Hendricks v The State of Western Australia

[2014] WASC 41

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   HENDRICKS -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 41

CORAM:   HALL J

HEARD:   5 FEBRUARY 2014

DELIVERED          :   5 FEBRUARY 2014

PUBLISHED           :  12 FEBRUARY 2014

FILE NO/S:   MBA 1 of 2014

BETWEEN:   MARVYN ALEX HENDRICKS

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail - Application for bail on charge of attempted murder - Home detention condition

Legislation:

Nil

Result:

Bail refused

Category:    B

Representation:

Counsel:

Applicant:     Mr L A Margaretic

Respondent:     Mr M G Nicol

Solicitors:

Applicant:     Luka Anthony Margaretic

Respondent:     Director of Public Prosecutions (WA)

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

Nil

1. HALL J:  On 5 February 2014 I dismissed this application and gave brief reasons.  I said that more detailed reasons would be published in due course.  These reasons will be provided to the parties but suppressed from publication until final verdict at a trial.

Background

1. This is an application for a bail pursuant to s 14 of the Bail Act 1982 (WA). Such an application may be made to this court in any case including, as here, where bail has been refused in the Magistrates Court.

2. An application under s 14 is not an appeal and does not require the demonstration of error. Rather, it is an application in the original jurisdiction of this court to exercise the power to grant or refuse bail in any case. Such an application requires the court to consider afresh whether or not bail should be granted. That jurisdiction is to be exercised in accordance with s 13 and sch 1 of the Bail Act.

3. The applicant is charged with attempting to unlawfully kill Tyson Elliott Knapp.  He has been in custody on that charge since 16 December 2013.  He applied for bail in the Magistrates Court on 17 December 2013.  That application was refused on the grounds that the magistrate considered that the prosecution case was strong, there was a risk of re‑offending, a flight risk and a risk of 'threats to other witnesses'.  The applicant has entered a plea of 'not guilty' in the Magistrates Court, but has not yet been committed for trial.

The prosecution case

1. The prosecution alleges that between 2.20 am and 2.40 am on 14 December 2013 Mr Knapp was at his home in Ocean Reef when he was woken by a noise at the back door.  He got up and went to investigate and on entering the hallway saw the applicant, who was known to him.

2. The applicant was in company with another man whose face was disguised.  According to Mr Knapp the applicant was carrying a black baseball bat.  The applicant confronted Mr Knapp and said words to the effect of, 'Why are you treating Marsha wrong?  Why haven't you gone?' 

3. The prosecution case is that Mr Knapp’s girlfriend at that time was Marsha Brady.  The relationship between Mr Knapp and Ms Brady had deteriorated and there had been domestic disturbances between them.  The applicant, it is alleged, was a long time personal friend of Ms Brady. 

4. The prosecution case is that the applicant then passed the baseball bat to the other man and took a black hand gun from his belt line.  Mr Knapp's statement is to the effect that the hand gun had a silver barrel with a laser light attached, which was not turned on.  He said that when the applicant pulled the gun out he cocked it by sliding it back.  The applicant then punched him with the hand that was holding the gun.

5. Mr Knapp states that he could not remember if the punch was with the left or the right hand, however it struck him on the chin.  He said that the force of the punch jolted his head back but did not do much damage.  He said that he then backed off and that the applicant continued to approach him.  He said that the applicant punched the barrel of the gun into his chest and he took some more steps back but nothing more was said at that stage.

6. Mr Knapp said that he continued to move back and that the applicant kept approaching him and pushed the gun into his chest again.  He then heard a bang from the gun as it was fired.  He said that by this stage they were in the kitchen  area.  He said that the barrel was pushed into his chest when the gun was fired.  He said that he then said words to the effect of, 'What the fuck, just relax'.  The applicant is alleged to have said, 'Get the fuck out of here, don't come back.  I will be staying here to make sure.  Never come back.  You go to the cops or hospital about the slug and I will make sure someone comes and puts one between your eyes'.

7. Mr Knapp said that at this stage he did not know whether or not he was shot.  He says that he was in pain, but thought it could have been from being punched.  He fled the house and left on his scooter.  As he did so he noticed that a bedroom window was open that had previously been shut.  The prosecution case is that the fingerprints of the applicant were later found on the window sill. 

8. Mr Knapp went to the Joondalup Police Station and said that he thought he had been shot.  He unzipped his jumper and saw blood, bruising and a hole in his chest.  An ambulance was called and he was taken to hospital.  It was confirmed that he had been shot in the chest, the bullet exiting from under his left arm. 

9. The prosecution have provided signed witness statements of Mr Knapp and two other witnesses, young women who were in the vicinity in the early morning.  They saw two males approaching the house at around 2.50 am and saw a man fleeing on a moped about 10 minutes later.  This evidence supports Mr Knapp to the extent that he states that there were two assailants and that he left the premises on his scooter after being shot. 

The applicant's contentions

1. The applicant maintains he is not guilty and his counsel says that the alleged facts are very substantially disputed. 

2. As I have noted earlier, an application for bail was made in the Magistrates Court on 17 December 2013.  At that time Mr Margaretic, who also appeared for the applicant in this court, told the Magistrates Court that the applicant was at a loss as to the accusations made by Mr Knapp.  He said to the magistrate that the applicant and Mr Knapp had had words in the past, but not to the extent that Mr Knapp alleged and it was only Mr Knapp's version of events on which the police were relying.  He told the magistrate that the explanation for the fingerprint evidence was that the applicant had visited the house on other occasions.  He said that the applicant had indicated that he was not at the premises at the relevant time.  He said that investigating officers had spoken to the applicant's de facto, who had verified that he was at home at the time in question.  To summarise, the position being advanced at that stage was that the applicant denied being at the scene at the relevant time at all and would rely on alibi evidence to support that defence. 

3. On this application a different position has been advanced.  The applicant has sworn an affidavit which includes reference to his proposed evidence.  He says in that affidavit that he went to Mr Knapp's home, but only to talk to him.  He says that it was Mr Knapp who had the gun, that there was a struggle and that the gun discharged accidently when it was pressed between him and Mr Knapp when they came together.  He panicked when the gun went off and fled the scene.

4. Mr Margaretic explained that the reason for the change of position is that at the time of the application in the Magistrates Court the applicant was confused and upset.  He said that there was only a limited time to take instructions.  If the implication is that there was a misunderstanding then that does not sit comfortably with the terms of the submissions made in the Magistrates Court.  Those submissions suggested a positive defence supported by independent evidence.  In any event, this marked change of position causes me to be cautious in accepting submissions as to the nature and strength of any defence.

5. It has also been suggested by Mr Margaretic on this application that the defence is able to obtain a statement from another witness (who has not been identified) who will say that he sold a gun to Mr Knapp; indeed, it is said that it is the same gun used at the time of the incident.  This is said to support the defence case that the gun was introduced by Mr Knapp and not the applicant.  At this stage, no statement having been provided and the witness not having been identified, I am unable to give that suggestion any real weight. 

6. I should note that the applicant has also provided a statutory declaration made by Marsha Brady on 20 January 2014.  In it she states that Mr Knapp had purchased a gun prior to the incident.  She believes he still has it.  However, no details of the type of gun or a description of it are provided.  Even if this evidence is accepted it does not follow that the gun referred to by Ms Brady is the one that shot Mr Knapp.  Nor is such evidence necessarily inconsistent with Mr Knapp's statement that the applicant produced the gun that shot him.

Strength of prosecution case and seriousness of the charge

1. It is not my role at this stage to resolve any conflicts in the evidence or to determine issues of credibility.  All that can be said is that on the information available to me the prosecution case is not a weak one and that there appears to be evidence to support the charge that is capable of being accepted by a jury.

2. The charge is a very serious one. An offence of attempt to unlawfully kill – that is attempt to murder – contrary to s 283 of the Criminal Code (WA), carries a maximum penalty of life imprisonment. An attempt to kill involving use of a firearm after breaking into the alleged victim's home at night and whilst in company is likely to be viewed as being towards the more serious end of offences of this type. A conviction would almost certainly result in a lengthy term of imprisonment.

Personal circumstances

1. The personal circumstances of the applicant have been set out in his affidavit.  Up until the time he was taken into custody he was living in rental premises with his de facto partner and her children.  He is also the father of a child himself, who he has access to on a regular basis.  The applicant, his partner and her children have lived at the house for some years and she is supportive of his application for bail. 

2. The applicant is self‑employed as a computer repair technician.  His business is operated from home.  His family is dependent on him working to meet living expenses, including rental payments on their home.

3. The applicant has provided a number of personal references.  They speak highly of his character and of his family's reliance upon him.  I have taken those references into account.

4. The applicant does have a criminal history.  I will only refer to the relevant convictions.  The record includes a conviction in 2003 for possession of a prohibited weapon, for which he was fined.  The facts of that offence are not known.  In 2004 he was convicted of threatening words or behaviour and also fined.  In 2009 he was convicted of common assault and fined $1,500.  In 2010 he was convicted of three drug offences.  He was sentenced to 8 months' imprisonment, suspended for 2 years, for one offence and 12 month community based orders for the other two offences.

Home detention

1. When this application was first before me I indicated a willingness to consider the possibility of home detention bail.  A report for that purpose was obtained and I have heard today in evidence from Mr Donaldson, the author of that report.  The oral evidence has amended one part of the report.  In substance the report sets out the personal history and social history of the applicant, his marital situation, his substance abuse issues and the suitability, in particular, of the proposed bail address.  That address is the home at which the applicant was formerly living with his de facto partner in Banksia Grove.

2. The recommendations of the report are set out in the final two pages.  At the bottom of page 4 and onto page 5 Mr Donaldson set outs some matters of concern.  One of those related to the presence of two, and possibly three, children at the proposed home detention bail residence, having regard to some allegations that there had been domestic violence at the premises.  In that regard Mr Donaldson says that since writing the report he has had the opportunity to read the police incident reports.  He has confirmed that the Department of Community Protection and Family Services has not had any active concern for the welfare of the children.  Accordingly, any issue in regards to the children falls aside. 

3. I should say, however, that the police incident reports that were before me on this application confirm that the police have, in fact, attended the premises on two occasions due to allegations of domestic violence.  One of those reports states that the applicant's de facto partner was the person who contacted the police.  Those incident reports do not accord with evidence that she gave before me at an earlier hearing, which gave the clear impression there had been no issues as to domestic violence and no reason for the police to ever attend at the home.  I have concluded that her evidence was, at best, misleading and I place very little reliance upon it.

4. The other matters that Mr Donaldson raised in his report are that the criminal record of the applicant contains drug related convictions and a small cluster of other convictions for offences suggesting an issue with emotional self‑regulation, including a common assault, damage and threatening words or behaviour.  Mr Donaldson said that it appears that the applicant, when feeling aggrieved, has acted in a threatening manner to others or assaulted others.  Such emotional volatility is a cause for concern.  That concern is only reinforced by the incident reports that I have now received. 

5. The second matter that Mr Donaldson refers to is the alleged possession and use of a hand gun whilst being in company with another person during the current alleged offence.  I fully appreciate that those are only allegations and that the allegation that it was the appellant who brought the gun to the premises is disputed.  However, that is, nonetheless, the allegation and it is supported by a signed statement of Mr Knapp.  On the other hand, other than an indication in the applicant's affidavit that it will be the subject of contrary evidence, I have only the submissions of counsel.  I cannot dismiss the seriousness of the allegations as a matter of real concern. 

6. The third matter that Mr Donaldson raises is the previous conviction for possessing a prohibited weapon in 2003.  As I have noted, the facts of that offence are unknown.  However, it is clearly relevant that the applicant has such a conviction bearing in mind the present allegations involving, as they do, possession and use of a firearm.

7. Mr Donaldson's conclusion was that on balance he could not support home detention bail.  Ultimately, that is a question for me.  Having regard to the evidence before me, I am not satisfied that the proposed residence is one that is suitable for home detention bail.  Bearing in mind the evidence of prior criminal offences, the incident reports and the fact that the home is a rental premises, I am not satisfied that it provides the degree of comfort that would  be required for me to be satisfied that the premises are suitable for home detention.

Conclusion

1. In conclusion, having regard to the seriousness of the charge, the risk of absconding that must always exist where the possible outcome is a substantial term of imprisonment, the risk of interference with witnesses, the risk of reoffending and the unsuitability of the proposed premises for home detention, I am not satisfied that conditions could be imposed in this case such as to make bail appropriate.  The application is therefore refused.