"CGS" v The Queen
[2003] WASC 192
"CGS" -v- THE QUEEN [2003] WASC 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 192 | |
| Case No: | INS:64/2003 | 24 SEPTEMBER 2003 | |
| Coram: | JOHNSON J | 10/10/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | "CGS" THE QUEEN |
Catchwords: | Bail Exceptional circumstances Interests of third party |
Legislation: | Bail Act 1982 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- The Applicant
AND
THE QUEEN
Respondent
Catchwords:
Bail - Exceptional circumstances - Interests of third party
Legislation:
Bail Act 1982
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
The Applicant : Mr D P A Moen
Respondent : Mr D A Hills-Wright
Solicitors:
The Applicant : David Manera
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 JOHNSON J: The applicant seeks release on bail pending the hearing of charges of assault with intent to facilitate the commission of a crime, aggravated armed robbery, deprivation of liberty and stealing a motor vehicle. Each of these offences fall within the Second Schedule to the Bail Act 1982 requiring the applicant to show exceptional circumstances for a grant of bail to be made. The material facts of the offences are such as to make it abundantly plain that, irrespective of the statutory classification, these offences are extremely serious. The statement of material facts provided to the Court as an annexure to the affidavit of the applicant's solicitor, Mr Manera, sworn on 9 September 2003 can be further summarised as follows:
On Monday, 30 September 2002 the applicant, in company with another, entered the public bar of the Bayswater Hotel. A large number of patrons were in the bar at the time. The applicant was armed with a baseball bat and the co-offender with a hand gun. Both were wearing head coverings to disguise their faces. The co-offender started yelling at the patrons, demanding the whereabouts of the manager. A patron picked up a bar stool and confronted the applicant. The co-offender fired one round at the feet of the patron.
The manager came out of the office and the co-offender took him in to the office at gunpoint and forced him to open the safe. He held the manager at gunpoint whilst the manager emptied the safe of $9541 in cash. Whilst in the office the co-offender told the manager to get on his knees saying, "It’s a 9 mm Gloch, I need you on your knees so that I can shoot you." The applicant and the co-offender then took the manager out to the carpark and stole the manager's car, forcing the manager to drive. The co-offender sat in the front seat and the applicant sat in the rear passenger seat. A short distance down the street the manager was told to stop the car and get out. The applicant and the co-offender then drove off before abandoning the car a short distance away.
2 In support of the application for bail, Mr Manera deposes to the weakness of the Crown case, in particular the absence of a positive identification or any forensic evidence linking the applicant to the principal offences. It is also said that there is no
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- evidence that the applicant poses a flight risk. The length of time that the applicant will spend in custody pending trial is also identified as a factor in support of a grant of bail, although, in view of the fact that this matter has a firm trial date, that aspect was not pressed at the hearing of the application.
3 Two more specific issues are raised on behalf of the applicant. The first is the unavailability of naltrexone implants in the prison system. The second issue is the need for the applicant to care for his mother who suffers a quite severe form of chronic post-traumatic stress disorder, having been the victim of an extremely serious criminal offence. One consequence is that she is unable to remain alone in her house, particularly during the night-time. Treatment strategies have only marginally improved her condition. The applicant's father, from whom his mother was separated, returned to his wife's house in order to meet her ongoing care needs. However, in July 2003 he left to live in the Eastern States. The applicant's sister provides some assistance to her mother, but has a 7-year-old child and is pregnant with another. She is not prepared to live with her mother. The option of care being provided by a third party is said to be complicated by the mother's poor grasp of English. The proposition put to the Court is that the applicant, if granted bail, will reside with his mother to provide her with the support she requires.
4 A final proposition deposed to on behalf of the applicant is that any argument that the offences are too serious presupposes the applicant's guilt in relation thereto. The fundamental tenet that an accused person is presumed innocent until proven guilty inevitably creates a certain tension in the context of a bail application. The Court must weigh up the presumption of innocence of an applicant against the need to ensure that the applicant will present himself at the hearing of the charges and that the integrity of the trial process is preserved. However, the terms of the Bail Act and the wealth of authority on the grant of bail make it clear that the seriousness of the offence is an essential consideration in the grant of bail. This factor cannot be ignored simply because the offence is denied and remains to be proved.
5 Counsel for the applicant conceded that, if the applicant were to be convicted of the offences alleged against him, he would certainly face a substantial term of imprisonment. Such a concession is a necessary one in view of the applicant's quite
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- extensive criminal history, which includes convictions in 1997 for a series of offences of the same type as those with which the applicant is currently charged. On that occasion the applicant was sentenced to a total of 9 years' imprisonment.
6 The applicant's criminal record also reveals a number of convictions which would militate against a grant of bail. In 1990 the applicant was convicted of breach of bail. I am informed that the breach arose from a failure to appear. On the same occasion the applicant was found to have breached probation by re-offending. In 1990 the applicant was also convicted of falsely acknowledging a recognisance. That offence involved providing a false name to police when being released on bail. In 1996 the applicant again breached his bail, although on that occasion by committing offences. An intensive supervision order and a community service order were imposed for the breach and the breaching offences. However, in 1998, the applicant was found to be in breach of the intensive supervision order as a result of committing the series of offences for which he received the 9-year term of imprisonment. Further, the applicant was on parole at the time the offences the subject of this application were alleged to have been committed by him. He does, however, have parole eligibility at the present time.
7 The respondent disputes that the Crown case is weak, notwithstanding the absence of identification evidence. It is said that there is compelling forensic evidence of the applicant's involvement in the offence. A portion of yellowish rubber of the type found in surgical gloves was found by police on the floor of the rear of the car where the applicant is alleged to have sat. The forensic biologist's report states that he found a mixed DNA profile consistent with having come from three people. He concludes that, if it is assumed that three people contributed to the mixture, then it is 12,000,000 times more likely that the profile came from the applicant and two unknown individuals than from three unknown individuals.
8 There is also evidence from the girlfriend of the co-offender that she was with the applicant and the co-offender before the robbery and saw them leave together in a vehicle. She described the applicant as wearing a cap which is consistent with the description of some of the eye witnesses to the offences. She was also present when both men returned after the time the offence occurred. The next morning she saw the applicant with a small pile
(Page 6)
- of money. Essentially this witness gives evidence about the movements of the applicant in the hours before and after the robbery which, when considered in conjunction with the DNA evidence, is said to constitute a compelling, albeit circumstantial, case.
9 The respondent rightly observes that this witness is a crucial witness and the risk of any contamination of her evidence must be guarded against. It is said that this factor, in combination with the seriousness of the alleged offending and the applicant's criminal history, militates against the grant of bail. It is also said that the applicant's father lives in New South Wales and the applicant does not have any assets of significance in Western Australia which would compel him to stay here. In relation to the circumstances of the applicant's mother, the respondent submits that, although unfortunate, they do not constitute exceptional circumstances such as to warrant a grant of bail.
10 Whilst I would not describe the Crown case as compelling, it is not so weak as to justify release on bail in a case where there is a very real risk of the applicant re-offending or failing to appear. I do not consider the drug rehabilitation issue to be a significant one in this particular case. The unavailability of the naltrexone programme whilst in custody awaiting trial is unfortunate, but this is not a case where the applicant is attempting to maintain an existing drug rehabilitation programme to which he is committed. The applicant’s naltrexone implant was inserted in February 2002 and ceased effectiveness in December 2002 and has not been replaced. In any event, he continued to offend whilst on the naltrexone programme. In the circumstances, I do not consider the unavailability of the programme to be an exceptional circumstance.
11 Based on the seriousness of the alleged offences and the applicant's criminal record, I would have no hesitation in concluding that the prosecution has discharged the onus of establishing that there is a reasonable degree of risk that the applicant, if allowed bail, would fail to satisfy his obligations. In my view, the only matter raised on behalf of the applicant which could possibly constitute an exceptional circumstance is the need to care for his mother. The mother's circumstances are of great concern and it is for that reason I requested a report on the applicant's suitability for home detention so that information available to me in disposing of this application was complete.
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12 The home detention bail assessment does little to assuage my concerns about the applicant. The report identifies the applicant's long history of criminal conduct, his poor approach to supervision and his long history of substance use. It is this latter factor which appears to cause considerable concern to the author of the report. It is said that the applicant's capacity to comply with a home detention bail condition may revolve predominantly around his drug use status. The author observes that if the applicant chooses to continue drug use and has to seek drugs, then he may be tempted to leave his mother's home to seek drugs. He concludes: "The above factors suggest that … [the applicant] may be a challenge on Home Detention bail."
13 In dealing with an application for bail, the Court is called upon to balance the interests of the applicant and the public interest in the trial proceedings. However, in this particular case, the Court is being asked to balance the interests of a third party against the public interest. On the available evidence it is a fact that, although she may have found the experience difficult, the applicant's mother has managed to live in her home for a period of months without the assistance of her husband or her son. Further, I am unpersuaded that being cared for by the applicant is the only option available. The mother's primary need is for someone to reside with her in the night-time when the need to converse is limited and her care would not be unduly hampered by language difficulties. Even if it is accepted that the applicant's mother requires her son's care, the more difficult question is whether, if released, the applicant would indeed provide it.
14 Ultimately, I am unpersuaded that the applicant's mother's position constitutes exceptional circumstances which would justify granting bail in this case. In my view, there are no conditions of bail which, in view of the history of this particular applicant, would satisfy me that the interests of the public can be properly met if bail were granted.
15 The application for bail will be refused.
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