De Alwis v The State of Western Australia
[2012] WASCA 146
•31 JULY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DE ALWIS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 146
CORAM: PULLIN JA
NEWNES JA
MAZZA JA
HEARD: 12 JULY 2012
DELIVERED : 12 JULY 2012
PUBLISHED : 31 JULY 2012
FILE NO/S: CACR 125 of 2012
BETWEEN: VIJITHA GAMINI DE ALWIS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :IND 1086 of 2011
Catchwords:
Criminal law - Application for leave to appeal against decision - Bail pending trial - Whether reasons for refusing bail inadequate - Charge of grievous bodily harm
Legislation:
Bail Act 1982 (WA), s 15A, s 15B
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: In person
Respondent: Mr J Mactaggart
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Smart v The State of Western Australia [2010] WASCA 218
JUDGMENT OF THE COURT: At the hearing of this appeal, the members of the court made the following orders:
1.leave to appeal is granted on ground 1;
2.leave to appeal is refused on all other grounds; and
3.the appeal is dismissed.
What follows are our reasons for making these orders.
The appellant sought leave to appeal from a decision by Wisbey DCJ made on 1 May 2012 refusing the appellant's application for bail pending trial.
The appellant is charged by indictment that:
On 4 April 2011 at East Perth, [the appellant], with intent to maim, disfigure, disable or do some grievous bodily harm to Liyanage Chulasubadra Perera, unlawfully wounded Liyanage Chulasubadra Perera.
The appellant has been in custody since the day of the alleged offence. He stood trial before Wisbey DCJ and a jury commencing on 12 March 2012 (the first trial). He was represented by counsel, Mr K P Bates. The prosecution led evidence from the complainant, who is the appellant's estranged wife, a witness to the alleged incident, Ms Appleby‑Pinguet, a work colleague of the complainant, Mr Hackett, a medical practitioner, Dr Kendrick and two police officers, Constable Williams and First Class Constable Ryan. The State intended to call one other eyewitness, Mr Mahony. During the evidence of the second police officer, Constable Ryan, the appellant apparently became unwell and was taken to Royal Perth Hospital with chest pains. The hospital required time to evaluate the cause of the chest pains. In the circumstances, it was not possible to continue with the trial and on 15 March 2012, the jury was discharged. The trial was adjourned to 28 May 2012.
After the first trial the appellant dismissed Mr Bates. Consequently, the matter was listed before Wisbey DCJ on 1 May 2012 for directions. The appellant, who has been a lawyer but was removed from the roll of practitioners, represented himself and made applications to adjourn the trial and for bail. Both applications were refused. He also foreshadowed making an application to recall the complainant for further cross‑examination.
The transcript with respect to the issue of bail and his Honour's decisions in respect of that application and the application for an adjournment reads:
WISBEY DCJ: You're - you're seeking - you're seeking bail today, are you?
ACCUSED: I am, your Honour. I am making that application now, for the moment. So it is trite law, your Honour, that in fact, I think Murray J says that it should not be even 12 months there. It should be - there should be a - a subjective approach to that. And I think there is a long line of judgments where it is said that that - that a person should not be kept in custody for this length of time.
And also there is there - that other judgment, I can't remember the name - names of those judgements, which say that if I - I have to spend 90 per cent or more of a possible gaol term upon conviction, that would be then - there won't be any recompense and I would be spending all that kind of sentence in custody before trial when there is a presumption of innocence.
And I'm not yet convicted. There is a presumption of innocence in - on - for me. And then also the fact that if there is an acquittal, which I submit to your Honour, is quite possible now, going by the - because there had been a discussion between the prosecutor and your Honour at the end of the day - that day, I think on the 15th or so, and so 294, section 294, probably cannot be maintained and he himself has suggested that these alternative sections be mentioned to the jury.
And your Honour has said that upon this evidence, it's only, I think, GO - GOBH. And even that I would say, your Honour, is left to the jury. And so then in - in such a case, I think Justice Len Roberts‑Smith, and another judge I can't remember, who say that there won't be any recompense. It will be a hollow victor. And so this is my - and also my health, your Honour, my health is in a perilous situation and I'm not getting my proper treatment here in this prison.
It's extremely difficult to get proper treatment. After having bad stomach because I have - I nearly died, your Honour, once of bleeding from stomach ulcers. I have stomach ulcers, I have - I am bleeding again, I think. And also I have had this very bad diarrhoea, I - when I - they gave me a thing called Stop Diarrhoea or something, Gastro‑Stop. I take that, it stops. And then the next time I have a meal, I have another diarrhoea - the diarrhoea is comes back.
So this have been going on. The I have a cough for four months. You don't get cough syrups here, they are not giving any cough syrups here. And I don't get even Vitamin C which I take normally whenever I get a cough or anything. I can't afford now, I have had ‑ ‑ ‑
WISBEY DCJ: Yes.
ACCUSED: - - - two heart attacks, your Honour - ‑ ‑
WISBEY DCJ: Well, well ‑ ‑ ‑
ACCUSED: - - - and three TIAs, transient ischaemic attacks and most of the food that is given here is full of cholesterol.
WISBEY DCJ: Well, I'll just ‑ ‑ ‑
ACCUSED: I have a very high cholesterol problems here.
WISBEY DCJ: All that - all that suggests, the sooner this trial's over, the better. And it's regrettable that ‑ ‑ ‑
ACCUSED: Certainly, your Honour, even I would have a preferred that day, although your Honour has said that your Honour had some concerns about my illness that day.
WISBEY DCJ: Yes. I ‑ ‑ ‑
ACCUSED: Your Honour ‑ ‑ ‑
WISBEY DCJ: - - - I still ‑ ‑ ‑
ACCUSED: - - - your Honour would see ‑ ‑ ‑
WISBEY DCJ: - - - I still have ‑ ‑ ‑
ACCUSED: - - - that I will be leading that evidence on ‑ ‑ ‑
WISBEY DCJ: I still have serious concerns about that.
ACCUSED: On - I'm sorry to hear ‑ ‑ ‑
WISBEY DCJ: And will ‑ ‑ ‑
ACCUSED: - - - that, your Honour, but ‑ ‑ ‑
WISBEY DCJ: - - - and will continue to have those ‑ ‑ ‑
ACCUSED: - - - suffice to say ‑ ‑ ‑
WISBEY DCJ: And will continue to have those concerns unless I'm provided with some medical evidence which is (indistinct) ‑ ‑ ‑
ACCUSED: Absolutely, your Honour, that's what I'm going to say. I - I would be leading that evidence. On the day of this incident ‑ ‑ ‑
WISBEY DCJ: Anyway ‑ ‑ ‑
ACCUSED: - - - too, I have a heart attack from 5 o'clock in the morning, and I was taken there and I did an angioplasty. Eighty‑five percent of one artery was blocked and I have four more arteries that are serially blocked. Four - four - 60 percent ‑ ‑ ‑
WISBEY DCJ: Yes, yes.
ACCUSED: - - - as at April.
WISBEY DCJ: Thank you, thank you.
ACCUSED: And another one is 40 per cent, another one is 20 per cent and I have what is called stenosis. The whole stent that was put in, is filled up. So that day, when the angiogram was done, some tests were done, but as the cardiologist ‑ ‑ ‑
WISBEY DCJ: All right.
ACCUSED: - - - explain to me, even an angioplasty is not easily done nowadays because angioplasties have also caused deaths ‑ ‑ ‑
WISBEY DCJ: Right.
ACCUSED: - - - around the world.
WISBEY DCJ: Thank you. Thank you.
ACCUSED: Apparently when you remove the plaque, the plaque can travel in your bloodstream to the ‑ ‑ ‑
WISBEY DCJ: When was the trial last on? What - 12 March.
ACCUSED: I'm sorry, to the - through the bloodstream to your brain ‑ ‑ ‑
WISBEY DCJ: Yes.
ACCUSED: - - - or to your heart ‑ ‑ ‑
WISBEY DCJ: Thank - thank you. I've ‑ ‑ ‑
ACCUSED: - - - and kill you. So ‑ ‑ ‑
WISBEY DCJ: Yes.
ACCUSED: - - - and even an angiogram, I was explained actually, your Honour, can kill. There have been several deaths. In fact, two of my friends died, one here, a professor, he - he died on the table ‑ ‑ ‑
WISBEY DCJ: Yes, thank you. I don't ‑ - ‑
ACCUSED: - - - when he was taken for the ‑ ‑ ‑
WISBEY DCJ: - - - I don't propose ‑ ‑ ‑
ACCUSED: - - - angiogram.
WISBEY DCJ: I don't propose to hear any more in that respect, Mr De Alwis. The position in this matter is that you had a trial scheduled for, I think it was 12 March. At that stage you were represented by competent counsel who had considerable experience in criminal law and the matter was obviously, in my view, ready to proceed to trial. Because of a supposed health issue, the trial had to be abandoned and was relisted for 28 May.
Since the trial was aborted, you have dispensed, or withdrawn your instructions from Mr Bates. And it appears that, for whatever reason, Legal Aid is not prepared to transfer the assignment to anyone else. And perhaps one of the reasons is the - your letter to Mr Bates, where you indicate a desire to represent yourself.
I am satisfied that the reason you are unrepresented is of your own choosing and that the complainant, having been examined and cross‑examined, the matter does not pose difficulties to a person such as yourself with legal experience in representing yourself.
I am satisfied that the reason you are unrepresented is of your own choosing and that the complainant, having been examined and cross‑examined, the matter does not pose difficulties to a person such as yourself with legal experience in representing yourself.
In the circumstances, I am not prepared to adjourn the trial listed for the 28 May and the application for bail between now and that date is refused: ts 150 ‑ 154.
On 28 May 2012, counsel, Ms Monck appeared on behalf of the appellant. She sought a further adjournment of the trial on the basis that she had only recently been instructed. Wisbey DCJ granted the adjournment. The trial is now listed to commence on 6 August 2012, that is, in less than one month.
The nature of the appeal
The nature of an appeal against a judge's decision in relation to bail was explained by this court in Smart v The State of Western Australia [2010] WASCA 218 [5] - [10].
The right of appeal in respect of Wisbey DCJ's decision to refuse bail is conferred by s 15A(2)(b) of the Bail Act 1982 (WA).
Section 15A(4) of the Bail Act provides that ss 27(2), (3) and (4) of the Criminal Appeals Act 2004 (WA) apply with necessary modifications as if the appeal was an appeal under Pt 3 of that Act. Section 27(2) of the Criminal Appeals Act states that the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
Section 15A(3) stipulates that the leave of this court is required for each ground of appeal. Section 15B(2) of the Bail Act states that the Court of Appeal shall determine an appeal on the material and evidence that was before the primary judge.
Section 15B(3) requires that any decision of the Court of Appeal in relation to bail should be made in accordance with the relevant provisions of s 13A, s 17 and sch 1 of the Bail Act. Section 13A and s 17 are not material to this appeal.
Part C sch 1 and in particular cl 1 and 3 of the Bail Act set out the manner in which the jurisdiction with respect to bail must be exercised. We will refer to these clauses later in these reasons.
It is clear from ss 15A and 15B of the Bail Act that an appeal from the decision of a judge is not an appeal de novo as the appellant appears to assume.
The alleged offending
The material and evidence before Wisbey DCJ on 1 May 2012 comprised the prosecution brief and the evidence given in the first trial. That material is to the following effect.
The appellant and the complainant met in Sri Lanka in 2006. In November 2007 the complainant moved to Perth and married the appellant.
The appellant suspected that the complainant had been unfaithful to him and, after an incident on 27 October 2010 in which the complainant alleged that the appellant threatened to kill her, she left their home and later moved to an apartment in East Perth at an address which was supposed to be unknown to the appellant.
After the parties separated, the complainant alleged that the appellant left a large number of threatening and intimidating voicemail messages.
On 25 November 2010, the complainant obtained a violence restraining order against the appellant. The order was served on him on or about 18 January 2011. The effect of the order was that the appellant was not to communicate or attempt to communicate with the complainant or be within 100 m of where she lived or worked: blue and green AB 242.
The complainant alleges that after the appellant was served with the violence restraining order, he breached it by following her, sending her a parcel and transmitting numerous text messages to her mobile telephone.
On 24 March 2011, the appellant attended at the complainant's place of work, apparently to serve legal papers upon her. On 30 March 2011 the appellant is alleged to have left a letter for the complainant at her workplace.
On the morning of 4 April 2011, the complainant was on the footpath outside her housing complex, waiting to be picked up by a friend and driven to work. She said that she saw a man running towards her wearing a luminous green coloured jacket holding a shovel. She recognised this person as the appellant: ts 109. She said that she thought he was going to kill her. She testified that she ran towards the appellant with the intention of grabbing the shovel from him before he hit her. However, the appellant succeeded in striking her with the sharp edge of the shovel on her forehead. She sustained a cut to her head which resulted in her hospitalisation. The cut was described in evidence by the medical practitioner, Dr Kendrick, as an 8 cm long full thickness scalp laceration which exposed the skull and required stitching. There was no other significant injury. Dr Kendrick said that the blow which caused the cut would have required a reasonable amount of force: ts 150.
The State case is that the assault was witnessed by Ms Appleby‑Pinguet and Mr Mahony. He has described the incident in his deposition in these terms:
2.On Monday the 4 April 2011 I was at Bishops Row in East Perth.
3.I had just dropped my girlfriend off in the city and was walking home.
4.It would have been just before 8.00am when I crossed onto the north side of Bishops Row near the Red Cross car park.
5.As I crossed the road, I heard the sound of someone running from the car park area.
6.A woman who was standing about twenty meters away but on the same side of the road as me started to scream.
7.I turned and saw a man ran from the direction of the car park toward her.
8.I didn't see anyone else around at this stage and had a clear view of what was happening.
9.The man was wearing a yellow coloured rain coat and black slacks.
10.He looked Indian in appearance with a chubby build.
11.His skin was dark brown. He was balding and his hair was black and grey.
12.He was carrying a shovel which he was holding with both hands. The blade which was round was about level with his chest.
13.His left hand was closest to the head of the shovel.
14.The woman who was screaming also looked Indian.
15.She looked quite short, about 5'4 high with black shoulder length hair.
16.I don't remember what she was wearing but she was carrying a black handbag and a mobile phone.
17.When the man carrying the shovel reached the woman he swung it at her from left to right.
18.The shovel hit her in the right side of her forehead making a heavy thud sound.
19.It looked like he made a good swing at her.
20.When the shovel hit the woman she stopped screaming but remained standing.
21.I ran toward the man yelling 'hey, hey'
22.The man had manoeuvred himself behind the woman and both were now facing me.
23.As I got to the man and woman, I don't know what he had done with the shovel, but he was now holding a meat cleaver in his right hand. The meat cleaver was silver with a black coloured handle.
...
In short terms, the prosecution case was that the appellant who had been pursuing the complainant since their separation had, in contravention of a violence restraining order, and in circumstances where he was not supposed to know where the complainant was living, approached her outside her place of residence, armed with a shovel and a meat cleaver with the purpose of inflicting serious physical harm to her. He deliberately hit over the head with the edge of the shovel and caused the wound which the complainant sustained.
At the first trial, the appellant did not dispute that he had been served with the violence restraining order. He does not deny that on 4 April 2011 he was in the vicinity of the complainant's apartment carrying a shovel and a meat cleaver. He asserts that he was in the area by coincidence. The appellant told Wisbey DCJ on 1 May 2012, that he intended to commit suicide on the day in question and that his plan, apparently based on a film he had seen, involved him digging his own grave with the shovel and then slashing his wrists, presumably with the meat cleaver in the presence of, or nearby to the complainant. The appellant told his Honour that the complainant came at him making threats to kill him. He said that there was a struggle between them over the shovel during which the edge of the shovel accidentally hit the complainant's head, causing the injury. Alternatively, he said he acted in self‑defence.
The grounds of appeal
The appellant's grounds of appeal are set out in the document filed on 4 July 2012 and number 13 in total. Save for ground 1, none of the grounds have any reasonable prospect of succeeding. Most of the grounds do not allege any error and are more accurately characterised as submissions. One ground alleges bias on the part of the trial judge on an unsustainable basis. Another alleges breaches of the International Covenant on Civil and Political Rights. Although Australia is a signatory to that covenant, it has not been adopted as part of Australian domestic law.
Ground 1 alleges that his Honour's reasons for refusing bail were inadequate. His Honour gave no reasons for refusing the appellant's application for bail. He simply said, at the conclusion of the appellant's submissions: 'The application for bail between now and [the trial] is refused': blue and green AB 154.
At the hearing of this appeal, the respondent conceded that his Honour's reasons were inadequate. This concession was correct because the basis for his Honour's decision is not apparent with the consequence that the appellant does not know why his application for bail failed. However, inadequacy of reasons does not necessarily amount to an appellable error if the failure does not give rise to a miscarriage of justice. An appeal court is entitled to consider the matter and if it can do so, it may decide the matter for itself: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29].
As this court has all the information that was before Wisbey DCJ, this court should decide for itself, based on that information, whether the appellant should be granted bail.
Part C Schedule 1, clauses 1 and 3 of the Bail Act
This court cannot grant bail to the appellant unless and until it is satisfied that bail may properly be granted, having regard to cl 1 and 3 of Pt 3 sch 1 of the Bail Act: Milenkovski v The State of Western Australia [2011] WASCA 99 [37] (McLure P, Pullin JA and Hall J agreeing).
Clause 1 relevantly states:
1.Bail before conviction to be at discretion of bail authority, except for a child
Subject to clauses 3A and 3C, the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant -
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
...
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Clause 3 states:
3.Matters relevant to consideration of clause 1(a)
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant -
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
Preliminary issue
The appellant applied to this court to adduce evidence contained in affidavits which he had sworn during the course of this appeal. Of course this material was not before Wisbey DCJ when he refused bail on 1 May 2012.
At the outset of the appeal, the court alerted the appellant to s 15B(2) of the Bail Act. The appellant submitted that notwithstanding this provision, this court could allow the appellant to adduce the evidence contained in the affidavits pursuant to s 40(1)(e) of the Criminal Appeals Act which states:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
...
(e)admit any other evidence.
The appellant noted that s 40 appeared in Pt 4 of the Criminal Appeals Act which is headed 'Provisions applicable to any appeal'. The appellant submitted that as s 40(1)(e) of the Criminal Appeals Act applies to 'any appeal' it must apply to an appeal pursuant to s 15A of the Bail Act.
This submission must be rejected. The word 'appeal' is defined in s 4 of the Criminal Appeals Act to mean:
An appeal under this Act or an application for leave to appeal under this Act.
Appeals under the Criminal Appeals Act concern, generally speaking, appeals against conviction and sentence. The Criminal Appeals Act is not concerned with appeals in respect of bail. The Court of Appeal's power to deal with appeals from bail decisions made by a judge derives only from the Bail Act.
While s 15A(4) of the Bail Act picks up s 27(2), (3) and (4) of the Criminal Appeals Act, it does not pick up other provisions in the Criminal Appeals Act such as s 40.
Section 15B of the Bail Act is in clear mandatory terms. It requires this court to decide an appeal under s 15A on the material and evidence before the primary judge. There is no provision in the Bail Act which allows this court to admit other evidence.
The absence of such a provision is consistent with the framework of the Bail Act. Where an accused person has been refused bail, but new facts or circumstances have been discovered or have arisen or where circumstances have changed since bail was refused, or where that person failed to adequately present his case for bail, the court that made the original bail decision may, in light of these matters, grant bail: cl 4, sch 1 Pt B of the Bail Act. Accordingly, insofar as the affidavit evidence may amount to new facts or circumstances, or may show that the appellant failed to adequately present his case for bail, they are matters which he can raise before the primary court.
For these reasons, the court, at the hearing of the appeal, refused the appellant's application to adduce further evidence in this appeal.
The parties' submissions
The respondent submitted that because of the particular circumstances of the alleged offending, the appeal should be dismissed despite his Honour's failure to give adequate reasons.
The respondent emphasised that the alleged offending occurred against the background of a breach of a violence restraining order and in circumstances where the appellant apparently sought out the complainant on the day of the alleged offence, carrying with him both a shovel and a meat cleaver. The appellant then struck the complainant's head with the shovel.
The respondent submitted that the appellant's wrongdoing was of such a nature as to make a grant of bail inappropriate: sch 1 Pt C, cl 1(g). Further, the respondent submitted that having regard to the animosity displayed by the appellant towards the complainant, he may commit a further offence against her or endanger her safety and welfare: sch 1 Pt C, cl 1(a)(ii) and (iii). Counsel for the respondent noted that although the complainant's evidence had been recorded at the first trial and it was the State's intention to play that recording as the complainant's evidence in the upcoming trial, the appellant had foreshadowed an application to have the complainant recalled. If that application was allowed, the respondent expressed concern that the appellant may interfere with the complainant as a prospective witness: sch 1 Pt C, cl 1(a)(iv) and (d). The respondent submitted that there was no condition which could reasonably be imposed upon the appellant which could sufficiently remove these possibilities.
The respondent also submitted that the case against the appellant was strong: sch 1 Pt C, cl (3)(d) and that if convicted, he would be sentenced to a lengthy term of immediate imprisonment: sch 1 Pt C, cl 3(a).
The appellant, on the other hand, submitted that the case against him was 'doomed to fail'. He pointed to alleged contradictions in the depositions given by State witnesses and in the evidence given by some of those witnesses at the first trial.
The appellant said that he posed no risk of harm to the complainant and would not interfere with her or with any other State witness.
He pointed to his claimed ill‑health, being the same matters that he raised before Wisbey DCJ on 1 May 2012. He said that he needed treatment for these conditions and that he was not being properly treated for them in custody.
The appellant also said that he needed time to properly prepare for his trial.
He gave particular emphasis to the fact that he had been in custody on remand since the date of the alleged offence. If he is not released from custody, he will have spent 488 days on remand up to 6 August 2012.
The appellant asserted that he was a 68‑year‑old man (in fact, he is 66 years of age, having been born on 20 November 1945) of excellent antecedents, who has never been convicted of any offence in the past, let alone any offence of violence: appeal ts 185. He said that he was keen to establish his innocence and had every incentive to appear at his trial.
Should the appellant be granted bail?
In the appellant's favour, it is unlikely that the appellant would abscond in the event that he was granted bail. Additionally, his general antecedents are good and the respondent does not suggest that there is anything in them which militate against a grant of bail.
Most significantly in the appellant's favour, is the lengthy time that the appellant will spend in custody prior to trial. Delay before trial may be a factor which weighs in favour of a grant of bail. Whether and to what extent it does depends upon the circumstances of the particular case, including the reasons for the delay. It is unclear as to why the appellant's trial was delayed up until March 2012, but there is nothing to indicate that the delay up to this point in time was the responsibility of either party. His Honour attributed the delay after March 2012 to the conduct of the appellant. The appellant disputes this. Whatever the cause, the reality is that the appellant's trial is now less than one month away.
Against these matters must be weighed the following:
(1)The events between the separation of the appellant and the complainant on 27 October 2010 and the date of the offence on 4 April 2011 indicate that the appellant harboured strong and continuing animosity towards the complainant.
(2)At the date of the offence, the complainant lived at an address in East Perth which was supposedly unknown to the appellant.
(3)The appellant appears to have, in the period leading up to the alleged offence, persistently pursued the complainant including by attending at her place of work and contacting her in breach of the violence restraining order.
(4)On 4 April 2011, in what the State suggests was a clear contravention of the violence restraining order, the appellant approached the complainant.
(5)At the time he approached her, he was in possession of a shovel and a meat cleaver, very arguably with the intention of causing her serious injury.
(6)According to two independent witnesses, the appellant struck the complainant to the head with the shovel, causing a serious but non‑fatal wound.
Contrary to the appellant's submissions, the case against the appellant appears, on the material before this court, to be strong.
If the appellant is convicted, the probable method of dealing with him would be a lengthy and immediate term of imprisonment.
In our opinion, the evidence and material before the primary judge appears to demonstrate two things. First, the appellant harboured a high degree of animosity towards the complainant. Second, because of this animosity, the appellant was prepared to pursue her, find out where she lived and seriously assault her. Because of these things we have concluded that, if given bail, he may commit an offence, being either a further breach of the violence restraining order against the appellant or an offence of serious personal violence upon the complainant. He may also endanger the safety and welfare of the complainant. In the event that the complainant is recalled to give evidence, there is a risk that he may seek to interfere with her as a witness.
The evidence is strongly to the effect that the appellant had, prior to and on 4 April 2011, breached the violence restraining order. Consequently, we do not think that there is any condition which could reasonably be imposed which would remove the possibility of the appellant committing a further offence, endangering the safety and welfare of the complainant or interfering with her as a witness.
For these reasons, although his Honour failed to give adequate reasons, we concluded bail should not be granted.
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