Fazzari v State of Western Australia (No 2) - [2004] WASC 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FAZZARI & ORS -v- STATE OF WESTERN AUSTRALIA (NO 2) [2004] WASC 233

CORAM: ROBERTS-SMITH J

HEARD: 21, 25 & 29 OCTOBER 2004

DELIVERED : 12 NOVEMBER 2004

FILE NO/S: INS 150 of 2004

BETWEEN: SALVATORE FAZZARI
CARLOS PEREIRAS
JOSE FELIX MARTINEZ
AND
STATE OF WESTERN AUSTRALIA

Catchwords:

Criminal law - Bail - Wilful murder - Application for bail pending trial - Previous application refused by Judge of Supreme Court - Whether new circumstances or circumstances changed - Service of prosecution brief - Prosecution case weak

Legislation:

Bail Act 1982 (WA), cl 2 and cl 4, Pt B, Sch 1

Result:

Applications dismissed

Category: B

Representation:

Counsel:

First-named Applicant     :     Mr M J Bowden
Second-named Applicant     :     Mr D J McGrath
Third-named Applicant     :     Mr W B Harris
Respondent:     Mr S F Rafferty

Solicitors:

First-named Applicant     :     Cannon Bowden & Co
Second-named Applicant     :     Duncan McGrath
Third-named Applicant     :     William Berkley Harris
Respondent:     State Director of Public Prosecutions

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

Alexander v R (1981) 145 CLR 395
Bulejcik v R (1996) 185 CLR 375
Christian v R, unreported; SCt of WA; Library No 950095; 3 March 1995
Domican v R (1992) 173 CLR 555
Everett v R, unreported; SCt of WA (Ipp J); Library No 9010; 24 July 1991
Fazzari v State of WA [2004] WASC 71
Morrison v Kiwi Electrics Pty Ltd (1998) 19 WAR 482
Pinkstone v R (2000) 119 A Crim R 462
Pitkin v R (1995) 130 ALR 35
R v Beck [1990] 1 Qd R 30
R v Sherrington & Kuchler [2001] QCA 105
Rus v R [2001] WASC 68
Warren & Ireland v R [1987] WAR 314

Case(s) also cited:

Broad v Haas [2002] WASC 155
Director of Public Prosecutions for the State of Victoria v Tong (2000) 117 A Crim R 169
Dodd v R (2002) 135 A Crim R 545
Goldfinch v State of WA [2004] WASC 218
Kelleher v R (1974) 131 CLR 534
Lim v Gregson [1989] WAR 1
Mickelberg v R [1984] WAR 191
Penney v R (1998) 155 ALR 605
R v Clout (1995) 41 NSWLR 312
R v Dodd (2002) 135 A Crim R 32
R v Halas (2001) 81 SASR 1
R v Kleinert (1928) 49 ALT 137
R v Smith [1979] 2 NSWLR 304
R v WEB (2003) 7 VR 200
R v Yammine (2002) 132 A Crim R 44
Saka v R [2001] WASC 92
Tregurtha v R (2002) 136 A Crim R 443

ROBERTS-SMITH J: These are applications for bail pending trial. The three applicants and a juvenile ("the accused") are charged with the wilful murder of Phillip John Walsham on 28 February 1998. The police investigations were protracted and initially inconclusive. As a result, the police reported to the Coroner and recommended a coronial inquiry because at that stage there was insufficient evidence to charge any person with Walsham's death.
In his findings published on 17 April 2003 the Coroner concluded the four accused caused Walsham's death. Nonetheless, the accused were not charged until 31 March 2004. The applicants have been in custody since. The juvenile has been released to bail.
On 10 June 2004 the accused were committed to this Court for trial. The trial has been listed for hearing for 8 weeks commencing on 18 April 2005. If they are not released to bail the applicants will by then have spent just over 12 months in custody.
The applicants have previously applied to a Judge of this Court for bail. Their applications were heard by McLure J on 8 April 2004. In her reasons published on 23 April (Fazzari v State of WA [2004] WASC 71) her Honour refused bail, as she was not satisfied the applicants had established there were exceptional circumstances why bail should be granted, that being the obligation of an applicant to demonstrate where he or she is charged with a serious offence such as wilful murder (Pinkstone v R (2000) 119 A Crim R 462).
Clause 2 of Pt B of Sch 1 of the Bail Act 1982 (WA) stipulates that except where cl 4 applies, the power to grant bail for an appearance by an accused ceases to be vested in any judicial officer whose jurisdiction is co‑extensive with one who has already granted or refused bail for that appearance.
Clause 4 relevantly provides that:
"4. Notwithstanding clause 2, where a defendant has been refused bail for an appearance … the judicial officer who … refused bail or another judicial officer whose jurisdiction is co‑extensive with his has power to grant bail for that appearance … if the defendant makes application and satisfies him that ‑
(a)new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refused for that appearance;
(b)he failed to adequately present his case to bail on the previous occasion when it was considered; …"
Accordingly, by virtue of these provisions I have no power to grant bail unless the applicants can meet one or more of the conditions in cl 4. If they can do that, then again bail could not be granted unless they could establish exceptional reasons why it should be.
The applications are put on the basis that new circumstances have arisen or the circumstances have changed since the decision of McLure J in April 2004. These are said to be that the applicants have since been committed to stand their trial and the prosecution brief having been served and prosecution disclosure made, it is now possible to demonstrate the weakness of the prosecution case against the applicants.
The change must be "… a relevant change in relevant circumstances" (Pinkstone, supra at [15]). In Rus v R [2001] WASC 68, where service of the prosecution brief was also advanced as a change in circumstances reviving the discretion to consider bail, I took the view (at [7]) that the real question was whether what was on the prosecution brief revealed the earlier assessment of the strength of the prosecution case needed to be changed so as to recognise that case was not strong. I was there prepared to accept that should I be of that view, that would be a relevant change in circumstances. In that instance, having reviewed the material, I concluded the prosecution case was still very strong. That being so, the relevant circumstances had not sufficiently changed to revive the bail jurisdiction.
I adhere to the view I took in Rus about the principle to be applied. It cannot be the case that the mere fact there has been a committal or the prosecution brief has been served and formal disclosure given, is a change in circumstances sufficient to revive the bail discretion. What must be shown is that what appears from that material is capable of leading to a new or different view about one or more of the factors significantly influencing the exercise of the bail discretion.
In Christian v R, unreported; SCt of WA; Library No 950095; 3 March 1995, Walsh J accepted that the conduct of a contested preliminary hearing resulting in the applicant's committal for trial on one charge of murder and one of assault occasioning bodily harm, was a relevant change in circumstances in that it enabled a more comprehensive assessment of the strength of the prosecution case. In that case, whilst his Honour accepted there were conflicts and ambiguities in the evidence of the prosecution witnesses, he was "far from persuaded the prosecution case was a shambles now that its witnesses have been cross‑examined" and nor was he prepared to prognosticate that there was a reasonable expectation the trial Judge would find there was no prima facie case for murder at all. Walsh J concluded (at 15‑16):
"Whilst it is undoubtedly correct that in the event of any ambiguity in the evidence, or in the case of circumstances where there is more than one reasonable inference which can be drawn an accused is entitled to the resolution of that ambiguity or the drawing of the inference which is more favourable to him, I have no doubt that the trial Judge will emphasise that to the jury if he decides against a submission of no case to answer.
The conclusion I have reached after considering the evidence given at the preliminary hearing and the submissions made as to inconsistencies and unreliability, whether by reason of the consumption of alcohol or otherwise, is that I am not justified in finding that Crown case lacks such strength on the count of murder that it comes within the exception which would exercise the power to grant bail."
These remarks are apposite to the submissions made on behalf of the applicants here.
The strength of the prosecution case is one of the factors which the common law required to be taken into account in an application for bail. That is now reflected in cl 3(d) of Pt C of Sch 1 of the Bail Act, as being one of the factors bearing upon a consideration under cl 1(a) of the question whether a defendant (which includes an accused), if not kept in custody, may fail to appear in court in accordance with his bail undertaking, commit an offence, endanger the safety, welfare or property of any person or interfere with witnesses or otherwise obstruct the course of justice.
Clause 3 provides that:
"In considering whether a defendant may do any of the things mentioned in clause 1(a), the judicial officer or authorized officer shall have regard to the following matters, as well as to any others which he considers relevant ‑
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the defendant for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the defendant;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him."
The legislative assumption is that the stronger the prosecution case against an accused, the greater the likelihood he or she may abscond, commit a further offence, endanger the safety, welfare or property of any person or interfere with witnesses or otherwise obstruct the course of justice. Conversely, the weaker the prosecution case, the less likely the accused will be to do any of those things.
Ipp J put the position succinctly in Everett v R, unreported; SCt of WA; Library No 9010; 24 July 1991 (at 7):
"Clause 3 of Part C to the Schedule to the Bail Act expressly requires me to have regard to the strength of the evidence against the applicant. This is but a reflection of the common law. One of the reasons for requiring an applicant to show extremely exceptional circumstances to justify bail where the charges fall into the 'extremely serious' class is that in such cases there is a strong inference that a person charged with an extremely serious offence would be likely to abscond: WCVB v The Queen. Where the strength of the case against the applicant is so weak that it is unlikely that the applicant would be found guilty that inference virtually disappears. It is a hallmark of a democratic society that an accused person should not be detained in custody pending trial, no matter how serious the charges he faces, where there is no evidence on which he could reasonably be found guilty."
In that case Ipp J concluded the evidence against the applicant, as put before him, was so weak that no reasonable jury could convict the applicant on any of the counts with which he had been charged. Accordingly, applying the law as he had stated it, his Honour granted home detention bail subject to stringent conditions.
That is essentially the way in which the applicants state their case on these applications. Their common submissions are effectively, that on the prosecution case as it now appears to be from the prosecution brief served under s 103 of the Justices Act 1902 (WA), statements and other material disclosed by the prosecution in accordance with s 611B of the Criminal Code and further materials obtained by the applicants pursuant to subpoena, no properly instructed jury could convict any of the applicants.
The relevance of the claimed change in circumstances will ordinarily turn on the impact of it upon a factor which was significant in the earlier judicial conclusion that bail be refused. Logically, a change in a circumstance which was of little weight in the earlier decision would ordinarily not qualify as a relevant change in relevant circumstances. On the other hand, a change of circumstance in respect of a factor which was of little significance in an earlier refusal of bail, may (either alone or in combination with other factors) be such a dramatic change militating in favour of a grant of bail, as to be relevant for that reason.
In the present case, McLure J noted (at [17]) it had not been suggested the prosecution case was so strong as to be overwhelming and indicative of an almost inevitable conviction, but rather was one described by the State (relying on the evidence adduced in the coronial inquiry) as "relatively strong". Her Honour went on:
"Counsel for the State informed the Court that there had been no developments of any material significance affecting the strength of the prosecution case since the coronial inquiry. For the purposes of these applications, and without conceding its correctness, the State's characterisation with its inherent vagueness was not vigorously contested by counsel for the applicants. In my preliminary assessment, the description puts the State case at its highest. It is unnecessary to comment further on this subject. I am satisfied that the strength of the prosecution case in the circumstances of this case does not weigh heavily for or against the grant of bail." (My emphasis).
Ultimately, having referred to matters personal to the applicants, including their home, family and employment ties to the jurisdiction, her Honour concluded (at [20]):
"However, I am not satisfied that these matters are of such significance in kind or degree as to neutralise or reduce to any appreciable degree the significance of the fact that the applicants have now been charged. The change of status from suspect to accused is an additional, if not the primary, potential trigger for absconding. Having regard to all relevant matters, I am not satisfied that the risk of the applicants failing to appear in court in accordance with their bail undertaking is minimal or is one that can be suitably addressed by the imposition of conditions. Further, I am not persuaded that the combination of circumstances are sufficiently unusual as to be properly characterised as exceptional."
Given her Honour's reasons for refusing bail on 23 April 2004, it seems to me the present applications fall into that category requiring the applicants to demonstrate that what is now known about the strength (ie the claimed weakness) of the prosecution case is such a dramatic or significant change in circumstances now militating positively in favour of a grant of bail, as being relevant and persuasive for that reason.
It is important to appreciate that on an application for bail where the strength or weakness of the prosecution case is a factor which falls for consideration, it is not the function of the judicial officer concerned to make any rulings of law as to the admissibility of evidence, any findings of fact, nor any determination of the issues for the substantive trial. Those remain for the trial court. Although there has been a coronial inquiry in this case, none of the evidence has been tested before me and on any application of this kind, nor should it be.
Counsel for the applicants made lengthy submissions in which they analysed the prosecution case in considerable detail, pointing up what they contended were evidentiary conflicts, ambiguities and deficiencies. These were gleaned not only from the witness statements which form part of the prosecution brief, but from earlier drafts of statements of various witnesses (which were said to demonstrate inconsistencies or response to suggestions), from evidence given by the prosecution witnesses at the coronial inquiry and from statements of people the prosecution does not propose to call.
Mr Bowden, counsel for the applicant Fazzari, whilst acknowledging the test on this application is not whether, taking the police case at its highest, a properly instructed jury could convict (that being the test for determining whether or not there is a case to answer: see Morrison v Kiwi Electrics Pty Ltd (1998) 19 WAR 482) he submitted that it would be appropriate for me to deal with his client's application on that basis in the circumstances of this case.
It is neither necessary nor appropriate for me to consider the evidence in the detail canvassed by counsel. It is necessary though, for me to state in its essential substance what the prosecution case against the applicants was previously understood to be and what it is now known to be.
The fourth accused was a juvenile at the time of relevant events.
He was granted bail by the President of the Children's Court on 14 April 2004. That fact of itself does not bear upon these applications, because the statutory provisions in relation to bail application by juveniles are quite different to those which apply to adults. For example, a juvenile has a qualified right to bail (cl 2(2) Sch 1 Pt C of the Bail Act and s 7(h) of the Young Offenders Act 1994 (WA)).
However, in his reasons for decision (AM v The State of WA [2004] WACC 3) the learned President comprehensively set out the prosecution case against the applicants in general terms as it appeared at that time. Of course, that was after the coronial hearing, but before service of the prosecution brief; nonetheless, that summary does still essentially represent the case as it stands now. Accordingly, I shall take the liberty of setting out below his Honour's summary so far as it is presently relevant on these applications:
"18On the evening of Friday 27 February 1998 the deceased was in the company of Craig Betts ('Betts') and Spencer Toogood ('Toogood'). At about 2.00am on Saturday 28 February 1998 the three of them caught a train from Leederville train station to the Stirling train station. After they arrived at the Stirling train station the deceased, who had a blood alcohol level calculated to be 0.162 per cent at the time, sat on a bench near the footbridge and Betts and Toogood walked off in a northerly direction along Cedric Street. Walking ahead of them were two girls, Shevaun Lillywhite ('Ms Lillywhite') and Rachel Lincoln ('Ms Lincoln').
19A white Commodore sedan owned by Pereiras ('the Commodore') and being driven by him and in which Fazzari, Martinez and AM were all passengers was travelling in the opposite direction. The Commodore stopped near the girls. Ms Lincoln knew one of the occupants and the two girls got into the Commodore. The Commodore then travelled past Betts and he threw something at it. Pereiras turned the Commodore and drove it back and stopped near Betts. Fezzari (sic) threw a bottle at Betts. Betts threw it back towards the Commodore and it smashed on the road. Martinez then got out of the car. Pereiras opened the boot of the Commodore and took out a tyre lever and gave it to Fazzari. Pereiras also took out a tyre lever for himself. Martinez and Fazzari then chased Betts and then both Betts and Toogood towards the Stirling train station. At the station both Betts and Toogood got into a taxi which drove away enabling them to escape. Records of the taxi meter show that it was turned on at 2.25 am.
20Fazzari and Martinez were angry that Betts and Toogood escaped. When they both walked over the footbridge back towards the station Fazzari hit the railing of the footbridge about 18 times with the tyre lever causing about $2,800 worth of damage. In the meantime Pereiras had driven the Commodore back to the Stirling train station and parked it near where the deceased was sitting. Pereiras put the tyre levers back into the boot of the Commodore.
21While the deceased was sitting on the bench and without any provocation Fazzari walked up to him and kicked him forcefully to the face. Then Martinez also kicked him to the head or face. One or both of these assaults were witnessed by others, including Ms Lincoln and Lorena Rodriguez ('Ms Rodriguez'). Ms Rodriguez had arrived at the station in another car driven by Toby Vangelovski ('Vangelovski'). Both of them were friends of Fazzari. After the assaults Ms Rodriguez and Vangelovski left the scene in Vangelovski's car and Pereiras, Fazzari, Martinez and AM left in the Commodore. Both Ms Lincoln and Ms Lillywhite stayed behind and checked on the deceased who had blood on his face. Ms Lillywhite last saw the deceased five or six steps up the footbridge.
22The deceased's fall from the footbridge was witnessed by Claire Pigliardo ('Ms Pigliardo'). At the time she was a passenger in a stationary car on the Freeway off-ramp at the Cedric Street intersection. The car was being driven by her mother, Mrs Walker, and her sister Tina Pigliardo was also in the car.
23In a prior written statement Ms Pigliardo stated that she saw two or three people walking across the footbridge when one of them flipped backwards over the railing, bounced about two feet after landing on the road and then came to rest near the kerb nearest the station. When Ms Pigliardo gave evidence at the inquest at one stage she said there were three or four persons on the footbridge and at another stage she said there were no more than five and no less than three.
24Mrs Walker gave evidence that after the fall she saw a white medium size sedan drive from Cedric Street and close to the deceased on the road and then head south on the Freeway. Joseph Lione ('Lione') gave evidence that he was driving his car from Cedric Street and onto the Freeway to travel south. He said that he saw the deceased on the road. He also saw a 'white Holden Commodore' parked in the carpark near the bench where the deceased had been sitting. He later gave evidence that the car was possibly a light coloured vehicle. The State Coroner found that the observations of Lione were made at about the same time as those of Mrs Walker.
25The State Coroner found that John Bailey ('Bailey'), a taxi driver, arrived at the scene shortly after and saw the deceased on the road. Mr Bailey said that the deceased's head was near the kerb and his body at right angles to the kerb. He called an ambulance. Records completed by an ambulance officer indicate that he received a call to attend the scene at 2.43 am. When the ambulance officer arrived the deceased had a pulse and was still breathing.
26The post-mortem examination of the deceased revealed a "C" shaped superficial linear abrasion four centimetres in length over the middle of the left scapula region, i.e., on the left shoulder blade on the back of the deceased. In addition a white marking was noted on the inner surface of the black T-shirt being worn by the deceased. This white marking matched the area of the injury over the left shoulder and appeared to be comprised of skin particles and hair from the back of the deceased. This injury had well defined edges and appeared to be consistent with having been caused by a tyre lever or similar object.
27Three witnesses gave evidence in relation to this issue at the inquest. Senior Constable Hyde took measurements and compared the size and shape of the white markings with the edges of the tyre levers. His tests showed that there is a very close fit between the white marking and the overlay of a tyre lever.
28In a report made on 31 January 2000 Dr Margolius stated that the injury on the deceased's left shoulder shows a pattern similar to the tyre levers and is in keeping with the production of such an injury via a tyre lever. At the inquest Dr Margolius was arguably equivocal on the cause of the deceased's left shoulder injury. At one stage her evidence was consistent with the opinion she had earlier expressed in her report. However later in her evidence she said that it could have been caused by the deceased's second impact after his fall when his body had bounced on the road. She gave evidence that the deceased's severe head injury would have been caused by the initial impact resulting from the fall. She did not know where or how the deceased landed after his body had bounced from the initial impact. She therefore seemed to leave the possibility open that the injury was caused by the deceased's shoulder hitting the kerb when his body returned to the road surface after the bounce.
29Bernard Lynch ('Mr Lynch'), a chemist, conducted tests placing the deceased's T-shirt on a pig carcass to determine whether it was likely that the T-shirt worn by the deceased was struck by a tyre lever shortly before his death. Each blow, including light blows, resulted in an immediately visible external mark to the shirt and only heavier blows resulted in visible deposition of skin material on the inner surface. Mr Lynch concluded that the results did not support the proposition that the T-shirt worn by the deceased had been struck with a tyre lever because there was no visible sign of disturbance on the outside of the fabric.
30Dr Margolius was present during this testing. She gave evidence that she was not surprised that the outer side of the deceased's T-shirt showed no visible sign of disturbance. Based on her experience of post-mortem examinations she said that she has not infrequently seen skin on the inside of clothing but no apparent disturbance on the outside fibres.
31On a consideration of all of the evidence, including the size and shape of the kerb, the State Coroner found that the injury was in keeping with an impact from an implement such as a tyre lever. He nevertheless emphasised the need for further testing if the issue was to be considered in a criminal context.
32Each of Pereiras, Fazzari, Martinez and AM were interviewed by the police at various times and also gave evidence at the inquest. The State Coroner formed a negative view on all of them. In the final analysis Pereiras admitted to taking tyre levers out of the boot of the Commodore when the male (Betts) was running away. Each of Fazzari and Martinez admitted kicking the deceased to the head when he was sitting on the bench. They were each charged with assault for that conduct and pleaded guilty. Fazzari also admitted to hitting the railing on the bridge about 10 times with a tyre lever because he was angry that the two men (Betts and Toogood) had got away.
33AM made a written statement to the police on 3 March 1998 in which he stated that he saw each of Fazzari and Martinez kick the deceased to the head. On 2 September 1998 he submitted to a polygraph examination following which the examiner formed the opinion that his responses were indicative of deception. During the interview on 2 September 1998 AM did not reject the proposition that the Commodore could have later returned to the scene and said "I could have passed out and they could have come back". He also stated that he could not recall anything from after meeting Vangelovski and Rodriguez immediately after the kicking episode until arriving back at Martinez's place later in the morning. According to AM he had consumed a significant quantity of alcohol which could have contributed to him falling asleep or losing his recollection.
34On 24 January 2001 AM was offered the possibility of an indemnity if he provided a full account of his knowledge of the events leading up to the death of the deceased. He was asked questions by a police officer after having being told that any answers he gave would not be admissible in evidence. When asked whether the four young men returned to the overpass after the initial assault he is said to have agreed by nodding his head several times. However later in the interview he denied that they later returned.
35Evidence was given at the inquest by a person who said that in October or November 1998 Martinez stated words to the effect that he threw the deceased over the Stirling Bridge.
36In summary the State case against each and every one of Pereiras, Fazzari, Martinez and AM is that they had opportunity and motive to commit the alleged offence. In relation to opportunity the State case is that the only reasonable inference in light of all the circumstances or a combination of some of them is that all four of Pereiras, Fazzari, Martinez and AM returned to the scene of the Stirling railway station in the Commodore. The State relies on the following circumstances. There is only a small timeframe of 18 minutes between about 2.25 am and 2.43 am. Within that small timeframe all four were together, two of the four were armed with tyre levers, two of them Fazzari and Martinez chased friends of the deceased and Fazzari was armed with a tyre lever when they did so, all four were at the scene for some time after 2.25 am when the accused was assaulted by Fazzari and Martinez who were members of the group, the scene was relatively deserted and given that it was after 2.25 am it was unlikely that another group would be in the area, the trains had stopped running, all four of them would have known that the deceased was likely to still be in the area, members of the group were very angry, the deceased was struck by a tyre lever of the same sort as Pereiras' sometime after all four of them had left the station in the Commodore after the deceased had been kicked, and a car with a description consistent with the Commodore was seen in the area immediately after the deceased had fallen from the bridge and landed on the roadway."

Given his Honour's reference to the coroner's findings, it is apposite to say something about that at this stage. The first point is that on these applications I am in no way bound by what the coroner found. The statutory obligation is for me to make my own assessment of the strength of the prosecution case on the material before me should I be satisfied the applicants have shown new circumstances have arisen or the circumstances have changed since McLure J refused bail.
Nonetheless, the fact that the evidence has been tested before a judicial officer and he concluded the four accused were responsible for throwing Walsham off the footbridge, is a factor going to that question. In this case though, it is not a strong factor (as it might be following a full committal hearing), because the nature of the coronial inquiry is inquisitorial and one to which the rules of evidence do not apply.
Secondly, it seemed to me to be common ground between the prosecution and counsel for the applicants in the end, that to the extent I might have regard to the evidence before the coroner, I could properly do so only in respect of evidence which would be admissible on the applicant's trial. In my view that must be the correct approach.
Consistently with that approach, I note that on the trial of the four accused, any evidence of an admission by Martinez would be admissible only against him and likewise any actual or implied admission by AM would be admissible in evidence against him only.
The applicants have sought particulars of the overt acts to be relied upon by the prosecution. The State's position on that is set out in a letter from Mr Urquhart dated 9 September 2004, the essential portion of which reads:
"… the case against all four accused is largely a circumstantial one. It will be the prosecution case that the four accused returned to the Stirling train station and were present when Mr Walsham fell from the footbridge. The State need not specifically allege that a particular accused was, or particular accused were, responsible for actually pushing Mr Walsham over the bridge. The State does not have to prove precisely who was responsible for that action although the accused Martinez is alleged to have made certain admissions to a Mr Philip Andrews. The State will be relying on the provisions of s. 7 and s 8 of the Criminal Code with respect to all four accused.
Given the above and the fact that the case against your client is a circumstantial one there are no overt acts specifically alleged against your client as such."
Specifically, the State has referred in argument to R v Sherrington & Kuchler [2001] QCA 105; Warren & Ireland v R [1987] WAR 314 and R v Beck [1990] 1 Qd R 30. It will only be necessary for me to consider the effect of those authorities in this case if the applicants demonstrate my jurisdiction to grant bail has been enlivened under cl 4 of Pt B of Sch 1.
Mr McGrath, for the applicant Pereiras, contends that Ms Pigliardo is the only eye‑witness to the alleged wilful murder and that the prosecution "stands or falls on the accuracy and reliability of her recollections". Upon the foundation of that proposition, he mounted an extensive argument with reference to earlier statements (including a video interview at the scene) made by Ms Pigliardo before that statement which is included in the prosecution brief, as indicating the evidence she would give at trial and her cross‑examination on the coronial inquiry. He also submitted Ms Pigliardo's evidence falls into the category of eye‑witness identification evidence, as to which a special warning would have to be given by the trial Judge to the jury in accordance with authorities such as Alexander v R (1981) 145 CLR 395 at 398‑403; Domican v R (1992) 173 CLR 555, 561; Bulejcik v R (1996) 185 CLR 375 at 392‑399 and Pitkin v R (1995) 130 ALR 35.
I do not accept these submissions. First of all, I cannot accept the proposition that the prosecution case "stands or falls" on Ms Pigliardo's testimony, nor that her testimony would fall within the category of eye‑witness identification evidence.
Ms Pigliardo's evidence is merely part of the circumstantial case against the applicants. She does not purport to identify anyone. Nor does she purport to describe any person, nor any feature which would identify any person. She does not purport to describe any person doing any act (other than seeing Walsham falling from the footbridge to the road).
The importance of her evidence lies simply in her saying she saw a group of between three and five persons (including Walsham) on the footbridge at the time he fell from it. It is true that the trial Judge would no doubt in his or her directions to the jury, draw their attention to such matters as the lighting conditions at the time, the distance from Ms Pigliardo's position to the footbridge, whether or not she was wearing her contact lenses and so‑on, but none of those matters are likely to detract significantly from the essential substance (as opposed to detail) of her evidence, as I have indicated it. I do not accept Mr McGrath's submission that Ms Pigliardo's evidence is "so vague, weak and tenuous" as to be ruled inadmissible against any of the accused.
There is more force in the submission (and again I state it briefly) made by counsel for all three applicants, that the prosecution evidence fails to show the accused were present on the footbridge when Walsham fell from it, nor (alternatively) that even if they were, they did not cause him to fall.
In respect of the latter, Mr Harris referred to evidence showing Walsham was intoxicated by drugs or alcohol or both, was unsteady on his feet and indeed, is shown in a railway surveillance video lying on the floor of a carriage immediately before alighting with friends at Stirling railway station.
The gravamen of the applicants' submissions in respect of what they say is the inability of the State to prove the applicants were at the scene when Walsham fell, is that the uncontradicted evidence is that the four of them left after the assault on Walsham by Martinez and Fazzari. The evidence is that the four of them drove east along Cedric Street, eventually to the corner of Odin Road and Fulmar Street, heading towards Sheldrake Park. The car stopped at that location for some time. The State says that location is some 3 kms from the footbridge.
The girls Liptay, Lillywhite and Lincoln were on Cedric Street, east of the railway station, from the time the car with the accused in it left the station and travelled to Fulmar Street. Lillywhite and Lincoln were on Cedric Street until very shortly before 3.15 am. Liptay made a telephone call from a phone box on Cedric Street at 2.35 or 2.36 am, before returning to the footbridge where she saw a taxi and then the police arrived. The first taxi to call in that Walsham was lying on the road was at 2.43 am. The first police officers arrived at 2.47 am.
None of Liptay, Lillywhite or Lincoln saw the accused or the their car after leaving the station following the assault by Martinez and Fazzari on Walsham. That assault was shortly after 2.26 am, that being about the time Betts and Toogood escaped in the taxi from Martinez and Fazzari. No witness saw any of the accused either return or at the scene at the time Walsham fell.
The State concedes the window of time within which the relevant events occurred on the footbridge must be between 2.25 am and 2.43 am.
Mr Rafferty pointed out that in their interview with police, all the accused said after they left the corner of Odin Road and Fulmar Street, they went to the McDonalds restaurant at Tuart Hill on the corner of Wanneroo Road and Morley Drive.
He encapsulated the State case as being that shortly after 2.27 am the four accused left the Stirling railway station and drove to the Fulmar Street and Odin Road intersection. After a brief exchange there with Vangelovski and Rodriguez, the four accused drove back to the station with the purpose of doing further harm to Walsham and that they did so whilst one or more of them was armed with a tyre lever from Pereiras' car.
The case against Pereiras is that if he was not an actual assailant with the tyre lever, he knowingly and willingly assisted the others to kill Walsham by driving them there and providing the tyre levers for the purpose. Alternatively, in relation to him, the State says he knowingly and willingly joined with the others in a common purpose to commit a further serious assault on Walsham in the course of which Walsham was wilfully murdered, that offence being in the circumstances, a probable consequence of the assault.
The State case against the other accused in broad terms is similar, except that it is said that (if Pereiras was in the car, for example) they actively participated in the conduct constituting the offence.
There is also the evidence of the admissions said to have been made by Martinez and AM, admissible only against those individual accused.
Subject to the evidence of claimed admissions, the State acknowledges its case is entirely circumstantial. In substance it is put as follows:
(1)Martinez and Pereiras had committed a serious unprovoked assault on Walsham only about 15 minutes earlier.
(2)The accused knew Walsham was at the Stirling railway station.
(3)The evidence of Dr Margolius is that there was a fresh C‑shaped superficial linear abrasion 4 cm long over the middle of Walsham's left scapular region. The abrasion was consistent with a blow from a tyre lever such as those retrieved from Pereiras' vehicle.
(4)There was a mark on the inside of Walsham's t‑shirt, made by transfer of skin material from the abrasion. The shape appears to closely match the physical configuration of a tyre lever such as those recovered from Pereiras.
(5)The accused were in possession of three tyre levers from Pereiras' car which they were obviously prepared to use as weapons.
(6)There is evidence that Walsham bought the t‑shirt only the previous day.
(7)No witness who saw the earlier assault on Walsham said he was struck with a tyre lever and nor did Martinez or Fazzari. Walsham made no complaint of any earlier injury. The State says the inevitable inference is that Walsham was struck with a tyre lever a short time after he was assaulted by Martinez and Fazzari and before he fell from the bridge.
(8)Ms Pigliardo saw a group of between three and five people (including Walsham) on the footbridge just before he fell and then observed the fall.
(9)It would be extraordinary if between 2.25 am and 2.43 am there was another group of people in the immediate area of the Stirling railway station armed with tyre levers.
(10)Close to the time Walsham fell from the footbridge, the taxi driver Lione saw a light coloured vehicle in the car park near the bench where Walsham had been sitting. That description is consistent with Pereiras' car.
(11)If a jury were to accept the accused were present when Walsham fell from the footbridge, it could only have been because they intended either to kill him or to seriously assault him at that time, and in the circumstances, there could have been no other reason for them to be there.
As I have indicated, I have tried to set out above the substance of the way the State puts its case without referring to all of the evidence upon which it would rely.
For the applicants, it is submitted that when regard is had to the vagueness of much of the prosecution evidence combined with other evidence of which the defence has become aware through the process of prosecution disclosure of other material not part of the State case and from the production of material upon subpoena, no properly instructed jury could be satisfied beyond reasonable doubt of the accuseds' guilt.
Again, I do not intend to set out in any detail the "evidentiary" material put before me in that regard (I describe it in that way because of course what is being referred to is material contained essentially in untested statements from various people).
As to the abrasion on the deceased's back and the mark on the inside of his t‑shirt, the applicants rely upon Dr Margolius' concession in cross‑examination on the coronial inquiry, that she could not exclude the possibility they resulted from the body bouncing on the roadway and then the kerb. However, all the evidence relating to that would have to be considered together and in context. I do not think it can properly be said it would not be open to the jury to find they were caused by the tyre lever, despite the evidence that Walsham had been dragged on the train by friends, a short time before, together with that other evidence to which I have referred.
As to the prosecution contention that there were no other people in the area about 2.30 am to 2.35 am on 28 February 1998, the applicants referred to (inter alia) statements of a number of people, which together suggest there were other people around. There is reference to a person seen asleep on the station at 3.30 am, another person who was there from 1.30 to approximately 4 am, a male and female there together at 2.57 am, an unknown male apparently 18 to 25 years of age, with a bandage on his right forearm, wearing a t‑shirt, dirty jeans and a goatee beard.
There is a statement from a taxi driver who says he dropped passengers at the Stirling railway station about 2.30 am and saw a group of about six "scruffy" male youths sitting on a seat next to the station entrance. He says they "appeared to have no reason to be there and although they were not doing anything they looked disorderly".
Counsel for the applicants strongly emphasised the time factor. The submission in that regard is, in short, that far from showing the accused were at the railway station at the relevant time, it shows they were some 3 kms away.
According to Rodriguez' evidence at the inquest, it took them between 5 and 10 minutes to get to the intersection of Odin Road and Fulmar Street and they then remained there about 5 minutes. Vangelovski's evidence was that it took about 2 minutes to get to the intersection and they remained there for about 5 minutes. For the applicants it is submitted there was not time for them to leave following the assault on Walsham at about 2.28 am and then return before 2.35 am.
Given the uncertainty about the time it took the accused to drive to the corner of Odin Road and Fulmar Street and how long they were there, I do not think it could be put as definitively as that.
However, it seems to me that even taken at its highest from the prosecution point of view, all that can be said about that evidence is that it would not exclude the possibility that they did return. Against that possibility, is the evidence that no‑one saw them return nor identifies them at the scene.
From the foregoing summary of the respective cases argued before me, it is apparent that there is some, but very little, new material which reflects any appreciable change in circumstances from the position as it was on the hearing before the learned President of the Children's Court on 6 April 2004 and before McLure J on 8 April 2004. That is so notwithstanding service of the prosecution brief and the availability of the other material relied upon by the applicants.
It follows that the applicants have failed to demonstrate that "new circumstances have arisen or the circumstances have changed" since bail was refused by McLure J and accordingly the power of a Judge of this Court to grant bail to the applicants has not been enlivened.
The applications must therefore be dismissed.