Hedgeland v The State of Western Australia - [2011] WASC 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: HEDGELAND -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 181

CORAM: SIMMONDS J

HEARD: 27 & 28 JUNE 2011

DELIVERED : 28 JUNE 2011

FILE NO/S: MCS 18 of 2011

BETWEEN: ANDREI PETER HEDGELAND
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail pending trial - Accused in custody on two charges of murder and one charge of criminal damage by fire - Whether exceptional reasons why accused should not be kept in custody - Whether delay in combination with difficulty in preparation for trial constituted exceptional reasons allowing consideration of grant of bail - Whether on such consideration bail should be granted

Legislation:

Bail Act 1982 (WA), sch 1 pt C, cl 1, cl 3, cl 3C

Result:

Bail granted on conditions

Category: B

Representation:

Counsel:

Applicant: Ms L B Black & Ms K J King
Respondent: Mr L Hobson

Solicitors:

Applicant: Linda Black
Respondent: Director of Public Prosecutions (WA)

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

Dabag v The State of Western Australia [2005] WASC 22
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
Rayney v The State of Western Australia [2011] WASC 3
Roberts v The State of Western Australia [2011] WASC 118
Sabau v The State of Western Australia [2007] WASC 183
The State of Western Australia v Sturgeon [2005] WASC 256

SIMMONDS J:
(This judgment was originally edited from the transcript, after excisions pursuant to the suppression order made at the end of the hearing. That suppression order was lifted on 9 December 2013. Pursuant to the lifting of the suppression order, the excised portions of the judgment are now reinstated.)

Introduction

This is an application for bail.
In April 2010 the applicant Mr Hedgeland - I will call him the applicant from now on - was charged that, on 26 February 2010 in Greenmount in this state, he murdered Stefan Borsa and Sidney De Beaux. Ms De Beaux is also known as Rebecca Paget, although her alternative or other name does not otherwise figure in these reasons. The applicant was also charged with criminal damage occurring on the same day caused by fire.
The statement of material facts in the prosecution brief with which I was provided, which is a substantial volume of material in two binders, states that the applicant knew De Beaux and Borsa and both were involved in the distribution of heroin; that the applicant killed the two at De Beaux's residence in Greenmount when they refused to provide him with heroin on credit; and that at about the same time he burnt Borsa's vehicle.
The applicant has been in custody on the charges I have referred to since 9 April 2010 and the applicant has not previously applied for bail, although the present application was foreshadowed some months ago, I noted, in various hearings in the Stirling Gardens Magistrates Court, to which I will return.
It is not in contest that to be granted bail the applicant in this case must satisfy me that there are exceptional reasons why he should not be kept in custody: Bail Act 1982 (WA) sch 1 pt C cl 3C. He must also satisfy me that bail could properly be granted having regard to what might be called the general requirements of the act governing any grant of bail: see sch 1 pt C cl 1, read with cl 3, to which cl 3C refers.
I should immediately indicate that I have determined in this case that I will grant bail, as I am satisfied on both of the counts that I have described.
In the balance of these reasons I first set out in more detail the principles applicable to the grant of bail in a case like this one. Then I apply those principles to the application for bail before me. The final sections of my reasons set out my conclusion and call for orders, and concern the suppression order which should be made in this case.
I turn to the applicable principles.

Applicable principles

In my view it is important to start with the relevant provisions of the Bail Act. They are sch 1 pt C cl 1(a) ‑ (g), read with cl 3 and cl 3C, which makes applicable in a case like this one both cl 1(a) ‑ (g), read with cl 3, and additional considerations.
Schedule 1 pt C cl 1(a) ‑ (g) are as follows:
1. Bail before conviction to be at discretion of bail authority, except for a child
Subject to clause 3A, 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.
I note in respect of the opening words in Act cl 1 that cl 3A has no application here but cl 3C to a broadly identical effect does of course apply.
As to cl 1(g), I note what has been said as to that clause in Sabau v The State of Western Australia [2007] WASC 183 [53] (Johnson J), referring to The State of Western Australia v Sturgeon [2005] WASC 256 [37] (EM Heenan J).
I am of the view that that clause raises the matter as a possibility in the determination whether to grant or refuse bail that such a decision to refuse bail might be made solely because of the seriousness of the alleged circumstances of the offence or the offences. I say that in view of the legislative history of cl 1(g) and the Second Reading speech in relation to the bill adding it, as quoted in Milenkovski v The State of Western Australia [2011] WASCA 99 [29] (McLure P, Pullin JA & Hall J agreeing). However, it was not put to me that cl 1(g) on its own made refusal of bail appropriate in this case; and in any event I would not so conclude here. So far as the seriousness of the circumstances otherwise relevant to my decision is concerned, that relevance will appear shortly.
In addition to Act sch 1 pt C cl 1(a) ‑ (g), cl 3 reads as follows:
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.
The general approach to all of these provisions is described in Milenkovski [31] ‑ [44]. In my view those paragraphs make it evident why a judge in my position needs to carefully attend to the precise language of the provisions of the Bail Act. In my view those paragraphs indicate that the common law principles, as they are sometimes called, used before the Act came into force ‑ indeed, used as I reviewed them in Dabag v The State of Western Australia [2005] WASC 22 [13] ‑ [15], where I drew heavily on them ‑ should not be used as I used them there. See also Milenkovski [21] ‑ [22], [27], [35], [44].
From Milenkovski as to the general approach to Bail Act sch 1 pt C cl 1, read with cl 3, I note in particular [39] ‑ [43]:
There remains the proper construction of the general provision in cl 1 of pt C. It 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 jurisdiction who is required to have regard to the questions in pars (a) - (g) and to any other questions which the decision-maker considers relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) - (g). There are a number of significant points to note. First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence 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. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
The word 'may' in pars (a) and (d) of cl 1(a) means the possibility of the relevant event occurring: see cl 1(e)(i). For example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility he would fail to appear in court in accordance with his bail undertaking. In answering that and the other questions in cl 1(a), the court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C. It is self-evidently the case that the seriousness of the offence, with or without regard to the maximum penalty for it, does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The court is required to have regard to all of the questions in cl 1 and the matters in cl 3 in the exercise of the discretion to grant or refuse bail.
It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the offence and the probable method of dealing with the accused for it if the accused is convicted are sufficient to enable the court to conclude that the accused may fail to appear in court in accordance with his bail undertaking, and the existence and extent of that possibility may, having regard to the answers to all the other mandatory questions in cl 1, require or justify the refusal of bail. However, the common law presumptive approach (for or against bail) is inconsistent with the approach required of decision-makers under the Bail Act.
It may be noted that in my view there is no material before the court that is relevant to provisions in Bail Act sch 1 pt C cl 1(a) ‑ (g) and cl 3 other than cl 1(a)(i), (a)(iv); cl 1(b); cl 1(c); and cl 3(a), (b) and (d).
However, in a particular case, of which this is one, there are additional considerations the Bail Act may make appropriate. Those considerations flow in this case from sch 1 pt C cl 3C, which reads:
3C.Bail in murder cases
Notwithstanding clause 1, 2 or 4 or any other provision of this Act, where an accused is in custody -
(a)awaiting an appearance in court before conviction for an offence of murder; or
(b)waiting to be sentenced or otherwise dealt with for an offence of murder of which the accused has been convicted,
the judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that -
(a)there are exceptional reasons why the accused should not be kept in custody; and
(b)bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
The additional considerations Bail Act sch 1 pt C cl 3 provides for are described in Milenkovski [36] ‑ [37]:
Only cls 3A, 3C and 4A of pt C sch 1 of the Bail Act provide for a (rebuttable) statutory presumption against the grant of bail. That is indicated by the statutory expression that the judicial officer 'shall refuse to grant bail for the offence' unless satisfied of the specified matters.
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.
However, Milenkovski itself was not a case calling for the application of any of Bail Act sch 1 pt C cl 3A, cl 3C or, for that matter, cl 4A, to which her Honour referred.
I consider that further guidance as to what meaning should be given to 'exceptional reasons' in any of those clauses is conveniently to be found from Roberts v The State of Western Australia [2011] WASC 118 (Murray J), which was itself a cl 3A case. From Roberts I note in particular [9] ‑ [10]:
The term 'exceptional reasons' is not defined, nor has the court sought to establish a closed list of circumstances which might constitute exceptional reasons. Clearly it could not do so. There can be no closed list. But whatever the factual circumstance or circumstances relied upon may be, that circumstance alone, or those circumstances in combination, must be able to be described as exceptional, in the ordinary meaning of the word.
In Tieleman v The Queen (2004) 49 A Crim R 303; [2004] WASCA 285, 306 [15], I said (Steytler & Templeman JJ agreeing):
'"Exceptional" is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.'
In this case the applicant relies on the following for his exceptional circumstances in the way I will shortly describe:
(1)lengthy delay since arrest, anticipated to trial, presently listed for a period of four weeks, commencing 7 November 2011;
(2)the applicant's circumstances while in protective custody in Hakea Prison;
(3)the impediment to the defence in the preparation for trial that so far as I understand the submission flows principally from the circumstances in prison I have just referred to when considered with the nature and history of the prosecution case;
(4)the health of the applicant; and
(5)financial hardship.
I note that counsel for the applicant stated (1), delay, was the primary basis, with assistance to be derived from (2), the circumstances in prison, and (3), the impediment to the defence in the preparation for trial. Counsel for the applicant did not place any significant emphasis on (4) and (5), and indeed suggested that none of (2), (3), (4) and (5) was capable in itself of constituting exceptional reasons.
I turn then to those matters, to consider, firstly, whether I am satisfied in terms of Bail Act cl 3C that exceptional reasons have been shown why the applicant should not be kept in custody. I emphasise as in Milenkovski that satisfaction on that account does not itself produce a decision to grant bail. There is the second and equally significant matter of whether I am satisfied that bail may properly be granted under the general requirements I have referred to.
Matters in relation to exceptional reasons may have some bearing, indeed in this case do have some bearing, on those general requirements; but exceptional reasons themselves do not guarantee that bail will be granted.

Exceptional reasons

I turn then to the exceptional reasons matters and to (1), delay.
There is a substantial body of authority that delay may, at least in combination with other factors, represent exceptional reasons within Bail Act sch 1 pt C cl 3C, cl 3A and other provisions mentioning exceptional reasons in the same terms: see Rayney v The State of Western Australia [2011] WASC 3 [9], where Anderson AUJ refers to the nature, size and complexity of the prosecution case in that matter which meant that a trial of five to six months, with an exceedingly long time in custody and the difficulty likely to be encountered by the applicant and the applicant's lawyers in dealing with the evidence went beyond any consideration of mere inconvenience and constituted the exceptional reasons his Honour discerned in that case.
I also refer to Mikhail v The State of Western Australia [2010] WASC 201 [54] ‑ [56] (Blaxell J), referring to a delay to trial of over two years, where in his Honour's view the DPP had been in a position to expedite disclosure, at least to the extent that they had failed to comply with the relevant guidelines with respect to obtaining DNA evidence.
There has been a recent statement by Blaxell J, who has of course had long experience in criminal matters, that delay in itself cannot be exceptional reasons under Bail Act sch 1 pt C cl 3C: Mikhail v The State of Western Australia [2010] WASC 238 [10]. I accept that this view is hard to reconcile with statements and other authorities indicating that delay can indeed qualify as exceptional reasons on its own: see Sturgeon [50], which was a cl 3A case, where there is reference to authorities on cases where there was no statutory requirement like that in cl 3A but in which at [56] as I read EM Heenan J's reasons he concluded that a total expected delay of 19 months in custody before a retrial 'transcends any tolerable limit'. I would understand this as a reference to satisfaction of the exceptional reasons requirement.

However, I do not consider I need to resolve any such difference of view, as I will explain, because of the other factors involved in this case. The applicant's case on delay relies heavily both on the duration, 19 months, as in Sturgeon, and on the circumstances of the delay disclosed by 15 hearings in the Stirling Gardens Magistrates Court that occurred after the initial hearing in the Perth Magistrates Court.
As counsel for the defence requested, I have read the transcripts of those hearings, all of them, from which I note the following. I have noted as well the affidavit of the senior investigating officer, sworn 8 June 2011, part of the body of two affidavits put up by counsel for the prosecution in opposition to the present application. I have noted the indications in the affidavit of the senior investigating officer that for the most part prosecution disclosure had been provided to the then counsel for the applicant at least by the beginning of 2011. However, I do not consider those indications are inconsistent with what I take from the transcript of the hearings in the Stirling Gardens Magistrates Court, as I am now about to indicate.
The hearings occurred monthly from April 2010 to June 2011, save for no hearings in May 2010 and for two hearings in March 2011.
At the outset of these hearings the state indicated that the matter should not go to a committal mention because of the time needed to complete forensic reports - 21 April 2010 notes eight weeks for this period, 16 June 2010 notes a further eight weeks ‑ and because of the need to enable disclosure to continue - 4 August 2010, where four weeks is called for in that regard.
There follows an indication of the difficulties in investigating officers and forensic staff are encountering arising out of the facts that the case was a double homicide with 'a lot forensic evidence' and the 'number of murders around Perth lately'. The quotation is taken from the transcript of the hearing on 1 September 2010. At that hearing the state submitted that this called for a further delay before any listing of a committal mention.
Following two further agreed to adjournments, on 13 October 2010 and 24 November 2010, there was at the hearing of 15 December 2010 a provisional trial listing for 25 July 2011, at the instance of the state, over the objection (but one not strenuously pursued) of then counsel for the defence. The state indicated at that time it was hoped that the listing on 25 July 2011 would have the effect that PathWest would move up the priority list the analysis of blood from the crime scene.
At the next hearing on 12 January 2011 there were indications the defence had been provided with some preliminary forensic reports, preliminary in the sense that these had not been peer checked at least, but that in addition there were other matters, particularly a blood pattern analysis report, together with certain statements from police officers that were not yet available, apparently, either to the state or to the defence. The state asked for a further four weeks before committal mention and the court ordered the state to provide timetables for final forensic reports and outstanding police statements. I have no clear indication on the material before me that those timetables were not provided or that they were not complied with.
At the next hearing, 2 February 2011, the state indicated that it tentatively expected or hoped for the date for receipt of statements of all forensic officers and of the blood pattern analysis by 1 April 2011, while then counsel for the defendant indicated she had been told there was a possibility of further analysis in Europe of some samples.
At the next hearing, on 2 March 2011, a memorandum from one of the investigating police officers was described to the court, and quoted from, in which the officer indicated that the PathWest report was being drafted, but it was still at the draft stage, as areas of investigation had yet to be completed. The matter was remanded over to a hearing later the same month to obtain a 'realistic timetable' for PathWest and the police.
At that later hearing on 16 March 2011, Magistrate Whitbread reviewed at considerable length her understanding of the history of the matter and, after discussion with then counsel for the defence and with counsel for the state, she vacated the provisional trial date. It is apparent from the hearing the state had not provided at least some forensic officer statements. This was put down to the burden of other work lying on them. It was also apparent from that hearing that the blood pattern analysis had not yet been provided and this was because of a change in the circumstances of the relevant forensic officer; and that the final PathWest report had not been provided, because of the burdens on PathWest. Further, analysis testing in the UK, which is apparently that which counsel for the defence had referred to at a previous hearing as a report from Europe, was not yet available.
At the next hearing, on 20 April 2011, there was a new defence counsel. It appears that the principal matters of disclosure from the prior hearing that remained were the analysis from the UK, a blood pattern analysis and the PathWest final report. There are indications of discussions between the state and the defence as to new trial dates, with early November mentioned but also a date in early October referred to.
At the next hearing, 4 May 2011, it was indicated that the defence had received the blood pattern analysis but that the state had not yet received the analysis from the UK. New provisional trial dates were set for a four week trial commencing, as I have indicated, on 7 November 2011.
At the next hearing, on 1 June 2011, it appears that the analysis from Europe had still not been received by the state. The matter was committed for trial in the Supreme Court.
It is evident from this history from the transcripts that there have been difficulties for the state in obtaining statements from forensic officers and other forensic reports, particularly final forensic reports, of a kind where their peer review characteristics would permit the defence to secure for trial advice from their own experts.
I accept that resource shortfalls and the burden of other work falling on the sources of those statements and those reports have accounted, at least in the major part, for those difficulties. The setting of the first provisional trial dates did not it appears produce the prioritising effect which the state had wished for. The importance of forensic evidence in this case, particularly DNA analysis of blood and blood pattern analysis, has meant that those difficulties have pushed back the trial dates to those presently listed.
The state submitted to me that but for the change of defence counsel to which I have referred, the trial might still have taken place in July 2011 or at least some date prior to November 2011. My review of the hearings as described above indicates to me no such case has been made out.
Counsel for the DPP did not press on me a submission he had put to Magistrate Whitbread at the hearing on 16 March 2011 that as to certain disclosure at least, being crime scene photographs, earlier disclosure might have been possible had the then counsel for the defence availed herself of an opportunity extended to her to meet with the investigating officer to discuss which photographs would be withheld and which would be made available. I refer in particular to ts 20 ‑ 21 from that hearing.
It seems to me that, as Magistrate Whitbread indicated, while cooperation between prosecution and defence in matters of disclosure should be promoted, the defence should be able to insist on disclosure called for by the Criminal Procedure Act 2004 (WA), no matter how burdensome. The burdensomeness of the disclosure goes to the earliest time at which the relevant material can reasonably be expected. I need, however, to say no more about the matter than that.
At the same time, I am unable to conclude that the delay was the result of any failure by the DPP or others associated with the prosecution to comply with applicable procedures for production of forensic matter such as the guidelines for disclosure of DNA reports referred to in Mikhail WASC 201 [39]. Counsel for the defence for her part did not press on me that I should make any finding of fault by the DPP or police with respect to delay.
However, in my view a delay of the order of 19 months, even a necessary one, is a matter of grave concern to the court. This is so even in a case as serious as this one involving allegations of double murder and criminal damage by fire, otherwise known as arson. It was as I understood the contentions for the state that, but for the spike in murders at the time of the offences in this case and the times at which DNA analysis was sought, the delays here would have been significantly less. This reference to a spike would tend to indicate in my view that the delay is of a relatively unusual or special kind, unless such spikes are usual, as to which I had no submissions or other information.
Whether or not, however, such delay is capable on its own of being exceptional reasons, it seems to me that in combination with the next two factors I reach, the delay goes to make out exceptional reasons.
The first of those next two factors is the applicant's circumstances in prison.
The applicant's case in respect of the circumstances in prison rests on the fact that the applicant is in protective custody in Hakea. This has resulted, I was told, in limited access to gymnasium, music, library and educational facilities as well as medical and dental facilities. The protective custody in Hakea is also of significance to the next factor I consider, the defence preparation for trial.
The applicant did not refer me to any authority which considers cases of the present kind, leaving aside the qualification as to defence preparation, as exceptional reasons. Counsel for the applicant, as I understood her, did not contend - at least she did not contend strongly - that the features of protective custody I have described, leaving aside that qualification, make out or significantly contribute to making out exceptional reasons.
In any event, I would not uphold any such contention. In my view, absent a showing protective custody has a more severe impact than that described here, such circumstances are neither capable of themselves being exceptional reasons nor capable of making a significant contribution to a case of such reasons with other factors. Offenders charged with crimes of the seriousness of those involved here in the circumstances involving drug dealing referred to in this case may not uncommonly expect to be in custody of the kind that I have referred to.
This, however, takes me to the qualification that I have consistently referred to, and this takes me to the next factor, the defence preparation for trial.
The applicant's case rests on the difficulties he is said to face as a prisoner in protective custody in Hakea working with his defence team on their preparation for his trial. Undoubtedly, there are substantial difficulties for the applicant in working with his legal representatives and preparing for trial and that these are capable, at least in some circumstances in combination with other factors, of constituting exceptional reasons: see Rayney [9].
In reviewing this aspect of the applicant's case, it is important I say something more about the nature and history of the prosecution case for what it indicates as to the difficulty to which I have referred and in particular whether, in view of Rayney, it is capable of being exceptional reasons, at least in the sense of making a significant contribution to a case of such reasons.
The prosecution case, as is probably now apparent, rests largely if not exclusively upon circumstantial evidence. There is a body of forensic evidence, including DNA analysis of blood on a shoe belonging to the applicant, and associated blood dispersal or spatter evidence. There is, however, in addition, the applicant's admission he had lied in the first video record of interview with police when he said he had not gone to the premises where Borsa was on the night of 26 February 2010.
The applicant also admits to police he had been arranging a deal with De Beaux for the one ounce of heroin at that time, and that he could not afford one ounce of heroin. There is evidence from 26 February 2010 in SMS exchanges of that date between the applicant and De Beaux concerning the obtaining of drugs and the applicant's admissions that, after meeting with Borsa at his house that night, he returned to see Borsa apparently dead and saw a car burning.
There is also evidence from the applicant's spouse that several days after the deaths, as indicated in her affidavit, being the other affidavit provided as part of the prosecution case against the grant of bail, she saw the applicant with a bag of heroin.
It is not evident to me that the case here is of the size or complexity in Rayney itself. At the same time it appears to me that this is a case where it may be expected in view of the kinds of things that were described in Rayney that there will be a need for extensive consultation between the applicant and his defence team of a kind that continuing protective custody in Hakea would make particularly difficult.
As to that need, I have noted the character of the case of the prosecution that I have referred to, as well as matters of history I will return to. As to particular difficulties, I have noted what I was told about difficulties in consultations already experienced, including those arising out of work being done at Hakea Prison at present.
I also consider I should put this need and those difficulties in the context of the delays already experienced, caused as I have indicated. I have noted that the state still does not have the final report from PathWest, the one that will embody the peer review, and there is a further report from inside the house at Greenmount pending. While I was told that the prosecution did not expect the latter to have any vital significance in this case, and the prosecution expected the former simply to confirm preliminary reports already made available to the defence, and, furthermore, that the final report was due in July 2011, I consider that both will require evaluation by the defence and consultation, possibly extensive consultation with the applicant, with a significant risk of prejudice even if the July timetable is met, a risk of prejudice that would arise out of the constrained circumstances of the applicant being in protective custody in Hakea.
It follows in my view that the difficulties in the defence preparation of the case arising out of the applicant being in protective custody in Hakea are of significance to the exceptional reasons matter with respect to which I must be satisfied under Act sch 1 pt C cl 3C.
I turn then to the fourth factor, the health of the applicant.
The applicant's case rests on the diagnosis of his diabetes which apparently has been made while he has been in prison. He is on medication but is unable to have daily blood sugar level tests or to alter his diet to assist with his condition.
There is authority that in my view at least indicates that the effect of incarceration on physical condition is, at least with other circumstances, capable of constituting exceptional reasons: see Mikhail WASC 201 [31].
However, I must consider whether the applicant's health problems have indeed been affected by, in the sense of adversely affected by, incarceration, as where he will not or there is a risk he will not receive proper and appropriate treatment: see Mikhail WASC 201 [35]. The evidence here in my view does not clearly so establish; and, in any event, as I have already indicated, counsel for the applicant did not press this matter on me. Therefore I leave it aside.
The fifth matter is financial hardship.
The applicant's case is that he has two children aged 6 and 8 and a spouse, to whom I have already referred, from whom he is separated, all of them dependent upon him for financial support. The applicant says he was forced to sell his residential property earlier to pay mortgage, debt and legal bills and those legal bills will include the preparation of forensic testing, reports and the examination of material supplied by the prosecution. The applicant says that he is severely hampered in funding the defence without his ability to obtain employment outside prison, while if he were released he would be so employed.
No authority was cited to me on financial hardship as exceptional reasons. It seems to me that while in some circumstances at least financial hardship might be capable of making a significant contribution to exceptional reasons, that that would not be the case unless at least there is some evidence that sufficient resources are not otherwise available for the purposes relied upon.
In my view, there is no such evidence from the applicant or otherwise here. I also note that there is a conflict between the evidence of the applicant and his wife over whether she is dependent on his financial support for herself and her children. As counsel for the applicant did not press the present matter on me I do not consider I have to resolve it save in one respect I reach below. I therefore leave the matter of financial hardship aside.
That takes me to my conclusion on exceptional reasons.
I conclude that exceptional 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.
I turn then to whether bail may properly be granted having regard to Act, sch 1 pt C, cl 1 and cl 3, what I have called, and what I note Blaxell J in the Mikhail WASC 201 referred to as, the general requirements.

General requirements

As to the general requirements in whole, it appears, as I have said, to be common ground that the only paragraphs of Act sch 1 pt C cl 1 on which I have, or might have, relevant material, are, to repeat, cl 1(a)(i) and (iv), read with cl 3(a), (b) and (d); cl 1(b); cl 1(c); and cl 1(e).
As to c 1(c), the grounds of the objection to bail by the prosecution will appear below.
I consider the balance of the clause items I referred to separately.
As to c 1(a)(i), whether the applicant may fail to appear, what is sometimes called the flight risk, counsel for the state pointed to a significant risk of flight arising from the seriousness of the consequences the applicant faced if convicted on three charges of the seriousness involved here; the strength of the case the applicant faced; and the fact that that strength only became known over time, as I have indicated, which would have changed the applicant's perception of the risk of conviction to change from an assessment which was, initially, at or about the time of his arrest, as 'flimsy', as he had apparently described it to his spouse.
Counsel for the applicant responded by reference to the facts that the applicant had not attempted to leave the jurisdiction between the alleged offending and his arrest; his voluntary attendance at police headquarters at the time of his arrest; his incentive to remain in the state so as to maintain financial provisions for his wife, or spouse, and two children; his ability to return to full time employment; his ability to reside with his parents; his receipt of support from family, friends and his church; and his lack of connection to places outside Western Australia. In addition, counsel for the applicant indicated, while the state's case could not be assessed as weak, it could not be assessed as overwhelming, even at present.

The submissions for the state did not contest any of these matters other than to assert that the state case was stronger than counsel for the applicant might be taken to be suggesting, and for the claim that the applicant was in fact not maintaining financial support for his spouse and his children and not needed for that purpose, a contention which derived support from the affidavit of the spouse, to which I have already referred.
In my view, while there is indeed a contest in the evidence as to the applicant as the main financial support for his spouse and his children, there are annexures to the responsive affidavit of the applicant that was provided for the hearing before me by counsel for the applicant in support of the present application, annexures comprising communications about money or funding from the spouse to the applicant, representing clear indications that she has sought funds form him at least for particular purposes. This, in my view, is an indication of a circumstance tending to reduce flight risk by reference to the appropriateness of a determination that at least to some extent the applicant is resorted to for financial support.
I accept, from the seriousness of the consequences the applicant faces on the three charges to which I have referred, combined with the prosecution case which I consider to be one of significant strength that only emerged over time, that there is indeed a significant risk of flight.
However, I would not assess the state case as the most substantial of its kind, let alone as an overwhelming case. Furthermore, such a risk of flight assessed in isolation, including one affected by the perceived strength of the prosecution case, must also be assessed in the light of the connections to this case that I have described, qualified, as I have indicated, and weighed with the other factors I will reach.
Turning to cl 1(a)(iv), interference with witnesses, the state pointed to statements in the affidavit of the spouse of 10 June 2011 as to conversations between the applicant and herself in which she deposes he 'often' asked her to withdraw her statement to the police, or at least to alter parts of it. Counsel said that the risk of interference with the spouse and other witnesses needed to be assessed in the light of the emerging strength of the prosecution case which tended to increase that risk.
Counsel for the applicant, for her part relies on matters in the responsive affidavit of the applicant in which he deposes he had never interfered with or approached any state witnesses in this case and had never asked his wife to withdraw statements from police or alter parts of them, but rather had 'only ever asked her to tell the truth'.
I consider that I am not in a position to resolve the apparent conflict on the material before me, other than to note the terms and tone of the correspondence between the spouse and the applicant annexed to the responsive affidavit of the applicant, which to some but only a limited extent tends against the continuous pressure referred to by the spouse.
However, even accepting that there is a risk of interference as counsel for the prosecution contended, I consider it is one to be weighed with the other factors before me that I will reach.
I then turn to cl 1(b), whether the accused needs to be kept in custody for his own protection.
Counsel for the state relies on an affidavit of the senior executive investigating officer, to which I have referred already, in which he deposes to a conversation with the partner of the deceased De Beaux who had indicated that, if the applicant were released on bail, the partner had friends who would be ‘anxious’ to see the applicant ‘about the matter’. I accept this evidence is of a threat to the applicant if he is not kept in custody.
Counsel for the applicant responded that the threat was of an amorphous kind, and I accept that characterisation. Counsel for the applicant also submitted that it was not clear that any threat of serious harm was greater to the applicant out of protective custody in Hakea than it was to him within such custody, given that those others who were friends of the partner or otherwise associated with the deceased were in Hakea.
Further, protective custody, while it must be assumed to be likely to be effective, must be weighed with the threats within prison to which it is taken to be a response; and it must also be weighed in the comparative analysis I have described with the amorphous character of the threat if he is not kept in custody.
I am unable to conclude in respect of the present factor that the risk of significant harm to the applicant if released from custody is sufficiently greater than if he remains in custody, even protective custody, such that there is a need to be kept in such custody for his own protection of a kind which points in a substantial or significant way to a refusal of bail.
I turn to then to cl 1(e), bail conditions.
Counsel for the applicant, as I understood the case she advanced, put to me the conditions which included a substantial personal undertaking and surety, residence with the applicant's parents, surrender of his passport, frequent reports up to and including the possibility of daily reporting, and non-communication and other protective bail conditions including with respect to his spouse, would sufficiently address matters from cl 1(a)(i) and (a)(iv) above. This, as I understood her, was in the context of no criminal history of breach of bail and the indications of cooperation with the authorities in connection with the current prosecution that I previously referred to. I note that there is no reliance by the prosecution on the traffic offence history that appears in the prosecution brief which included driving while under fine suspension and no authority to drive while disqualified or suspended.
In the context of all of this material I consider I do not have sufficient reason to consider that there is a significant risk the applicant would not comply with stringent bail conditions of the kinds I have described. In my view, those conditions sufficiently remove the possibilities referred to in cl 1(a)(i) and (a)(iv), as I have analysed them.
My conclusion then on the general requirements is that this is a case where bail may properly be granted on conditions of the kind described, having regard to the Act sch 1 pt C cl 1 and cl 3.

Overall conclusion

My overall conclusion whether to grant or refuse bail is that, being satisfied within Act sch 1 Pt C cl 3C that there are exceptional reasons why the accused should not be kept in custody, and that bail may properly be granted having regard to the provisions to cl 1 and cl 3, I would grant bail on conditions of the kind I have described, to be settled as to their terms with both counsel having regard to these reasons, and I will hear from both counsel shortly.

Suppression order

This takes me finally to the suppression order.
I should indicate that to preserve the integrity of the trial I would indeed impose, as I have indicated, a suppression order. The suppression order would need to relate to those parts of this judgment that in any way describe or assess the prosecution case, the criminal history of the applicant, the details relating to threats to the applicant and the details concerning allegations that the applicant requested his spouse to change or alter any part of her statements. Such order should remain in force until the completion of the trial or further order. I will hear from the parties as to the further details as to the scope of such order.