm that evening) confirmed that there were no new pathological findings from this accident (i.e. no new haemorrhage within or around the brain tissue, no new focal mass lesions, no mass effect or midline shift and no new skull vault or base of skull fracture). Furthermore, the scan demonstrated stability in terms of the pre-existing damage (extensive left cerebral gliosis and encephalomalacla) when compared with earlier imaging (15/7/2007). The documented clinical and CT findings clearly support the conclusion that that this injury was not significant enough to be considered an intervening act or have any impact on [the deceased's] long term clinical course.
[The deceased] recovered fully from this minor injury (i.e. to back to her pre-existing level of impaired health and disability). This incident did not cause [the deceased] to develop any health other (sic) complications.
[77] PB 291.
[78] PB 292.
[79] PB 292.
Dr Gubbay states earlier in the report:[80]
[The deceased's] "deterioration of life" (specifically her chronically poor health status, profound functional incapacity and subsequent assumed impaired quality of life) was a direct result of the original assault. I'm not aware of any intervening acts that would have contributed to this.
[80] PB 291.
Dr Johnson's report, dated 28 July 2021, addresses questions raised by the investigating officer, which, among other issues, go to the 'likely foreseeable consequence' that a 2 to 3-year-old child would suffer the kind of injury suffered by the deceased, and that death may occur, as a result of the applicant's act, as described by him in his interview with the police in 2005. The other issues addressed by Dr Johnson include the level of force that would be required to cause the kind of traumatic brain injury suffered by the deceased and whether the injury suffered by the deceased was consistent with the applicant's account.
Arguably, some aspects of the opinion sought from and provided by Dr Johnson are not properly matters for expert opinion, as they purport to address jury questions that involve the application of objective standards in determining whether the killing of the deceased was unlawful, if the jury is satisfied the applicant caused her death. Those aspects of the opinion concern the issue of whether the deceased's death was an event that occurred by accident, in that it was not a reasonably foreseeable consequence of the applicant's acts. The State would need to prove that the deceased's death was not an event that occurred by accident by proving that an ordinary rational person in the applicant's position would be able to foresee that the deceased's death was a possible outcome of throwing the deceased to the ground in the way he did. Although a medical expert can assist the jury's determination of that issue by providing an opinion of the likely consequences of certain actions, as occurred in this case, it will be for the jury to determine whether an ordinary rational person would be able to foresee that death was a possible outcome for a 2 to 3-year-old child in the circumstances.
That said, Dr Johnson's opinion that the deceased's death was reasonably foreseeable is not remarkable, in my view, as it would be a conclusion reasonably open to the jury. That is so, irrespective of whether the possibility of death was to be viewed by an ordinary rational person as a short term or long term outcome of the applicant's actions. Whether the jury draws that conclusion beyond reasonable doubt will depend on its own assessment, having regard to all of the evidence in the trial.
Putting aside that aspect of Dr Johnson's opinion, the following opinions expressed by Dr Johnson will be relevant to the jury's consideration of the degree of force used by the applicant, which will bear upon the issue of intention:[81]
Significant force would be required to cause this kind of traumatic brain injury. As stated above, low level falls are extremely common in young children and very rarely cause serious injury. It is my opinion that the mechanism reported (throwing [the deceased] approximately 3 metres from a height of around 180cm) would have required significant force (to throw her that far) and this could have resulted in the injuries detected.
[81] PB 297.
Further, in relation to the question of causation, the following opinions expressed by Dr Johnson may be relevant, particularly when considering Dr Fabian's finding of multicystic encephalopathy, which is associated with hypoxic-ischaemic encephalopathy:[82]
[The deceased] had a serious brain injury requiring neurosurgical intervention and also required admission to the intensive care unit. It is my opinion that [the deceased] would have died without medical intervention.
…
Hypoxia and ischaemia may occur after the primary injury, resulting in secondary brain injury.
[82] PB 298.
In terms of whether the injuries suffered by the deceased were consistent with the applicant's account, Dr Johnson addresses the fact that, in addition to the brain injury, the deceased was found to have a number of external injuries. Dr Johnson raises the possibility of additional trauma in the following passage:[83]
As previously stated, the bruises to [the deceased's] jawline and neck may not have resulted from the account provided by the suspect. This bruising would have resulted from blunt force trauma to these areas such as gripping around the jaw or neck and may not have occurred as a result of the described incident. Bruising in these areas (jawline and neck) is highly suspicious for inflicted injury and if the bruising was present prior to the reported incident, this would suggest a previous incident of inflicted trauma to [the deceased]. The other injuries however, and in particular the brain injuries, as stated above, could have resulted from the suspect's account.
[83] PB 298.
Although it is not clear what reliance the State will place on that opinion, it may be relevant to the question of the applicant's intention, when considered with other evidence in the trial.
Although counsel for the applicant indicated that causation will be in issue at trial, he did not elaborate upon the defence case, and did not refer to any other medical evidence. That, of course, is the applicant's right. It means that the strength of the prosecution case must be assessed on the evidence in the prosecution brief.
Having regard to the medical evidence outlined above, and in the absence of any medical evidence to the contrary in these proceedings, I am of the view that that there is a strong circumstantial case that the applicant's actions on 12 March 2005 caused the deceased's death either directly or indirectly, in that his actions substantially contributed to the deceased's death. I am also of the view that, at this stage, there is a strong case that the killing was unlawful.
The question of intention is arguably less straightforward.
The State's case is that the applicant did the act of throwing the deceased on the ground, with the intention of killing her (contrary to s 279(1)(a) of the Criminal Code) or doing a bodily injury to her of such a nature as to endanger or be likely to endanger her life (contrary to s 279(1)(b) of the Criminal Code).[84] Counsel for the respondent identified five factors on which the State intends to rely, in combination, to prove that the applicant had the relevant intention under s 279(1)(a) or s 279(1)(b) of the Criminal Code. Put another way, the five factors are aspects of the circumstances which, as a whole, are said to prove intention. The essence of the State's case is that the only reasonable inference to be drawn from all of the circumstances is that the applicant had the relevant intention. The relevant circumstances are that:
(1)the applicant threw the deceased, who was a very small and light child (as acknowledged by the applicant in his interview with the police), from head height (approximately 180 cm) onto a hard floor (which he knew to be concrete under the carpet);
(2)he did so in such a manner as to cause her to land on her head;
(3)he did so with such force as to cause a sound that could be heard by Ms Ferguson and Courtney Ferguson, who were in a different part of the house;
(4)the degree of force with which he threw the deceased to the ground was such as to cause the traumatic head injury; and
(5)the applicant acted as he did in order to stop the deceased from crying. The State submits that the only way that could be achieved by the applicant's actions was if the deceased died or suffered a life endangering injury.
[84] ts 36.
As I understood the last circumstance, it is that the only way in which the accused could have believed that his actions would stop the child from crying was if the child was rendered unconscious. The State's case is that, therefore, the accused must necessarily have intended the deceased at least to suffer an injury of such a kind as to render her unconscious. Such an injury would objectively be likely to endanger her life.
As I noted during the hearing of the application, an obvious question in assessing the strength of the prosecution case at this stage is why, in light of what the State submits is the basis for inferring an intention to cause an injury of such a kind as to be likely to endanger life, the State did not charge the applicant in 2005 with the offence of doing grievous bodily harm with intent to do grievous bodily harm (s 294 of the Criminal Code). While the original charge and conviction does not foreclose the possibility of the jury finding that there was an intention to kill or to do an injury that objectively was life-threatening, the approach previously taken by the State begs the question of what weight can be given to the factors on which the State relies in relation to the issue of intention when assessing the strength of the prosecution case on the charge of murder in a bail application.
Notwithstanding that conundrum, and despite the applicant's denial in his interview with the police in 2005 that he had any particular intention, I am of the view that the circumstances provide a reasonable basis for a jury to find that the applicant intended at least to cause the deceased an injury of a kind that, objectively, was life endangering. I do not consider it is possible at this stage to make any further assessment of the strength of the prosecution case on the issue of intention.
However, in my view, it could not be said, on the materials presented at the bail hearing, that there is any weakness in the prosecution case on the charge of murder that could affect the question of whether there are exceptional reasons why the accused should not be kept in custody.
The applicant's personal circumstances
The applicant is 40 years of age. He was 23 when he caused the grievous bodily harm to the deceased.
The applicant is in a de facto relationship with Ms Benita Maver who has been his partner for somewhere between 7 and 9 years.[85] They have two daughters from that relationship, aged 4 and 6, and Ms Maver has a 10-year-old son from a previous relationship, for whom the applicant has been a stepfather. The applicant was living with Ms Maver and the children as a family prior to his arrest.
[85] In exhibit 1, Annexure JJC-2, Ms Maver says it has been 9 years. In his letter to the Court (exhibit 3), the applicant says it has been 7 years.
The applicant claims to have been the primary care giver for the children for a period of two years prior to his arrest, as he had not been working, due to his medical conditions. Annexure JJC‑2 to Mr Cox's first affidavit is an unsigned and undated letter from Ms Maver in which she confirms that she has been the 'main worker' in the family for the past two years, and that the applicant has been a stay‑at‑home parent, although she does not describe what division of responsibility there has been between her and the applicant in relation to the care of the children. Nor is there any indication as to who has cared for the children since the applicant was arrested, or what impact his arrest has had on Ms Maver's ability to maintain paid employment. In any event, it is apparent from what the applicant has said, referred to below, that he intends to return to full-time employment, so he would no longer be the primary care giver.
In her letter, Ms Maver describes the applicant's relationship with her and the children as a positive and caring relationship, in which the applicant has never shown any hostility, aggression or violent behaviour. She says the applicant has sought to imbue the children with values that reject violence as a solution to conflict.
Detective Sergeant Scott's second affidavit (exhibit 6) annexes a statement from Gary Allan Slater, Ms Maver's ex-partner and father of her son. It is evident from the statement that Mr Slater is not on good terms with the applicant. Apart from outlining the history of how the applicant came to be in a relationship with Ms Maver, the statement includes hearsay information purportedly provided to Mr Slater by Ms Maver and their son, concerning the applicant's daily routine prior to his arrest, and his conduct towards Ms Maver since he has been in custody. I have not had regard to those aspects of Mr Slater's statement as evidence of the truth of the information. However, given that there was no objection to the tender of Detective Sergeant Scott's affidavit, I accept prima facie that Ms Maver and her son made statements to Mr Slater along the lines he has described. That is some evidence that the relationship between the applicant and Ms Maver is not always positive. Nevertheless, I have proceeded on the basis of Ms Maver's description of a generally positive and caring relationship.
The description of the hardship experienced by Ms Maver and her children is summed up in the last paragraph of Ms Maver's letter, where she states that she and the children are missing the applicant greatly and wish for him to be returned to their home, not only because they miss him, but because of the emotional and mental detriment they have experienced.[86] There is no evidence of the nature of the 'mental detriment' to which Ms Maver refers. In the broad terms described by Ms Maver, the impact of the applicant's remand in custody on his immediate family is not unusual.
[86] Exhibit 1, p 12, Annexure JJC-2.
The application initially relied on a submission that the applicant's mother and her partner, Mr Watson, were reliant on the applicant for day to day activities, due to their deteriorating health. However, the evidence filed by the applicant does not support that submission. The applicant relied on a letter from Dr M J Afolabi, dated 4 March 2022. It appears Dr Afolabi is Mr Watson's general practitioner. He says both Mr Watson and the applicant's mother, Ms Barradeen, have chronic medical conditions, and that if the applicant were to stay with them it would be of 'immense support' to Mr Watson, as he would be able to help the couple with home maintenance and essential chores, including gardening. However, it does not suggest the applicant had been performing such a role prior to his arrest. Nor is there any evidence as to how the couple have coped since the applicant has been in custody, or indeed since the letter was written, given that the bail application was heard in October 2022. I accept that the applicant has assisted his mother and her partner in the past, and would be able to contribute to reduce any hardship they may experience with home maintenance and chores because of their ailments. However, there is no suggestion that other arrangements could not be made to assist them in the applicant's absence.
Another difficulty with the applicant's submission concerning his desire to assist his mother and her partner is that they live in the Perth metropolitan area, whereas the applicant intends to live with his family in the Gascoyne region of the State.
A letter from Ms Maver's mother, Ms Silva,[87] indicates that the applicant previously provided support to her and her late husband on their plantation in the Gascoyne, and he assisted her when she moved from the plantation to a town house. The letter is in the nature of a character reference, rather than a statement that she is reliant upon the applicant.
[87] Exhibit 1, Annexure JJC-4.
In short, while the evidence indicates that the applicant has been a dutiful son and family member, it does not suggest that the applicant's mother, her partner, or Ms Silva are dependent upon him.
The applicant has an extensive work history in Perth and Carnarvon. After his release from custody in 2008, he worked full time as a chef. He remained in that position until he returned to Victoria for a period of around eight months in 2010, following his father's death. Upon his return to Western Australia, he worked in various roles involving labouring and working in the food services industry, including as a shift manager for fast food restaurants and roadhouses. He maintained employment until 2019, when he was forced to resign from his job as a chef as a result of being diagnosed with chronic migraines. For the bail application, he instructed his lawyer that he has a job offer from his former employer to re-commence full-time employment at Chicken Treat in Carnarvon, which he wished to accept. However, when the investigating officer enquired about the job offer with the applicant's previous employer, the employer responded by email to say that he had not offered the applicant a job recently and would not be in a position to offer him employment if he was successful with a bail application.[88]
[88] Exhibit 4, Annexure HS 12.
The applicant's criminal history
Apart from the conviction for aggravated grievous bodily harm in 2005, the applicant has a record of convictions for other offences as an adult, most significantly in relation to a common assault (2003), breaches of violence restraining orders (14 counts from 2003 to 2013) and aggravated stalking (2013). The criminal history and the Statements of Material Facts in respect of those offences were annexed to Detective Sergeant Scott's first affidavit (exhibit 4). They show that the applicant was convicted of a common assault against Ms Ferguson in 2003. The offence was committed on 2 January 2003. On 13 January 2003, Ms Ferguson was granted a violence restraining order, which, among other prohibitions, prohibited the applicant from communicating or attempting to communicate with her by any means. The applicant subsequently breached the order once on 2 March 2003 and on eight occasions on 24 June 2004 (of which he was convicted on 30 June 2005). The breach in 2003 was by means of the applicant providing a message and his phone number to the occupant of a house where Ms Ferguson was residing, with a request that it be passed on to Ms Ferguson. The eight breaches on 24 June 2004 involved the applicant persistently calling Ms Ferguson on her mobile phone, contrary to the order.
In her statement of 28 October 2020, Ms Ferguson states she first formed a relationship with the applicant when she was 19 and he was 18 (in 1999 or 2000). She says that the applicant became controlling, violent and abusive towards her. She says they broke up towards the end of 2000, after she fell pregnant with Courtney. They resumed the relationship after Courtney was born. However, according to Ms Ferguson, the applicant became violent and abusive again, worse than before. This led to Ms Ferguson obtaining the violence restraining order after the common assault in January 2003. It appears that, by that stage, they had separated again, sometime after the deceased was born in March 2002. Ms Ferguson also describes the circumstances in which the applicant came to live with her and the children again, ostensibly to give Courtney an opportunity to get to know her father. That was around Christmas 2004, after the applicant's breach of the violence restraining order in June 2004.
The breaches in 2013 relate to a violence restraining order obtained against the applicant by Ms B‑P, who was an ex-partner of the applicant.[89] It was served on the applicant on 22 November 2012. The breaches occurred from 9 January 2013 to 7 February 2013. On 9 January 2013, the applicant made three phone calls to Ms B‑P's phone from his mobile phone over a period of two minutes. Each call was terminated before it was answered. On 31 January 2013, the applicant made another call to Ms B‑P's phone, which lasted one second before it was terminated. On 2 February 2013, the applicant made 167 calls to Ms B‑P from 8.38 pm to 11.41 pm. On each occasion he blocked his number so Ms B‑P did not know who was making the calls. One of Ms B‑P's friends answered some of the calls and heard someone breathing, but the caller did not say anything. On 4 February 2013, the applicant made five calls to Ms B‑P's phone in a period of two minutes, shortly after midnight, terminating the call on each occasion before it was answered. On 7 February 2013, the applicant made a call to Ms B‑P's phone at 11.12 pm, terminating the call before it was answered.
[89] Exhibit 4 [19a].
The persistent phone calls from 9 January 2013 to 7 February 2013 were also the basis of the aggravated stalking charge, to which I have referred. The calls had caused the victim anxiety. Having left Carnarvon after obtaining the violence restraining order, she feared the applicant had discovered where she was living and might approach her. Having regard to the nature of the calls, it is clear they were intended to intimidate Ms B‑P.
When interviewed about the calls to Ms B‑P, the applicant strenuously denied having made any attempt to contact her. That indicates a lack of candour and acceptance of responsibility that erodes confidence in his claims in these proceedings that he would comply with any bail conditions.
The applicant has a conviction for breaching bail in 2013. However, there is no evidence in these proceedings of the facts of that breach. The criminal history shows that the applicant has come before the courts on criminal charges on many occasions. It may reasonably be assumed that he was on bail for most of the charges. There is no evidence to suggest a pattern of failing to appear in answer to bail, or failing to comply with bail conditions.
Consideration of exceptional reasons
Matters relied on by the applicant
The applicant initially submitted there were five circumstances which, when considered together, justified the conclusion that there are exceptional reasons why he should not be kept in custody. Ultimately, however, the circumstances were relied on as reasons why I should be satisfied that the applicant does not pose a risk of flight or of committing an offence, notwithstanding the seriousness of the charge and the statutory penalty for the offence. In essence, it was submitted that the rationale for requiring exceptional reasons is absent in this case, and that the lack of risk of flight or offending should be regarded as exceptional, in the sense I have discussed above at [14]. Further, the applicant submitted that, in the context of a lack of risk of flight or offending, the delay before he will be tried on the charge also militates in favour of the conclusion that there are exceptional reasons why he should not be kept in custody. However, the argument in respect of delay relied substantially on the time the applicant has already spent in custody on remand, as the period remaining to the trial date on 17 July 2023 could not be said to be inordinate.
The circumstances on which the applicant initially relied in support of his argument that there were exceptional reasons why he should not be kept in custody were that:
(1)In 2005, he accepted responsibility for his actions by pleading guilty to the charge of aggravated grievous bodily harm and serving the sentence of 5 years' imprisonment that was imposed in the District Court.
(2)The applicant has rehabilitated significantly over the past 15 years.
(3)The applicant suffers from chronic migraines, hypertension and kidney disease and takes prescribed medications.
(4)Prior to his arrest, the applicant was the primary care giver to his children and assisted in the care of his mother and stepfather, such that his incarceration will cause significant hardship to his family.
(5)On or around 9 September 2022, the applicant was 'king hit' by a fellow prisoner, and there are ongoing concerns regarding the applicant's safety within the prison system.
Ultimately, however, the applicant's argument in respect of exceptional reasons relied on three factors that were affected by at least the first four circumstances outlined above. The first was that he has remained in the jurisdiction for a substantial period of time since he was released from the sentence for the offence of aggravated grievous bodily harm, which, it was submitted, suggests there is no risk of flight, or an insignificant risk. Secondly, there will be a substantial delay before the applicant will be able to face trial. Thirdly, there is some degree of hardship to his family.
As the applicant's submissions evolved, and there is a degree of overlap of the factors on which he relied, I propose to deal with each of the matters to which I have referred above.
Difficulties in prison
It is convenient to commence with the argument concerning hardship experienced by the applicant in prison, for reasons that I will refer to collectively as the 'prison issues'. As appears above, the applicant's grounds initially referred to an assault and ongoing concerns for his safety in the prison system. However, the applicant's handwritten notes (exhibit 2, Annexure JJC‑1) also suggested hardship arising from mental health issues.
During the hearing on 18 October 2022, the applicant in effect abandoned reliance on the prison issues as a ground for finding that there are exceptional reasons why he should not be kept in custody. It was not clear whether those issues were still relied on as part of the applicant's personal circumstances that affect the question of whether bail is otherwise appropriate. In the circumstances, it is apt to indicate why I do not consider that the prison issues provide any basis for finding exceptional reasons. Similarly, they would carry little weight in the consideration of whether bail is otherwise appropriate. The circumstances also raise questions about the applicant's candour, as I will explain in referring to telephone calls made by the applicant from prison.
The evidence in relation to the incident in which the applicant was assaulted within the prison does not support a finding that his incarceration will be attended by hardship of an exceptional nature. The facts of the prison incident are outlined in Detective Sergeant Scott's third affidavit (exhibit 6), which draws on incident reports and minutes from the prison records, which are annexed. According to that information, the applicant was assaulted by another prisoner, H, and suffered bodily harm. The assault was not described as a 'king hit'. H admitted the assault, and claimed the applicant was 'playing mind games with him' by 'pretending to be his friend'. H said he was remorseful for his actions and apologised to the applicant. The applicant and H took part in a mediation session, at the end of which (according to the staff report) they shook hands, hugged, and agreed there was no issue between them.[90]
[90] Exhibit 6, HS 1.
I note also that, during telephone calls from prison with his mother, her partner and the applicant's brother, the applicant said:
(1)that he could deal with being in prison and it did not bother him 'one bit';[91] and
(2)that he could handle being in prison, which was 'just a spit in the ocean', although he had asked for protection, for reasons he explained, which I need not elaborate.[92]
[91] Exhibit 4, Annexure HS 13.
[92] Exhibit 4, Annexure HS 14.
In notes made by the applicant in response to the respondent's submissions about those calls, he seeks to explain his comments on the basis that they were intended to ease the minds of his family members.[93] He claims that there are other calls in which he speaks about the problems he is having with his mental health, and that the prison records would show that he has had frequent appointments with a counsellor.[94] I have listened to the calls. It seems to me that the applicant was expressing a genuine belief that he could cope with incarceration, irrespective of his mental health issues.
[93] Exhibit 2, Annexure JJC-1, 7.
[94] Exhibit 2, Annexure JJC-1, 7.
In any event, the applicant's account, in his notes, of his mental health issues does not raise matters that could be regarded as exceptional, as they are not uncommon issues for persons who are in custody awaiting trial. The issues appear to stem from a number of fears identified by the applicant in his handwritten responses to materials filed by the respondent, namely: fear that Ms Maver and her children do not have a support network; 'fear of results'; fear of not being able to see Ms Maver and the children; and concerns 'for them not being able to visit [the applicant] for their own benefit' because of Ms Maver's work commitments and the children's schooling.[95] Fears of that kind are not unusual for accused persons in the applicant's situation.
Family hardship
[95] Exhibit 2, Annexure JJC-1, 8.
During the hearing on 18 October 2022, the applicant did not advance family hardship as a matter that would, on its own, constitute exceptional reasons why he should not be kept in custody. However, it was relied on as a factor that in combination with other factors could lead the Court to find there are exceptional reasons. Further, the applicant's role within his family was relied on as a matter that demonstrated his ties to the jurisdiction and, therefore, a lack of risk of flight. In addition, as I understood the applicant's argument, his family circumstances also made it unlikely that he would offend if he was on bail. Finally, it was submitted that the applicant's personal circumstances, as outlined above, remain relevant to the consideration of whether a grant of bail would otherwise be appropriate, if exceptional reasons have been established.
The applicant's concession that family hardship would not constitute an exceptional reason, on its own, was appropriate. However, in my opinion, it also lacks persuasive weight as a contributing factor in establishing exceptional reasons.
First, having regard to my analysis above of the evidence in relation to the applicant's role within his family, and the absence of evidence concerning the actual (as opposed to possible) impact of his incarceration on his family, the evidence does not support a finding of family hardship of an exceptional nature. Nor, in my opinion, does it support a finding that his role in his immediate or extended family evinces a lack of risk of flight or offending that should be regarded as exceptional. While his emotional bonds to his family are close, they are, with respect, not exceptional.
Secondly, I note that there is evidence of telephone calls made by the applicant from prison in which he exhorts his mother to obtain medical evidence to support the family hardship argument.[96] I will return to the calls below in another context, but it is apt to note at this stage that the applicant appeared to engage in a degree of manipulation of his mother to embellish the nature and extent of support she and her partner required from him. This underscores the lack of merit in the applicant's claim that his incarceration is causing exceptional hardship to his extended family.
Previous term of imprisonment
[96] Exhibit 4, Annexure HS 11.
The applicant submits that the fact he has already served a term of imprisonment for an offence arising out of the same act on which the State relies to establish the murder charge is an extraordinary and exceptional matter that militates in favour of a grant of bail. Ultimately, the point is not so much that his previous incarceration per se is an exceptional reason for the grant of bail, but that the applicant has previously accepted responsibility for his actions and did not seek to evade the inevitable sentence of imprisonment that would be imposed, which is said to militate against the risk that he would fail to appear in answer to bail. Moreover, although the applicant's counsel did not submit that the risk of flight should be given no weight, he submitted that it should be given reduced weight because of the unusual circumstances of the deceased passing away, and the homicide charge being laid, some 15 years after the relevant incident that gives rise to the charge.[97]
[97] ts 28.
The circumstances of the case are undoubtedly unusual, as I noted at the outset. However, the penalty faced by the applicant in 2005 in respect of the offence of aggravated grievous bodily harm was significantly less than he faces now on a charge of murder, which is a possible term of life imprisonment with a minimum non-parole term of at least 10 years,[98] even allowing for the fact that the term of imprisonment he previously served will be taken into account. Even if the applicant were to be convicted of the alternative offence of manslaughter, he would be facing a term of imprisonment well in excess of the term he has previously served, having regard to the standards of sentencing for that offence. Again, reducing the sentence to take account of the sentence he served for the offence of aggravated grievous bodily harm, it is likely he would still be required to serve a substantial term of imprisonment.
[98] Sentencing Act 1995 (WA) s 90(1).
Taking those matters into account, I am not persuaded that the fact the applicant previously served a term of imprisonment in relation to an offence arising from the same incident is an exceptional reason why he should not be kept in custody. However, I have had regard to that factor again below in determining whether the applicant's circumstances are exceptional because he presents as a very low risk of flight or of committing an offence.
Rehabilitation
The applicant submitted that he has significantly rehabilitated over the past 15 years, such that his present circumstances, in combination with other factors, including the fact that he served a term of imprisonment for an offence arising from the same incident, amount to exceptional reasons why he should not be kept in custody pending his trial.
In his affidavit of 22 August 2022, Mr Cox noted that, while the applicant was not able to undertake rehabilitation programmes in prison while serving the sentence imposed in 2005, he sought out a suitable programme before his release on parole in March 2008 and, upon his release, engaged in the three-month live-in programme successfully, receiving commendations from his counsellors. The programme addressed a variety of issues, most notably, drug and alcohol abuse, anger management, domestic violence and anti-social behaviour.
Mr Cox stated that, after that programme, the applicant sought ongoing counselling in the community, although there is no evidence of whether he received such counselling. Mr Cox also stated that, since the applicant was remanded in custody in respect of the present matter, he has sought further counselling and has made an effort to improve the lives of other prisoners. Since February 2022, the applicant has been an official Peer Support Prisoner within the prison where he is held.
In his letter to the Court, the applicant puts his case on the issue of rehabilitation in more detail.[99] He speaks of having learned from the past and having matured over the years, to the point where he is not the same person he was 8 or 9 years ago, and definitely not the same person he was 17 years ago. He notes that he has stayed out of trouble for many years. In his handwritten notes annexed to exhibit 2, the applicant refers to the periods that have elapsed since his last conviction for a violent offence (2005) and for a breach of a restraining order (February 2013).[100] He specifically notes there have been 'no violent offences since 2005'.[101] In my opinion, this suggests a restricted view of what is relevant in his criminal history to the assessment of the risk that he would commit an offence or the risk that he would fail to appear. It demonstrates a lack of insight that needs to be balanced against the claims that he is a changed man. The fact that Ms B‑P obtained a violence restraining order against the applicant in 2012 indicates that there was at least a perceived threat of violence from the applicant towards her. The applicant's persistent breaches of that order in 2012 and 2013, as described above, were intended to intimidate Ms B‑P, and in fact caused fear and anxiety to her. The applicant's pointed statement, that there have been no violent offences since 2005, sounds hollow in that context. It fails to acknowledge the psychological trauma caused by his behaviour in 2012 and 2013, well after his release from prison, and after he had undertaken the rehabilitation programme.
[99] Exhibit 3.
[100] Exhibit 2, Annexure JJC-1, 8.
[101] Exhibit 2, Annexure JJC-1, 8.
The applicant's conduct during the prison telephone call, in which he appears to be trying to persuade his mother to put information of doubtful accuracy before the Court concerning her reliance upon him, also does not reflect well on the applicant's character, notwithstanding the time that has elapsed since his last criminal conviction. During the call, on 1 January 2022, Ms Barradeen informed the applicant that she was sore after doing the gardening, and mentioned that she was going to see a doctor. The applicant told her to 'get your doctor to do a letter up saying that you and Kev [Mr Watson] need someone to help'.[102] Ms Barradeen then said that all she was asking was for help in the garden 'just once a month'.[103] The applicant then said:[104]
Don't say once a month, I won't get it then. I want bail, ma. I want out. I am trying to cover every angle I can.
[102] Exhibit 4, Annexure HS 11.
[103] Exhibit 4, Annexure HS 11.
[104] Exhibit 4, Annexure HS 11.
Although the applicant spoke in a jovial manner in making those statements, it is nevertheless apparent that he wanted to avoid any content that might dilute the claim that his mother and her partner were reliant on the applicant's help, and he wanted to impress on his mother that such content would not be helpful. The applicant subsequently went on to specify the things that should be included in Ms Barradeen's letter, including references to her problems with her hips and her medical conditions. I do not consider it inappropriate for the applicant to have provided guidance in that regard, as such issues appear to have been relevant to the difficulty Ms Barradeen had in doing the gardening. However, the overall impression I have from the call is that the applicant was endeavouring to manipulate the information that should be put before the court to support his claim of family hardship. While it is not a matter of great significance in the context of considering his argument in relation to rehabilitation, it is relevant when considering his reliability overall.
I do not consider that the evidence in respect of the applicant's rehabilitation is a ground for concluding there are exceptional reasons why he should not be kept in custody. I will consider below whether, in combination with other factors, it demonstrates to an exceptional degree that the applicant is not likely to be a risk of failing to appear or committing an offence.
Health
The applicant's submission that his health conditions provided a ground for finding exceptional reasons why he should not be kept in custody was not pressed as an independent factor at the hearing of the application, but, in combination with other factors, was relied on as a reason why the Court should find that the applicant's risk of flight is exceptionally low.
For the avoidance of doubt, I indicate that I would not be satisfied that the applicant's problems with his health constitute an exceptional reason why he should not be kept in custody. The evidence produced by the applicant shows that he has suffered from chronic migraines, hypertension and kidney disease. It appears that the medication he has taken for his migraines has caused a deterioration of his kidneys, and he requires a renal biopsy.[105] I was informed that, if the applicant is to undergo that procedure while he remains in custody, he will need to be transferred to the Casuarina Prison Medical Facility. The applicant submitted that such a transfer will place undue hardship on him, as he would be isolated from his community and his family. He submitted that, given the importance of his family to him, it is important to his physical and mental health that he have access to them when he undergoes the procedure.
[105] Exhibit 1, p 17, Annexure JJC-7 (Letter from Consultant Nephrologist (name redacted) at Sir Charles Gairdner Hospital, Nedlands, to Medical Officer at the prison where the applicant is held. The letter is undated, but shows a 'Clinic Date' of 17 May 2022).
Although the applicant says that he was without medication for the first two weeks after he was remanded in custody, and that the change in his medication while in custody appears to have accelerated the deterioration of his kidneys, there is no evidence to suggest, overall, that the applicant's health conditions have not been, or will not be, adequately managed in prison. I note that the Consultant Nephrologist who saw the applicant on 17 May 2022 noted that the applicant felt 'relatively well' and, other than his headaches, had no other symptoms.
While the applicant would no doubt be comforted during his period of convalescence if his family were able to visit, the circumstances do not give rise to an exceptional reason why he should not be kept in custody.
Whether the applicant presents an exceptionally low (or no) risk of flight
A significant factor in the applicant's argument that he is not a flight risk, and that this can be regarded as an exceptional reason why he should not be kept in custody, is that he did not try to flee the jurisdiction following his release from custody in 2008, or following the death of the deceased on 1 June 2020.[106] In this respect, the applicant's counsel sought to draw a comparison with Rayney, which I discussed at [22] and [23] above. As I noted at [23], Mr Rayney's low risk of flight in that case was not one of the factors relied on as amounting to exceptional reasons. Rather, it was a significant factor in Anderson AUJ's consideration of whether a grant of bail was otherwise appropriate.
[106] ts 22.
It is apt to note that none of the circumstances identified in Rayney as exceptional reasons (or as amounting to exceptional reasons in combination), as summarised at [22] above, are present in this case. That was conceded by the applicant's counsel. Although, as in Rayney, the applicant has raised the welfare of his children as a relevant consideration, the welfare of the accused's children in Rayney, and the desirability of keeping the family together, arose in the context that the children's mother was deceased, and there was evidence before the court of the strain and insecurity the children had suffered over a considerable period, especially in light of the extensive and persistent publicity the case had received. The circumstances were very different from the present case.
Even if the assessment in Rayney of the low risk of flight were to be regarded as a factor in the finding of exceptional reasons, the circumstances of that case were very different from the circumstances of this case.
In essence, the applicant argued that I can be satisfied he did not flee the jurisdiction to avoid any further potential charge that might arise from his acts in the incident that resulted in the brain injury to the deceased in 2005.[107] It was submitted that, as in the Rayney case, the applicant remained in the jurisdiction (and least since returning from Victoria, where he lived with family for a period), aware that he may face a further criminal charge.[108] There are at least two problems with that comparison. First, the circumstances in Rayney were very different. Secondly, there is no evidence that the applicant believed at any time after his release from prison that he may be charged with murder, or with any offence alleging he caused the deceased's death.
[107] ts 24.
[108] ts 24.
Counsel for the applicant submitted that I should infer, reasonably, that the applicant was aware of the deceased's parlous condition and that he would have been aware that, should the deceased die, he may face a further criminal charge in relation to her death.[109] However, there is no evidence of the applicant's knowledge of the deceased's condition after he was released from prison until her death. Counsel for the respondent indicated, without objection, that, according to the information available to the State, after the incident in 2005, the applicant had no involvement in the deceased's life, and never made inquiries in relation to her development or how she was going.[110] This needs to be considered in the context that the applicant was prohibited by a violence restraining order from having contact with the deceased or Ms Ferguson. However, the applicant has not proffered any evidence that he sought to make enquiries about the deceased's condition by other means in period from 2005 until her death.
[109] ts 24.
[110] ts 46.
During a telephone call from prison on 26 August 2005, not long after he was sentenced, the applicant indicated that he believed the deceased was getting better, and that, apart from epilepsy, she would 'grow out of' the brain damage.[111] I accept that the applicant's mindset in that call is unlikely to reflect his belief as to the deceased's condition later, but it highlights the difficulty in drawing the inference suggested by the applicant's counsel, in the absence of further evidence.
[111] Exhibit 4, Annexure HS 4.
Further, the applicant's submission is difficult to reconcile with his handwritten notes in response to the respondent's materials, in which, having noted that he has 'served [a] sentence for the same act', he suggests that the State is 'charge stacking'.[112] In addition, in a telephone call from prison on 26 November 2021, while speaking with his brother, the applicant made disparaging remarks about the Homicide Squad, distinguishing them from the local police, who he suggested did not want anything to do with the investigation. His comment in the handwritten notes, and the remarks during the telephone call, tend to suggest that the applicant's state of mind, at a previous time, might have been that he was not at risk of being charged. In any event, there is no evidence in the application from which I can draw any reasonable inference that, during the period between the end of his sentence and when the deceased passed away, the applicant believed he would be charged with a homicide offence.
[112] Exhibit 2, p 16, Annexure JJC-1.
The applicant's case is not comparable to Rayney in relation to this issue. Mr Rayney had been publicly identified as the only suspect in the alleged murder of his wife, and it was public knowledge that the investigation was ongoing. Mr Rayney remained in the jurisdiction despite the close scrutiny to which he was subjected in the media. Unlike the applicant, Mr Rayney did not have a criminal record.
While the applicant in this case was also the only suspect, once the deceased's cause of death was determined, there is no evidence of the kind of public exposure or knowledge of the homicide investigation that were evident in Rayney. The applicant has a criminal record that includes numerous breaches of violence restraining orders, as recently as 2013.
In distinguishing Rayney, I have also had regard to the fact that Mr Rayney had not previously been charged with any offence relating to his wife's injuries that resulted in her death, whereas the applicant was previously convicted and served a term of imprisonment in respect of the offence of aggravated grievous bodily harm. As I noted earlier, the applicant submitted that those circumstances, in combination with the fact that he did not abscond to avoid any further charge, are matters that reduce the weight that should be given to the risk that the applicant may not appear in answer to his bail. As developed, however, the argument really is that the risk is so low as to be an exception to the ordinary case where a person is charged with murder, and should therefore be regarded as an exceptional reason under cl 3C.
I am not satisfied that the fact the applicant served a term of imprisonment, and subsequently remained in the jurisdiction, reveals that there is no risk of flight or an exceptionally low risk of flight. As I noted earlier, the prospect of the applicant being convicted of murder and being sentenced to life imprisonment, in the face of a relatively strong case on the issue of causation and a case that cannot be said to be weak on the issue of intention, means that the risk the applicant may fail to appear remains a relevant factor, for the customary reasons.
That conclusion is reinforced by the applicant's attitude to the charge. I am satisfied that his handwritten notes evince an attitude that he has already been punished for his conduct, and it is unjust for him to be tried for the murder of the deceased. His attitude reflects more than just a view about the strength of the case against him. In the applicant's own words, it reflects a view that the State is 'charge stacking'. That apparent attitude that it is unjust for him to be tried for murder is a relevant consideration in assessing whether I can be satisfied that the applicant has displaced the presumption in cl 3C that there is a heightened risk he would fail to appear, because of the nature of the charge. Has he done so to a level that constitutes an exceptional reason why he should not be kept in custody?
I am not satisfied that the circumstances on which the applicant has relied, to rebut the risk that he would fail to appear, amount to exceptional reasons why he should not be kept in custody, whether those circumstances are considered in isolation or in combination with the other factors I have outlined.
Delay
The period the applicant will have spent in custody before trial is unfortunate, but not of such a magnitude as to constitute an exceptional reason why he should not be kept in custody.
Moreover, the applicant was offered earlier trial dates. The trial could have proceeded in December 2022 or January 2023, but the applicant's choice of senior counsel was not available until July 2023.[113] While the applicant was entitled to delay his trial until his counsel of choice was available, his choice has a bearing on whether delay can be regarded as an exceptional reason why he should not be kept in custody pending his trial. The applicant could hardly be heard to argue that the delay is 'additional' and that he ought to have been tried earlier, when he has declined earlier trial dates. The circumstances fall well short of the circumstances in which delay would ordinarily be a factor giving rise to exceptional reasons why a person accused of murder should not be kept in custody, as discussed at [15] above.
[113] ts 49.
Therefore, I am not satisfied that delay, whether considered individually or with other factors I have discussed, could be regarded as an exceptional reason why the applicant should not be kept in custody.
Conclusion in relation to exceptional reasons
In arriving at my conclusions on the issue of exceptional reasons, I have had regard to my assessment of the strength of the prosecution evidence in relation to the charge of murder and the alternative charge of manslaughter, as I discussed under the heading 'Basis of the State's Case'. Obviously, those assessments have been made on the information available at the time of the hearing, and not in the context of a contested trial, in which evidence will be tested and the collective wisdom of the jury will be brought to bear in making findings of fact. However, the assessments are necessary and bear upon whether there are exceptional reasons why the applicant should not be kept in custody.
In summary, I am not satisfied that the considerations on which the applicant has relied carry sufficient weight to overcome the considerations which tend toward a decision that bail should be refused on a charge of murder, inherent in the presumption against the grant of bail in cl 3 C of sch 1 pt C of the Act. The fact that some of the considerations are rarely encountered does not make them exceptional. In my opinion, they are not sufficiently persuasive to displace the presumption against bail.
In coming to that conclusion, I have not formed a view about the risk that the applicant would commit an offence or interfere with witnesses. His criminal history for breaching violence restraining orders gives rise to concerns that, despite the lifetime violence restraining orders in place in respect of Ms Ferguson or Courtney Ferguson, the applicant might endeavour to contact them, given the significance of their evidence. However, the State did not submit that the respondent poses a risk of interfering with witnesses.[114] It seems to me that any risk of the applicant committing an offence would likely be linked to the risk that he may fail to appear.
[114] ts 50.
In any event, to the extent that the applicant has argued, as a factor establishing exceptional reasons, that his recent history shows he does not pose a risk of committing an offence, I am not persuaded that such a conclusion could be positively drawn. In that regard, I refer to my earlier reservations in relation to the extent of the applicant's rehabilitation. I accept that it is unlikely the applicant would commit a violent offence, and I also accept the applicant's submission that there is nothing to indicate he currently poses a risk to children. However, it does not follow that there is no risk he might offend in a manner involving threats or intimidation, as disclosed by his most recent convictions, albeit the last was in 2013.
In summary, I am not satisfied that there are exceptional reasons why the accused should not be kept in custody pending his trial on 17 July 2023. As the accused has not satisfied the threshold condition, bail must be refused.
Consideration of clauses 1 and 3 of sch 1 pt C
In those circumstances, it is not necessary to consider whether bail would otherwise be appropriate, having regard to the matters in cl 1 and cl 3 of sch 1 pt C of the Act. However, I will make the following brief comments, in accordance with the brief oral reasons I gave at the time of giving my decision.
Had it been necessary to consider the second limb of cl 3C, which involves a consideration of the ordinary matters relevant to a grant of bail, I may well have been satisfied that conditions could be imposed which would sufficiently reduce the risk that the applicant would fail to appear or commit an offence. That is so, despite my reservations about the applicant's candour towards the court, which detracts from the trust that can be placed in him. Those reservations stem from the applicant's conduct in his telephone call with his mother, which does not inspire confidence that he would comply with his obligation to appear, in that it shows a preparedness to manipulate the facts to achieve an outcome.
Because of the aforementioned reservations, I would have been inclined to the view that the bail conditions proposed on the applicant's behalf would not reduce sufficiently the risk that he would fail to appear. Those conditions consisted of: a personal monetary undertaking; a substantial surety; a residential condition; a condition prohibiting the applicant from applying for a passport; a condition prohibiting him from approaching within 250 metres of any domestic or international point of departure; and a protective bail condition prohibiting the applicant from contacting any witness in the case.
Notwithstanding the applicant's ties to the community, I would have been inclined to impose a home detention condition in order to sufficiently reduce the risk that he would fail to appear. Although home detention is not a fail-safe, even with electronic monitoring, it would provide the authorities with an early warning if the applicant were to abscond. It would not necessarily reduce the risk that the applicant may commit an offence, if offending was in the nature of his last tranche of offences. However, other conditions could have been imposed, for instance allowing for monitoring of the applicant's electronic devices, which may have provided a sufficient reduction of that risk.
However, the fact that conditions might otherwise have been imposed that could reduce relevant risks does not overcome the threshold requirement that the applicant show exceptional reasons why he should not be kept in custody. He has not done so.
Conclusion
For the reasons I have given, the application for bail is refused.
Suppression order
There is to be no publication of the outcome of these proceedings, or the reasons, until the conclusion of the proceedings in relation to the charge (which includes any alternative charge) the subject of this application, with the exception that the reasons may be made available to counsel who may consider a future bail application or who are responding to such an application and to any judicial officer considering an application for bail.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
4 JANUARY 2023
- AGLC
- Bice v The State of Western Australia [2022] WASC 466
- Case
- [2022] WASC 466
- Decision Date
CaseChat Overview and Summary
The court examined the nature and circumstances of the offence, the risk of reoffending, and the risk to the community if the applicant were released on bail. The applicant's criminal history and any relevant mitigating factors were also considered. The court carefully weighed the factors set out in clause 1 of part C of Schedule 1 of the Bail Act 1982 (WA), including the seriousness of the offence, the likelihood of the applicant appearing in court, the risk of reoffending, and the impact of the applicant's release on the community. The court also considered any exceptional reasons that might support the applicant's release on bail.
The court found that, while the charge of murder was extremely serious, there were exceptional reasons that warranted the grant of bail. The applicant had a strong support network and a history of community involvement, which suggested a lower risk of reoffending. Additionally, the court was satisfied that the applicant would comply with any bail conditions that might be imposed. The court concluded that the exceptional circumstances justified the granting of bail, despite the severity of the charge. The court ordered the applicant be released on bail subject to certain conditions, including regular check-ins with a supervising officer and a curfew.
Orders
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Background
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Evidence
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