Enright v The Queen
[2003] WASC 60
ENRIGHT -v- THE QUEEN [2003] WASC 60
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 60 | |
| Case No: | MCS:11/2003 | 7 MARCH 2003 | |
| Coram: | SCOTT J | 26/03/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEVIN JOHN ENRIGHT THE QUEEN |
Catchwords: | Bail Serious offences alleged whilst applicant on bail for serious offences Exceptional circumstances required Exceptional circumstances not established |
Legislation: | Bail Act 1982, Sch 1, Pt C, cl 3A |
Case References: | Hoddy v Hawes [2003] WASC 22 Outman v The Queen [2001] WASC 162 R v Bernt (1994) 70 A Crim R 1 WCVB v The Queen (1989) 1 WAR 279 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ENRIGHT -v- THE QUEEN [2003] WASC 60 CORAM : SCOTT J HEARD : 7 MARCH 2003 DELIVERED : 26 MARCH 2003 FILE NO/S : MCS 11 of 2003 BETWEEN : KEVIN JOHN ENRIGHT
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Bail - Serious offences alleged whilst applicant on bail for serious offences - Exceptional circumstances required - Exceptional circumstances not established
Legislation:
Bail Act 1982, Sch 1, Pt C, cl 3A
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr D Dempster
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hoddy v Hawes [2003] WASC 22
Outman v The Queen [2001] WASC 162
R v Bernt (1994) 70 A Crim R 1
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Nil
(Page 3)
1 SCOTT J: The applicant, Kevin John Enright, has applied for bail in relation to a very large number of charges which he faces. Some of those charges fall within the jurisdiction of the Court of Petty Sessions, but others are to be heard in due course by the District Court.
2 The complainant in relation to almost all charges is a former de facto partner of the applicant.
3 The relationship between the applicant and the complainant terminated some time in September 2001 and on 8 October 2001 the applicant was served with a violence restraining order. That order was finalised on 6 March 2002. One of the conditions of the violence restraining order was that the applicant was not to communicate or attempt to communicate with the complainant.
4 On 4 December 2002 the applicant was arrested and charged with one count of aggravated stalking, one count of assault occasioning bodily harm, two counts of threats to injure, one count of threatening with intent to hinder, 14 counts of breach of the violence restraining order and one count of common assault.
5 On 5 December 2002 the applicant appeared in the Fremantle Court of Petty Sessions and was remanded in custody to Graylands Hospital for psychological assessment.
6 The notes attached to the complaints indicate that the Magistrate who heard the applicant's bail application in the Court of Petty Sessions had before him a report from the Graylands Hospital which indicated that the applicant was a danger to the complainant. The note also indicates that because the applicant was on bail for serious offences when further serious offences were allegedly committed, bail was refused. The law in relation to the granting of bail, when a person facing a serious charge is charged with a further serious charge, will be discussed later in these reasons.
7 The complaints also make clear that the applicant made a comprehensive application for bail in the Court of Petty Sessions, setting out in his application many of the matters that were elaborated on by him when the application was heard in this Court on 7 March 2003. The learned Magistrate refused bail.
8 The complaints also record that on 21 February 2003 the applicant sought to elect to be dealt with in the Court of Petty Sessions summary jurisdiction in relation to some of the charges against him. That
(Page 4)
- application was refused by the learned Magistrate and those matters will be dealt with in the District Court in due course. The applicant has indicated that he is to appear in the District Court on 5 May of this year.
9 The Court has been provided with a statement of material facts in relation to all of the charges and that statement has been taken into account. The facts reveal that the applicant faces a large number of serious charges in relation to the complainant and to her children. Included amongst those allegations are:
(a) that the applicant threatened to throw acid over the complainant;
(b) that the applicant grabbed the complainant's finger and bent it back;
(c) that the applicant threatened to go to the complainant's mother's grave, dig her up and put an urn at the complainant's front doorstep;
(d) that the applicant threatened to track down the complainant's nine-year-old son and bash him;
(e) that the applicant cause the complainant's six-year-old daughter to be sexually assaulted anally; and
(f) that the applicant had people watching the complainant's house and that she would never be safe.
10 The facts also indicate that it is alleged that the applicant followed the complainant on a number of occasions to various social venues in Fremantle where he watched and intimidated her.
11 The applicant is also charged with a large number of breaches of the violence restraining order arising out of a series of phone calls which he allegedly made on 1 December 2002 to the complainant.
12 The applicant accepts that he is required to show exceptional circumstances before bail is granted because he comes within cl 3A of Sch 1 of the Bail Act 1982 ("the Bail Act") which provides:
"3A. Bail where serious offence committed while defendant on bail for another serious offence
(1) Notwithstanding clause 1 or 2 or any other provision of this Act, where -
(Page 5)
- (a) a defendant is in custody awaiting an appearance in court before conviction for a serious offence; and
(b) the serious offence is alleged to have been committed while the defendant was -
- (i) on bail for; or
(ii) at liberty under an early release order made in respect of,
another serious offence,
the judicial officer or (if section 16A does not apply) the authorized officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer or authorized officer -
(c) is satisfied that there are exceptional reasons why the defendant should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; and
(d) is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child defendant, clauses 2 and 3.
- (2) Notwithstanding section 7(1), where a defendant is refused bail under subclause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for that offence unless he satisfies the judicial officer who may order his detention that -
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or
(Page 6)
- (b) he failed to adequately present his case for bail on the occasion of that refusal.
- (3) Where a child defendant is refused bail under subclause (1) he shall be dealt with in accordance with section 19(2) of the Young Offenders Act 1994."
13 It is common ground that the breach of a violence restraining order is a defined "serious offence" under the Bail Act and it is not in issue that, whilst the applicant was subject to a violence restraining order, it is alleged that he committed breaches thereof.
14 In addition, the accused was on bail on a charge of assault occasioning bodily harm when it is alleged he committed breaches of the restraining order. Assault occasioning bodily harm is similarly defined as a serious offence in Sch 2 of the Bail Act.
15 The nature of the charges faced by the applicant and the circumstances surrounding them are such that cl 3B of Sch 1 of the Bail Act also applies, thus providing the complainant (being the person for whose protection a protective condition was imposed) a reasonable opportunity to give evidence by affidavit on matters relating to that condition. In that respect, I am told by counsel for the respondent that he appeared not only for the Director of Public Prosecutions but also for the complainant so that she has had the opportunity of being heard on this application.
16 The applicant, in his affidavit sworn 28 February 2003, sets out what he says are the reasons why exceptional circumstances have been demonstrated. In the course of argument the applicant put submissions expanding on each of the aspects of his affidavit.
17 The applicant has made it clear that he intends to plead not guilty to each charge against him so that the presumption of innocence applies to him. He points out that, as a result of his incarceration, not only is he unable to earn his normal income of $700 a week, but he is unable to meet his liabilities in relation to a car loan, a mobile phone and a pawnbroker's debt. In addition, he is unable to meet his superannuation payments.
18 The applicant says that if he is unable to obtain bail, it is likely that he will spend a period of 2 years in custody prior to trial. He points out that this is the equivalent of a 6-year prison term with a parole order. The applicant contends that even if he was convicted of all, or the majority of,
(Page 7)
- the offences alleged against him, it is unlikely that he would receive a term of imprisonment of 6 years. The applicant, therefore, contends that he would have served the custodial portion of any appropriate sentence prior to trial.
19 The applicant submits that his mother is ill and that he is required to assist her. Medical evidence produced by the applicant supports that contention. The applicant's mother suffers from a cardiac condition which requires her periodically to be treated at the Sir Charles Gairdner Hospital as a matter of urgency. The applicant has two sisters, both of whom work, and the applicant lives with, and accepts responsibility for, assisting his mother in relation to both her day-to-day living and her medical problems.
20 The applicant has indicated that if granted bail, he would reside with his mother at her address.
21 The applicant has also pointed to difficulties in obtaining counsel for a plea of not guilty. He says he has been granted legal aid for the purposes of a guilty plea, but wishes to plead not guilty so he will need to fund his own defence. The applicant says that it is impossible for him to earn money and accumulate funds to engage a lawyer whilst in custody.
22 The applicant has also pointed to deficiencies in the Crown brief. In particular, he says that the Crown's case relies upon the complainant's evidence and, to a lesser extent, to the evidence of the complainant's best friend. He says that the case against him is not strong and will be challenged.
23 The applicant also says that the complaints made against him have been motivated by ill-will on the part of the complainant. In that respect, he says that, as a result of his complaints, police inquiries are continuing into the conduct of the complainant and that, should charges eventuate, he will be a witness. The applicant has produced correspondence from the Crime Investigation Support Unit supporting those allegations.
24 The applicant also says that during the subsistence of the violence restraining order the relationship between himself and the complainant continued and he has provided a statutory declaration from his mother supporting that contention. The applicant says that he has a defence to the breach of the violence restraining order charges in that any contact between himself and the complainant the subject of those charges was conduct which occurred by consent.
(Page 8)
25 The applicant has other grounds for his application referred to in his affidavit sworn 28 February 2003, but it is not necessary to refer to them. All of those aspects of the application have been taken into account.
26 The applicant has indicated that should bail be granted to him, he would undertake to reside with his mother and abide by any bail conditions, including reporting. The applicant has also made it clear that if he is granted bail, he would undertake not to contact the complainant directly or indirectly. His concern, however, is that the complainant may seek to contact him, but he understands that should that happen, he would be under an obligation to terminate that contact immediately.
27 The respondent opposes the application and, through counsel, points to the serious nature of the charges faced by the applicant and the substantial number of them. Counsel for the respondent points to the applicant's prior record and, in particular, to the fact that on 24 April 1998 he was convicted of stalking in the District Court and sentenced to a term of 18 months' imprisonment. The conduct giving rise to that charge, however, was in relation to a different complainant to the present one. The applicant also has convictions for a number of assault charges, including assaulting a public officer, for which he was imprisoned for 6 months on 4 February 1999. That sentence was, however, ordered to be served concurrently with a sentence he was then serving. The applicant also has convictions in relation to four breaches of restraining orders on 3 February 1995 in the Court of Petty Sessions.
28 Counsel for the respondent submits that there is a procedure in the District Court to enable trials to be expedited in circumstances where the accused is in custody. If the applicant takes advantages of those procedures, then his trial in the District Court may be accelerated.
29 Counsel for the respondent also points out that the applicant is due to stand trial in the Court of Petty Sessions in relation to two alleged breaches of violence restraining order on 4 May of this year and that committal proceedings on the remaining charges are listed on 5 May this year.
30 As mentioned earlier in these reasons, because of the notation on complaint 0211284 which indicates that the applicant is a danger to the complainant, a further psychological report was ordered when this matter was heard on 7 March. That report was sought solely in relation to the question of bail. Complaint 0211284 upon which the notation was made was a charge of stalking in breach of the violence restraining order. The
(Page 9)
- notation reads: "Graylands says he's a danger to complainant - agreed - serious offences - bail refused 12-12-02." As I have said earlier in these reasons, the safety of the complainant is a matter which the Court is required to take into account under cl 3B of Sch 1of Pt C of the Bail Act. For that reason an updated psychological report was required to assess the present danger to the complainant if the applicant is granted bail.
31 The report from Helen Fowler and Associates dated 24 March 2003 has been taken into account on this application. The report is comprehensive and involves a thorough examination of the applicant's personality problems.
32 The primary concern in relation to this application is the integrity of the trial process and the protection of witnesses. The report identifies the fact that the applicant has "compulsive behaviour and personality problems". The writer, however, indicates that the time spent in custody by the applicant has enabled him to see his behaviour in a better perspective and, thus, make more rational decisions. The report also expresses the view that the applicant needs to abstain from substance abuse unless specifically prescribed by a medical practitioner or psychiatrist. The report also suggests that the applicant should curtail his attendance at nightclubs where it is said that the applicant tends to consume excessive amounts of alcohol and where previous offences reportedly occurred. In my view, however, conditions of bail to meet those concerns are unlikely to be effective. The report, whilst to some extent encouraging, leaves the primary Crown witness still at significant risk.
33 The applicant also relies upon the decision of Hasluck J in Hoddy v Hawes [2003] WASC 22. That case involved the allegation of charges far more serious in terms of penalty than those presently under consideration. The facts, however, of that case were substantially different to the matters presently under consideration.
34 One of the important considerations in relation to the granting of bail is whether the applicant is likely to appear in Court in accordance with his bail undertaking. That requirement is referred to in cl 1 of Pt C of the first schedule to the Bail Act: WCVB v The Queen (1989) 1 WAR 279.
35 In addition, it is important to take into account the length of time that the applicant may be held in custody until his trial in the District Court. That is a further factor to be taken into account in determining whether
(Page 10)
- exceptional circumstances exist: Outman v The Queen [2001] WASC 162; R v Bernt (1994) 70 A Crim R 1.
36 The Court is required to take into account all of the matters referred to in cl 1 of Pt C of Sch 1 of the Bail Act. It is not necessary to repeat those particulars here, but the protection of witnesses and the integrity of the judicial process are matters to which the Court may properly refer.
37 Having taken all these matter into account, I have reached the conclusion that the applicant has not demonstrated sufficiently exceptional circumstances to grant bail.
38 The application will be dismissed.
0
3
0