Edgill v The State of Western Australia

[2004] WASC 25

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   EDGILL -v- THE STATE OF WESTERN AUSTRALIA [2004] WASC 25

CORAM:   ROBERTS-SMITH J

HEARD:   18 FEBRUARY 2004

DELIVERED          :   18 FEBRUARY 2004

FILE NO/S:   MCS 3 of 2004

BETWEEN:   CARL CECIL EDGILL

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending trial - Attempted aggravated burglary - Home detention bail report - Prior breaches of bail - Risk of flight - Likelihood of breach of bail - Turns on own facts

Legislation:

Bail Act 1982 (WA) Sch 1, Pt C, cl 1 and cl 3

Result:

Bail refused

Category:    B

Representation:

Counsel:

Applicant:     Mr M J Aulfrey

Respondent:     Ms S M De Maio

Solicitors:

Applicant:     Ian Hope

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Mihaka v The State of Western Australia [2004] WASC 17

Case(s) also cited:

Broad v Haas [2002] WASC 155

Outman v The Queen [2000] WASC 303

Saka v The Queen [2001] WASC 92

WCVB v The Queen (1989) 1 WAR 279

1. ROBERTS-SMITH J:  This is an application for bail by notice of motion filed on 23 January 2004.  It came before me on 5 February and was adjourned on that occasion so that a home detention report might be obtained.

2. The applicant stands charged with an offence of attempted burglary with intent to commit an offence in circumstances of aggravation, namely being in company, the maximum statutory penalty for which is 10 years' imprisonment.

3. The statement of material facts indicates that the case against the applicant will be that at about 2 pm on Monday, 20 October 2003 he, in company with two other males, was at the complainant's home in Westfield.  The applicant is said to have walked past the property with the co-accused when one of them approached the front of it to check to see if anyone was home.  He ascertained there appeared not to be and returned to the applicant and the third person, advising them of that.

4. They then agreed to enter the property and did so, the two others went onto the premises with the applicant remaining on the road acting as a lookout whilst one of the others went to the front of the property, removed the flyscreen on a front window and smashed the glass in an attempt to gain entry.  However, it appears police arrived and the applicant and one of the co-accused left the scene, jumping the rear fence of another property further down the road in order to evade police.

5. One of the three was found trying to hide at the front of the property and was arrested and as a result of further information received by them, the police went to another address where they located the applicant and his co-accused, whom they then arrested.  It is noted that the applicant was on parole for similar offences at the time.

6. By his affidavit in support sworn 22 January 2004, the applicant deposes that he is currently a remand prisoner at Hakea Prison, that he is 32 years of age, having been born on 2 January 1971, and lives at unit 5, 234 Albert Street, Osborne Park.  He has been in custody since 21 October 2003, although I note that he did owe time on parole and, according to Ms De Maio who appears for the respondent to this application, he was required to serve a balance owing on his parole until 7 December 2003.

7. The applicant deposes that he is the sole parent of a son and daughter aged four and two years respectively, to both of whom he is very close.  His daughter in particular, he says, is very distressed at his incarceration and he is told she is not eating properly.

8. He himself finds his present incarceration of particular distress as his brother died whilst in custody.  The applicant says his personal distress is accordingly greater than would normally be the case for a remand prisoner for that reason.  He is concerned that he will remain in custody for a very lengthy period of time until the charge is resolved.  He indicates that he intends to plead not guilty and to defend the matter to trial and believes the case against him is weak.

9. I accept Mr Aulfrey's submission that this is not a case in which the applicant is required to show exceptional circumstances or reasons for bail to be granted but that it rather falls to be determined in accordance with the ordinary provisions to be found in cl 1 and cl 3 of Pt C of Sch 1 of the Bail Act 1982 (WA). Those provisions set out a number of questions which are to be asked on an application of this kind and I take the position to be, without going to authority, that each of them is to be considered without any dominance being given to any one of them other than may be required by the circumstances of the particular case.

10. I am mindful that one of the considerations to which I must have regard is whether there is any condition which could reasonably be imposed which would remove any concerns which might otherwise arise on the material before me in relation to those relevant factors.  So too I am mindful of the principles generally to be applied on an application of this kind and, again, without repeating them, I refer to my reasons for decision in Mihaka v The State of Western Australia [2004] WASC 17, delivered on 16 February 2004, in which the relevant authorities and principles were set out.

11. I have considered the home detention bail assessment report provided to me and dated 12 February 2004.  Amongst other things, that report notes that the applicant has a consistent and serious record of offending, having sustained his first conviction in the Perth Children's Court when he was 14 years of age, in March 1985.  He has been the subject of formal supervision on six occasions since 1992.  On each of those occasions he was supervised by way of parole orders.

12. Sadly, he has succeeded only once, from 18 September 1995 to 6 October 1996, in completing his period of supervision.  The report notes that the applicant has variously breached parole by re-offending and/or non-compliance with the conditions of his orders.  It is noted in the report that whilst subject to his most recent period on parole, he was noncompliant with the program reporting and residential requirements; indeed, further, that a number of his urine specimens, as late as 7 October 2003, were contaminated with amphetamines, cannabis or other substances.

13. The report notes that concern was also expressed that on at least one occasion he is alleged to have assaulted his de facto wife, Ms Florence Williams, at the address at which he proposes to reside.  He has been in a relationship with her for some five to six years.  They are the parents of the two children to whom I have referred.  The two year old child has a congenital kidney problem for which she is occasionally hospitalised.

14. I note that, according to the report, Ms Williams expressed a willingness to have the applicant live with her.  It is known that she disapproves of the applicant's use of illicit substances.  The author of the report indicates a particular concern that there is a documented history on the applicant's community justice services personal file of alleged violence being inflicted by him on his partner, which violence has at times been reported to be extreme.

15. However, the report notes that, for her part, Ms Williams is loath to acknowledge this alleged aggressive behaviour but makes the observation that is not atypical of women who are caught up in the cycle of domestic violence.  Mr Aulfrey points out quite rightly that those observations in the report are problematical because there is no suggestion that the applicant has been convicted of such offences and the comment as to why Ms Williams does not presently complain and is apparently willing to have the applicant live with her is speculative.

16. That is certainly so but I note that in the final conclusion in the report, to which I shall come in a moment, which indicates that the applicant is not considered suitable for release to supervision on home detention bail, the allegations in relation to his partner form no part of the reason in support of that conclusion.  Those reasons are listed as five, being his lengthy record of offending; his poor response to past community supervision; his unresolved substance abuse issues; his apparent propensity to re-offend and alleged serious offending behaviour whilst the subject of parole supervision.

17. They, it seems to me, are the gravamen of the reasons for the conclusion that he is not suitable for home detention.  However, I do note the report then goes on, having reached that conclusion, to indicate that he is considered to be an unsuitable candidate to live at the particular address indicated because of the concerns in relation to Ms Williams, which I also note the applicant denies.

18. Mr Aulfrey, perhaps realistically, concedes in light of the report that it is unlikely that a home detention bail order would be made and submits in the alternative that it is possible the applicant's sister may be able to go surety for him in the sum of approximately $1,000, although he indicated to me in submissions that as she has no telephone, he has not been able to confirm her availability in that regard.

19. I give weight to the fact that the applicant intends pleading not guilty and, as Mr Aulfrey points out, is entitled to the presumption of innocence.  In a sense, that clearly is something which militates in favour of the grant of bail.  Mr Aulfrey further submits that the prosecution case is "weak to middling" depending, as it does apparently, on the evidence of an accomplice to identify the applicant as being one of the three offenders.  As to that, the respondent submits to the contrary, that the prosecution has reasonable prospects of conviction.

20. The co‑offender, M, is a 15 year old also charged with the same offence and he has apparently been cooperating with police and the prosecution and it is anticipated he will be giving evidence against the applicant at his trial.  Of course an appropriate judicial warning would need to be given about the acceptance of the witness's evidence in due course.

21. Ms De Maio submits that there is further evidence of prosecution witnesses who will be in a position to confirm in salient respects various parts of McNamara's evidence.  It is, I think, not necessary for me at this point to canvass the evidence; suffice to say that what appears from the material before me does indicate that there is at least a reasonable prospect of conviction, if not more.

22. The primary objections of the respondent to the application seem to me to be, first, that he poses an unacceptable flight risk and that there is a risk of further offending by him should he be released to bail.  Those submissions are made on the basis, amongst other things, that as an adult the applicant has nine convictions for breach of bail from June 1989 to March 2002 and that he has six convictions for burglaries or attempted burglaries.  Reliance is also placed upon his failure to comply with supervision or conditions in the past and, in particular, the fact that he was on parole at the time of the present alleged offence, and that he should be described as a high-risk offender who has a risk of non‑appearance.

23. I take the law to be that on an application of this kind the obligation is on the prosecution, or the respondent, to satisfy the court that there is a realistic risk that the applicant would not attend for his trial should bail be granted.  It seems to me that in light of the material before me the concerns of the respondent, as I have just outlined, have been made out, and for those reasons the application for bail will be refused.