Cherrington v The State of Western Australia
[2022] WASC 129
•14 APRIL 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CHERRINGTON -v- THE STATE OF WESTERN AUSTRALIA [2022] WASC 129
CORAM: STRK J
HEARD: 7 APRIL 2022
DELIVERED : 7 APRIL 2022
PUBLISHED : 14 APRIL 2022
FILE NO/S: MBA 14 of 2022
BETWEEN: NATHAN IHAKA CHERRINGTON
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Applicant charged with murder - Application for bail under s 7B(3) and s 15(1) of the Bail Act 1982 (WA) - Whether exceptional reasons for not keeping applicant in custody - Whether bail may properly be granted having regard to questions posed in cl 1 of pt C of sch 1 of the Bail Act 1982 (WA)
Legislation:
Bail Act 1982 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
| Applicant | : | S D Freitag SC |
| Respondent | : | M Cvetkoski |
Solicitors:
| Applicant | : | Butlers Lawyers & Notaries |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bertolami v The State of Western Australia [2009] WASC 269
Broad v Haas [2002] WASC 155
Emile-Bruning v The State of Western Australia [2016] WASC 211
Fazzari v The State of Western Australia [2004] WASC 71
Heaney v The State of Western Australia [2013] WASCA 146
Hedgeland v The State of Western Australia [2011] WASC 181
Hoddy v Hawes [2003] WASC 22
James v The State of Western Australia [2013] WASC 235
Jones v The State of Western Australia [2014] WASC 234
Kickett v The State of Western Australia [2020] WASC 110
Mansell v The State of Western Australia [2011] WASC 170
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
Shrivastava v The State of Western Australia [2010] WASCA 96
The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34
YSN v The State of Western Australia [2017] WASCA 155
STRK J:
Introduction
The applicant was charged on an indictment which alleged that on 16 or 17 January 2021 at Kallaroo he murdered Augustus Michael Kennedy (the deceased), contrary to s 279 of the Criminal Code (WA). The applicant was charged on and has been remanded in custody since 17 January 2021. On 30 March 2022, the charge was adjourned to another disclosure/committal hearing in the Magistrates Court, Stirling Gardens on 27 April 2022.
The applicant applied to be released on bail pursuant to s 7B(3) and s 15(1) of the Bail Act 1982 (WA). The applicant had not previously applied to be released on bail. The exceptional reason relied upon by the applicant was the apparent weaknesses in the State's case against the applicant in light of recently obtained expert evidence, in circumstances of the applicant's prior good character, including his youth and his lack of any prior criminal record.[1]
[1] Applicant's submissions filed on 23 February 2022 par 10, qualified at ts 13 (17 April 2022).
The State opposed the application on the basis exceptional reasons had not been established why the applicant should not be held in custody.
The applicant filed in support of the application the affidavit of Ms Rachel Porter sworn on 22 February 2022. Ms Porter is a solicitor employed by Butlers Lawyers & Notaries, who represent the applicant.
The affidavit was read at the hearing of the application and the State did not take issue with the contents of Ms Porter's affidavit.[2] Therefore, for the purposes of this application, I acted on the contents of the same.
[2] ts 11, 23 (7 April 2022).
At the conclusion of the hearing, I determined that it was appropriate to dismiss the application. I provided brief extempore reasons for decision and indicated that I would publish full reasons, which are set out below.
Alleged facts of the State's case
The alleged facts of the State's case were set out in the amended statement of material facts filed on 22 March 2022, in the following terms.
On or about 17 January 2021 at Kallaroo, the applicant, Nathan Ihaka Cherrington, murdered the deceased by stabbing him 14 times to the chest and abdomen.
The applicant was 23 years of age, 187 cm tall and of medium build. He is of New Zealand background and has a New Zealand accent, colloquially known as a 'Kiwi' accent.
The deceased was 24 years of age, 177 cm tall and of medium build. The deceased had an Australian accent, and his dominant hand was the left.
The men are known to each other as they both worked as arborists for the same employer in the past. At the time of the offending the applicant was employed by the City of Joondalup as a gardener.
The applicant and the deceased were friends and would socialise outside of work. The applicant lives in a one bedroom detached unit at the rear of another property, which is the address of the incident.
During Saturday, 16 January 2021, the applicant and deceased planned to meet. The deceased drove to the applicant's home sometime in the afternoon, where they consumed alcohol together.
Prior to the deceased attending the applicant's home, the applicant had sourced prohibited drugs, namely methylenedioxymethamphetamine (MDMA), and arranged the delivery of the MDMA to his address. The MDMA was consumed which had no noticeable effect.
Later that afternoon the applicant sourced more prohibited drugs, on this occasion he sourced lysergic acid diethylamide (LSD). The deceased drove the applicant to Perth to collect the LSD. After picking up the LSD, they returned to the applicant's home, collecting dinner on the way. Both the deceased and the applicant ate food and consumed the LSD.
The applicant stated during the police audio‑visual record of interview he had minimal, if any recollection of events; believing he blacked out. The applicant confirmed in the interview that only he and the deceased were present in the unit.
On waking sometime later the applicant observed his unit was messy, items had been tipped over and the deceased was laying on his back on the couch. The applicant checked the deceased and noted he was non‑responsive.
Prior to leaving the address, the applicant wrote a note apologising to the deceased.
The applicant left the address and attempted to wake neighbours. He was able to speak to three neighbours who at his request called the police, the applicant confessed to the neighbours that he killed the deceased.
Police attended and discovered the deceased, lying supine on the couch within the address. There was evidence of a disturbance and blood throughout the scene. St John Ambulance attended and confirmed the male was deceased. The applicant was arrested.
Forensic procedures were conducted, and it was ascertained the applicant had blood on his hands.
The applicant was medically examined by St John Ambulance officers, where it was suspected the applicant had a fractured right hand. During the examination, the applicant confessed he had a fight with the deceased and that he thought he had killed him. Other injuries noted on the applicant appear to be old scratches on the back of his torso that are believed work related.
The deceased was subject of forensic examination. It was noted he had 14 wounds to the abdomen and chest. The deceased had minor wounds to the head, namely his nose, right lower edge of the right eye socket and the upper and lower inner lip.
The 'Confidential Interim Report to the Coroner' identifies the cause of death as 'penetrating sharp force injuries (stab wounds) to the chest'.
Legal framework
There was no dispute as between the parties as to the law and principles to be applied in the determination of the application.[3] They have been set out in a number of decisions of this court, and again by Derrick J in Kickett v The State of Western Australia [2020] WASC 110 [47] ‑ [55]. In deciding this application, I applied the law and the principles outlined below.
[3] Applicant's submissions pars 4 ‑ 8; State's submissions par 8.
Section 13 of the Bail Act provides that the jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Bail Act and pt B, pt C and pt D of sch 1 of the Bail Act.
Of particular relevance in the present context is cl 3C of pt C of sch 1 of the Bail Act which relevantly provides as follows:
Notwithstanding clause 1 […] or any other provision of this Act, where an accused 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 Bail Act does not define the term 'exceptional reasons'. Moreover, the courts have refrained from attempting to provide any sort of list of 'exceptional reasons'. However, in Shrivastava v The State of Western Australia [2010] WASCA 96 [28] ‑ [32], Mazza J said 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 trend of cases.[4] His Honour said that what might constitute exceptional reasons would depend upon the facts in each particular case.
[4] See also Heaney v The State of Western Australia [2013] WASCA 146 [8], cited in applicant's submissions par 5.
A single matter or a combination of matters may constitute exceptional reasons.[5]
[5] Broad v Haas [2002] WASC 155 [15]; Hoddy v Hawes [2003] WASC 22 [61] Bertolami v The State of Western Australia [2009] WASC 269 [9]; Mansell v The State of Western Australia [2011] WASC 170 [3]; Emile-Bruning v The State of Western Australia [2016] WASC 211 [6]. See also applicant's submissions par 6.
The rationale for the requirement that bail should only be granted in murder cases if there are exceptional reasons for not keeping an accused person in custody 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 bail undertaking given the severity of the sentence of imprisonment likely to be imposed if guilt is proven.[6]
[6] Fazzari v The State of Western Australia [2004] WASC 71 [13]; Emile-Bruning v The State of Western Australia [7]. See also applicant's submissions par 7.
The strength of the prosecution case may be a relevant consideration in determining if there are exceptional reasons for not keeping an accused person in custody. If the prosecution case is a particularly weak one or it can be said that there is a high probability of acquittal, it may be that exceptional reasons for granting bail will exist.[7] In such a case the inference that there is a strong incentive for an applicant to abscond may not be able to be so readily drawn. However, to suggest that the prosecution case is merely not strong or not an overwhelming one is unlikely to meet the criteria of exceptional reasons.[8]
[7] Bertolami v The State of Western Australia [16]; Emile-Bruning v The State of Western Australia [8]; Jones v The State of Western Australia [2014] WASC 234 [7]. See also applicant's submissions par 8.
[8] Emile-Bruning v The State of Western Australia [8]; Jones v The State of Western Australia [7].
A common approach to take to cl 3C is to first consider whether there are exceptional reasons why an accused should not be kept in custody and then, if exceptional reasons are established, to consider if bail may properly be granted having regard to the provisions of cl 1 and cl 3.[9] I adopted this approach in determining the application.
[9] See for example James v The State of Western Australia [2013] WASC 235 [23].
Clause 3C(c): Are there exceptional reasons for not keeping the applicant in custody?
Counsel for the applicant submitted that there were circumstances, when considered in combination with each other, justified the conclusion that there were exceptional reasons for not keeping the applicant in custody. However, the primary ground relied upon was the apparent weaknesses in the State's case against the applicant.
At the hearing, counsel for the applicant conceded that the applicant's personal circumstances could not constitute exceptional circumstances on their own.[10] The concession was properly made and I proceeded on that basis.
[10] ts 13 (7 April 2022).
The State submitted that the applicant had not established that there are exceptional reasons for not keeping him in custody.
Strength of the State's case
As was observed by Derrick J in Kickett v The State of Western Australia, it is important to recognise that in determining the application it was not, given the nature of both the application before the court and the material before the court, either possible nor appropriate for me to attempt to engage in some form of highly refined analysis of the evidence and the various strengths and weaknesses. Nor was it possible or appropriate for me to attempt to make a definitive assessment of the strength of the State's case. Further, I proceeded on the basis that the relevant case to be considered, for the purposes of the exceptional circumstances limb in cl 3C, was only the case against an accused for murder, not the case against an accused person for a statutory alternative such as manslaughter.[11]
The State's position
[11] Kickett v The State of Western Australia [64], citing James v The State of Western Australia [28].
To support the charge for murder, the State relied on the evidence as set out at pars 28 to 122 of the State's responsive submissions.
The State submitted that its case against the applicant on the murder charge is strong. In support of this contention the State made the following points.
As identity of the applicant being the offender is a live issue in the case, the State relies on the following evidence to prove that the applicant was the offender:[12]
[12] State's submissions par 124. In the State's written submissions, the pages in the prosecution brief are specified. It is not necessary for me to reproduce the relevant references here.
(a)The applicant is the occupier of the unit at the rear of the address of the incident.
(b)The applicant confirms the deceased was staying over prior to his death.
(c)The applicant confirms no one else other than himself and the deceased were in the unit at the rear of the address of the incident.
(d)In the Police audio‑visual record of interview, the applicant says he does not know what happened, he states:
CHERRINGTON: Don't know, I must have just - must have just fought. And then I - I don't know, I just went off my head, I don't know. I can't remember, I blacked out. I don't know why [indistinct] 'cause he's my mate. I don't - hell. What the fuck has happened? It terrible, man.
(e)The applicant is captured on telephone recordings made by Ms Luckie (a neighbour) behaving in an erratic and aggressive manner ‑ consistent with him 'going off his head'.
(f)During the recording made by Ms Luckie, the applicant is heard saying the word 'Seig Heil', which is a term the applicant is familiar with.
(g)Photographs taken by the forensic team capture furniture tipped over and property strewn all over the lounge area, consistent with the applicant 'going off his head'.
(h)The state of the loungeroom, the position of the deceased on the lounge, the watch (believed to be the deceased's ‑ this is being confirmed), the injury to the applicant's right hand and injuries to the deceased's nose, inner aspect of the left side of the upper lip, inner aspect of the right side of the upper lip, inner aspect of the left side of the lower lip, inner aspect of the right side of the lower lip, is evidence of violence being inflicted upon the deceased ‑ the applicant confessed he had a fight with the deceased.
(i)Prior to leaving the rear unit, the applicant wrote a note apologising to the deceased ‑ he wrote 'I'm sorry Love Gus fuck'. The writing of the note is an admission by the applicant that he caused the death.
(j)The applicant attends a nearby house where he makes the following admissions:
(i)Mr Marchin-Vincent says the applicant said 'I've fucked up, I've killed my mate' and 'my parents are going to disown me, I've killed my mate';
(ii)Mr Bosman says the applicant said 'I need help, I flicked up' and 'I killed my mate'; and
(iii)Mr Toohey says the applicant said 'my mates really hurt, we've been taking acid', 'he's dead', 'I've really flicked up' and 'I fucked up, I'm going to jail, I think he's dead, I'm tripping out'.
(k)The applicant called 000 requesting police attendance, stating he got into a fight with his friend and that the friend is dead. The applicant says he has been walking around aimlessly for the last few hours.
(l)Whilst outside the address of the incident the applicant was heard by Ms Hainsworth stating 'I've killed Gus, I've killed Gus'.
(m)St John Ambulance Officer McFarlane speaks to the applicant, the applicant said 'I've had a fight with my mate, and I think I've killed him'.
(n)Forensic evidence located at the scene and on the applicant is consistent with the applicant being near the deceased, whilst the deceased was bleeding — blood is located on the following:
(i)on the hands and under the fingernails of the applicant;
(ii)socks located in the applicant's bedroom (on the floor at the foot of the bed); and
(iii)sheet on the applicant's bed.
The State further relied on the evidence of Dr Nina Vagaja regarding the wound tracks of the deceased. The State understands that Dr Vagaja will opine that the injuries were the significant and substantial cause of death, ie fatal without emergency treatment because of multifocal damage to the heart (blood loss, interference with pumping ability of the heart), lungs (blood loss, interference with breathing ability), accumulation of blood in chest cavity (interference with breathing), injuries to the pleural cavity and diaphragm (interference with breathing).[13]
[13] State's submissions par 126.
The State submitted that a strong prosecution case is established when the evidence is consisted in totality, namely the evidence outlined at par 24 of the State's submissions and summarised above at [39], in combination with the opinion of Professor Ackland, who attempted to reconstruct the ability of a person (the model) to self‑inflict 14 wounds under four scenarios and gave the opinion that:
(a)in none of the four scenarios tested could all the wound positions and knife orientations be achieved by the model simply and easily. Some of the wound positions were impossible to achieve (Scenario 3), while others required a significant change to the grip on the knife handle or some reorientation of the hand (Scenario 4); and
(b)those wound positions described by the model as being 'awkward' (Scenarios 1, 2 and 4) meant that the hand was not in a comfortable posture and/or the grip on the handle was compromised (not strong). Consequently, Professor Ackland was not convinced that the deceased inflicted all these wounds on himself. Whilst the wounds could possibly have been self‑inflicted, the awkward upper limb/hand orientations required in each of these scenarios casts some doubt over the likelihood that the deceased stabbed himself.
The State says that at trial, it intends to submit that the applicant was in a heightened emotional and aggressive state, which is captured in recordings made by Ms Luckie. During the heightened emotional and aggressive state, the deceased was attempting to calm the applicant down. The State's position is that, for unknown reasons, the applicant armed himself with a knife that he used to stab the deceased 14 times to the chest and abdomen ‑ the area of the body targeted housed vital organs which resulted in death. The State says that it intends to submit at trial that intentional stabbing of the deceased 14 times to the chest and abdomen proves there was a substantial real and not merely a remote chance that the injury will result in death in the absence of medical intervention.
Further, the State intends to submit at trial that the stabbing occurred on the spur of the moment; it was done in a fit of rage and anger. When the applicant stabbed the deceased his intention was clear, he intended to kill the deceased or alternatively, the applicant did an act with an intention to do a bodily injury of such a nature as to endanger, or be likely to endanger, life as per s 279(1)(a) and (b) of the Criminal Code.
The State notes that its case is not that the killing was planned.
The applicant's position
It was the applicant's position that the State's case could not properly be described as strong. In support of this contention the applicant made the following points.[14]
[14] Applicant's submissions pars 11 ‑ 25.
First, there were no eyewitnesses to the death of the deceased and there is no definitive evidence as to who caused the injuries of the deceased.
Secondly, the applicant understands that the prosecution intends to rely upon the circumstantial evidence of the deceased's injuries and the alleged admissions made by the applicant around the time the police were called to demonstrate that the applicant had an intention to kill the deceased.
On behalf of the applicant an intention to apply to the court to exclude the various admissions made by the applicant on the basis that those admissions are both equivocal in nature and potentially prejudicial was foreshadowed. Further, I was informed that the defence intends to argue that, from a review of the body worn camera footage, the applicant appears to be making assumptions and speculating about what might have occurred, rather than 'admitting' what had actually happened. Further, counsel for the applicant noted that the potential reliability of the admissions is further undermined due to the applicant's level of intoxication at the time he is said to have made the admissions, which was said to be evident from the footage of the applicant's arrest and subsequent interactions with police.
Thirdly, forensic testing has been conducted on the unit, which has not revealed anything which significantly assists the prosecution case. The knife presumably used to inflict the injury does not reveal any fingerprints, and while there were items owned by the applicant seized by police which were bloodstained, given the applicant's admitted contact with the deceased after he woke up there are inferences equally consistent with innocence about the deposition of those stains.
Fourthly, in order to clarify the possible causes of death and the forensic pathology evidence, the applicant contacted Dr Vagaja, one of the forensic pathologists who conducted the deceased's post‑mortem examination and co‑authored the Confidential Report to the Coroner, and Professor Jason White, a Professor of Toxicology at the University of South Australia. A copy of their reports were received, each annexed to the affidavit of Ms Porter.[15] The applicant submitted that the evidence of Dr Vagaja and Professor White creates, at a minimum, a reasonable doubt as to whether the deceased was killed by the applicant or whether the deceased killed himself.[16]
[15] Affidavit of RA Porter sworn 22 February 2022, annexures RAP4 and RAP5.
[16] Applicant's submissions par 23.
Fifthly, the combination of the likely effects of LSD and the fact that there is expert evidence that the injuries could have been self‑inflicted leaves open the reasonable inference for the jury that the deceased inflicted the injuries on himself. Counsel for the applicant noted that at any future trial, the jury must be instructed that where there is a reasonable inference consistent with the applicant's innocence, they must draw that inference.
In this regard, counsel for the applicant observed that whether the deceased's injuries were self‑inflicted will be one of the principal issues at trial. He submitted that if there is a reasonable inference that the deceased killed himself, then the applicant will be acquitted. Put differently, counsel for the applicant submitted that when on the State's case there is a good prospect of acquittal, this should ground an exceptional reason for not keeping the applicant in custody.[17]
[17] ts 3, 6 (7 April 2022).
Finally, there is an open inference that the respondent was not able to form the requisite intention for the offence of murder due to being under the influence of LSD.[18] The applicant submitted that it is assisted by s 28(3) of the Criminal Code, which provides that:
(3)When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
Disposition
Strength of the State's case as an exceptional circumstance on its own
[18] ts 3, 9 ‑ 10 (7 April 2022).
In making an assessment of the strength of the State's case against the applicant I must consider the evidence to be adduced as a whole and not on a piecemeal basis. Doing the best I can on the material before me and considering the evidence that the State is intending to adduce as a whole, I am not persuaded that the State's case against the applicant on the murder charge can properly be described as strong or even relatively strong. In particular, matters regarding whether the applicant had the requisite intention to commit murder may raise reasonable doubt for the jury. Nor, however, do I consider that it can be described as obviously weak or tenuous. When the evidence is considered as a whole, particularly taking into account the evidence of Ms Luckie, the analysis of the crime scene and the letter written by the accused, the State has an arguable case. All that can be said, in my view, is that the prosecution case against the applicant on the murder charge is sufficiently strong to preclude the conclusion that there are no reasonable prospects of securing his conviction for the charged offence.
It follows that I do not consider this is a case in which it can be said that the strength of the prosecution case (or lack thereof) of itself constitutes an exceptional reason for not keeping the applicant in custody.
Strength of the State's case as an exceptional circumstance considered in combination with other factors
I have concluded that the strength of the prosecution case does not, of itself, constitute an exceptional reason for not keeping the applicant in custody. The question which therefore remains is whether it is an exceptional circumstance in light of the other factors raised by the applicant. Two such factors are the applicant's personal circumstances and the period of time he will spend in custody prior to his trial.
Personal circumstances
Counsel on behalf of the applicant submitted that the applicant is of prior good character, has never previously been subject to criminal conviction and is relatively young.[19] The applicant has been gainfully employed for most of his adult life, working as a full‑time park attendant for the City of Joondalup prior to his arrest.[20]
[19] Applicant's submissions par 27.
[20] Affidavit of RA Porter sworn 22 February 2022, pars 17 ‑ 18.
If the applicant is released on bail the proposal is that he will live with his parents in Dalyellup (Bunbury). The applicant's parents express their support through a letter annexed to Ms Porter's affidavit. Among other things, the letter confirms that they relocated to Dalyellup from South Australia to be closer to their son while he is in prison, and attests to their son being 'trustworthy, hardworking and of sound character'.
In my view, there is nothing particularly unusual or out of the ordinary about the applicant's personal circumstances. It cannot be said that the applicant's personal circumstances, either by themselves or in combination with other factors, provide a basis for concluding that there are exceptional reasons for not keeping him in custody.
I understood counsel at the hearing to accept the same, but submitted that the applicant's personal circumstances may assist a jury in drawing an inference consistent with innocence, namely, that the wounds were self‑inflicted.[21] While I gave weight to this submission, I concluded that it was not sufficient to tip the balance, such that I considered that the strength of the prosecution case constituted an exceptional circumstance.
Delay
[21] ts 13 (7 April 2022).
In cases involving a charge of murder a lengthy delay in proceeding to trial is a regrettable common experience for accused persons. Nonetheless, an unusually long delay before an accused charged with murder can be tried may, in some circumstances, in combination with other factors (such as the degree of strength of the prosecution case), amount to an exceptional reason for not keeping an accused in custody.[22] The strength of the prosecution case will be relevant to the determination of whether an unusually long delay before an accused charged with murder can be tried amounts to an exceptional reason for not keeping him or her in custody pending their trial.[23]
[22] See for example The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34 [50]; Rayney v The State of Western Australia [2011] WASC 3 [9]; Hedgeland v The State of Western Australia [2011] WASC 181 [26] - [28].
[23] Mikhail v The State of Western Australia [2010] WASC 238 [10] - [11].
The applicant was charged in January 2021 and has been in custody since that time. As noted above, on 30 March 2022, the charge was adjourned to another disclosure/committal hearing in the Magistrates Court, Stirling Gardens on 27 April 2022. It was common ground that the applicant was likely to spend another 9 ‑ 12 months in custody awaiting his trial. In other words, by the time of the commencement of the applicant's trial he will have been in custody for approximately 23 ‑ 26 months.
Accused persons charged in this court with the offence of murder will commonly spend relatively significant amounts of time in custody as an unconvicted person prior to their trial. This is, of course, not something that is in any way desirable. It is a consequence of the time that it takes to prepare a murder case for trial and the competing demands on the court's resources. I accept that a period of 26 months is a very lengthy period of time for an accused charged with murder to be remanded in custody prior to the completion of their trial. I also accept that if the applicant is kept in custody until the completion of his trial but is ultimately acquitted he will, by reason of having spent such a lengthy period of time in custody, suffer a very significant injustice.
However, on balance I was not persuaded that this period of time was so lengthy as to of itself tip the balance in favour of a grant of bail. A delay of up to 26 months was not sufficiently lengthy to make the applicant's case unusual, out of the ordinary, in some way special or an exception to the general trend of cases. Even when considered with what the applicant noted as being clear weaknesses in the State's case, I was not satisfied this raised exceptional circumstances.
Conclusion
In my opinion, the circumstances, when considered separately and together, did not make the applicant's case unusual or exceptional. On balance, I was not satisfied that there were exceptional reasons why the applicant should not be kept in custody.
Clause 3C(d): Should bail be granted having regard to cl 1 and cl 3?
At the conclusion of the hearing I informed the parties that if it were not for the lack of exceptional reasons, I considered that bail would properly have been granted having regard to the provisions in cl 1 and cl 3 of pt C of sch 1 of the Bail Act.
As noted above, by cl 3C(d) I was required to also be satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act. This required me to have regard to the questions specified in cl 1, together with any other matters that I considered to be relevant.
I address below each of the questions specified in cl 1 of pt C of sch 1 of the Bail Act. In dealing with the questions I applied the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [44] and YSN v The State of Western Australia [2017] WASCA 155 [16] ‑ [21].
The questions posed by cl 1
Clause 1(a)
The first question specified in cl 1(a) of pt C is whether, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking; or commit an offence; or endanger the safety, welfare or property of any person; or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Clause 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with the offence with which the applicant is charged. Rather, the risk or possibility must be actual or real, as distinct from theoretical and hypothetical.[24]
[24] YSN v The State of Western Australia [17].
By cl 3 of pt C I was required, in considering whether the applicant may do any of the things mentioned in cl 1(a), to have regard to a number of matters as well as to any other matters which I considered to be relevant. The matters that I was required by cl 3 to have regard to were as follows:
(a)the nature and seriousness of the offence and the probable method of dealing with the applicant for the offence if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant;
(c)the history of any previous grants of bail to the applicant; and
(d)the strength of the evidence against him.
The nature and seriousness of offence and probable outcome
As to the first of the matters specified in cl 3, the applicant is obviously charged with a very serious offence the maximum penalty for which is life imprisonment. Accordingly, and taking into account the alleged circumstances of the offence, if the applicant is convicted of the charged offence he will inevitably be sentenced to a very lengthy term of imprisonment.
The current circumstances, antecedents and history of grants of bail
As to the second and third of the matters specified in cl 3, I had regard to the following.
The applicant is 24 years of age. He was born in New Zealand, but all his immediate family reside in Australia and he has no other international links. He has no criminal record.
If the applicant were to be released on bail the proposal was that he would live with his parents in Dalyellup. I understood that his parents relocated to Dalyellup from South Australia to be closer to their son while he is in prison and were supportive of his bail application.
The strength of the evidence against the applicant
The last of the matters specified in cl 3 is the strength of evidence against the applicant. I have dealt with this issue earlier in these reasons, and weighed the matters set out at [53] to [58] above in the balance.
Determination of the question posed by cl 1(a)
In light of the observations that I have made in relation to the matters specified in cl 3, I then had regard to the question posed by cl 1(a).
Given what I have said about the strength of the State's case, it necessarily followed that there was, in my view, some prospect of the applicant being convicted of the charged offence. The prospect of the applicant being convicted of the charged offence, and the inevitable outcome of the imposition on him of a very lengthy term of imprisonment if he is convicted, supported the conclusion that there was a risk that if the applicant was not kept in custody he would abscond and/or fail to appear in court.
Counsel on behalf of the applicant noted that all members of the applicant's immediate family reside in Australia and that he has no other international links.[25]
[25] Affidavit of RA Porter sworn 22 February 2022, par 20.
On balance, I considered that the risk of the applicant absconding and/or failing to appear in court in answer to his bail if he was not kept in custody to be moderate. However, I considered that the imposition of stringent conditions, as discussed below regarding cl 1(e), would sufficiently reduce the possibility of this occurring.
As to the other matters raised by cl 1(a), I was satisfied, given the applicant's lack of criminal history, that the risk that the applicant, if he was not kept in custody, would commit further offences or otherwise endanger the safety, welfare or property of any person, was relatively low. Further, the evidence before me did not provide any basis for concluding that if the applicant was not kept in custody there would be an appreciable risk of him interfering with witnesses or otherwise obstructing the course of justice in relation to himself or any other person.
Clause 1(b)
The question specified in cl 1(b) is whether the applicant needs to be held in custody for his own protection. There was nothing before me which provided a basis for concluding that the applicant needed to be held in custody for his own protection.
Clause 1(c)
The third question that I was required to consider, specified in cl 1(c), was whether the prosecutor had put forward grounds for opposing the grant of bail.
I have already addressed the State's grounds for opposing bail in dealing with the question posed by cl 1(a). No other grounds were raised.
Clause 1(d)
The fourth question that I was required to consider, specified in cl 1(d), was whether, as regards the period when the applicant is on trial, there were grounds for believing that, if he was not kept in custody, the proper conduct of the trial might be prejudiced. On the material before me there were no grounds for holding such a belief.
Clause 1(e)
The fifth question for my consideration, specified in cl 1(e), was, so far was is relevant in the present context, whether there was any condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the possibilities of the applicant absconding and/or failing to appear in court, committing any further offences and interfering with witnesses. I will return to this question shortly.
Clause 1(f)
The need to consider this question did not arise.
Clause 1(g)
The final relevant question, specified in cl 1(g), was whether the alleged circumstances of the offence with which the applicant is charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Clearly, and as I have already stated, the applicant is alleged to have committed a very serious offence. However, if the fact that a person is charged with murder was of itself sufficient to justify the conclusion that the alleged circumstances of the offence amounted to a wrongdoing of such a serious nature as to make a grant of bail inappropriate, no person charged with murder could ever be granted bail.
In this respect it is fair to say that while the alleged circumstances of the applicant's commission of the charged offence were self‑evidently very serious, they were not such as to elevate the level of seriousness of the alleged conduct to something above and beyond the level of seriousness ordinarily associated with a charge of murder. The State did not contend to the contrary. Moreover, whether the alleged circumstances of the charged offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate could not be considered in a vacuum. The question had to be considered in light of all of the other circumstances bearing on the exercise of the discretion as to whether or not to grant bail.
Any other relevant matter
In dealing with the application I was required by cl 1 to have regard not only to the questions specified in the clause, but also any other matters that I considered to be relevant.
One such other relevant matter was the amount of time that the applicant will spend in custody if not granted bail prior to being finally dealt with for the charge. I have already dealt with this issue in considering whether the applicant has demonstrated exceptional reasons for not being kept in custody. In this context I considered that the risk of the applicant suffering a significant injustice by reason of spending a lengthy period of time in custody as an unconvicted person pending the final determination by trial was a factor that pointed in favour of him being granted bail.
The imposition of conditions to sufficiently remove the risks
I come back now to the question specified in cl 1(e), that is, whether there were any conditions that could reasonably be imposed which would sufficiently remove the possibilities of the applicant, if he were not kept in custody, absconding and/or failing to appear in court, and committing further offences. I approach this cognisant that the question was not whether the imposition of conditions would completely remove the possibility of the applicant engaging in such conduct, but rather whether the imposition of conditions would sufficiently reduce the possibility of this occurring.[26]
[26] YSN v The State of Western Australia [20].
The State accepted that if the court were to find that there were exceptional reasons for not keeping the applicant in custody, there were no grounds on which bail could not properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act.[27] This concession was appropriately made in all of the circumstances.
[27] ts 22 ‑ 23 (7 April 2022).
The possibilities of the applicant, if he is not kept in custody, failing to appear in court and committing further offences would be sufficiently removed by conditions where the remaining risk of him engaging in such conduct no longer constitutes a proper ground for refusing him bail.[28] The question whether the remaining risk no longer constitutes a proper ground for refusing bail must be assessed by reference to the nature and extent of the risk to the integrity of the criminal justice system and community safety, and also in light of the possibility that the applicant will suffer an injustice if he is held in custody but is ultimately acquitted of the charge.[29] As was stated by the court in YSN v The State of Western Australia at [20], this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
[28] YSN v The State of Western Australia [20].
[29] YSN v The State of Western Australia [19].
The applicant had indicated that he was willing to abide by various conditions of bail, including a condition requiring the provision by the applicant's parents of a surety in the amount of $150,000; a residential condition; a reporting condition; non‑contact conditions; and a condition requiring the applicant to undertake urinalysis. The applicant was also willing to comply with home detention bail, should the court not be satisfied that the conditions proffered were adequate.[30]
[30] Applicant's submissions par 37.
The State, for its part, supported the imposition of the conditions proposed by the applicant in the event that bail were granted.[31]
[31] ts 23 (7 April 2022).
The conditions proposed by the applicant were very stringent. I accepted that the provision of a surety in the amount of $150,000 by the applicant's parents should be a very strong deterrent to the applicant absconding or otherwise failing to appear in court in accordance with his undertaking. Furthermore, I accepted that the conditions of the type proffered by the applicant would have significantly reduced not only the risk of the applicant failing to appear in answer to his bail, but also the risk of him committing further offences. However, given the nature and seriousness of the offence, and that otherwise the applicant's only ties to the community of Western Australia appeared to be his parents who had recently moved to Western Australia, I considered that it would have been appropriate to grant home detention bail, rather than bail in the community.
On the material before me, having regard to all of the factors in cl 1, I did not consider that there was any basis upon which to conclude that bail should be refused. Apart from the issue of exceptional circumstances, I considered that home detention bail would have resolved any concern I had against exercising a discretion to grant bail to the applicant in relation to matters in cl 1.
Conclusion
The application for bail was refused on the basis that there were no exceptional reasons for not keeping the applicant in custody.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
14 APRIL 2022
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