"H" v The Queen
[2002] WASC 39
"H" -v- THE QUEEN [2002] WASC 39
| (2002) 26 WAR 19 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 39 | |
| Case No: | INS:50/2002 | 5 MARCH 2002 | |
| Coram: | MALCOLM CJ | 12/03/02 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Bail granted | ||
| A | |||
| PDF Version |
| Parties: | "H" THE QUEEN |
Catchwords: | Criminal law Bail Renewed application for bail pending hearing of a charge of murder Applicant aged 16 at the date of the alleged offence Applicant in custody since 15 November 2001 Previous application for bail refused by the Children's Court Applicant had a qualified right to bail |
Legislation: | Bail Act 1982 (WA) s 13(1), Sch 1 Pt A par 3, Pt C pars 1, 2 and 3 |
Case References: | KM v The Queen, unreported; SCt of WA; Library No 7193; 14 January 1988 Lim v Gregson [1989] WAR 1 R v Ladd (1958) 75 WN (NSW) 431 R v McDowell [1954] QWN 47; [1954] QJPR 155 R v Pascoe (1960) 78 WN (NSW) 59 R v Ryan (1961) 78 WN (NSW) 585 WCVB v The Queen [1989] 1 WAR 279 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail - Renewed application for bail pending hearing of a charge of murder - Applicant aged 16 at the date of the alleged offence - Applicant in custody since 15 November 2001 - Previous application for bail refused by the Children's Court - Applicant had a qualified right to bail
Legislation:
Bail Act 1982 (WA) s 13(1), Sch 1 Pt A par 3, Pt C pars 1, 2 and 3
Result:
Bail granted
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Category: A
Representation:
Counsel:
Applicant : Ms G A Archer
Respondent : Mr R J Lewis
Solicitors:
Applicant : Legal Aid WA
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
KM v The Queen, unreported; SCt of WA; Library No 7193; 14 January 1988
Lim v Gregson [1989] WAR 1
R v Ladd (1958) 75 WN (NSW) 431
R v McDowell [1954] QWN 47; [1954] QJPR 155
R v Pascoe (1960) 78 WN (NSW) 59
R v Ryan (1961) 78 WN (NSW) 585
WCVB v The Queen [1989] 1 WAR 279
Case(s) also cited:
Nil
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1 MALCOLM CJ: This is a renewed application for bail by a juvenile pursuant to s 15 of the Bail Act 1982 (WA) pending the hearing of a charge of murder on which the applicant has been committed for trial in this Court. The applicant made an earlier application for bail in the Children's Court at Perth which was unsuccessful. The applicant has been charged with the murder of one Ronald Mark Hilsley. That charge is now incorporated in an indictment dated 1 March 2002 which contains two counts against Dean Grant Anderson, Corrie James Blake and the applicant as follows:
"(1) On 2 November 2001 at Queens Park DEAN GRANT ANDERSON wilfully murdered RONALD MARK HILSLEY.
(2) AND FURTHER THAT on 2 November 2001 at Queens Park CORRIE JAMES BLAKE and [THE APPLICANT] murdered RONALD MARK HILSLEY."
The case against the applicant
2 The relevant facts alleged against the applicant and his co-accused are set out at pp42 – 43 of the application book as follows:
"The victim was a 34 year old male who lived in a caravan alone, at Bay 11 Kenlorn Caravan Park, 224 Treasure Road Queens Park. He was 165cms tall and of solid build.
The accused [applicant] is charged with two others, Cory Blake 22 yrs, charged with Murder and Dean Anderson 19 yrs, charged with Wilful Murder. [The applicant], a 16 year old male, is a friend of Anderson and Blake who lived across the road from the caravan park at 227A Treasure Road Queens Park.
On the evening of Thursday 1 November 2001 all three accused were drinking in the carport of the 227A duplex. The accused Anderson was angry about an incident that morning where he thought the victim had stared at his girlfriend while riding past on his bike. Anderson was in possession of an aluminium baseball bat and a large knife. Anderson told the neighbour, in the presence of the accused [applicant] and Blake, that he was going to kill some bastard tonight. The neighbour told him it wasn't worth it. Anderson stated to them, 'I don't care, I'm
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- gonna kill the bastard anyway. I'm gonna grab the bat and take his head off from here.' Anderson pointed to the middle of his forehead.
The accused [applicant] agreed to accompany Anderson to offer support to him while he went to the caravan park to assault the victim. [The applicant] armed himself with a shortened broom handle. Anderson armed himself with the baseball bat and the knife. The accused Blake also agreed to provide support.
The three accused went into the caravan park at around 1.00am on Friday 2 November 2001. They went to a caravan and spoke to friends at Bay 46. They left Bay 46 and went searching through the caravan park for the victim's caravan. They identified the victim's van in Bay 11 by finding his bike outside. Anderson knocked on the door, the victim asked who was there and Anderson said he was looking for his dog.
The victim opened the door and the accused Anderson grabbed his clothing and pulled him from the van. There was a verbal and physical altercation with the victim and Anderson while the accused Blake and [the applicant] watched. The victim continually told Anderson to leave. Anderson told the victim he had two days to move out of Queens Park or he would kill him.
The accused Anderson pushed the victim back into the A frame of a caravan causing him to lose balance. The victim recovered his balance as the accused Anderson raised the baseball bat above his head in a threatening manner. The victim kicked at Anderson's stomach. Anderson struck the victim with the baseball bat to his left knee causing him to fall to the ground. Anderson swung the bat again and struck the victim across his back while he was in a foetal position holding his head. Anderson struck the victim with a forceful swing of the baseball bat to the rear of his head.
The accused Blake went back to the 227A address while the accused Anderson continued to strike the victim to the back of the head a further four to six times in the presence of the accused [applicant]. Anderson and [the applicant] ran back to their home at 227A, leaving the victim critically injured.
Anderson told the other occupants at the house what he had just done. The baseball bat was washed and thrown over the rear
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- fence. The accused Blake, the accused Anderson, his girlfriend, the accused [applicant] and his girlfriend all agreed to cover up their involvement in this crime and went to bed. None of the accused called an ambulance for the victim.
The victim was conveyed to Royal Perth Hospital by ambulance where he died shortly afterwards.
Detectives attended at 227A Treasure Road at 6.00am on 2 November 2001 and spoke to the accused [applicant]. He told Police what they had agreed to earlier that night.
Detectives conducted a video interview with the accused [applicant] during the morning of 2 November 2001 at the Cannington Detectives office. He stated that he had gone with Anderson to scare the victim knowing that he was armed with the baseball bat and knife. He stated he armed himself with a shortened broom stick to knock Anderson out. He stated that Anderson had asked him to look after his dog if he got caught. [The applicant] provided a statement to investigators.
Albany Detectives arrested [the applicant] on 14 November 2001 at Kendenup. He was spoken to on video at Mt Barker Police Station. He was conveyed to Cannington Police Station. He attended at his former address of 19 Hartfield St Queens Park where a video recorded search warrant was executed. During the video [the applicant] described the weapon he carried and showed Police a similar item.
The post mortem examination of the deceased revealed that death was caused by a severe head injury."
3 The applicant was born on 18 January 1985 and is now aged 17. As noted in the materials, he was aged 16 at the date of the alleged offence on 2 November 2001.
Application to the Children's Court for bail
4 A previous application for bail was refused on 5 December 2001 by the then President of the Children's Court.
5 Before the learned President, it was submitted by counsel for the applicant that she would need to establish exceptional circumstances to justify the grant of bail because he had been charged with the offence of
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- murder. As will appear, in my opinion the submission was misconceived. At that time the applicant was aged 16 and his alleged co-offenders were aged 19 and 22 respectively. The 19 year old had been charged with wilful murder and was alleged to have been the primary offender and the person who actually killed Mr Hilsley. The 22 year old was apparently charged with murder rather than wilful murder as an accessory on the same basis as the applicant, in that they joined with Anderson in a common unlawful purpose within the meaning of s 8 of the Criminal Code.
6 As at 5 December 2001 it was estimated that it would then be at least 6 months before a committal hearing could take place and it was likely that Anderson would elect to have a preliminary hearing so that it could be at least a year before a trial could take place.
7 There was a second submission in the Children's Court which the learned President described as "probably of greatest significance in this case", namely that the applicant was alleged to have been a party to a course of conduct in which the injuries which caused the death occurred. It was not alleged that the applicant himself inflicted any injuries on the victim. The applicant maintained that he followed Anderson to the caravan park where the incident occurred and that at all relevant times during the assault by Anderson, he was some 7 metres away from the incident. He was only armed with a short piece of broken broomstick, which he said was hidden in his pocket, not revealed to the primary offender, and was not taken for the purpose of assaulting the victim, but in order to prevent the incident getting out of hand.
8 Thirdly, it was submitted that the applicant came before the Court as a 16 year old boy with very good antecedents, being virtually a first offender, having only a very minor traffic matter on his record. He had no history of violence or other offending.
9 Fourthly, it was submitted that arrangements had been put in place for him to stay with family and close relatives in a rural area. He had been complying with reporting conditions to date, and a relative was able to act as a surety and there would be a degree of supervision through family and reporting conditions. The learned President also had the benefit of a bail report from a Juvenile Justice Officer who attended a nearby town on a regular basis. This report indicated that the applicant's extended family were close to him and would be prepared for him to stay with them. The report which was not put before me, but a copy of which has since been supplied, was said by the learned President to indicate that
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- at all times since leaving his father's home he had attempted to work to support himself and, despite living under difficult financial circumstances, he had not resorted to committing offences, which the learned President considered was "somewhat unusual" in the jurisdiction of the Children's Court.
10 Her Honour noted that this was not a case in which it was alleged that the applicant caused the death of the victim. That was not the prosecution case. The case against the applicant relied upon a contention that the three accused formed a common intention to prosecute an unlawful purpose by way of an assault on Hilsley and that the killing of Hilsley was a probable consequence of the prosecution of such purpose. On the materials before me, whether the killing was a probable consequence is likely to be the critical issue at the trial.
11 The learned President concluded that it would only be in "extremely exceptional" circumstances that a grant of bail would be made before committal proceedings in respect of a person charged with murder. Her Honour took the view that age was not itself an exceptional circumstance. Her Honour also concluded that it was not possible to make a preliminary determination in relation to the relative strength of the prosecution case prior to committal proceedings. Her Honour was unable to find that there were sufficient exceptional circumstances to justify a grant of bail. In this context, her Honour acknowledged the support of the applicant's family and that they had gone to a great deal of trouble to set up arrangements in which the Court "could have some confidence that the [applicant] would be well supervised". The end result, however, was that the application for bail was refused and the applicant remanded in custody.
12 This is a fresh application for bail, so that I am required to exercise anew the discretion whether or not to grant bail set against the background of the material which was put before the learned President and any additional material which has been put before me.
The position at common law
13 There is no doubt that, at common law, the starting point in the case of a person charged with wilful murder or murder is that extremely exceptional circumstances would have to be shown before a grant of bail would be made before committal: Lim v Gregson [1989] WAR 1 at 13 per Malcolm CJ. The general approach to bail in such a case was described by Nicholson J in KM v The Queen, unreported; SCt of WA; Library No 7193; 14 January 1988, which was prior to the decision of the Full
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- Court in Lim v Gregson. These cases were decided prior to the Bail Act 1982 coming into force on 6 February 1989. In WCVB v The Queen [1989] 1 WAR 279 at 281, after referring to KM v The Queen and Lim v Gregson, Ipp J said of the position at common law:
"For many years, a similar approach to that adopted in murder cases was followed in cases of serious crime. R v Watson (1947) 64 WN (NSW) 100 was a case of wounding with intent to murder. Herron J, after a careful review of the authorities, said (at 102):
'To attempt to arrive at some general rule, it appears to me that the courts will be slow to interfere by granting bail where an accused is being committed for trial on a charge of a serious felony, and that the more usual course is to refuse it'."
"There are cases involving charges so serious, or so many or a combination of both – to which, in my view, the principles applicable to charges of murder apply.
Does the Bail Act affect this approach? In my view, it does not.
Section 13 of the Bail Act provides that the jurisdiction to grant bail is to be exercised subject to and in accordance with Pt C of the Schedule to the Bail Act. Clause 1 of Pt C sets out the factors which are to be taken into account when application is made for bail. Clause 3 adumbrates upon certain of the factors in cl 1. All of these factors, in my view, have been previously relevant under the common law prior to the Bail Act. This is apparent from the review undertaken in Lim v Gregson. In my view, the Act does not alter the common law in this regard, or in regard to onus of proof."
15 These remarks, of course, were not directed to the case of a child charged with a serious offence in respect of which different provisions are made in Pt C of the Schedule.
16 Exceptional circumstances were held to exist in the context of the common law where a child of 13 years of age was committed for trial on a
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- charge of murder: R v McDowell [1954] QWN 47; [1954] QJPR 155, a decision of Mansfield SPJ (as he then was). Section 7(h) of the Young Offenders Act 1994 (WA) relevantly provides that the general principles to be observed in performing functions under the Act are that:
"(h) detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as necessary."
"(a) responsible adults have an important responsibility for the behaviour of young people under their care;
… and;
(d) in determining the degree of responsibility expected of a responsible adult the age, intellectual and emotional maturity of the young person and the fact that the young person is in employment and living independently shall be taken into account."
The Bail Act 1982
18 In the case of wilful murder or murder, s 15(1) of the Bail Act provides that:
"Where a defendant is in custody for wilful murder or murder, the power to grant bail should be exercised only by a Judge of the Supreme Court, or in the case of a defendant who is a child by a Judge of the Children's Court, except –
(a) where section 31(2)(d) applies; or
(b) to the extent that the Full Court or the Court of Criminal Appeal exercises its powers under Part A of Schedule 1."
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19 On 15 January 2002 the applicant appeared before the President of the Children's Court and was remanded in custody until a status conference in this Court on 18 February 2002. At that time the possibility of a further bail application was raised by the present President of the Children's Court, her Honour Judge O'Brien. By a letter dated 18 January 2002 addressed to her Honour's Associate, it was indicated that an application for bail would be made on 18 February 2002. On that date, however, counsel for the prosecution applied for an order that the applicant be committed to the Supreme Court to be arraigned on 5 March 2002 together with his two adult co-accused pursuant to s 19C of the Children's Court of Western Australia Act 1988. An order was made accordingly.
20 The applicant has been in custody since 14 November 2001 at the Rangeview Remand Centre and more recently at Banksia Hill Detention Centre. He intends to plead not guilty on the arraignment. The matter which is before me is simply the question of bail. It is not appropriate that the applicant be arraigned at this stage.
21 Part C of Sch 1 of the Bail Act is concerned with the manner in which the jurisdiction to grant bail is to be exercised. Clause 1 of Pt C provides that, subject to cl 3A, the grant or refusal of bail to a defendant other than a child shall be at the discretion of the relevant judicial officer. Clause 2 provides that a child shall have a qualified right to bail.
22 Paragraph 2(2) of Sch 1 provides that a child has a right to be granted bail unless one or more of the questions in cl 1(a), (b), (e) and (g) must be answered in the affirmative.
23 Part C of the Schedule deals with the manner in which the jurisdiction to grant or refuse bail is to be exercised. Part C par 1 is headed "Bail before conviction to be at discretion of bail authority, except for a child". It is then provided that:
"Subject to clause 3A, the grant or refusal of bail to a defendant, 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 defendant is not kept in custody, he may –
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- (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 defendant 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 defendant 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 defendant 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 defendant 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."
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24 Clause 2 of Pt C of the Schedule, by way of contrast, is headed "Child to have qualified right to bail". Paragraph (1) contains a definition of "responsible person", which includes a parent or other person who, in the opinion of the judicial officer, is in a position to influence the conduct of the child and provide the child with support and direction. Paragraph (2) provides that:
"Subject to subclause (3), a child defendant who is in custody awaiting an appearance in court before conviction for an offence has a right to be granted bail unless –
(a) in the opinion of the judicial officer … in whom jurisdiction is vested –
(i) one or more of the questions set out in clause 1(a), (b), (d) and (g) must be answered in the affirmative, and
(ii) there is no condition which he could reasonably impose under Part D which would satisfy the relevant provision of clause 1(e); or
(b) there is no responsible person willing to enter into an undertaking of the kind described in subclause (3)(c),
and if the child is refused bail he should be dealt with in accordance with section 19(2) of the Young Offenders Act 1994."
25 Significantly, cl 2(3) provides that the right of a child defendant under subcl (2) is subject to cl 3A. The latter is concerned with the case where the defendant commits a serious offence while on bail for another serious offence. It has no application in the present case. Clause 2(3)(c) has the effect that the right of a child to bail is subject to:
"… there being imposed as a condition on the grant of bail a requirement that before the release of a child on bail a responsible person undertakes in writing in the prescribed form to ensure that the child complies with any requirements of his bail undertaking mentioned in section 28(2)(a), (b), (c) and (d)."
26 Section 28(1) of the Bail Act provides that a person shall not be released on bail for an appearance unless he has entered into a bail
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- undertaking for that appearance or is deemed to have done so under s 31(3). Section 28(2) provides that:
"A bail undertaking is an undertaking in writing by a defendant in the prescribed form –
(a) that he will appear at a time and place specified, or deemed by section 31(3) to be specified, in the undertaking;
(b) that if he fails to appear at that time and place he will as soon as is practicable –
(i) notify the clerk or registrar of the court at which he is required to appear of the cause of his failure; and
(ii) appear at that court when the court is sitting;
(c) that he will comply with such conditions as may be imposed on him under clause 2 of Part D of Schedule 1;
(d) that he will comply with any home detention conditions which may be imposed as a condition on a grant of bail to him pursuant to clause 3 of Part D of Schedule 1,
and containing any agreement as to forfeiture of money by the defendant which may be required pursuant to clause 1 of that Part."
28 The applicant is the only child of his parents C and W. He has two older stepbrothers from a previous relationship of his mother, aged 22 and 29, with whom he has a close relationship. His parents separated when he was about 10. He remained in the care of his mother. His father moved
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- to Esperance where he was involved in a drug and alcohol rehabilitation programme. The applicant had limited contact with his father after that.
29 The applicant left school at 13 and spent some time with his father who was living with a local clergyman. His father was later employed at an Aboriginal Community School at a community with a strong Christian emphasis. Some time later the applicant moved back to live with his mother.
30 When he returned to Perth his mother purchased her own home and the applicant went back to school. Not long afterwards he was offered employment which he took up. He worked at various jobs for about 15 months or so following which he has worked doing "odd jobs" whenever he could find work. He has regular contact with Communicare and has registered interest in a traineeship with Landcare.
31 A day and a half before the police interviewed him about the events the subject of the current charge he had obtained employment with a caravan rental company. Shortly after he was questioned by police his older brother came to Perth to pick him up. He was taken to his stepfather's home in Kendenup until his remand in custody. The applicant's mother is in regular contact with the applicant and is supportive. His older brother is married and lives with his family in Perth. The applicant's stepfather, Mr B, has been "like a father" to him and he has spent many school holidays and weekends in his care. If he was released on bail it was originally proposed that the applicant and his girlfriend reside with his stepfather Mr B and the latter's partner of five years.
32 In the application for bail now made to me it is proposed that if the applicant is released on bail he will reside with his father at the school on the basis that his father would undertake to provide constant supervision of the applicant in the terms of an appropriate bail undertaking. In this context, counsel for the applicant applied for an order that the name of the school not be published as that would create a risk that the applicant would be identified. An order was made on 5 March 2002 that whatever the outcome of these proceedings, there should be no publication of the identity of the applicant's father which would tend to identify the applicant or the school. Suffice it to say that the school is one which provides accommodation for troubled Aboriginal youth. The applicant's father has been employed there for some four years.
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33 When application was made to the learned President it was proposed that the applicant be released into the care of his stepfather Mr B and his partner. I am informed that the author of the report is familiar with the school and that it probably would be considered an appropriate place to which the applicant could be bailed. It was accepted that, in addition to a residential condition, the applicant should be on a strict curfew requirement on the basis that he not leave the school otherwise than in the company of his father. It was accepted that a reporting provision could be imposed. The nearest Police Station is at Esperance.
34 Mr B currently resides in a small town approximately 80 km north of Albany. He is employed nearby where he works four days per week. One of the applicant's brothers has his own home in the same town and is employed by the same employer as Mr B. The applicant is on the waiting list for employment by the same employer. Mr B's employer is aware of the circumstances and is willing to give the applicant the opportunity of employment. There are also opportunities for seasonal work in the area. There is also the possibility of pursuing TAFE study in the areas of landscaping and formwork.
35 The Bail Report regarding the capacity of Mr B and his partner to take responsibility for the applicant is very favourable. The officer who completed the report states that Mr B and his partner will support the applicant in his efforts to comply with any conditions which may be imposed, including reporting to the nearest Police Station (which is some 20 km away) on a daily basis if required; a curfew requirement, with or without a condition that he be in the company of a nominated person or persons at all times, together with any programmes including urinalysis and anger management.
36 The report concludes that the applicant is a young man with a minimal court history. He responded well to his previous Community Supervisor and demonstrated a commitment to complete what was required within the time set. He and his stepfather have previously demonstrated that they have the capacity to abide by such conditions.
37 I am fully conscious of the grief and pain that has been suffered by the parents of the victim in this case and other members of his family. In my view, however, while the applicant was present at the material time he appears to have played no active part in the assault on the unfortunate victim and there would appear to be a real issue whether, in the circumstances, the death of the victim was a probable consequence of the
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- common intention formed by the applicant and his companions on the night in question.
38 In these circumstances it was submitted on behalf of the applicant that, notwithstanding the position at common law, the statutory provision had the effect that a child defendant in such a case did not need to show exceptional circumstances. Alternatively, it was submitted that the fact that the applicant was a child constituted an exceptional circumstance in itself on the basis of R v McDowell, supra.
39 I noted in Lim v Gregson, supra, at 13 that:
"Grant of bail is, however, a matter of discretion and the exceptional circumstances which may be required should not be regarded as a closed list: R v Kleinert (1928) 49 ALT 137."
40 After committal, of course, an accused person is faced with a finding that there is a prima facie case against him that he committed the offence with which he has been charged.
41 It is accepted on both sides that the factors to be considered include the strength of the evidence against the accused in the sense of the probability or possibility or likelihood of conviction. See, for example, R v Pascoe (1960) 78 WN (NSW) 59. As a matter of logic, therefore, all other things being equal, it ought to be easier for an accused to obtain bail after his arrest but before committal. As a matter of practicality, however, this is not the case. In R v Ladd (1958) 75 WN (NSW) 431 at 433, Sugerman J held that it was "almost impossible" in an application for bail in a serious case for a Judge to be satisfied that it is a proper case to grant bail when he knows nothing of the evidence that is to be tendered against the accused at his trial. This decision was referred to by Collins J with approval in R v Ryan (1961) 78 WN (NSW) 585. Collins J also said:
"It is only in exceptional circumstances that bail is granted in a murder trial, even after committal. The circumstances would indeed have to be extremely exceptional to grant bail on a murder charge before committal has taken place.
I think the difficulties are highlighted by Mr Murray's submission that the special circumstance here is that there is no evidence to show that there is any case against the accused, we do not know whether there will be a case against the accused until the committal proceedings have taken place."
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42 In Lim v Gregson it was concluded that bail will only be granted before committal, where the applicant has been charged with wilful murder or murder, in extremely exceptional circumstances. The onus of establishing such circumstances is on the applicant.
43 That is apparent from both the common law standpoint and from the provisions of the Young Offenders Act to which I have already referred. The position is also reinforced by the provisions of the Bail Act itself. The starting point is that a child has a qualified right to bail. In other words, the Court should grant bail unless there are specific reasons why bail should not be granted. This is apparent from cl 2(2) of Sch 1 of the Bail Act which I have set out above.
44 The right of a child under cl 2(2) is by cl 2(3) subject to a condition being imposed on the grant of bail a requirement that, before the release of the child on bail, a responsible person undertakes in writing in the prescribed form to ensure that the child complies with any requirement of his bail undertaking mentioned in s 28(2)(a), (b), (c) and (d) of the Act.
45 Clause 1(5) provides that, for the purposes of the release of a child on bail, the provisions of various provisions of the Bail Act with respect to a surety and a surety undertaking apply to a responsible person. Clause 1(6) provides that when a child is released on bail his right to be at liberty is subject to the powers in s 17A of the Bail Act.
46 The relevant provisions of cl 1(a), (b), (d) and (g) of Sch 1 must each be considered in turn, as well as any other matters that I consider relevant.
47 The first under cl 1(a) of Pt C of Sch 1 is:
"(a) whether, if the defendant 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;"
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48 The first question to consider in cl 1(a)(i) is whether, if the applicant is not kept in custody, he may fail to appear in Court in accordance with his undertaking. It is argued by the Crown that the mandatory sentence in the event that the applicant was found guilty is life imprisonment of itself may lead to him fleeing the jurisdiction. As against that, of course, the Court is required to fix a minimum term to be served before the applicant will be eligible for parole of at least 7 years and not more than 14 years: Sentencing Act 1995 (WA) s 90(1). In my opinion, taking into account that there may not be a trial for at least 6 – 8 months and that one or other of the co-accused may elect for a preliminary hearing, the mere fact that the applicant has been charged with a very serious offence is not enough to lead to the conclusion that bail should be denied.
49 The Crown conceded that the applicant's antecedents were good. It was submitted, however, that at the time of the alleged offence the applicant was sharing a house with five other offenders, including the two co-accused. While it is acknowledged that the applicant may have attempted to talk the co-accused Anderson out of committing the offence, he did accompany Anderson to the place where the victim was assaulted by Anderson, although on the defence case he otherwise played no active part in the assault on Hilsley.
50 In the context of cl 1(a)(i) it was contended for the Crown that because the applicant's mother resides in Queensland there was "a substantial risk that he could flee the jurisdiction to Queensland or indeed flee per se". No evidence was pointed to in respect of that submission. Secondly, it was submitted that, apart from his father, he had no stable ties in Western Australia. As against that, his father is permanently employed at a facility in Western Australia for young Aboriginal people. Although he has not been recently in close contact with his father, he has developed strong ties with his stepfather with whom it was originally proposed he would reside pending the trial. Thirdly, it was said that the applicant had no history of stable employment. In my view that alone, assuming it to be correct, is not sufficient to conclude that there was a sufficient degree of risk that the applicant would not appear in Court in accordance with his bail undertaking. It was also said that the remoteness of the location of the proposed place of residence would provide him with more of an opportunity to leave the jurisdiction. In my opinion the remoteness of the jurisdiction tends to cut both ways. Any risk can be minimised by appropriate reporting requirements. In all the circumstances I am not satisfied that, if not kept in custody, the applicant will fail to appear in Court in accordance with his undertaking.
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51 In my opinion there is nothing in the materials to suggest that the applicant is likely to fail to appear, commit an offence or endanger the safety, welfare or property of any other person if released on bail subject to appropriate conditions of the kind which I have in mind. There is no evidence before me to suggest that the applicant may interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
52 It was contended by counsel for the Crown, however, that the applicant has considerable influence over one of the principal Crown witnesses, Diane Hyne. Her evidence is that she was present with the accused Anderson when she was allegedly abused by the deceased earlier in the day. She is said to be a critical witness for the Crown both in respect to the applicant and with respect to Anderson. It is further submitted that the applicant knows a number of other Crown witnesses and demonstrated "an ability to lie", first, by participating in discussions to concoct an alibi; secondly, by making a false statement to police; and thirdly, by allowing his girlfriend to destroy forensic evidence, namely, by washing the blood off the baseball bat. The girlfriend, however, says quite clearly in her statement that, apparently without any prompting, she carried the baseball bat to the bathroom and tried to wash the blood off it.
53 In my view the matters raised, unsupported by any evidence, even if all true, do not lead me to a conclusion that the applicant should be denied bail.
54 There is evidence before me that the applicant's father is an appropriate "responsible person" for the purposes of cl 2(1) of Sch 1. I do not wish to say more because there is a risk that the applicant would be identified.
55 The next question in subcl 1(b) is whether the applicant needs to be held in custody for his own protection. As to subcl (b), given the arrangements proposed, I do not consider that the applicant needs to be held in custody for his own protection. There is no evidence of such a need.
56 Question 1(c) is "whether the prosecutor has put forward grounds for opposing the grant of bail". In my opinion, Parliament could not have intended that the issue could be determined simply by the prosecutor putting forward "grounds" whether or not they were of any merit or relevance. It must be implicit that the grounds would need to be both relevant and meritorious. As to subcl (c), the respondent has put forward
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- submissions opposing bail, but the question is whether the grounds put forward provide sufficient justification for refusing bail in the circumstances of this case. Counsel for the Crown submitted that the applicant was not gainfully employed at the time the offence was allegedly committed and did not demonstrate a history of stable employment at the time of committing the offence when he was aged 17. He had obtained some relief work and was looking for work at the time of the alleged offence. It was conceded that the applicant does not have an extensive record of prior convictions, although there is one traffic conviction for a blood alcohol content exceeding .08 in March 2001 and some history of alcohol consumption for a person then under 17 years of age. In my view these matters are not themselves sufficient grounds for the refusal of bail.
57 As to subcl (d), I do not consider that there is anything in the material before me which suggests that, as regards the period when the applicant is on trial, the proper conduct of the trial may be prejudiced if he were not kept in custody during the trial. The question of bail during the trial will be a matter for the trial Judge. Counsel for the Crown submitted as to subcl (d) that the evidence against the applicant is strong. In my opinion, subcl (d) is directed only to "the period when the defendant is on trial".
58 It follows from what I have already said that the questions posed by par 1(c) do not arise. Subparagraph 1(f) has no application.
59 The final question in par 1(g) is whether the alleged circumstances of the offence with which the applicant is charged amounts to wrongdoing of such a serious nature as to make a grant of bail appropriate. In my view, taking into account the provisions of the Young Offenders Act to which I have referred and the fact that the applicant was a child at the time he is alleged to have committed the offence with which he was charged, against the background of the common law, I do not consider that it necessarily follows that, in the circumstances of this case the offence with which he has been charged amounts to wrongdoing of such a serious nature as to make a grant of bail appropriate. As I have said, the Crown case against the applicant, as I understand it, does not allege any more than that the applicant accompanied Anderson to the scene of the offence in the knowledge that Anderson said he was going to "smash the shit out of this guy" and had armed himself with a baseball bat. The applicant said in his record of interview that he took a stick because he wanted to stop Anderson. The applicant's girlfriend says that the applicant tried to talk Anderson out of committing the offence. Anderson himself told police
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- that, "[The applicant] told me to chill out. He was freaking out. I told him that I wasn't going to do anything". He also said that the applicant did not hit the victim and was "nowhere near him". The Crown concedes that, on the applicant's version, the applicant also told Anderson at the relevant time, "That's enough". The Crown also concedes that the applicant did not personally assault the deceased. The Crown point to the facts that the applicant did not call an ambulance and allowed his girlfriend to wash the blood off Anderson's baseball bat and agreed with the others that they should concoct an alibi. It is true that the applicant did not call an ambulance. He can be criticised for that and it may have implications. As to the concoction of an alibi, I have already referred to what Ms Hyne says about that.
60 Having carefully considered all the matters that have been put before me, I have come to the conclusion that the applicant should be granted bail subject to appropriate conditions. I would be prepared to hear counsel on the question of conditions, but I have in mind the following in addition to the conditions contained in the standard undertaking:
(1) The applicant reside with his father at the said school in Western Australia.
(2) The applicant remain at the said school between the hours of 6.00 pm and 6.00 am daily.
(3) The applicant not commit any offence while on bail.
(4) Not to travel to or remain in Perth except for the purpose of obtaining legal advice and assistance or appearing in court as required, otherwise than in the company of his father at all times, and after notice to the police station at Esperance by production of a solicitor's letter confirming an appointment, notifying of the address at which the applicant and his father will be accommodated in Perth, not to remain in Perth for more than two overnight stays at any time, and to remain in such accommodation between the hours of 6.00 pm and 6.00 am.
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