Cevik v The Queen - [2001] WASC 357

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CEVIK -v- THE QUEEN [2001] WASC 357

CORAM: WHITE AUJ

HEARD: 18 DECEMBER 2001

DELIVERED : 21 DECEMBER 2001

FILE NO/S: MCS 56 of 2001

BETWEEN: HAMDI CEVIK
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Application for bail by accused charged with willful murder - Necessity for applicant to demonstrate exceptional circumstances to justify grant of bail

Legislation:

Bail Act 1982

Result:

Application for bail dismissed

Category: B

Representation:

Counsel:

Applicant: Mr R W Cannon
Respondent: Mr S E Stone

Solicitors:

Applicant: Ron Cannon Barrister
Respondent: State Director of Public Prosecutions

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

R v Jemielita 78 A Crim R 91
R v Light (1954) VLR 152
R v Wakefield (1969) 89 WN Pt 1 NSW 325

Case(s) also cited:

Lim v Gregson [1989] WAR 1
R v Connell, unreported; FCt SCt of WA; Library No 930514; 14 June 1993
R v Watson (1947) 64 WN (NSW) 100
Re Robinson (1854) (23) LJQB

WHITE AUJ: This is an application pursuant to s 15 of the Bail Act 1982, for the release of the applicant on bail. The applicant is charged with an offence of willful murder. It seems likely that his trial will take place in March or April, 2002.
Mr Cannon, counsel for the applicant, submitted that the case against the applicant is weak and a conviction is improbable. He pointed out that the fact that an accused person is in custody results in difficulties in the preparation of the defence: R v Light (1954) VLR 152; R v Wakefield (1969) 89 WN Pt 1 NSW 325.
Mr Cannon filed an affidavit sworn by him in support of the application. The alleged wilful murder is said to have occurred on 12 September 2000 at Fremantle and the applicant was arrested on 26 September 2001. He has been in custody since that date.
The statement of material facts is as follows:
The accused in this matter is a 31 year old male who is the owner/manager of a restaurant situated at 19 Essex Street, Fremantle. The deceased is his brother, Serdar Cevik, who died at Fremantle Hospital on 12 September 2000, aged 29 years.
During the afternoon on 5 September 2000 both men were at the restaurant, an argument developed between them during which the accused ordered his brother from the premises. The argument apparently started after a plate was broken. Serdar left the restaurant and walked across the road to the family home at 18 Essex Street.
He went inside the house for a short while before coming back outside and standing on the road verge, from where he verbally abused Hamdi. Serdar made hand motions for Hamdi to come across the road, ostensibly to continue, or finalise, the argument. Hamdi walked across the road and both men were observed going to the rear of the premises. In the moments after the men went to the rear of the house a fight took place during which time Serdar has suffered a wound to the left side of his neck.

Willful murder

It is alleged that during the fight Hamdi Cevik intentionally stabbed his brother in the neck, fatally wounding him.
The incision, although only about 2 cms in width, was delivered with such force as to completely severe the carotid artery, chip the jaw bone and strike the cervical spine. The artery could not be re‑attached and Serdar's condition deteriorated until he passed away, seven days later.

Text of conversation with the accused

The accused has been interviewed on three occasions; 5 September 2000, 12 September 2000 and 26 September 2001. The interviews are all recorded electronically on video and will be made available to counsel.
Following investigation by Fremantle Detectives, the Deputy State Coroner and the Director of Public Prosecutions, the accused was arrested and charged with the offence of wilful murder.
I have been supplied with a copy of the letter of the forensic pathologist, Dr Margolius, to the Director of Public Prosecutions in which she expresses the view that:
"It is well known that significant force is required to penetrate bone. It is unlikely that this damage could have occurred when falling from one's own height onto a knife as it would not only require the necessary force but the knife would have to be gripped very tightly during the procedure. It is more likely that when falling down, the knife would slip out of the hand, or the knife would have hit the jaw bone and then slipped/skidded along the bone surface, or combination of both these latter two mechanisms …
In addition, after the infliction of the wound, it is likely that the knife had to be withdrawn from the bone."
In her letter to the deputy State coroner, Dr Margolius says, inter alia:
"This type of injury would have unlikely to have been produced (sic) by the victim holding the knife in his right hand and self‑inflicting the wound. Some momentum would be required for this knife to produce the forces needed to damage the bones.
I am uncertain as to the precise details of the event leading to the injury sustained by the deceased and have not as yet seen the weapon."
It appears to be the fact that, after the deceased was wounded, the knife has disappeared.
In a letter to Detective Sergeant Talbott, the vascular surgeon, Mr Stanley, said in conclusion:
"The direction and depth of the tract makes (sic) me think that it was due to a stab wound rather than accidentally falling on a knife, however again I am not an expert in this field."
The applicant apparently contends that there was a struggle between him and the deceased in the course of which the deceased accidentally stabbed himself with the knife that the deceased had at the time. He has given two somewhat different accounts of what happened. I understand that the applicant has given somewhat contradictory accounts of what happened during that struggle and this is a factor which may have an important bearing on the final outcome of the trial.
Unusually, perhaps, following the investigation, the matter was referred by the Police to the Coroner, who in turn referred it to the Director of Public Prosecutions who instituted the present proceedings. Mr Cannon argues that there is no evidence of an intention on the part of the applicant to kill the deceased. This may involve questions of inferences to be drawn by the jury in the light of the whole of the evidence at the trial.
It seems to me, therefore, that the outcome of the trial may well depend upon what view the jury takes of the credibility of the applicant (if he chooses to give evidence) and what weight the jury gives to the forensic and medical evidence. I am not able at this stage to conclude that the Crown case is so weak as to constitute an exceptional circumstance.
In R v Jemielita 78 A Crim R 91 Pidgeon J (with whom Owen J and I agreed) said:
"Whether exceptional circumstances required to be shown
The law, as it was before the coming into operation of the Bail Act, is set out in Lim v Gregson. In that case the judge granting bail (Nicholson J) examined the Australian authorities and said that it is well established that prima facie a person accused of a crime should be granted bail but against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. His Honour then examined the position where the charge was wilful murder and said that the position must be that the nature of the crime and the severity of the punishment which follows in the event of conviction changes the balance, namely that where a prisoner has been committed for trial on such a charge bail will generally be refused 'except in rare cases where exceptional circumstances are shown to exist'. His Honour was quoting from Lythgoe [1950] QSR 5 and he then made reference to Ryan (1961) 78 WN (NSW) 585 and Re Anderson [1978] VR 322. One of the grounds of appeal from his Honour's refusal to grant bail in that particular case was that he erred in law in holding that where a person is accused of wilful murder bail will be refused, except in rare cases where exceptional circumstances are shown to exist. This ground was refused. Malcolm CJ (at p130) said that the learned judge rightly stated that the circumstances would have to be exceptional before a grant of bail could be made on a murder charge before committal. It is clear from the Chief Justice's later remarks that this would also apply after committal. The case relied on by Nicholson J of Lythgoe was a case of an application for bail after committal."
The personal circumstances of the applicant are that he is aged 33 years, married and living in the same house with his wife and four young children and with his mother, father, sister and sister‑in‑law (the widow of the deceased). He was running the Istanbul Restaurant in Fremantle which is the source of the income of the extended family. His mother and father are of Turkish descent and the restaurant depends on the accused for appropriate management and relies upon his fluency in English. The other members of the family are Crown witnesses who have furnished depositions to the prosecution.
Mr Cannon intends, I understand, to object to certain of the evidence in the depositions and in the video‑taped interview with the applicant. These objections were not, of course, the subject of argument before me at this stage.
Mr Stone, for the Crown, opposes the grant of bail and submits that the applicant has not discharged the onus upon him to demonstrate the existence of exceptional circumstances warranting the grant of bail on a charge of wilful murder.
Mr Stone points out that, if granted bail, the applicant will live with the members of his family (many of whom are Crown witnesses over whom he is likely to have considerable influence) and to work in the family restaurant in which those members of the family are employed. He submits that, even if the applicant did not interfere with the Crown witnesses, the public perception resulting from the circumstances would be extremely adverse. Even an order that he live separately from the members of his family would not, Mr Stone submitted suffice to avoid such perception.
I accept that the applicant might interfere with the Crown witnesses if granted bail. Those witnesses are all family members, many in a dependant relationship with him.
I understand that it is likely that the applicant will be brought to trial in March or April next.
Despite Mr Cannon's able submissions, I am not persuaded, in the end, that the applicant has demonstrated the existence of exceptional circumstances which would warrant the grant of bail in this case of a charge of wilful murder.
In these circumstances, I dismiss the application for bail.