Cappeluti v The State of Western Australia
[2006] WASC 228
•18 SEPTEMBER 2006
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL |
| CITATION | : | CAPPELUTI -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 228 |
| CORAM | : MURRAY J | ||
| HEARD | : 18 SEPTEMBER 2006 | ||
| DELIVERED | : 18 SEPTEMBER 2006 | ||
| FILE NO/S |
| ||
| BETWEEN | : PETER JOHN CAPPELUTI |
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail - Application after refusal by Magistrate - Turns on own facts
Legislation:
Nil
Result:
Bail granted
[2006] WASC 228
Category: B
Representation:
Counsel:
| Applicant | : | Mr M R Gunning |
| Respondent | : | Mr T B L Scutt |
Solicitors:
| Applicant | : | Gunning Young |
| Respondent | : | State Director of Public Prosecutions |
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
[2006] WASC 228
MURRAY J
MURRAY J: This is an application for bail. It is made under s 14 of the Bail Act 1982 (WA) following the appearance in the Magistrates' Court on Monday, 4 September. The applicant is charged with two offences. One of them is a possession with intent to sell or supply charge, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) in relation to a quantity of MDMA, as it is colloquially called, which was located in the applicant's vehicle when a search was conducted of his home and the vehicle on 31 August 2006. In relation to that charge, the Magistrate was content to grant bail in the sum of $5000, a personal undertaking by the applicant with a similar surety.
2 The other matter was a charge of aggravated armed robbery. The
prosecution notice which is before me alleges that the offence was committed at an IGA supermarket in Mosman Park on 20 August, and alleges that the sum of $15,520 was stolen by a person who entered the store and menaced the staff with a weapon just before closing time. The statement of material facts which is appended to the affidavit of Ms Svanberg describes it as a silver hand gun.
3 It is clear that the allegation is that the offender, whoever that person
was, committed some acts of violence before having a safe opened and having the contents of the safe put into a green shopping bag which had been brought to the store, before leaving it in a red motor vehicle which was waiting. There is some evidence to suggest that there was another person present at the time so that one person acted as a driver and another person entered the store. The person who entered the store was disguised but there will apparently be some evidence to suggest that that person could be described in a manner which might fit the applicant.
4 There is evidence which links the applicant to the purchase of a red
motor vehicle of a kind similar to that which was seen at the supermarket and there is evidence of discussion between the applicant and the person Woodthorpe, who was an acquaintance of his who was also involved in the acquisition of the vehicle. It may be that there is evidence there which would strengthen the case that the vehicle observed at the scene of the robbery might be concluded to have been that which was acquired by the applicant shortly before the robbery was committed in the circumstances described by Woodthorpe.
5 There is evidence of an interview between the applicant and
investigating police officers and in that, as I understand it, there are some statements of a kind which might be described as admissions, which at least refer back to the circumstances described by Woodthorpe in relation
[2006] WASC 228
MURRAY J
to the acquisition of the red Camira. There is also evidence of admissions about the applicant's financial circumstances upon which some reliance might be placed, but it is very evident that the case of the prosecution is properly described as a circumstantial case and apart from referring to those features of it, it is unnecessary, I think, that I should make any observation about its inherent strength or weakness.
6 One thing that is of some concern in relation to an application for
bail is that the firearm - if it be a real firearm - which was described by witnesses at the supermarket has not been recovered and nor is there any evidence of the identity of another person involved, if such a person there was.
7 Woodthorpe says that sometime after these events he was
approached at a shopping centre, where he was in the company of his children, by a person who was unknown to him, but not the applicant, who purported to give him a threatening message on behalf of the applicant. Now, no more need be said about that it seems to me, but accepting that at face value, if the person concerned was indeed acting on behalf of the applicant, that would be a matter of concern and relevant to the question of the grant or refusal of bail.
8 The applicant is a man who, according to the affidavit evidence
before me, is about 53 years of age, and he has four children. None of them are really young; the youngest is apparently 14 or thereabouts. There is an affidavit of the eldest of his children, Lucy, which describes their living circumstances and her relationship with her father and to that she adds some further statements as annexures to the affidavit. One is by the child, Rosanna, who must now be 17 or thereabouts, and the other is a rather more juvenile document which quite evidently emanates from the youngest child, Samuel, whose age is given in the affidavit as being 14.
9 In addition, there is an affidavit by the applicant's female friend, a
person named Wendy Groom, who attests to his good character and also to his stable circumstances. She speaks of some overseas travel which had been undertaken in the past and further travel which was organised to take place a short time ago but did not happen. That is the material before the Court.
10 The Bail Act imposes no obligation to establish an entitlement of bail, nor does it give an adult person in the position of the applicant any particular right to bail. It leaves the decision entirely in the discretion of
[2006] WASC 228
MURRAY J
the Court and there are a number of matters set out in the Act to which
consideration might be given.11 One of them is undoubtedly the seriousness of the offence with
which the applicant is charged. Certainly in cases of homicide, the Court is very careful about the grant or refusal of bail and the same principal applies to an offence of the seriousness of an armed robbery. The Court will generally look for exceptional or particular circumstances which support the grant of bail when one is dealing with very serious offences, and it does so because the more serious is the offence, the more likely it is that the applicant may not honour the bail obligation but may abscond and hence disrupt the processes of the law.
12 On the other hand, it is abundantly clear that one is obliged to
consider all of the material which bears upon that primary question and the question whether there are any conditions which could be imposed which might remove the difficulties that may be anticipated.
13 Two matters are relied upon by the prosecution in opposing the grant
of bail. One is the one that I have particularly discussed thus far, the question of the seriousness of the offence. The other is the possibility of interference with witnesses, in particular Mr Woodthorpe given the event that I have described. I will endeavour to summarise the matters which seem to me to bear upon the question in particular.
14 Firstly, it is a serious offence. Secondly, there is a case of some
power, but I make no particular observation about its strength. It is a circumstantial case but there is a capacity, it seems to me, and I put it no higher than that, that the applicant's guilt of the offences with which he is charged might be established beyond reasonable doubt at trial.
15 Against that, it seems to me to be important not to overlook the
circumstances of the applicant personal as they are outlined in the affidavit material. He is a person who, otherwise than by reference to the offences with which he is currently charged, would be described as a person of good character and stable family circumstances. He has no relevant criminal conviction for some 27 years, it appears.
16 He is a person who has had a stable work history, a stable family
history and is currently a person who maintains a family, is the head of the family, actually runs the house and cares for his children. He is said to be a person whose family associations are here rather than overseas.
[2006] WASC 228
MURRAY J
17 It seems to me that bail may be granted in this case and it may be
properly conditioned in a way which would maximise the capacity of the Court to have some confidence that there will be no breach of bail in any manner relevant to its present grant or refusal.
18 The conditions which I would impose are these. There will be a
grant of bail for the appearance before the Magistrates' Court in Perth on 25 September. It will be upon the applicant's personal undertaking in the sum of $20,000 and there will be a surety in a like amount; the surety to be approved by Madam Associate or any Justice of the Peace.
19 The applicant is to reside at the address proposed at 560 Rockingham
Road, Munster. He is to provide to Mr Scutt, representing the State, his passport and he is to do that before his release on bail. He is not to attend the shop described as the IGA supermarket, Mosman Park, on the corner of Wellington and Manning Streets, Mosman Park.
20 He is neither directly, nor indirectly, to have any contact with any
person who is proposed or may be called as a witness for the prosecution. In particular, he is to have no such contact with the person Victor James Woodthorpe. He is to report to the Fremantle Police Station at a time suitable to the officer in charge of that police station on Mondays, Wednesdays and Fridays in each week.
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