Emile-Bruning v The State of Western Australia
[2016] WASC 211
•11 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: EMILE-BRUNING -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 211
CORAM: HALL J
HEARD: 1, 4 JULY 2016
DELIVERED : 4 JULY 2016
PUBLISHED : 11 JULY 2016
FILE NO/S: MBA 18 of 2016
BETWEEN: VAINERII TAUNGAROA EMILE-BRUNING
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Murder charge - Bail Act 1982 (WA) Sch 1 cl 3A - Exceptional circumstances required - Turns on own facts
Legislation:
Bail Act 1982 (WA), cl 3A
Result:
Bail granted
Category: B
Representation:
Counsel:
Applicant: Mr A E Eyres
Respondent: Mr N R Cogin
Solicitors:
Applicant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bertolami v The State of Western Australia [2009] WASC 269
Fazari v The State of Western Australia [2004] WASC 71
Hedgeland v The State of Western Australia [2011] WASC 181
Jones v The State of Western Australia [2014] WASC 234
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 238
Roberts v The State of Western Australia [2011] WASC 118
The State of Western Australia v Sturgeon [2005] WASC 256
HALL J: On 4 July 2016 I heard this application for bail. At the conclusion of the hearing I granted the application and stated that I would publish detailed reasons subsequently.
The applicant is charged with one count of murder pursuant to s 279 of the Criminal Code (WA). She was charged on 10 April 2016 and has been in custody since that time. The charge is presently pending in the Magistrates Court with a committal mention date of 31 August 2016. If the applicant is committed on that date her trial is not likely to take place earlier than February of next year.
Relevant law
Section 15 of the Bail Act 1982 (WA) provides that when an accused person is in custody for murder the power to grant bail can only be exercised by a judge of the Supreme Court (other than in the case of a child). Section 7B of the Bail Act provides that an accused person charged with murder may make an application to a judge for bail at any time prior to conviction.
Section 13 of the Bail Act provides that the jurisdiction to grant bail is exercised subject to, and in accordance with, pt 3 of the Bail Act and pt B, pt C and pt D of Sch 1 to the Act. Schedule 1 pt C cl 3C relevantly provides that where an accused is in custody on a charge of murder bail must be refused unless the court is satisfied that there are exceptional reasons why the accused should not be kept in custody and that bail may be properly granted having regard to the provisions of cl 1 and cl 3 of pt C.
The use of the word 'exceptional' in cl 3C implies that the reasons justifying a grant of bail in a murder case must be unusual or out of the ordinary: Bertolami v The State of Western Australia [2009] WASC 269 and Jones v The State of Western Australia [2014] WASC 234. However there is no closed list of circumstances which might constitute exceptional reasons: Roberts v The State of Western Australia [2011] WASC 118 [9] ‑ [10].
What constitutes exceptional reasons may depend upon the facts in each particular case. A single matter or a combination of matters may constitute exceptional reasons: Mansell v The State of Western Australia [2011] WASC 170 [3] and Bertolami [9].
The rationale for the requirement that bail only be granted in murder cases in exceptional cases is that there is a strong inference that a person facing a murder charge is likely to abscond or fail to appear in accordance with his bail undertaking given the severity of the sentence of imprisonment likely to be imposed if guilt is proven: Fazari v The State of Western Australia [2004] WASC 71.
The strength of the prosecution case may be a relevant consideration. Where the prosecution case is a particularly weak one or it can be said that there is a high probability of acquittal it may be that there are exceptional reasons to grant bail: Bertolami [16]. In such a case the inference that there is a strong incentive to abscond may not be so readily drawn. However, to suggest that the prosecution case is merely not strong or not an overwhelming one is unlikely to meet the criteria of exceptional circumstances.
Delay may, in some circumstances, constitute exceptional reasons, either alone or in combination with other factors: The State of Western Australia v Sturgeon [2005] WASC 256; Hedgeland v The State of Western Australia [2011] WASC 181 and Mikhail v The State of Western Australia [2010] WASC 238. In Mikhail Blaxell J granted bail to one of the two co‑accused in circumstances where the accused would be in custody for more than two years before coming to trial. However, his Honour took into account the strength of the case against each of the two accused and refused bail in respect of the co‑accused because the case against him was strong and notwithstanding the delay. His Honour said:
In my opinion, delay in itself cannot provide exceptional reasons because it is the primary requirement of cl 3C that all accused in murder cases should ordinarily remain in custody until trial. In every murder case there must always be a delay until trial for the purposes of gathering evidence, briefing counsel, and enabling general preparation by each side. It is only when there is any additional delay that unnecessarily occurs that there can be any scope for 'exceptional reasons' to arise. This is because of the potential for injustice as a result of unnecessary time spent in custody in the event that the accused is ultimately acquitted. (Conversely, and in the event of an ultimate conviction resulting in a substantial term of imprisonment, no such injustice would occur).
It follows in my view, that in cases where there is unnecessary delay, the question whether this provides exceptional reasons why the accused should not be kept in custody, must in large part turn upon the strength of the prosecution case. In this regard, it is self-evident that the weaker the prosecution case, and the longer the delay, the greater is the prospect of a potential injustice [10] - [11].
In the present case counsel for the applicant submitted that exceptional reasons for a grant of bail existed because there is no reasonable prospect that the applicant will be convicted of murder, that there will be a substantial delay before trial and that she is the mother of three young dependent children. It was said that the cumulative effect of these factors justified a grant of bail. However, most weight was placed on the first factor.
The prosecution case
The prosecution case is that the applicant and the deceased were married and had been together for approximately eight years. The applicant has been previously married and has three adult children. She also has three younger children, boys aged 14 and 12 and a girl aged 6. The youngest child is a child of the deceased.
In April 2016 the applicant, the deceased and the three younger children were living together in a house in Maddington. On the afternoon of Saturday 9 April 2016 an arrangement had been made to meet some of the deceased's work colleagues at a tavern and then have a barbeque together. The plan was to have the barbeque in a local park but due to inclement weather this plan changed and a decision was made for the group to go to the home of the accused and deceased in Maddington. The party continued late into the night with large quantities of alcohol being consumed. The deceased and his friends engaged in some play fighting and towards the end of the evening the deceased and one of his friends, Corey Robinson, fought in a more serious way. Mr Robinson's head hit the driveway and there was concern that he had been knocked unconscious. Mr Robinson was then placed on a bed inside the house and the other work colleagues of the deceased left.
At about 1.15 am the applicant went out to the garage area of the house to clean up. She told the deceased to stop drinking and to go inside. An argument developed during which the deceased grabbed the applicant and forced her to the ground. The deceased also kicked the applicant to the lower back before wrestling with her. In the course of the assault the applicant's head struck a stereo speaker. Evidence is available of bruising to the applicant which is consistent with injuries caused in the manner described.
The applicant called out to her 14‑year‑old son, Liam. Liam came out from the house and saw the deceased and the applicant wrestling. He tackled the deceased and this enabled the applicant to break away. She ran into the kitchen and took a knife from a drawer. The deceased followed her to the kitchen and, as he approached the applicant, she stabbed him once in the chest. The stab wound was to the heart and proved fatal. The deceased collapsed and the applicant telephoned emergency services. The deceased was taken to hospital and declared dead at 3.30 am.
The applicant was subsequently interviewed by police. In that interview she admitted stabbing the deceased but claimed she was acting in self‑defence.
Evidence on this application
For the purpose of this application I was provided with the following:
(1)an affidavit of the applicant dated 24 June 2016;
(2)an affidavit of Ms Tungane Emile dated 27 April 2016;
(3)the statement of material facts;
(4)a DVD recording and transcript of the applicant's police interview of 10 April 2016;
(5)a DVD recording and transcript of an interview with the applicant's son Liam on 14 April 2016;
(6)a DVD recording and transcript of the 000 emergency call made by the applicant on 10 April 2016;
(7)witness statements of Corey Robinson dated 10 April 2016 (x 2) and 25 April 2016;
(8)a statement of Tony Karaitiana dated 19 April 2016; and
(9)a copy of the applicant's New Zealand criminal history.
In both the 000 call and the police interview the applicant admits to stabbing the deceased but says that she was defending herself at the time. In the 000 call she says 'He tried to lay his hands on me and I defended myself' and 'Yeah, I did because he put his hands on me'. In the interview she told police that she wanted to clean up before the children woke and that she had asked the deceased to go to bed. She said that he swore at her and then 'he came at me. He put his hands on me first'. She said that the deceased was trying to punch her and that he pushed her back causing her head to hit a speaker. She said that he then grabbed her hair and that she started calling out to her son Liam. Liam separated them and she ran inside and 'grabbed the knife'. She said the deceased followed her and was 'trying to give me a hiding'. She said the deceased was intoxicated and angry and that she was fearful that he would hurt or kill her. She accepted that she had stabbed the deceased but did not know where he had been stabbed because it happened so quickly. She said she had not intended for him to die.
The applicant's son Liam was interviewed on 14 April 2016. The interview was recorded and a transcript of that recording prepared. Liam has not, at this stage, provided a witness statement and it is accepted that the recorded interview is not in itself admissible. However, it was accepted by both parties that the contents of the interview represent the evidence that Liam is able to give in the event he is called as a witness at the trial. In the interview Liam states that he was woken up by Corey Robinson who told him that his parents were having a 'big argument'. He heard his mother calling his name and walked outside. He says his step‑father, the deceased, was pinning his mother to the ground. The deceased's hand was on the back of her neck and she was screaming. Liam pushed the deceased away and his mother then ran into the kitchen. The deceased ran after his mother and Liam followed. He said that his mother was saying words to the effect of 'get away or you'll be stabbed by this knife'. Liam said that the deceased did not appear to listen and ran at his mother and onto the knife.
Corey Robinson says that he is unsure whether he woke due to hearing an argument or because he wanted to go to the toilet. He says that after he woke he saw blood in the hallway and then found the deceased lying on the ground in the garage. The deceased had already been stabbed and was gasping for air. Mr Robinson says that he ran to neighbour's houses seeking help. He does not refer to waking up Liam nor does he refer to being present when the deceased was stabbed, as is suggested by Liam in his interview.
Tony Karaitiana was not present on the night in question. His statement relates to having met the applicant some months earlier through an internet dating site. His evidence is said to be relevant because it shows that the applicant was unhappy in her marriage. It is said that this is inconsistent with the impression that she tried to give to the police in her interview. However, it should be noted that in the interview the applicant said that the marriage had had difficulties, that they had previously been separated, that she had obtained a restraining order against the deceased on a previous occasion (though not due to violence), that he had previously assaulted her and that he would become 'nasty' when intoxicated.
The affidavit of the applicant and that of Ms Emile (the applicant's niece) relate to the applicant's personal circumstances and, in particular, the present circumstances of her three dependent children. I will refer to these matters in more detail later. The applicant's criminal history is brief and contains only minor traffic related matters. There is no history of non‑compliance with bail or any other court orders.
Submissions
The applicant's counsel said that the primary issue at trial would be whether the applicant was acting in self‑defence. He said that the account consistently given by the applicant was that she was acting in self‑defence. The only other witness to the stabbing, the applicant's son Liam, gave a similar account. There is no evidence that contradicts the applicant and Liam. In these circumstances it is said that there is no reasonable possibility that the applicant will be convicted of murder.
Counsel for the State submitted that there was some objective evidence that might cast doubt on the version given by the applicant and Liam. In particular, blood spots on the ground suggested that the stabbing could have occurred at the door to the garage rather than in the kitchen. This may be consistent with the applicant having obtained the knife and then moved several metres towards the deceased rather than the deceased being stabbed as he moved towards her. This submission is based upon an assumption that blood spots on the ground can reliably indicate the position that the deceased was in at the moment when he was stabbed. However, the evidence is that the deceased did not immediately collapse after he was stabbed. He was capable of movement and the extent to which he was bleeding as he did so is not apparent from the evidence. It does not, therefore, necessarily follow that blood spots on the ground indicate where the deceased was when stabbed.
Whether or not the applicant's action in stabbing the deceased was lawful because it was in self‑defence is, of course, a matter for a jury to determine. However, a claim of self‑defence is strongly supported by the existing evidence. In order for the applicant to be convicted of murder a jury would have to be satisfied beyond reasonable doubt that she was not acting in self‑defence. The prosecution case in this regard does not appear to be a strong one.
Delay
I accept that if the applicant is not committed for trial until August of this year it is unlikely that any trial will occur before February of next year. That, however, is the most optimistic assessment of the timeframes. It assumes, amongst other things, that the committal date will not be adjourned for any reason. It is not unusual for such adjournments to occur because forensic reports are not available. That may well occur here given that a blood pattern analysis report will presumably be required by the prosecution.
Regrettably, delays to trial in homicide matters are often much longer than those referred to. As was noted by Blaxell J in Mikhail, some period of time in custody between being charged and coming to trial must have been contemplated when the provision requiring that bail on murder charges not be allowed other than in exceptional circumstances was introduced. The delay here is only relevant insofar as it is coupled with the factor regarding the strength of the prosecution case.
Personal factors
The applicant is otherwise a good candidate for bail. She has only a very minor, traffic‑related, criminal history. She is a New Zealand national but has been residing in Australia for some time. If released on bail she is able to live with a relative in Armadale.
Perhaps most importantly, she has three young children who are dependent on her. Those children have been residing with the applicant's niece whilst she has been in custody. The niece is Ms Tungane Emile, who has also provided an affidavit. Ms Emile also shares her house with her partner and two children of her own. One of her children is two months old. A cousin of Ms Emile's partner also lives at the house. The house is a rental premises and the number of people residing there presently exceeds what is permitted under the lease. The landlord has tolerated this position but there is no certainty that that will continue. Accordingly, the ability of the applicant's children to reside with Ms Emile in the future is not assured.
Ms Emile is presently on maternity leave but plans to return to her employment this month. Caring for the applicant's children has, understandably, caused significant inconvenience and expense for Ms Emile. There are also suggestions that the applicant's children have been traumatised by the events that have occurred and withdrawn as a result of lack of contact with their mother.
Whilst there is no suggestion that the accommodation to which the applicant would be released would enable her to have her children with her, she would be able to provide significant assistance for their care and financial maintenance. There is also the obvious possibility that she could find alternative accommodation for herself and the children.
The need to care for and maintain dependents will rarely in itself meet the criteria of exceptional circumstances. It is, however, a relevant factor which, when coupled with other factors, may meet that requirement. The welfare of dependent children can properly be taken into account both in its own right and because it may reduce any absconding risk.
Conclusion
Having regard to the above factors, I was satisfied that there are exceptional reasons justifying a grant of bail in this case. I was also satisfied that having regard to the considerations in Sch 1 pt C of the Bail Act, bail was otherwise appropriate. In this regard I took into account that conditions could be imposed that would minimise the risk of any absconding by requiring that the applicant live at a nominated residence, report daily, surrender any passports and not approach points of international departure. It was not suggested that the applicant was at risk of any further offending or that her safety or the safety of others would be put at risk if she was granted bail. There was a reference to the need to ensure the integrity of Liam's evidence. Bearing in mind that he has already been interviewed and provided a very detailed account of the events, I was not convinced that this was a concern that could justify a refusal of bail.
For the above reasons I granted the application for bail.
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