Dabag v The State of Western Australia
[2005] WASC 140
DABAG -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 140
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 140 | |
| Case No: | MCS:10/2005 | 16 JUNE 2005 | |
| Coram: | SIMMONDS J | 29/06/05 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NABIL DABAG THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Bail pending trial Charge of unlawfully doing grievous bodily harm Whether jurisdiction to grant bail invoked where previous application for bail was refused Whether new facts have been discovered or a change in circumstances that would favour grant of bail |
Legislation: | Bail Act 1982 (WA), s 14(2a)(a) |
Case References: | Dabag v The State of Western Australia [2005] WASC 22 Hobby v The Queen, unreported; CCA SCt of WA; Lib No 990013C, 22 January 1999 Mercanti v The State of Western Australia [2005] WASC 122 Musarri v The Queen [2001] WASC 200 Saka v The Queen [2001] WASC 92 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Bail pending trial - Charge of unlawfully doing grievous bodily harm - Whether jurisdiction to grant bail invoked where previous application for bail was refused - Whether new facts have been discovered or a change in circumstances that would favour grant of bail
Legislation:
Bail Act 1982 (WA), s 14(2a)(a)
Result:
Application dismissed
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Category: B
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr D Dempster
Solicitors:
Applicant : Holborn Lenhoff Massey
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dabag v The State of Western Australia [2005] WASC 22
Hobby v The Queen, unreported; CCA SCt of WA; Lib No 990013C, 22 January 1999
Mercanti v The State of Western Australia [2005] WASC 122
Musarri v The Queen [2001] WASC 200
Saka v The Queen [2001] WASC 92
Case(s) also cited:
Nil
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- SIMMONDS J:
Introduction
1 This is an application for bail after committal and indictment on a charge under Criminal Code s 297 of unlawfully doing grievous bodily harm. The charge arose out of an altercation at a Northbridge nightclub in the early hours of 23 January 2005. The applicant's charge arose out of the stabbing of another. The victim was himself charged with unlawful wounding with intent to do grievous bodily harm arising out of the shooting of the applicant shortly after the stabbing. The applicant's prior application for bail, before committal, was before me, and I gave judgment in Dabag v The State of Western Australia [2005] WASC 22. There I reviewed the allegations against the applicant in some detail, as well as the evidence for the prosecution at that very early stage in the proceedings. I dismissed the application the application for bail at that time, concluding as follows (at [83]):
"It follows that on balance I do not consider that it is appropriate to grant this application for bail. This balance is particularly the result of the seriousness of the alleged circumstances of the offence charged and the early stage of the criminal proceedings at which this application falls for decision, as I have explained. I have weighed the case for bail against those factors, but not according to the standard for bail before committal for 'extremely serious' cases. Had I used that standard, a decision against bail would have been much more easily arrived at.
It also follows that the completion of the committal mention process may well mark the discovery of new facts, the arising of new circumstances or the changing of circumstances such that the jurisdiction of the court to grant bail might be further invoked, as was recognised in Saka(supra), [12] and [13]. Further, it is possible that the release of the vision of the incident might also mark such matter."
2 The reference to Saka is to Saka v The Queen [2001] WASC 92, McKechnie J. The reference to "vision" is to recordings using digital imaging equipment of vision of the altercation. Those recordings were not shown at the hearing before me, for reasons my judgment describes (at [52]).
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3 My judgment was delivered on 1 March 2005. There was a committal of the applicant on 13 April 2005, and he was indicted on 14 June 2005. A committal brief is now available, and a copy was lodged with this application for bail as an annexure to the affidavit of the solicitor for the applicant, Gary William Massey, sworn on 16 May 2005. The prosecution also provided me with the brief on the indictment, which I was told was the same as the committal brief except for pagination and ordering differences. At the hearing, the prosecution provided some further information on the progress of forensic examinations that had been or were being conducted, particularly by reference to what counsel said he had been told were findings from the forensic examination of a "silver folding type knife" that was "found near the fire exit in the vicinity of bins and adjacent to the ice machine", the description of the knife in the witness statement of Senior Constable George Burns Paton who had supervised and assisted with the crime scene investigation at the nightclub beginning at 2.35 am on 23 January 2005 (par 9 of the statement of 30 March 2005). The findings were said to be of DNA material inside the knife that matched the DNA of the applicant.
4 In my March judgment, I noted that, apart from my not having the vision I referred to, there were then no forensic results from a knife, bullets and a piece of a watch that had all been found at the scene (at [46] and [47]). I also noted that there were no eye-witness statements then to hand stating that the applicant, as a person the makers knew or had identified from a photo board or similar, was also at the scene of the incident (at [48]). Nor were there medical reports for the applicant or the other person, or statements from those who had transported them to or attended them at Royal Perth Hospital where they were both treated, then to hand (at [49]). This was apart from statements from one or more associates of the applicant who had been with the applicant when he had been transported from Roe Street to Royal Perth Hospital, during the course of which the applicant said to the maker or makers of the statements he had been shot at the nightclub (at [43]).
5 Before me on this occasion counsel for the applicant put into evidence a disk containing a vision portion showing what the prosecution alleges is the altercation. That vision portion was played on a notebook computer made available to me at the bench. The vision portion is from one of eight files, which appear to correspond to vision from eight cameras, separately numbered. Counsel for the respondent had no objection to this manner of proceeding. Both counsel made submissions to me as to what I could and should infer from the vision portion that was so played. They left me to view the vision from the disk again for the
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- purposes of this decision. I note there was a similar procedure followed in the post-committal bail application for the person I have referred to as the victim of the alleged stabbing: see Mercanti v The State of Western Australia [2005] WASC 122, McKechnie J, at [12]. Of course, although his Honour appears to have viewed the same portion of the vision as I was asked to consider, and formed his own view about what it indicated (at [13]), I am required to form my own view.
6 I return below to the other material whose absence I noted in my previous judgment.
7 I further note there is no suggestion that the personal circumstances of the applicant relevant to the decision whether to grant bail have changed in any way.
8 I also note that, so far as the time to trial of this matter is concerned (see my March judgment at [66] - [68]), it was accepted before me, that without an order for an expedited trial the date will likely be at least some time next year, or at least one year from the commencement of proceedings. This does not represent a change from the position before me in the first application.
9 Like McKechnie J in Mercanti (at [5]) I concluded at the hearing I should order an assessment of the applicant's suitability for a home detention condition in case I determined that my jurisdiction to reconsider my earlier refusal of bail was enlivened, and should be exercised, with the imposition of such a condition. That assessment was to the effect that the applicant was a suitable candidate for home detention while also noting that he wished to resume work in a family business if released to bail, and that the work would be of a day, evening and weekend sort. However, as I have indicated, I do not reach that matter unless I determine my jurisdiction to reconsider my earlier refusal of bail is enlivened.
10 I begin this judgment by setting out the basis for jurisdiction to reconsider an earlier refusal of bail, a matter that also had to be addressed in Mercanti (supra), at [6] and [7]. I then consider the material before me in terms of whether that basis exists here. I conclude with my determination of this application.
Jurisdiction to hear a further bail application
11 This application, counsel agreed, was one governed by Bail Act 1982 (WA), s 14(2a), which reads as follows:
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- "(2a) After the jurisdiction under subsection (1) has been invoked once by an accused in relation to an offence or group of offences for which he is required to appear, it may not be further invoked by that accused in relation to that offence or group of offences unless the accused satisfies a Judge of the Supreme Court that -
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since the occasion when the jurisdiction was invoked; or
(b) he failed to adequately present his case for bail on that occasion."
"Accordingly, I hold that the matters raised in cl 4(a) must, in order to enliven the jurisdiction conferred by cl 4, be matters that would have been likely, if known to the Judge who previously refused bail, to alter the balance in favour of the grant of bail."
13 As his Honour there concluded, it was not enough there had been a committal hearing. However, in this case, it would be appropriate, it seems to me, to consider whether or not there had been a failure to fill the evidentiary gaps to which I have previously referred with material that would strengthen the prosecution's case, given my assessment of that case as originally presented to me as a "relatively weak" one (at [53]).
14 I do not consider that there is anything else before me that is capable of representing matter of the sort referred to in Musarri (at [13]). While some time has elapsed, and it has become clear that the time to trial is indeed likely to be of the order of one year, unless any application for an expedited trial is successful, neither of these nor their combination would on their own, on my view, alter the balance in favour of the grant of bail.
15 In terms of the Act, s 14(2a)(a), the questions for me are whether there has been the discovery of new facts (particularly from the forensic evidence I have referred to, facts in the form of findings which tend to exculpate the applicant, or at least not to inculpate him) or a change in
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- circumstances (in the form of vision becoming available which does not provide significant support for the prosecution's case). As counsel for the applicant placed principal reliance on the vision, I start there.
Change of circumstances
16 In the original hearing before me, as I have indicated, I did not see the vision, nor had the applicant or his legal representatives seen any but what appear to have been some very limited and blacked out portions from it (at [51]). I said this about the vision and what I was told about it by Detective Rex Francis Tunks, who had been involved with the case since the early morning of 23 January 2005, and was the acting case officer for the investigation (at [40] - [43]):
"It is evident from the material before me that the primary basis for the prosecution's case against the accused at present is the vision captured by black and white digital recording equipment operated by the nightclub in a position which I was told was near to where the altercation in question occurred. This vision was described by Detective Tunks as of variable quality, being clearest when one of the persons in the vision is seen in profile, and at least at one stage during the incident clear enough to permit police to identify that person as the accused. This equipment did not record sound.
What the vision showed, I was told, was the altercation, as part of which the alleged victim is seen to fall back, and then lunge forward again. During this exchange, it is alleged that the accused's left arm is partially seen, moving up and then across in the direction of the alleged victim. Actual contact with the alleged victim is not seen, nor is anything to be seen in the hand of the person alleged to be the accused. Detective Tunks said that the alleged victim's position caused him to obscure a view that might have shown either. Following the exchange between the accused and the alleged victim, glistening, shown in black and white as a lighter shade and it was said suggesting blood, is said to be visible on the alleged victim's black shirt.
This vision, I was told, also showed the accused being taken away from the scene to places in a direction or directions which take him out of view. I was further told that, following the removal of the accused out of camera range, and what appears to be a discussion between the alleged victim and two others at the scene, the alleged victim is seen moving in the direction in
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- which the accused had been taken, reaching into a 'bum bag' he was wearing, although the vision does not show him pulling his hand out of it. Later the alleged victim and one of the men who had removed the accused re-appear in the vision of the camera that captured the altercation or that of another camera. The other man appears to be bearing a firearm. The vision later shows staff of the club engaged in cleaning the floor area of what appeared to be blood, and clearing away broken broom handles from the scene. A staff member is also seen carrying the accused's shirt away to an undercover area outside the club.
As I have indicated, there was other vision recording equipment, some with colour, in the nightclub. None of it picked up the altercation, I was told. But it was said this other equipment recorded the accused leaving the scene without the shirt he had been wearing during the altercation, and hobbling, one camera showing him leaving the nightclub, the other, an outside camera, showing him going away from the club towards Roe Street."
17 In my judgment I indicated that the unavailability of the vision "would reduce the weight" I could assign to this evidence (at [52]). Now I have the vision, and can consider what it does and does not tend to show, in particular, whether it bears out what Detective Tunks said of it. I can do this with the benefit of submissions of counsel about what I should particularly note about the vision.
18 Counsel for the applicant put to me, as I took his submissions, that there was no part of the vision that clearly showed the applicant was present at the time of the altercation, that showed anyone using a knife, that showed anyone stabbing the victim, or that showed any discolouration or blood on an assailant or the victim at any stage of the altercation. This was part of a larger submission that there was no evidence in the committal brief to show that the applicant had or used a knife on the night in question, or had a propensity to use knives. Counsel for the applicant particularly referred to the lack of any witness statement referring to the applicant having been seen with a knife at any point on the night in question, the lack of any evidence of a connection between the applicant and a knife on that night, and the fact the applicant's criminal record did not include any instance of his use of a knife.
19 There is, however, evidence I will reach, in the form of a medical report, that Mr Mercanti sustained stabbing wounds on the night in
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- question. I also note there is evidence from ambulance officers who attended on Mr Mercanti at the nightclub that he had been seriously wounded, with much bleeding, as a result of lacerations to his chest, arms and neck (see especially the witness statement dated 29 March 2005 of Lindsay Thomas Scott, at par 21 – par 34, and of Ronald James Lynn, dated 4 February 2005, at par 48, on the seriousness of Mr Mercanti's injuries). There is also (now) some evidence from DNA analysis, to which I will return, linking the applicant to the knife found at the scene of the altercation.
20 Counsel for the respondent put it to me that the vision did indeed show a person who could be identified as the applicant. This person is shown as involved in the altercation and then being taken from the scene immediately after the altercation ends, coming clearly into view in the vision. This person answers the description of the person with whom Mr Mercanti was "fighting" in a statement of a person (Gregory David McIntyre, at par 28 of his witness statement dated 1 March 2005) who said he saw at least part of the altercation, and matches the photograph of the applicant, taken on the early morning of 23 January 2005 in Royal Perth Hospital by a police officer (Constable Briony Louise Whitmore, at par 11 of her witness statement dated 1 April 2005). Furthermore, the applicant had said to police officers he had been at the nightclub on the night in question, although he said he could not remember anything of any altercation; and there was a statement, from a person (Mazen Samir Sabri), who said he was a friend of the applicant and who had been in the vehicle that took him from the vicinity of the nightclub to the hospital that night, in which the applicant is reported as having said to the maker of the statement that the applicant had been shot (par 25 of Mr Sabri's witness statement dated 4 February 2005).
21 Further, counsel for the respondent said, the floor on which Mr Mercanti and the applicant were seen initially in the vision portion was shown as clear of visible markings, but as the exchange between the two men proceeded it gained evident markings. This was at about the same time that one the applicant's arms is seen to be making motions consistent with lunging at Mr Mercanti with a knife. Further, there are some signs of the floor gaining markings underneath the area to which the altercation moved, and, after the motions referred to Mr Mercanti, markings appear on his shirt he did not have shortly beforehand. After the altercation ended, and the applicant is seen to have been led off camera, Mr Mercanti is seen to proceed in the same direction, and his shirt clearly bears markings around the chest and neck it did not have at the outset of the vision of him. And there is a medical report (by a Dr Niruben
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- Rajasagaram, dated 25 February 2005) for Mr Mercanti which indicates that the nature of his injuries observed on 23 January 2005, multiple slash wounds to the chest and neck, were consistent with Mr Mercanti having been stabbed.
22 The vision portion I was asked to focus on, including that to which counsel for the respondent directed my attention, for the most part shows three persons, one of whom, wearing dark clothing, shirt and trousers, and a bright necklace, it was accepted was Mr Mercanti. This vision portion was from one of a number of numbered cameras, vision files from which made up the disk with which I was provided. The vision portion was from camera 78. The vision from each of the cameras was in black and white, without sound, and proceeded at about three frames per second. The vision portion from camera 78, on which I was asked to focus, involved three people almost throughout, although they were joined at various stages during the portion by four others. The portion was from the time indicated on the vision, of 1.31 am and 55 seconds, to 1.32 am and 35 seconds, although as I will indicate I also examined some vision from camera 78 from before that time and from after it, as well as some vision from another camera.
23 Camera 78 points up what appears to be a corridor. The corridor is reasonably well lit, with two bright lights visible in the ceiling throughout, which particularly illuminate the floor to the left. The corridor has a dark floor. To the left there appear to be the last two steps from stairs leading down to the corridor. Opposite the foot of the stairs, to the right, is an area partially blocked from view by a wall, an area which it appears was outside the door to an office area. There appears to have been a camera, camera 14, inside this office area, so that movement into and out of it into the area to the right of the stairs in the corridor on which camera 78 is trained can be seen. That area to the right of the stairs was one into and out of which before, during and after the vision portion various people are seen to move, including the person I will call Person 2, with whom Mr Mercanti is seen to have the altercation.
24 I will set out in some detail what I observed from the vision I considered, including times (as shown on the vision) and frame references where appropriate. Those references are both to indicate the speed with which events occurred, notwithstanding the detail in which I find it necessary to describe them, and to indicate what seem to me to be important matters of content and of sequencing. It will become apparent those matters are important to the conclusions I have drawn about the vision in question.
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25 I have not identified any one by name, except for Mr Mercanti, who appears in the vision first. I follow the convention of numbering each other person who appears in the vision, from Person 2 to Person 7, in the order of their appearance. It will become apparent that one of those other persons, whom I call Person 2, is, on the information I have, likely to be the applicant. The identities of the remaining persons are not of significance in these proceedings, except for the person I call Person 4. Person 4 appears to be Mr McIntyre, to whose statement I previously made reference.
26 Prior to the vision portion to which counsel drew my attention, a person who appears to be Mr Mercanti enters the vision, at 1.26 am and 50 seconds, from the stairs on the left, followed by another person with whom he appears to have a short conversation almost directly underneath one of the bright lights in the corridor, before both men go back up the stairs (by 1.27 am and 10 seconds). The person who appears to be Mr Mercanti faces the camera at one point as he turns into the conversation, and his black shirt appears to be unmarked in any way. At 1.29 am and 21 seconds a trolley or similar is seen having been brought in from the bottom of the vision and placed on the left wall just before the stairs. It blocks sight of the steps on the stairs, and the floor immediately at the foot of the last step. From time to time thereafter, until this unit is removed, which occurs after the altercation, what appear to be plastic buckets with handles are seen being taken from it or, less often, put into it.
27 The vision portion begins, as I have said, at 1.31 am and 55 seconds, with a person whom it was accepted was Mr Mercanti appearing from the stairs on the left, and who on reaching the corridor is then seen to turn around immediately to face the next person down the stairs. This is Person 2, who is noticeably shorter than Mr Mercanti, and who wears a light coloured, very short or no sleeved shirt, which is out of his dark pants. As Mr Mercanti is shown turning to face Person 2, there are no marks evident on his black shirt, although he is further from the camera than the person who appears to have been him at the earlier time I referred to.
28 Mr Mercanti and Person 2 are seen to come very close to one another immediately. A third person, whom I shall call Person 3, follows Person 2 down the stairs, stopping initially on what seems to be the second last step. Person 3 is wearing a very light coloured short sleeved shirt, which has longer sleeves than Person 2's shirt and which is out of Person 3's very light coloured pants. Mr Mercanti's focus throughout the altercation that ensues appears to be exclusively on Person 2. No one
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- apart from Mr Mercanti, Person 2 and Person 3 is evident in the corridor at this time.
29 At 1.32 am precisely Mr Mercanti is seen to have pointed a finger on his right hand just below Person 2's neck. At 1.32 am and 3 seconds Mr Mercanti is seen to have bent somewhat at his stomach and to be leaning towards Person 2. At the next frame Mr Mercanti is seen to have leant backwards, and at the following frame he is seen to have extended his right arm towards Person 2, who appears to have lowered himself.
30 Then ensue what seem to be blows, at least by Mr Mercanti directed at Person 2, with Person 3 appearing to be trying to insert his arms between the two other men. At this point the floor immediately below the two men shows no markings. At 1.32 am and 5 seconds, Person 2 is seen to have gone behind Mr Mercanti, whose back is now to the camera and who is leaning at a slight angle to the left. At the far end of the corridor as shown on the vision it appears some one is approaching, whom I shall call Person 4. In the next frame Mr Mercanti is seen to have twisted somewhat to the right, his legs having moved to the left as he did so, while Person 2's left leg has emerged to Mr Mercanti's right. A glistening mark has appeared from about where Mr Mercanti's right shoe had just been. In the following frame Mr Mercanti is seen to have twisted further to the right, his legs to have continued to move left as he did so, and he is bent lower, while Person 2 has almost completely emerged. A further glistening mark is evident on the floor about where Mr Mercanti's right shoe had just been. Then Mr Mercanti is shown continuing to twist until he is facing the area to the right. Mr Mercanti appears to be bent into and grappling with Person 2, and the two men are seen edge on moving to the right. Person 3 is seen to Mr Mercanti's left, Person 3's arms being still in the direction of the two other men. By this point (1.32 am and 6 seconds) the group have moved so that both glistening markings on the floor are now visible. At 1.32 am and 7 seconds a further person appears from the stairs, whom I shall call Person 5.
31 Person 3 and Person 5 follow Mr Mercanti and Person 2 to the right, towards the area to the right outside the office area to which I have referred, with Person 2, by 1.32 am and 7 seconds, having gone largely into the former area, and as a result having become largely obscured except for what appears to be his left arm. By this point, Person 4 appears to have turned around and left the scene back the way he had come. Shortly afterwards (two frames later, at 1.32 am and 8 seconds) Person 5 is seen to have joined the efforts of Person 2 to insert his arms between Mr Mercanti and Person 2. From this point it is clear to me that
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- Person 2's left arm is moving both vertically and horizontally towards Mr Mercanti, although it is not possible to see what, if anything, might be in Person 2's hands, and no contact is discernible. Some further glistening markings seem to have appeared further up the corridor near where Mr Mercanti's right leg had previously been. By 1.32 am and 10 seconds, Person 2's left arm has been pulled back by Person 5, just before a further concluding physical exchange between Person 2 and Mr Mercanti, at the end of which, at 1.32 am and 12 seconds, there appears to be light markings on Mr Mercanti's shirt, near his right neck and near his left neck. From this point he appears to focus his attention on these areas.
32 Ultimately Person 3 succeeds in partially interposing himself between Mr Mercanti and Person 2, while Person 5 is seen to have hold of Person 2, who has emerged into full view again, from behind him. Person 4 has entered the vision again, from the end of the corridor, to do something at a bin on the right wall down the corridor from the exchange.
33 At the start of the next stage, at about 1.32 am and 14 seconds, Person 2 is seen to have emerged and be facing towards the camera, with Person 3 and Person 5 behind him, and Mr Mercanti further behind. Person 2's shirt is no longer covering his chest, and his arms are behind him. As the group of Person 3, Person 2 and Person 5 move down the corridor towards the camera, Person 2 is seen at one point to have twisted to his left, to have partially broken free from those holding him, and to have turned so he is facing Mr Mercanti behind him, with his right arm partially raised, and his shirt hanging only from his left shoulder. There appears to be nothing in his right hand. Shortly afterwards, at 1.32 am and 17 seconds, Person 5 is seen to have clasped Person 2, with Person 5's left hand having taken hold of skin below Person 2's right shoulder. At this point also, a sixth person, whom I shall call Person 6, has appeared from the right from where Person 2 had emerged. Immediately after Person 6 a further person, whom I shall call Person 7, appears from the same spot.
34 Person 5 is then seen, also at 1.32 am and 17 seconds, to have turned Person 2 back to Person 2's right, so that both men have come into side profile facing one another, a point at which Person 2 is seen to be looking directly at Person 5. This appears to be the position which counsel for the respondent characterises as providing a clear view of Person 2 as the applicant. By 1.32 am and 22 seconds, the group of Person 3, Person 2 and Person 5 have disappeared from the vision, down the corridor to the lower left.
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35 As that occurs Person 7, to Mr Mercanti's right, and Person 6, to his left, are seen to have come close to him. As matters progress, they are seen to have their arms up to him as he begins to proceed edgewise down the corridor in the direction in which Person 2 had been taken. As they do so, the floor beneath them in the area on the right side opposite the stairs becomes easier to see, and it appears there are some markings there which were not there before the altercation moved into that area. At 1.32 am and 29 seconds Mr Mercanti appears to have broken free of Person 6 and almost free of Person 7, and to be reaching down to his waist where there appears to be a bag (referred to before me as a "bum bag").
36 It becomes apparent at this point that there are two light markings visible on Mr Mercanti's black shirt, one near his neck on his left, and one on his chest, about mid-way to his waist and slightly to his right. The next frame, at the same indicated time (1.32 am and 29 seconds), has Mr Mercanti closer to the camera, and almost directly under one of the bright lights, with his hand still at his waist, and with further lighter markings on his shirt showing, one near his neck on the right and one further up his chest. The next frame (at 1.32 am and 30 seconds) also appears to show markings on the shirt on the left sleeve.
37 Mr Mercanti then continues down to the corridor, and by a later frame at the same time (1.32 am and 30 seconds) is seen to have disappeared from the vision to the lower left, as Person 2 had done. Mr Mercanti is followed in that direction by Persons 7 and 6.
38 Person 4, who had been in the background since his return, is then (at 1.32 am and 32 seconds) seen to have taken what looks to be a plastic bucket with a handle to the trolley on the left wall to which I have referred. He appears throughout to be looking down the corridor in the direction in which Person 2 had been taken, and in which Mr Mercanti had then proceeded. Shortly after laying the plastic bucket on the trolley, Person 4 is seen, at 1.32 am and 35 seconds, to have dropped his right shoulder and raised his left hand towards his left ear. He then is seen to back away from the trolley towards the right wall, bringing his right arm up towards the right side of his face. He then moves off the wall and at 1.32 am and 40 seconds to have turned to walk back up the corridor away from the camera, ultimately turning right into the space at the right outside of the vision opposite the stairs.
39 Still later, at 1.32 am and 57 seconds, first Person 7 then, after another person has appeared from the stairs, Person 6 are seen to have re-appeared from the lower left of the vision, Persons 7 and 6 coming
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- from the direction in which first Person 2 and then Mr Mercanti had gone. Persons 7 and 6 are then followed from that direction by Person 5, who appears to be carrying something in his left hand which is consistent with it being a pistol, and by Mr Mercanti, who appears to be carrying light coloured cloth in his left hand, on which dark markings are visible.
40 Later again various people are seen in the corridor, with some at various times wet mopping the floor in the areas in which the altercation occurred, on the right hand side, and up and across the corridor. Some areas appear to be wet mopped more than once.
41 Counsel for the applicant asked me to note that at no point in the vision portion is a knife to be seen, nor is anything else to be seen in the hands of the alleged assailant, Person 2. No one is seen to be taking anything out of Person 2's or any one else's hands. I agree.
42 However, I also agree with counsel for the respondent's descriptions of the vision portion in terms of the markings that appeared on the floor during the altercation between Person 2 and Mr Mercanti, and in terms that Person 2 appears throughout until he disappears from view down the corridor, and just prior to that disappearance comes into clear view sufficiently to make an identification possible. I have noted that the committal brief contains no witness statement from a person present at the altercation who identifies the applicant as also present as some one they knew or had identified from a photo board or similar, although it does contain the other material, from Mr McIntyre and Constable Whitmore, to which I have referred. However, it does not seem to me that such eye-witness identification is required for my purposes to make a strong case for identification, in the face of the other material to which I have referred.
43 I also agree with counsel for the respondent that Mr Mercanti comes into clear view with markings on his shirt that are consistent with the wounds described in the medical report to which I have also referred, and that appear not to have been present at the beginning of the altercation, although I also find they are not as clearly absent as when the person who appeared to be Mr Mercanti appeared earlier as I indicated. I also agree with counsel for the respondent's descriptions of Person 2's visible movements in the altercation, particularly on the right side of the corridor, as consistent with the movement of a knife at Mr Mercanti, although to repeat, no knife is visible at any point. It is striking that it is shortly after those movements are to be seen that markings on Mr Mercanti's shirt become noticeable, and that he appears to begin to take notice of them. It
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- is also striking that there are some signs of markings on the floor at the scene, both on the left and the right of the corridor, that were not evident before the altercation began.
44 I also note that the vision appears to me to bear out the description of the altercation in Detective Tunks' evidence as referred to in my previous judgment (at [40] - [42]). However, there is no indication in the vision I saw, either of someone carrying Person 2's shirt away to an undercover area outside the nightclub, or of Person 2 hobbling away from club towards Roe Street (at [43]), although it is not clear that I had been presented with all of the available vision.
45 I conclude on balance that the vision represents strong evidence to support the charge laid. It is true that it is evidence from which inferences must be drawn, a point counsel for the appellant emphasised before me. But what the vision shows appears to me to offer strong inferential support for the case the prosecution is attempting to make.
46 It follows that I have not found any change of circumstances under this head that would favour the grant of bail.
Discovery of new facts
47 My focus here is on the results of the forensic examination of the knife, the bullets and the piece of watch to which I previously referred, to determine whether or not those results tend to exculpate, or at least not inculpate, the applicant, and thus to weaken the case I have described. It will be recalled that in my previous judgment I noted there were no results from forensic examinations the prosecution was able to rely upon at that time.
48 Counsel for the respondent did not take me to any forensic results, with two exceptions, although he indicated his understanding that forensic inquiries were ongoing. I am of course not in a position to speculate on any future results.
49 However, counsel for the respondent did note the analysis of the fingerprint detail from the knife (exhibit GP 9) referred to in Senior Constable Paton's witness statement to which I referred at the beginning of my reasons. The description in that statement of where it was found, as I have indicated previously "near the fire exit in the vicinity of bins and adjacent to the ice machine", would seem to put it down the corridor away from and out of the vision of camera 78. That analysis indicated there was insufficient ridge detail to permit an identification (statement of
(Page 17)
- Senior Constable Paul Brendon Chance, Forensic Investigation Officer, par 13).
50 However, at the hearing before me counsel for the respondent indicated that, since the compilation of the committal brief, he had received an account of an interim report of analysis of the knife for DNA, as part of the ongoing investigation in this matter. I referred to this information at the beginning of these reasons. I permitted counsel for the respondent to describe the contents of the report as he understood them, noting the power of a judicial officer under Act s 22 to receive and take into account "such information as he thinks fit whether or not the same would normally be admissible in a court of law".
51 Counsel for the respondent indicated a match to the applicant's DNA profile had been found for biological material inside the knife. Counsel for the applicant indicated I should give virtually no weight to this report, as it could not be determined exactly where the DNA had been found, nor what the terms of the match were, given the court did not have the benefit of the report itself, and of submissions on it from both sides.
52 At the same time I gave leave to counsel for the respondent to provide me with a copy of any written report, subject to providing a copy to counsel for the applicant so that submissions for the applicant might be made to me about the report. Subsequently, a document styled "Forensic Biology Interim Report", dated 17 June 2005, on the letterhead of The Western Australian Centre for Pathology and Medical Research Forensic Services Biology and issued by Martin Bloom, was sent to me and copied to the applicant's solicitors. This confirmed that there were no visible bloodstains on the blade of the knife (exhibit GP 9), nor was blood detected by chemical screening. I note in relation to that last matter, as counsel for the applicant submitted, there was no sign of anyone removing or cleaning a knife after what is alleged to have been a very serious stabbing attack. From the vision I also note, however, that there was much floor cleaning in the area in which the knife was found, although there is no sign of a knife there, and whether that cleaning would have been sufficient to wash any knife, there but not in the vision, clean is unclear to me.
53 The Interim Report goes on to say that, on dismantling the knife, biological material was recovered from knife bolts. A partial major DNA profile that "matched DABAG'S DNA profile was identified". The Interim Report added that:
(Page 18)
- "There was insufficient minor component to identify a profile. The probability of finding this DNA profile if the [sic] some of the biological material came from someone other than and unrelated to DABAG is less than one in 72 million."
54 Counsel for the applicant, having received a copy of this report, indicated to my associate that he did not wish to make any submissions to me in addition to those I have previously referred to.
55 I note of course the need for caution in the use of DNA matching analysis in criminal matters. That need is conveniently addressed in the judgment of Steytler J (as he then was) in Hobby v The Queen, unreported; CCA SCt of WA;Lib No 990013C, 22 January 1999, at 5 - 18. Guided by that portion of that judgment, I conclude that the DNA forensic evidence now available to me is worthy of weight in my deliberations, as adding to the strength of inferences that might be drawn from the vision I have also had the chance to evaluate. As I have indicated, the case against the appellant is based on inference, but this does not prevent me determining that the forensic evidence from the Interim Report has added to what, on the vision I have referred to, is a strong case for the prosecution.
56 It seems to me then that I have not been presented with new facts that would enliven my jurisdiction under Act s 14(2a)(a).
Conclusion
57 It follows that I would deny the present application for bail.
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