Fawcett v The Queen - [2002] WASC 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FAWCETT -v- THE QUEEN [2002] WASC 285

CORAM: ROBERTS-SMITH J

HEARD: 26 NOVEMBER 2002

DELIVERED : 29 NOVEMBER 2002

FILE NO/S: INS 195 of 2002

BETWEEN: GWILYM THOMAS FAWCETT
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Bail - Pending trial - One count of deprivation of liberty and three counts of attempted murder - Alternate counts of attempting to strike person with projectile (bullet) with intent to cause grievous bodily harm - Whether offences in "extremely serious" category as to require applicant to show exceptional circumstances to justify bail - Meaning of - Whether exceptional circumstances shown - Time in custody on remand before trial - "Weak" prosecution case - Additional conditions - Violence restraining order under Restraining Orders Act 1997 (WA)

Legislation:

Bail Act 1982 (WA), Schedule 1, Part C, cl 1 and cl 3

Restraining orders Act 1997 (WA), s 63

Result:

Bail granted

Category: A

Representation:

Counsel:

Applicant: Mr T F Percy QC
Respondent: Ms T D Sweeney

Solicitors:

Applicant: D G Price & Co
Respondent: State Director of Public Prosecutions

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

Bell (1992) 62 A Crim R 66
Lim v Gregson [1989] WAR 1
Outman v The Queen [2001] WASC 162
Saka v The Queen [2001] WASC 92
WCVB v The Queen (1989) 1 WAR 279

Case(s) also cited:

Clarke [2001] ACTSC 39

ROBERTS-SMITH J: This is an application for bail.
The applicant stands charged on a Supreme Court indictment dated 1 October 2002 with one count of deprivation of liberty and three counts of attempted murder. In respect of each of the attempted murder charges, there is an alternative charge of attempting to strike a person with a bullet, with intent to cause grievous bodily harm.
The Crown opposes the application.
An offence of deprivation of liberty carries a statutory maximum penalty of 10 years imprisonment (s 333 of the Criminal Code). Attempted murder carries a statutory maximum of imprisonment for life (s 283 of the Code). The statutory maximum penalty for unlawfully attempting to strike any person with a projectile, with intent to do grievous bodily harm, is imprisonment for 20 years (s 294(2) of the Code).
The deprivation of liberty charge is that on 21 November 2001 at Marangaroo, the applicant unlawfully detained Melissa Yvette D'Amico by confining her in a house against her will.
The attempted murder charges allege that on 25 November 2001 the applicant unlawfully attempted to kill Giovanni Paul Ruiz, Stevan Michael Merenda and Michael James Flower respectively.
I shall return to the circumstances later but for the moment, I note that the events the subject of these charges arise out of an argument between the applicant and his ex‑girlfriend, D'Amico, at her house on Wednesday 21 November 2001 and an altercation in the early hours of Sunday 25 November 2001 between the applicant and some of his friends and D'Amico's new boyfriend and some of his friends outside…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fawcett v The Queen

Details

AGLC: Fawcett v The Queen [2002] WASC 285
Case: [2002] WASC 285
Decision Date

CaseChat Overview and Summary

The applicant, Gwilym Thomas Fawcett, stands charged with one count of deprivation of liberty and three counts of attempted murder, with alternate counts of attempting to strike a person with a projectile with intent to cause grievous bodily harm. The applicant's bail application was opposed by the Crown, which argued that the offences were extremely serious and required exceptional circumstances to be shown in order to justify a grant of bail. The applicant submitted that the Crown's case was weak and that exceptional circumstances were shown by the length of time before trial, the availability of an excellent surety, and the weak prosecution case.

The court found that the nature of the offences and the circumstances of their alleged commission were such as to put them into the category of extremely serious offences. However, the court concluded that bail should not be refused on that account, as the applicant had no prior record for offences of violence, and had strong family support. The court considered that the risk of the applicant committing an offence or endangering the safety of a person could be sufficiently removed by imposing certain conditions, including a personal undertaking and surety requirements, residential, passport, and reporting conditions, and a violence restraining order. The court was satisfied that these conditions would sufficiently ensure the applicant would attend for his trial and overcome the concerns arising under the Bail Act.

The court granted the applicant's bail application, subject to the imposition of the proposed conditions, including a violence restraining order. The applicant was required to give a personal undertaking in the sum of $75,000, with his mother as surety in the same amount. The applicant was also required to reside at his mother's residence, report daily to the Officer in Charge of the Victoria Park Police Station, surrender his passport, and not approach within 2 km of points of interstate or international departure. The applicant was further required not to contact, directly or indirectly, any of the civilian witnesses named on the indictment. The court also made a violence restraining order against the applicant in respect of each of Melissa Yvette D'Amico, Giovanni Paul Ruiz, Steven Michael Merenda, and Michael James Flower, restraining the applicant from approaching within 50 metres of a protected person and communicating or attempting to communicate with a protected person. The court noted that every violence restraining order includes a restraint prohibiting a person bound by it from being in possession of a firearm.

Orders