Fode v The State of Western Australia
[2005] WASC 226
•20 OCTOBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: FODE -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 226
CORAM: LE MIERE J
HEARD: 20 SEPTEMBER 2005
DELIVERED : 20 OCTOBER 2005
FILE NO/S: MCS 36 of 2005
BETWEEN: RHYS DOMENIC FODE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for bail - Bail Act 1982 (WA) - Balancing public interest with interests of accused - Extremely exceptional circumstances required to justify bail for extremely serious offences - Whether offence is extremely serious - Subjective assessment - Whether exceptional circumstances exist - Economic hardship - Delay - Clause 3 of Pt C to Sch 1 Bail Act - Probable means of dealing with applicant if convicted - Prior convictions - Bail history - Strength of evidence against applicant
Legislation:
Bail Act 1982 (WA), Sch 1 Pt C cl 1, Sch 1 Pt C cl 3
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: Mr D Grace QC
Respondent: Mr A D Hills-Wright
Solicitors:
Applicant: Michael Tudori
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Fawcett v The Queen [2002] WASC 285
Lim v Gregson [1989] WAR 1
Mercanti v The State of Western Australia [2005] WASC 28
R v Kleinert (1928) 49 ALT 137
LE MIERE J: The applicant has applied for bail. The applicant has been charged that on 27 August 2005 at the Sapphire Bar, Hay Street, Subiaco, he with intent to do some grievous bodily harm did unlawfully wound Garry Denton, who I shall refer to as the complainant. A person convicted of that offence is liable to imprisonment for 20 years.
The case alleged by the State is that on 27 August 2005 the applicant attended the Sapphire Bar in company with Ali Hassan (Hassan) and Hassan Ali Ahmed (Ahmed), arriving at approximately 3 am. On arriving at the Sapphire Bar the applicant was wearing a black leather jacket. At about 3 am the applicant and Hassan stood on the dance floor. The complainant was also on the dance floor, dancing with several of his work colleagues. An altercation occurred involving the applicant, Hassan and Clayton Duncan, a colleague of the complainant. During this altercation Duncan was physically assaulted. The complainant intervened and attempted to prevent the altercation continuing. The complainant approached the applicant and was standing in front of him, approximately six inches apart. The applicant produced a small calibre firearm and discharged it at close range into the complainant's left thigh. The bullet entered the complainant's outer left thigh and exited out his inner left thigh. The complainant immediately moved to another part of the dance floor where he inspected his leg and observed that he had been shot. The applicant and Hassan then left the Sapphire Bar through the entry door where the applicant concealed his face from the security camera.
The incident was captured on security cameras located within the Sapphire Bar. At the time of the shooting the Sapphire Bar had approximately 100 patrons inside. The complainant was conveyed to Sir Charles Gairdner Hospital where he received surgery to his left leg to repair the damage caused to his thigh. An early report from the complainant's doctor is that he will be unable to have full use of his leg for at least two years.
On 28 August 2005 Detective Senior Constable Zampogna, with other police officers, attended the applicant's residence in Karrinyup and assisted to execute a search warrant. On entering the premises Detective Zampogna observed the applicant in company with Hassan and Ahmed. A search of the premises was conducted and items of interest were seized. A black leather jacket said to belong to the applicant was located inside a bathroom and appeared to have been washed in some form of chemical cleanser. A spent 0.22 cartridge was located in an underwear drawer belonging to the applicant, inside a walk‑in robe. The applicant was subsequently arrested and charged.
On 31 August 2005 the applicant appeared before Magistrate Heaney in the Magistrates Court at Perth and applied for bail. Counsel for the applicant informed the Magistrate that the applicant is 27 years of age, that he is engaged to be married and that he runs a very successful roof plumbing business that has in excess of 10 employees. Counsel informed the Magistrate that the business could only be run on the management side by the applicant himself. The bail application was supported by a letter of 30 August 2005 from the applicant's accountant. The accountant stated that the applicant had commenced business as a roof plumber in 1996 and had developed a very successful business, the turnover of which now exceeds $2,000,000. The enterprise now engages between 10 to 15 employees/subcontractors at any one time. The accountant said that the applicant's personal management of the business is essential to its continued operation. Without him the business will collapse and his employees/subcontractors will be without work. Further, the business currently has several large construction jobs in progress. The applicant's absence from the personal supervision of these projects will not only affect him but may also adversely impact on his clients and suppliers. The accountant said that the applicant's continued absence from his business will be financially disastrous for him. It will definitely cause hardship to those currently employed and engaged by him and the adverse effect of his inability to attend to his business is likely to extend to his customers and suppliers.
The Magistrate refused to grant bail. The Magistrate stated that the factors that led him to that conclusion included the nature and seriousness of the offence, the probable method of dealing with the applicant if he is convicted and the strength of the evidence of the prosecution case against him.
The present application for bail is supported by an affidavit of the applicant in which he deposes as follows. He is 27 years of age and engaged to be married. He has strong work commitments in the Perth metropolitan area and operates his own roof plumbing business which employs 10 to 15 employees. He is the only person who can run the business. If he is not granted bail then the business will close and the employees will lose their employment. He has been advised by his accountant, who has intimate knowledge of his business, that his business will not be able to run without his presence and involvement. If he is granted bail he will reside at his residence in Karrinyup which he owns and is valued in excess of $1,000,000. He is not a flight risk and is willing to report to the police station daily and can raise a substantial surety in excess of $200,000. As a further condition to alleviate any concerns, he is willing to abide by a curfew between 7 pm and 6 am seven days per week. He is prepared to accept any bail conditions the court considers appropriate including curfew, reporting, residential conditions, surrender of passport or home detention.
The application is supported by a further letter from the applicant's accountant dated 16 September 2005. In that letter the accountant says that since his previous letter nothing has happened to change the opinion he expressed that the applicant's unexpected and continued absence from the management of his business will be disastrous. The accountant says that problems have arisen with apprentices, workers and suppliers. Considerable difficulties are being experienced with determining the state of work in progress and the billing of progress claims and extras. The flow of new jobs has ceased. One apprentice and three workers have been advised that their services are no longer required. Suppliers are acting to rein in previously established lines of credit and pressure from builders for the completion of work is mounting. Work from established builder/clients has ceased. The aspects of the business most affected by the applicant's absence relate to the obtaining of new work, maintaining existing work, supervision and the scheduling of jobs, ordering of materials, submission of progress payment claims and the billing of extras. The applicant's immediate attention to the business is imperative if it is to be held together. If the applicant is unable to attend the business in the very near future then it will collapse to the severe detriment of the applicant, his workers and their families.
The State opposed the grant of bail. The State relies upon an affidavit sworn by Detective Zampogna. In his affidavit Detective Zampogna sets out the State case to which I have already referred and the circumstances of the execution of the search warrant and arrest of the applicant to which I have already referred. Detective Zampogna also produces a statement from the complainant.
Detective Zampogna also deposes to the following matters. From speaking with witnesses, investigators have been made aware of the applicant's associations with members of the Coffin Cheaters outlaw motor cycle gang and the Sword Boys street gang. Those associations are currently being investigated. This is further substantiated by comments in which the applicant's father stated that he knows how his friends, Yvonne and Michael Mercanti feel. Yvonne and Michael Mercanti are the parents of high‑profile Coffin Cheater, Troy Desmond Mercanti, who is currently remanded in Hakea Prison awaiting trial for a shooting incident at the Metro City Nightclub in January 2005. On 1 September 2005 Detective Zampogna spoke with the applicant's father and asked him how the applicant's business was going, to which the applicant's father replied that it was going well as he assisted with the running of the business as he was only semi‑retired. Detective Zampogna asserts that police investigations are still continuing and not all witnesses have been spoken to and accordingly he believes that the applicant's alleged involvement with organised crime figures could have an adverse affect on witnesses in the police investigation.
I immediately observe that the evidence of the applicant's involvement or connection with organised crime figures is too unsubstantiated and non‑specific to establish any connection between the applicant and organised crime figures. Furthermore, Detective Zampogna's belief that the applicant's alleged involvement with organised crime figures could have an adverse affect on witnesses in the police investigation is not substantiated by any evidence that the applicant's alleged involvement with organised crime figures has had any affect on any witness in the police investigation.
Detective Zampogna deposes that the applicant has a prior conviction for an unlawful wounding at the Sapphire Bar on 27 May 2000 for which he was convicted on 11 June 2002 in the Perth District Court and sentenced to 2 years 6 months' imprisonment suspended for two years.
The State submits that the offence alleged to have been committed by the applicant and the circumstances of the alleged offence are such that the offence is an extremely serious offence and it is for the applicant to satisfy the court that exceptional circumstances exist, such that bail should be granted in those circumstances. The State submits that exceptional circumstances do not exist. Alternatively, even if it is not accepted that the applicant needs to establish exceptional circumstances before bail will be granted, the State contends that the provisions of the Bail Act operate to make the grant of bail inappropriate in the circumstances of this case.
The Bail Act 1982 (WA) creates no right or presumption of entitlement to bail, nor does it say anything about the onus or burden of proof. In WCVB v The Queen (1989) 1 WAR 279, Ipp J held that the common law position in relation to the onus or burden of proof should continue to apply. The court is called upon to balance the interests of the accused and the public interest in the trial proceedings. The onus is on the State to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. However, the position is different in cases where the charges fall into the "extremely serious" class. The principles applicable to such a case require the applicant to show extremely exceptional circumstances to justify bail.
Senior counsel for the applicant conceded that the offence with which the applicant is charged is a serious offence and submitted that whether it is an extremely serious offence or not involves a subjective assessment. I conclude that the offence with which the applicant is charged is an extremely serious offence. The State's case is that the applicant entered a public nightclub whilst armed with a firearm. He became involved in a confrontation with the complainant, during which he shot the complainant at close range in the left thigh. The State case is that this act was unprovoked and not done in self‑defence. There were approximately 100 persons in the nightclub when the shooting occurred.
The applicant submits that if exceptional circumstances are required then they are constituted by a combination of factors including delay, the possible loss of business and matters personal to the applicant.
I am satisfied that the possible loss of the applicant's business with the resulting loss of employment to a number of people is capable of constituting exceptional circumstances.
Senior counsel for the applicant informed the court that because of the present state of the lists in the Court of Petty Sessions and the District Court, there is a delay of a year before trial. Where delay is raised as an exceptional circumstance, it cannot be measured simply by what is the normal or usual delay in any particular period of time. Judges of this and other superior courts have over the years said that long delays are not acceptable, quite apart from what may be normal or usual. The court must respect the presumption of innocence and find abhorrent the idea that people are kept in custody for undue time without trial. Each case depends on its own circumstances. The applicant was taken into custody on 28 August. He has been remanded to appear in the Court of Petty Sessions on 9 November. There has been no substantial delay in the prosecution of the State case. I am not satisfied that in the circumstances of this case any anticipated delay in the applicant standing trial constitutes exceptional circumstances.
The grant or refusal of bail
Clause 1 of Pt C of Sch 1 to the Bail Act requires the court to exercise its discretion to grant or refuse bail, having regard to the questions set out in that clause as well as any other matters which the court considers relevant. In this case, I have particular regard to whether, if the applicant is not kept in custody, he 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.
In considering whether the applicant may do any of those things, I am required by cl 3 of Pt C of Sch 1 to have regard to the matters set out in that clause, as well as to any others which I consider relevant. The first of those matters is the nature and seriousness of the offence and the probable method of dealing with the applicant if he is convicted. I have already stated that the offence with which the applicant is charged is an extremely serious offence. If the applicant is convicted a substantial term of imprisonment is inevitable.
I am next required to have regard to the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the defendant. I have already referred to some matters personal to the applicant, including that he is engaged to be married and that he operates a successful business. Those are factors tending towards the grant of bail. The applicant has only one prior conviction of significance. However, that conviction for unlawfully wounding a person at the Sapphire Bar in May 2002 is significant in the context of the offence with which the applicant is presently charged. It gives rise to a risk that if the applicant is not kept in custody he may commit another offence and may endanger the safety, or welfare of other people.
The next matter is the history of any previous grants of bail to the applicant. It appears that the applicant has previously been granted bail and answered his bail. That is a factor in his favour.
The final matter referred to in cl 3 is the strength of the evidence against the applicant. The State submits that the strength of the prosecution case and the likely outcome if there is a conviction combine to reveal an obvious flight risk. The State submits that whilst incomplete, the prosecution case against the applicant is strong, particularly in the context of the fact that the investigations are in their early stages.
As I have said, the incident is captured on surveillance video in the nightclub. The video shows a man, identified by the State as the applicant, entering the nightclub wearing a black leather jacket with two other persons, identified as Hassan and Ahmed. Senior counsel for the applicant appeared to concede, or at least did not challenge, that the man in the black leather jacket is the applicant. The video shows a scuffle in the middle of the dance floor between the applicant, Hassan, the complainant and Duncan. The complainant approaches close to the applicant and the complainant is seen to move to his right and then move back to the dance floor. The video then shows the applicant leaving the premises and holding his hand up to his face to conceal his face.
Counsel for the State submits that when one looks at the videotape, in combination with the complainant's statement, it becomes a compelling case against the applicant. In his statement the complainant says:
"At this point I was very close to the guy with the leather jacket. He was in front of me and looking at me directly. I heard a bang. It sounded like a gunshot. I have heard fired rifles and guns before and know the sound of a gun. It was very distinct. When I heard the noise I felt an excruciating pain in my left thigh."
The complainant then says he moved away from where it happened to another part of the dance floor. The complainant then says:
"I know the guy in the leather jacket had done something to me. My initial thought was that he had a taser gun or cattle prod because of the flash and I couldn't feel my leg."
The complainant says:
"I saw the flash between me and the guy in the leather jacket. The flash was about six inches from me. No one had hold of the guy in the leather jacket."
The applicant contests the strength of the case against him. Senior counsel said that it is not an open and shut case as to who fired the shot. Senior counsel submitted that the videotape is consistent with the shot having been fired by Hassan, rather than the applicant. Senior counsel submitted that just before the complainant appears to move away, that is at the time when the shot is apparently fired, the man said to be the applicant in the black leather jacket has his back to the screen and the complainant is in front of him and there was an arm that comes across between them from Hassan. Furthermore, senior counsel submitted that it may have been Mr Hassan who interfered with the leather jacket found in the course of the search.
The police investigation has not been completed. For example, the results of forensic testing have not yet been received. The prosecution brief has not yet been delivered. Any assessment of the strength of the State case is necessarily incomplete at this stage. Nevertheless, I find that the State has a substantial case. The applicant has had no opportunity to test even the parts of the State case that have been disclosed to him. Nevertheless, at the present time the State case has some strength to it.
As I have said the circumstances of the case, particularly the risk to the applicant's business if he remains in custody, are capable of making out exceptional circumstances. However, those circumstances do not justify the applicant being granted bail. The nature and seriousness of the offence with which the applicant is charged, the substantial sentence of imprisonment which he is likely to receive if he is convicted, his previous conviction for unlawful wounding and the strength of the evidence against him - all matters referred to in cl 3 of Sch 1 Pt C of the Act - have persuaded me that, despite the applicant's personal circumstances, the risk to his business and the likely time to trial, it would be inappropriate to grant bail in this case. The offence with which the applicant is charged involves entering a nightclub, in which about 100 people were present, armed with a gun and then shooting a person unknown to him without provocation and not in self‑defence in the midst of the nightclub patrons. In my view the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. Furthermore, the applicant was convicted of unlawfully wounding a person at the same nightclub in June 2002.
For the reasons stated the application is refused.
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