Donatelli v State of Western Australia
[2004] WASC 168
DONATELLI -v- STATE OF WESTERN AUSTRALIA [2004] WASC 168
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 168 | |
| Case No: | MCS:37/2004 | 28 JULY 2004 | |
| Coram: | ROBERTS-SMITH J | 28/07/04 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | ITALO DONATELLI STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Bail pending trial Serious offence alleged to have been committed whilst on bail for serious offence Exceptional circumstances to be shown before bail granted Applicant's health Reliance of wife on applicant Wife's ill health Possible delay before trial Whether exceptional circumstances Circumstances must be out of the ordinary or unusual to a degree |
Legislation: | Bail Act 1982 (WA), cl 3A(1)(b)(i) of Pt C of Sch 1 |
Case References: | Outman v The Queen [2001] WASC 162 Saka v The Queen [2001] WASC 92 Firkins v Director of Public Prosecutions [2002] WASC 203 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Bail pending trial - Serious offence alleged to have been committed whilst on bail for serious offence - Exceptional circumstances to be shown before bail granted - Applicant's health - Reliance of wife on applicant - Wife's ill health - Possible delay before trial - Whether exceptional circumstances - Circumstances must be out of the ordinary or unusual to a degree
Legislation:
Bail Act 1982 (WA), cl 3A(1)(b)(i) of Pt C of Sch 1
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms T M V Griffin
Respondent : Mr C C Porter
Solicitors:
Applicant : Laurie Levy & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Outman v The Queen [2001] WASC 162
Saka v The Queen [2001] WASC 92
Case(s) also cited:
Firkins v Director of Public Prosecutions [2002] WASC 203
(Page 3)
1 ROBERTS-SMITH J: This is an application for bail pending trial of a number of charges either in the Court of Petty Sessions or in the District Court depending upon the outcome of some present dispute as to jurisdiction in respect of at least one of the charges. The application is made by notice dated 15 July 2004 and no grounds are stated on the application but it is supported by an affidavit of Laurence Mark Levy sworn 15 July 2004.
2 From that affidavit it appears that on 14 November 2003 the applicant was arrested and charged with receiving stolen property contrary to s 414 of the Criminal Code. The applicant made no admissions in relation to that and was bailed to appear at court. That particular charge has been adjourned a number of times and is currently listed for hearing in the Perth Court of Petty Sessions on 15 September 2004.
3 The circumstances of that matter as revealed by the statement of material facts are said to be that about 10.15 pm on 26 August 2003 police executed a search warrant at the applicant's residence at 180 Wanneroo Road, Yokine. During the course of the search a quantity of jewellery and other items were located and seized. Some of the jewellery was located tightly wrapped into two small bundles with tape and plastic and hidden behind an electrical switchboard in the defendant's garage.
4 When asked by police during the search about these items the applicant admitted or said the jewellery was his, he having owned it for approximately two years. He said he had hidden it there for safekeeping. Subsequent inquiries by police revealed that some of the jewellery items had been stolen from a parked vehicle in Kings Park Road in West Perth in October 2002.
5 On 25 March 2004 the applicant along with his wife Teresa Donatelli were stopped by detectives whilst driving along Woodrow Avenue, Yokine.
6 The vehicle was searched by the police officers and the applicant and his wife were taken to Mirrabooka police station where his wife is said to have been found in possession of 2.97 grams of heroin powder as a result of a strip-search at the police station. Both the applicant and his wife were charged with possessing heroin with intent to sell or supply to another. Again no admissions have been made.
7 According to the statement of material facts in relation to that matter, when the applicant's wife was taken to the police station and strip-searched she produced a quantity of drugs, that being that to which I
(Page 4)
- have referred, which she indicated she had been hiding from police in a large fold of skin on the left-hand side of her stomach area. She said that the drugs were not hers but refused to explain whose they were or how she came into possession of them. She has been charged in relation to that.
8 The applicant was also interviewed at the Mirrabooka police station and later that same afternoon a search warrant was executed at his home address in his presence when a set of small scales and other drug paraphernalia was located at the premises.
9 Although in a subsequent interview the applicant is said to have denied all knowledge of how his wife had come into possession of the heroin, the tissue that was wrapped around the powder had a small amount of blood on it. His wife said the blood was not hers and no cuts were observed on her by police. Whilst interviewing the applicant police found a small fresh cut on the inside of his right hand at the base of his index finger. It will be contended that is the likely source of the blood on the tissue.
10 Both the applicant and his wife were subsequently released on bail.
11 That particular matter was listed to be mentioned for a committal mention at the Perth Court of Petty Sessions on 30 June but has been adjourned at the request of police to 5 August. On Thursday, 20 May 2004, the applicant was arrested at his home address and charged with 19 offences of offering to sell or supply heroin between 16 January 2004 and 4 May 2004. Each charge relates to an amount of 0.05 grams. The applicant's daughter, Lisa Donatelli, has also been charged with a series of offences relating to the supply of heroin.
12 The charges apparently were laid as a result of telephone intercepts, although I am told by Mr Porter that in relation to the last four of those charges they involve sales or proposed sales to uncover police officer. The applicant applied for bail in relation to these matters on 21 May 2004 in the Perth Court of Petty Sessions. His Worship Mr Black SM, refused bail. A question of jurisdiction was raised but I am told by Ms Griffin that the jurisdiction issue has been resolved and the matters are going to the District Court.
13 On 1 June 2004 the applicant was further charged with conspiracy to sell or supply heroin to another. The applicant has appeared at the Perth Court of Petty Sessions in relation to that and has been remanded in custody to appear at a committal mention on 6 August.
(Page 5)
14 So far as the legal principles which apply to this application are concerned, it is conceded on behalf of the applicant that as the alleged offences were committed whilst he was on bail for the receiving charge and one count of possessing heroin with intent to sell or supply, he is required to demonstrate exceptional circumstances before bail can be granted.
15 That concession is properly made. It arises as a result of the application of cl 3A(1)(b)(i) of Pt C of Sch 1 of the Bail Act which has the effect that where those circumstances do exist, as they do here, an applicant is not to be considered for release on bail unless the applicant satisfies the court there are exceptional reasons why he should not be kept in custody.
16 If that threshold test is met and the applicant does demonstrate exceptional circumstances why he should not be kept in custody pending trial, then the court would need to consider the general factors which are adumbrated in cl 1 and cl 3 of Pt C of Sch 1 of the Bail Act; that is to say, all of those factors which ordinarily apply to any application for bail including such matters as the strength of the prosecution case or the likelihood or otherwise of the commission of further offences and matters of that kind. As I say, one does not get to even consider those matters unless and until the applicant demonstrates that there are exceptional circumstances why he should not be kept in custody.
17 In this case the matters which are said to constitute exceptional circumstances justifying a consideration of the application for bail are put as three: first of all, the applicant's health issues; secondly, his position within the family; and third, what is anticipated as the likely delay before trial.
18 The applicant, I take it, has no relevant previous convictions. He is 56 years of age.
19 There is a medical report which has been presented to me today from Dr Angelo Carbone, dated 24 May 2004. That is quite brief and states simply:
"Italo Donatelli is suffering from a cartilage tear of the right knee and a tendon disorder of the right wrist and forearm. He is attending two orthopaedic surgeons and surgery is proposed."
20 In the submissions put to me it is said that those conditions prevent him from working in his trade. It is also said by way of submission,
(Page 6)
- although there is no evidentiary material to support this, that on 14 July whilst he was in custody for these matters he suffered a suspected heart attack. Nonetheless, there is no other information in relation to that before me.
21 I would have to say that on that material the applicant's own health is not a circumstance which either by itself or in combination with any other factor would seem to me to constitute exceptional circumstances. The term exceptional circumstances in this context clearly means some circumstance out of the ordinary; something which is unusual to a degree, and it must be something obviously in the context which is out of the ordinary or unusual and which does bear upon the issue whether or not the applicant should be kept in custody pending trial.
22 As I say, there seems to be nothing of that kind in this applicant's medical treatment or condition as it is presently before me.
23 It is then said that his position within the family is integral and central, and that also brings into issue the health and situation of his wife Teresa. Again, there is a medical report from Dr Carbone, also dated 24 May. That report states as follows:
"Teresa Donatelli suffers from major medical conditions that require regular treatment. Mrs Donatelli suffers from angina. She has been under the care of a cardiologist in the past. Anxiety aggravates her condition. She has asthma that has been severe at times. She has required hospitalisation for this condition. She also suffers from hypertension and major depression. She is taking antidepressant medications and three different blood pressure medications."
24 It will be noted from the content of that report that what is said lacks specificity. There is nothing terribly clear nor detailed as to the applicant's wife's conditions, other than the general assertions that she suffers from those which are mentioned. There is nothing as to the severity of them in any concrete terms. There is nothing as to her current position or the various times at which she has, for example, required hospitalisation. There is nothing particularly unusual in a woman of her age taking antidepressant medications or blood pressure medications. Again, the nature of them, other than that broad description, is not specified.
25 It is said in submissions that the applicant's wife substantially relies on the applicant for daily care, as well as for transportation to her various
(Page 7)
- medical appointments. There is nothing of any evidentiary nature before me in respect of the family support nor other resources, nor family or other finances sufficient to indicate a lack of capacity to pay for taxi or other transport, nor any inability to call upon community or health agencies to assist. I am told by Mr Porter that the applicant's daughter is currently in custody in relation to charges also relating to the matters with which he is currently charged, and his wife, as I have mentioned, is a co-defendant on the possession of heroin and on the conspiracy charge.
26 There is nothing, again, it seems to me in the situation of the applicant vis-à-vis his wife, nor specifically her health situation which, again, seems to me to constitute exceptional circumstances either by itself or in combination with any other factor.
27 That brings me to the question of the delay before trial. It is submitted that there will be a substantial delay and the applicant will have spent a substantial amount of time in custody should bail be refused.
28 He was remanded in custody on 21 May. The original committal mention listed for 30 June was vacated, as I said, and the applicant is now due to appear at a committal mention on 5 August for the offer to sell or supply charges, and 6 August for the conspiracy charge. It is said that normally a pleas date in the District Court is set some six weeks after the committal mention date and it is submitted that it is unlikely the matter will proceed to trial before the end of 2005 which would mean the applicant would have spent at least 18 months in custody prior to trial.
29 Mr Porter disputes that estimate and there is no material before me to support it other than the assertion by way of submission. It is, of course, also the fact that if there are particular reasons in a particular case why a matter should be brought on, particularly a short matter, then that can often be accommodated in the District Court. It is true that a substantial delay before trial may in very unusual circumstances constitute even by itself exceptional circumstances for the purposes of the Bail Act. That point was made in Saka v The Queen [2001] WASC 92 by McKechnie J and by me in Outman v The Queen [2001] WASC 162.
30 However, it seems to me that the circumstances of the present case do not fall into that category, certainly not by themselves, and I am not persuaded that the possible delay in this matter, as has been put to me, would constitute or is capable of constituting exceptional circumstances why bail should be granted. For these reasons I am not satisfied that the applicant has demonstrated exceptional circumstances sufficient to cross
(Page 8)
- the threshold and it necessarily follows that the application for bail must be refused.
31 I should also say that had I been persuaded that there were exceptional circumstances on the limited material before me and accepting and appreciating the difficulties of assessing, for example, the strength of a prosecution case prior to trial at an early stage such as this, it would seem to me that contrary to the submission that the prosecution case is weak, it would appear rather to be quite a strong case against the applicant.
32 I would also be inclined to have accepted the submission that there is a risk that the applicant would continue to commit offences of this kind were he to be released on bail but, as I say, it is not necessary for me to deal any further with those considerations because the applicant does not get across the threshold of demonstrating exceptional circumstances. The application for bail will be refused.
3
0