Goodwyn v The State of Western Australia - [2011] WASC 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GOODWYN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 328

CORAM: COMMISSIONER SLEIGHT

HEARD: 25 NOVEMBER 2011

DELIVERED : 29 NOVEMBER 2011

PUBLISHED : 30 NOVEMBER 2011

FILE NO/S: INS 3 of 2011

BETWEEN: JASON CAINE GOODWYN
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Murder charge - Delay in part due to requests of accused - Whether exceptional reasons - Whether bail should be granted

Legislation:

Bail Act 1982 (WA)

Result:

Bail granted

Category: B

Representation:

Counsel:

Applicant: Mr S B Watters
Respondent: Mr J Whalley

Solicitors:

Applicant: Justine Fisher
Respondent: Director of Public Prosecutions (WA)

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

Bertolami v The State of Western Australia [2009] WASC 269
Fazzari v The State of Western Australia [2004] WASC 71
Hedgeland v The State of Western Australia [2011] WASC 181
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 201
Mikhail v The State of Western Australia [2010] WASC 238
Milenkovski v The State of Western Australia [2011] WASCA 99
The State of Western Australia v Sturgeon [2005] WASC 256
Tieleman v The Queen (2004) 149 A Crim R 303

COMMISSIONER SLEIGHT:

(This decision was delivered orally on the 29 November 2011 and edited from the transcript).

This is an application for bail. The accused, Mr Goodwyn, is charged with murder. I conclude that there are exceptional reasons why Mr Goodwyn should not be kept in custody and that bail should be granted. My reasons for doing so are as follows.
For convenience' sake, I will refer to the applicant in my reasons as the accused.
In broad terms the State's case as revealed in the Statement of Material Facts is that between 8.15 pm and 8.30 pm on Saturday 17 April 2010 the deceased, the accused and the accused's brother were in the rear yard of 80A Counsel Road, Coolbellup. The deceased and the brother of the accused became involved in an argument which developed into a physical altercation. The deceased pushed the accused's brother to the chest and the accused saw this act and entered the premises to get a knife. The accused returned outside, approached the deceased and stabbed him to the back five times. The accused's brother intervened, removing the knife from the accused's hand. The accused fled the premises in his motor vehicle.
The accused declined to take part in a police interview concerning the incident and therefore there is nothing before me as to his version of what occurred.
The accused has been in custody since 18 April 2010. The trial in this matter has been listed for 7 ‑ 18 May 2012.
The grounds of the application for bail are essentially:
(a)the State's case is not a strong case;
(b)exceptional delay has occurred; and
(c)the accused's otherwise favourable circumstances.
In this decision, I propose to set out the circumstances of the case relevant to the application, the legal principles that apply on such an application and the application of these principles to this case.

Relevant circumstances

(a) Delay

The first relevant circumstance is the delay that has occurred in this matter.
The accused was committed to the Supreme Court on 12 January 2011. He first appeared in this court on 31 January 2011 when provisional trial dates of 10 to 20 May 2011 were fixed, with liberty to apply.
In or around mid to late April 2011, it became apparent to Ms Fisher, the solicitor and trial counsel for the accused, that the deceased may have suffered from bipolar affective disorder II and had been treated on and off for that condition for some years. After being alerted to this possibility, clarification was sought from the State who initiated further inquiry through the case officer. It was confirmed that the deceased had suffered from this disorder and had primarily been treated by a psychiatrist, Dr Z Srna.
Following additional inquiries made by the State, on 29 April 2011 the defence was served with a large volume of material comprising of approximately 160 pages. This disclosed material included the deceased's medical notes and files. The material disclosed confirmed that the deceased had suffered from bipolar affective disorder II for some years. The material also disclosed that the deceased had a history of behavioural problems including 'getting into fights'.
Ms Fisher, for the accused, formed the view that there was a need to obtain before trial expert evidence and medical witnesses concerning the deceased's condition and treatment. In light of the above, an application for an adjournment of the trial was made. On 5 May 2011, Jenkins J made orders vacating the trial dates and setting fresh provisional dates commencing on 8 August 2011.
Additional material was subsequently served by the State and the material confirmed and disclosed that Dr Srna was a diagnosing practitioner as well as the primary and only treating psychiatrist tasked with the deceased's treatment. As a result, the defence sought a report from Dr Srna. Assistance was sought from the State to obtain this report. The State agreed to assist. In or around July 2011, Ms Fisher received advice from the State that Dr Srna had been requested to provide a written report. However, the report was not received in a timely manner. Dr Srna did not produce a report until 5 August 2011. In light of the late receipt of the report from Dr Srna, an application for adjournment of the trial was made on behalf of the accused. McKechnie J made an order adjourning the trial and vacating the trial dates. The matter has now been relisted for trial on 7 to 18 May 2012.

(b) Personal circumstances

The second relevant circumstance is the personal circumstances of the accused.
The accused is 36 years of age. He has two children aged 8 and 6 respectively. Prior to his incarceration, he was separated from his partner and children. However, he remained heavily involved in his children's lives. The accused and his former partner enjoyed a flexible arrangement in respect of the children and each other. The parties were in regular social and consensual contact with each other. Until recently, the accused did not have contact with his children while he was in custody and this necessitated him bringing an application in the Family Court of Western Australia for contact. The accused has been self‑represented in respect of those proceedings. Those proceedings had been regularly adjourned pending additional information concerning the prosecution in the Supreme Court and its status. Recently, the accused obtained an order from the Family Court and pursuant to this order he has telephone contact with his children, and the children will visit him at the prison once per fortnight.
The accused has a solid work history and has employment immediately available to him if he is released on bail. An affidavit of Ms Fisher filed on 16 November 2011 in support of the application for bail annexes to it references confirming the availability of employment. Also, there are a number of written character references attesting to the accused's otherwise good character. The accused has a relatively minor history of prior convictions and no convictions for offences involving violence. His record includes one conviction in October 1998 for breach of bail (for which he was fined $100) and one conviction in June 2000 under the Road Traffic Act1974 (WA) of wilfully misleading police (for which he was fined $400).
If granted bail, it is proposed that the accused reside with his parents at 329 Hamilton Road, Coogee.

(c) Strength of the State's case

The third relevant consideration is the strength of the State's case.
There were two persons, other than the accused and the deceased, who were present at or about the time of the stabbing - the applicant's ex‑partner, Ms R, and the applicant's brother.
Ms R made a written statement dated 18 April 2010, which was later amended by a subsequent statement dated 4 March 2011. According to these statements her evidence will be that on 17 April 2010, the accused and the deceased were at Ms R's house. Also present were her two children aged 8 and 6 years respectively, and the deceased's child, aged 3. The accused and the deceased had been drinking in the course of the afternoon and early evening and tension arose between them. At one point in the evening, Ms R heard the deceased and the accused and the applicant's brother yelling in the rear yard of the premises. The children at the house became frightened and hysterical. Ms R observed that three men were 'grappling with each other, similar to wrestling but more aggressively'. Ms R placed the children in the bathroom and instructed them to remain there. Ms R then walked to the back door and down the stairs. She went to where the three men were located and tried to push them apart. Ms R observed that all three men were yelling, grappling and pushing one another. Ms R was then momentarily distracted by one of her children standing at the top of the stairs and she went back to the stairs to put him back in the bathroom. She heard a crash on the back flyscreen door, and this noise was followed by a thud noise. When she got to the back door, she looked down into the yard and saw the deceased lying on his back. The deceased at that point in time was groaning and she could not see the accused or his brother anywhere. Ms R called triple zero for an ambulance.
The deceased suffered five stab wounds, consisting of three in the left shoulder area and one on each side of the rear torso. As a result of the stab wounds, he died.
The accused's brother made a statement dated 18 April 2010. His evidence according to this statement will be that he received a telephone call from the accused at about 7.40 pm on the 17 April 2010, stating that there was a 'psycho' at Ms R's house and could he 'come and help us'. When the accused's brother arrived at the rear of the premises, the deceased was sitting at a table with a young child sitting on his leg. Ms R stated to the accused's brother, 'This guy is freaking me out. I want him out of here'. The applicant's brother then spoke to the deceased, who immediately stood up in an aggressive manner and approached the accused's brother, pushing him in the shoulder area with his right hand. The deceased then started pushing the accused's brother backwards by the throat. The deceased was also trying to punch the accused's brother, who positioned himself behind a pillar in order to obtain protection. The accused's brother saw the accused go inside the house through the back door. The accused then came running out of the door, tackled the deceased, and they both fell onto the ground, landing on the grass. A table was knocked over. The accused and the deceased were wrestling on the grass. The accused's brother saw someone's arm stick up and it was holding a knife. He wrestled the knife out of the hands of that person and threw the knife away somewhere into the yard. He then pushed an outdoor chair between the deceased and the accused and told them to stop. The accused stood up and backed off. At this point in time, the accused's brother observed that the deceased had been stabbed. He saw a small wound on the deceased's left shoulder. The accused's brother instructed Ms R to call an ambulance and then left the premises. He later tried to contact the accused by mobile phone, but was unable to do so.

Applicable principles

Under cl 3C of sch 1 of pt C of the Bail Act1982 (WA) where an accused is in custody on a charge of murder the relevant judicial officer shall refuse to grant bail for the offence unless the judicial officer is satisfied that there are exceptional reasons why the accused should not be kept in custody; and bail may properly be granted having regard to the provisions of cl 1 and cl 3.
Clause 1 and cl 3 provide as follows:
Part C - Manner in which jurisdiction to be exercised
1.Bail before conviction to be at discretion of bail authority, except for a child
Subject to clauses 3A and 3C, the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant ‑
(a)whether, if the accused is not kept in custody, he may ‑
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would ‑
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
...
3.Matters relevant to consideration of clause 1(a)
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised 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 accused 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 accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
In Milenkovski v The State of Western Australia [2011] WASCA 99, McLure P (Pullin JA & Hall J agreeing) stated:
The statutory presumptions against the grant of bail in cls 3A, 3C and 4A require that the judicial officer be satisfied of two matters. The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3. In addition the judicial officer must be satisfied that there are exceptional reasons why the accused should not be kept in custody. If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are relevant exceptional reasons. This structure reflects the possibility that the exceptional reasons may not be relevant to or inform the answers to the mandatory questions in cl 1(a) to (g). There is no scope for the application of an exceptional reasons or circumstances test beyond those statutorily specified in cls 3A, 3C and 4A [37].
This statement of law recognises that there may be circumstances where the court need not consider the question of whether there are exceptional reasons if in any event bail may not be properly granted having regard to the provisions of cl 1 and cl 3. However, in my opinion , there is nothing to prevent a judicial officer following the same order set out in cl 3C by considering first the issue of whether there are exceptional reasons why the accused should not be kept in custody.
The use of the expression 'exceptional reasons' in cl 3 denotes that the reasons justifying a grant of bail in a murder case must be unusual and out of the ordinary; in some way special or an exception to the general run of cases: Tieleman v The Queen (2004) 149 A Crim R 303 [15] (Murray J); Bertolami v The State of Western Australia [2009] WASC 269 [6] (Hall J).
What constitutes exceptional reasons will 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] (McKechnie J); Bertolami [9] (Hall J). In Fazzari v The State of Western Australia [2004] WASC 71, McLure J (as she then was) stated in relation to the common law rule that bail was not granted in murder cases except for in exceptional circumstances, as follows:
In order to correctly apply the exceptional circumstances rule, it is necessary to identify the basis or rationale for it. The authorities are clear on this point. It is that there is a strong inference that a person would be likely to abscond or fail to appear in accordance with his bail undertaking when facing the severity of the sentence of imprisonment likely to be imposed if guilt is proven [13].
Prior cases may provide some guidance as to what might constitute exceptional reasons, but there is no closed list of circumstances giving rise to exceptional reasons: Bertolami [9] (Hall J).
Delay with or without other matters may constitute exceptional reasons: The State of Western Australia v Sturgeon [2005] WASC 256; Hedgeland v The State of Western Australia [2011] WASC 181; In Mikhail v The State of Western Australia [2010] WASC 201.
In Sturgeon, the applicant was charged with offences, including murder alleged to have taken place in October 2004. He faced trial in October 2005 and the jury was unable to reach a verdict. The earliest retrial date was no earlier than May 2006. EM Heenan J described this further delay as intolerable and granted bail. His Honour was no doubt influenced by the fact that the State's case was not a strong case as reflected by the jury at the first trial being unable to reach a verdict.
In Hedgeland, the applicant was charged with an offence of murder and criminal damage by fire. He was placed in custody on 9 April 2010. In June 2011, Simmonds J heard an application for bail principally on the basis that the delay constituted exceptional reasons. The matter was listed for trial provisionally in July 2011. This provisional trial listing was later vacated due to delays in the State obtaining and disclosing forensic test results (the delay was not any fault of the DPP). The trial was later relisted to commence on 7 November 2011. The accused at the time of the application was being held in protective custody. Simmonds J held there were exceptional reasons concluding that:
[E]xceptional reasons have indeed been shown to my satisfaction why the applicant should not be kept in custody. This is by reference to the factors of delay in combination with the difficulty in preparation for trial stemming from the nature and history of the prosecution case and the applicant's present custodial condition. Those matters in combination satisfy me that they are special or an exception to the general run of murder cases [73].
In Mikhail, Blaxell J granted bail to Frank Mikhail, who had been jointly charged with his son, Adam Mikhail, with murder. Frank Mikhail had been held in custody since January 2009. At that time, it was not expected a trial would take place until some time in 2011. The delay was due to delays in forensic results and the DPP not pursing the results. Blaxell J granted bail to Frank Mikhail, finding there were exceptional reasons having regard to the unnecessary delay, his assessment of the strength of the evidence against Frank Mikhail and the potential injustices arising from Frank Mikhail's prolonged and unnecessary incarceration. However, when his Honour considered an application later by the joint accused, Adam Mikhail (see Mikhail v The State of Western Australia [2010] WASC 238), Blaxell J refused bail finding that notwithstanding the delay, in view of the strength of the prosecution case and the personal circumstances of the applicant, there were not exceptional reasons for granting bail. Blaxell J stated:
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]. (emphasis added)

The second element of the test for bail in murder cases is, as mentioned earlier, whether the judicial officer is satisfied that bail can properly be granted having regard to the provisions of cl 1 and cl 3 of sch 1 pt C.
The correct interpretation of cl 1 and cl 3 was considered in the recent Court of Appeal decision of Milenkovski.
The following principles emerge:
1.Clause 1 of pt C contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with the jurisdiction.
2.The person invested with the jurisdiction is required to have regard to the questions in pars (a) ‑ (g) of cl 1. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of the discretionary power.
3.The Bail Act does not in terms place any legal onus on any party to a bail application. However, in the circumstances where the bail application is to be determined under cl 1, the consequences of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail.
4.When considering the matters set out in cl 1(a) of pt C of sch 1 of the Bail Act the judicial officer shall have regard to the matters listed in cl 3 of pt 3 of sch 1, as well as any other matters that the judicial officer considers relevant.

Conclusion

(a) Are there exceptional reasons for granting bail?

The State, in its written submission, acknowledges that the accused has spent significant time on remand. It is acknowledged by the State that any further delay in his trial beyond May 2012 would be likely to justify a grant of bail to the accused. The State's submission is that the delay to date is not so exceptional as to justify a grant of bail.
In my opinion, the accused's remand in custody is significantly longer than would normally occur. The matter has twice been listed for trial and adjourned. I believe it is appropriate for a court in circumstances such as the present to be cautious in taking into account a delay where the delay has occurred largely at the request of the accused. The court must be alert to the possibility that accused persons in custody might orchestrate delays in order to create a circumstance in support of bail being granted. However, in this case, I believe that, although the delays have occurred largely at the request of the accused, the reasons for making the requests for two adjournments of the trial were legitimate.
The propensity of the deceased to be violent (due to his psychiatric illness) is likely to be relevant as to what evidence the jury accepts of the nature of the threat he may have posed and the nature of the struggle that occurred the night of the deceased's death. Accordingly, the inquiries of the accused's counsel as to the deceased's mental state were justified in the circumstances.
I conclude that in light of the evidence of the accused's brother, the issue of the accused's intent and whether he was acting in defence of his brother from a harmful act are likely to be contentious issues at trial. In light of the issues that are likely to arise at trial, I consider that the State's case cannot be classified as a very strong case and this is a relevant factor to take into account.
I also take into account that the accused does not have a history of violence and I do not believe he is likely, if released, to commit any offence similar to that with which he has been charged.
Further, the accused has strong ties to the jurisdiction. He has two young children who reside in Perth for whom he has been fighting to obtain access to during his period in custody. He has parents living in Perth who are supportive of him. He has employment available to him if released.
All of these factors lead me to the conclusion that he is unlikely to abscond if he is released on bail, notwithstanding the serious charge he faces and the penalties that apply. Although the accused has a prior conviction for breach of bail, this was a minor matter and occurred some time ago. I do not think that this prior conviction is of any significance.
I conclude that, taking into account a combination of these factors, in particular the significant delay that has occurred and the nature of the case against him, there are exceptional reasons why the accused should not be kept in custody.

(b) Should bail be properly granted, having regard to the provisions of cl 1 and cl 3?

The next issue to consider is whether bail should be properly granted, taking into account the considerations of cl 1 and cl 3.
As I have already indicated, I do not believe the accused is likely to abscond whilst on bail or commit an offence of a similar nature. There is no evidence that he is likely to create a danger to any other person, or interfere with witnesses. There is no evidence that he needs to be held in custody for his own protection. The prosecutor has not put forward any grounds for refusing bail if I conclude that there are exceptional reasons under cl 3C. No grounds have been advanced to me for believing that if the accused is not held in custody, the proper conduct of the trial will be prejudiced.
In light of these circumstances, there are no findings under cl 1(a) ‑ (g) against granting bail, other than the seriousness of the offence and the penalty that is likely to be imposed. I am satisfied, notwithstanding the risk of flight this potentially creates, it is unlikely that the accused will fail to appear at his trial.
I conclude that bail is appropriate and I propose to grant bail in the sum of $75,000, with a similar surety. There will be conditions attached to the bail as follows:
(1)There will be a condition that the accused resides at his parents' residence situated at 329 Hamilton Road, Coogee.
(2)He is to report daily to the officer‑in‑charge of the police station located closest to the address at 329 Hamilton Road, Coogee.
(3)He is to surrender his passport, not apply for a new passport and not approach any point of departure from the State of Western Australia.

Order for non‑publication of decision

I order that, other than to report that bail has been granted, my reasons for my decision are otherwise suppressed until completion of the trial or further order of the court except as to:
(a)the parties to this application and their respective counsel and solicitors;
(b)any counsel or solicitors who are or may be retained or instructed to act for the respondent or accused in connection with this application or the murder proceedings;
(c)any judicial officer or staff of the Supreme Court of Western Australia;
(d)any police officer.