Hishmeh v State of Western Australia - [2019] WASC 188

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   HISHMEH -v- STATE OF WESTERN AUSTRALIA [2019] WASC 188
CORAM:   FIANNACA J
HEARD:   26 APRIL 2019
DELIVERED          :   22 MAY 2019
PUBLISHED           :   5 JUNE 2019
FILE NO/S:   INS 306 of 2018
BETWEEN:   AYA HISHMEH
Applicant

AND

STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Murder charge - Bail refused - No exceptional reasons - Turns on own facts

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant	:	Mr A Elliott
Respondent	:	Mr J Whalley

Solicitors:

Applicant	:	Chelmsford Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Bertolami v The State of Western Australia [2009] WASC 269
Emile‑Bruning v The State Of Western Australia [2016] WASC 211
Fazzari v The State of Western Australia [2004] WASC 7
Hedgeland v The State of Western Australia [2011] WASC 181
Jones v The State of Western Australia [2014] WASC 234
Lim v Gregson [1989] WAR 1
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 201
Mikhail v The State of Western Australia [2010] WASC 238
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Milenkovski v The State of Western Australia [No 2] [2011] WASC 273
R v Quaid [2009] WASC 202
Rayney v The State of Western Australia [2011] WASC 3
Roberts v The State of Western Australia [2011] WASC 118
The State of Western Australia v Sturgeon [2005] WASC 256
Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303
YSN v The State of Western Australia [2017] WASCA 155

FIANNACA J:

Introduction

This is an application for bail. It was heard on 26 April 2019. On 22 May 2019 I gave my decision refusing bail. I provided brief reasons, with detailed reasons to follow. These are my reasons.
The accused, Aya Hishmeh, is to stand trial in this Court on one count of murder (s 279 of the Criminal Code (WA)) and four counts of attempted murder (s 283 of the Criminal Code). The trial is provisionally listed to commence on 20 January 2020.
The accused has applied for bail before trial. She has been in custody on remand since she was charged on 8 December 2017. She has not previously applied for bail.
Insofar as the application relates to the charge of murder, it is governed by s 7B and s 15 of the Bail Act 1982 (WA) (the Act) and cl 3C of sch 1 pt C of the Act. By cl 3C bail must be refused unless the court is satisfied there are exceptional reasons why the accused should not be kept in custody. That presumption against the grant of bail does not apply in the consideration of bail for the charges of attempted murder. The application for bail in respect of those charges is governed by cl 1 and cl 3 of sch 1 pt C. However, by virtue of s 10 of the Act, if bail is refused in respect of the murder charge, the accused's right to have bail considered in respect of the other charges does not arise in the circumstances of this case, because she will remain in custody for the murder charge until her appearance for the other charges. That is because all of the alleged offences have been charged on the same indictment and are to be tried together.
It will be necessary, therefore, to consider whether there are exceptional reasons why the accused should not be kept in custody, before considering whether bail is otherwise appropriate.
Before coming to the parties' arguments, I will outline:
(1)the legal principles that apply to this application;
(2)the circumstances of the alleged offending; and
(3)the accused's personal circumstances.

The applicable law

Clause 3C provides, relevantly, that where an accused is awaiting an appearance in court before conviction for an offence of murder, the judicial officer shall refuse to grant bail for the offence unless the judicial officer is satisfied that:
(1)there are exceptional reasons why the accused should not be kept in custody; and
(2)bail may properly be granted having regard to the provisions of cl 1 and cl 3 (of sch 1 pt C).
The principles that apply in determining those issues are not in dispute. They were helpfully outlined in the accused's written submissions. The focus, appropriately, was on the first limb of cl 3C. Before turning to those principles, it is convenient to outline the requirements of cl 1 and cl 3, which inform the second limb that must be satisfied under cl 3C.
Clause 1 requires the court to consider a number of questions which address, firstly, whether there are grounds to refuse bail (subclauses (a) ‑ (d) and (g)), and secondly, whether there are any conditions that the court can impose which would sufficiently remove the reasons for refusing bail (subclauses (e) and (f)).
Dealing only with those provisions that are relevant in this case, the first category of questions, in subclause (a), requires consideration of whether the applicant will appear at a future court date, will commit an offence, will endanger the safety or welfare of others, or will interfere with witnesses or obstruct justice.
In considering those questions, the court must have regard to the factors set out in cl 3 of sch 1 pt C, which include (a) the nature and seriousness of the offence and the probable method of dealing with the applicant for it if he is convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to him; and (d) the strength of the evidence against him.
The second category of questions, under cl 1(e), requires consideration of conditions that may alleviate the risks that would otherwise justify a refusal of bail.
Clause 1(g) falls into the first category of questions, but is concerned with circumstances in which bail may be refused independently of consideration of the questions in subclauses (a) and (e). It requires the court to consider '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'.[1]
[1] See my discussion concerning the proper construction of cl 1(g) in [suppressed].
The proper approach to be taken when considering the questions and factors in clauses 1 and 3 is well known and was explained by McLure P in Milenkovski v The State of Western Australia[2011] WASCA 99; (2011) 42 WAR 99 [24] ‑ [25] and [39] ‑ [41]. The Court of Appeal has further elaborated on the proper approach in YSN v The State of Western Australia [2017] WASCA 155 [15] ‑ [21]. The principles that emerge from those cases apply in the consideration of the second limb of cl 3C in this case, in the event that the court is satisfied under the first limb that exceptional reasons exist why the accused should not be kept in custody.
I turn, then, to the need for exceptional reasons.
The word 'exceptional' in cl 3C denotes that the reasons justifying a grant of bail in a murder case must be 'unusual or out of the ordinary, in some way special or an exception to the general run of cases'.[2]
[2] Tieleman v The Queen [2004] WASCA 285 [15]; (2004) 49 A Crim R 303 (Murray J); Bertolami v The State of Western Australia [2009] WASC 269 [8] (Hall J).
There is no closed list of circumstances which might constitute exceptional reasons.[3] What constitutes exceptional reasons may depend upon the facts in each particular case. A single matter or a combination of matters may constitute exceptional reasons.[4] It is possible that a number of circumstances that are unexceptional when taken individually will amount to exceptional reasons when taken together.[5]
[3] Roberts v The State of Western Australia [2011] WASC 118 [9] ‑ [10] (Murray J); Bertolami [6] ‑ [9]. For observations to the same effect in respect of the law prior to the enactment of the Bail Act 1982 (which commenced on 6 February 1989), see Lim v Gregson [1989] WAR 1, 13 (Malcolm CJ).
[4] Bertolami [9]; Mansell v The State of Western Australia [2011] WASC 170 [3] (McKechnie J); Jones v The State of Western Australia [2014] WASC 234 [5] (Hall J).
[5] Bertolami [9].
In this case, one of the matters on which the accused relies as an exceptional reason why she should not be kept in custody is the delay before she can be tried.
Significant delay before trial may, in some circumstances, constitute an exceptional reason for the purposes of cl 3C.[6] Usually, that outcome will be the result of considering the effect of a lengthy delay in combination with other factors. However, there have been cases in which delay, alone, has been found to be an exceptional reason justifying a grant of bail on stringent conditions.[7] Nevertheless, the issue of delay in those cases has been considered in the context of the history of the matter, the alleged circumstances of offending and the applicant's personal circumstances.
[6] The State of Western Australia v Sturgeon [2005] WASC 256 [50] (EM Heenan J); Hedgeland v The State of Western Australia [2011] WASC 181 [26] (Simmonds J); Mikhail v The State of Western Australia [2010] WASC 201 (Blaxell J); Mikhail v The State of Western Australia [2010] WASC 238 [10] ‑ [11] (Blaxell J); Emile‑Bruning v The State Of Western Australia [2016] WASC 211 [9] (Hall J).
[7] Sturgeon is an example. Although that decision was given before the enactment of cl 3C, EM Heenan J considered the question of delay in the context of whether it constituted an exceptional circumstance that justified a grant of bail.
In order for delay to constitute an 'exceptional reason', it must be of a kind that is 'additional' and has occurred unnecessarily, in that the accused ought to have been tried earlier. Such delay may constitute an exceptional reason because of the potential for injustice as a result of the accused spending unnecessary time in custody, in the event that the accused is ultimately acquitted.[8] In determining whether such delay constitutes an exceptional reason in a particular case, the court will have regard to the strength of the prosecution case. As Blaxell J noted in Mikhail v The State of Western Australia:[9]
[I]n cases where there is unnecessary delay, the question whether this provides exceptional reasons why the accused should not be kept in custody, must in large part turn upon the strength of the prosecution case. In this regard, it is self-evident that the weaker the prosecution case, and the longer the delay, the greater is the prospect of a potential injustice.
[8] Mikhail v The State of Western Australia [2010] WASC 238 [10] (Blaxell J).
[9] Mikhail v The State of Western Australia [2010] WASC 238 [11]. See also Emile-Bruning [8].
It is correct to observe, as counsel for the accused submitted, that the court should be mindful of the limitations of any assessment of the strength of the evidence against an accused when considering bail.[10] It is not the role of the court at this stage to make findings of fact, which may involve assessments of credibility. The court is not in the position of the jury at trial, which will have the benefit of the full forensic contest between the parties. As McKechnie J noted in Milenkovski v The State of Western Australia [No 2], in the context of such a contest a strong (or even overwhelming) case may not result in a conviction.[11] Nevertheless, it is necessary to make an assessment, and to do so on the basis of the information before the court at this stage. Indeed, in the context of the second stage of the consideration of bail, that is, whether bail may properly be granted having regard to the provisions of cl 1 and cl 3, the strength of the evidence against the accused is a mandatory consideration.
[10] Milenkovski v The State of Western Australia[No 2] [2011] WASC 273 [16] (McKechnie J).
[11] Milenkovski v The State of Western Australia[No 2] [17].
Counsel for the accused submitted that, when considering the strength of the evidence, in determining whether there are exceptional reasons for the purposes of cl 3C, the assessment should be only in respect of the offence of murder, and not in respect of any alternative offence of which the accused can be convicted on that charge. Those alternatives include unlawful killing (s 280 of the Criminal Code - commonly referred to as manslaughter) and dangerous driving causing death (s 59 of the Road Traffic Act 1974 (WA)). The rationale for the argument is that the accused is not required to demonstrate exceptional reasons before bail could be granted in respect of any alternative charge. With respect, the argument is misconceived.
As the respondent submitted, correctly in my opinion, the context for the assessment of the strength of the case under the first limb of cl 3C is the potential injustice to the accused of remaining in custody if subsequently she is not convicted of any offence open on the charge of murder that would require her to be sentenced to a term of imprisonment commensurate with or longer than the time she has spent in custody. In my opinion, that is the potential injustice to which Blaxell J was referring in Mikhail when discussing the relevance of the strength of the prosecution case in this context.[12] Although the need to find exceptional reasons arises because the accused is charged with murder, the strength of the evidence, and therefore the prospect of conviction, in relation to the alternative offence of manslaughter, for which the maximum penalty is life imprisonment, would have a bearing, as a matter of logic, on whether the potential for injustice resulting from delay is such as to constitute an exceptional reason why the accused should not be kept in custody.
[12] See [20] above.
Historically, the rationale for the need for exceptional reasons before bail can be granted in murder cases has been considered to be the existence of a strong inference that a person facing a murder charge is likely to abscond or fail to appear in accordance with his or her bail undertaking, because of the severity of the sentence of imprisonment likely to be imposed if the person is convicted.[13] While, no doubt, that would be the paramount consideration in most cases,[14] it seems to me that, given the nature of the offence of murder, there is another factor (which is relevant to the consideration of bail more generally) which may provide a further rationale for the need for exceptional reasons, and may be important in deciding whether the threshold test in cl 3C has been satisfied. That factor is the risk of an accused posing a danger to the community or to particular persons. The relevance of that factor to the rationale appears to be implicit in the encapsulation by EM Heenan J of the law prior to the enactment of cl 3C in the following passage in Sturgeon (emphasis added):[15]
It is generally observed that a person charged with the crime of wilful murder or murder will not be released on bail unless the circumstances are sufficiently exceptional to indicate that, despite such a serious charge, the applicant is not likely to abscond or to interfere with the process of trial or to constitute a danger to himself or society.
[13] Fazzari v The State of Western Australia [2004] WASC 7 [13] (McLure J, as she then was); Emile-Bruning [7].
[14] Sturgeon [33] – [34]. EM Heenan J noted that the analysis of authorities undertaken in Lim v Gregson [1989] WAR 1 showed that the prime consideration was 'whether or not the accused would meet his bail at trial rather than abscond and that associated with this criterion was any potential for risk to the trial process or interference with witnesses'. That analysis was of the law prior to the enactment of cl 3C, by which an applicant for bail on a charge of murder was required to demonstrate exceptional circumstances that justified a grant of bail. See Lim v Gregson at 18 (Malcolm CJ), 27 (Kennedy J) and 36 (Rowland J)
[15] Sturgeon [33].
Clause 3C was not in force when Sturgeon was decided. However, cl 3A was in force. That clause requires a court to refuse bail, unless satisfied there are exceptional reasons, in cases where the accused is alleged to have committed a serious offence (which is defined) while on bail for another serious offence. EM Heenan J expressed the following views about the policy considerations for cl 3A and the effect on the presumption of innocence:
It is not difficult to see a clear policy of Parliament behind such a provision which obviously rests in the concern of the legislature, responding to public anxiety, that persons who may turn out to be serious serial offenders may be permitted to remain at large when there is public concern about their ever-present threat to the community. While the common law authorities are clear that 'a prisoner is not detained in custody pending trial because of his guilt or assumed guilt' - per Cussen J in R v Sefton [1917] VR 259, there is a statutory encroachment upon that principle (subject to the demonstration of exceptional circumstances to the contrary) in cases where an offender is alleged to have committed a serious offence whilst on bail for another serious offence. In other words, this is a form of statutory presumption that such an applicant for bail does constitute a threat to the safety of the community and is therefore within one of the long established categories of applicants for whom bail is refused on conventional principles - subject always to the potentiality of demonstrating exceptional circumstances to the contrary.
In my respectful opinion, those observations are apt in relation to cl 3C, which is concerned with the most serious offence in the Criminal Code, the nature of which gives rise to concerns that the accused may pose a danger to human life, notwithstanding the presumption of innocence. Whether the risk of danger to society is a significant consideration in any particular case will depend on the circumstances of the case. Of course, the seriousness of the offence, the circumstances in which it is alleged to have been committed and the risk posed to the safety of any person are factors that must be taken into account in considering the second limb of cl 3C: see [8] ‑ [13] above.
Insofar as the rationale for cl 3C rests on the presumed enhanced risk of flight because of the statutory penalty, the presumption is not displaced by demonstrating that, upon the ordinary consideration of the factors in cl 1 and cl 3, the applicant might be regarded to be a low flight risk if stringent bail conditions are imposed. If the argument for the existence of exceptional reasons relies on the applicant being a low risk of absconding, there would need to be evidence of exceptional circumstances that satisfied the court positively that the applicant was likely to answer her bail.[16] While factors such as ties to the jurisdiction, suitable accommodation or prior good character will be relevant considerations, there would need to be something unusual or out of the ordinary about the applicant's circumstances before they could be regarded as exceptional.
[16] In Lim v Gregson, at 18, Malcolm CJ put it in the following terms: 'The primary issue before the learned judge was whether, notwithstanding that the appellant had been charged with wilful murder, the circumstances were sufficiently exceptional to make it probable that the appellant would not abscond, but would respond to his bail.'
The cases in which bail has been granted on a murder charge have been rare, which tends to underline the exceptionality of the circumstances that must be established. In the cases referred to by counsel for the accused, and other cases mentioned in those decisions, generally there has been some factor or a combination of factors of an exceptional nature that has or have informed the decision, positively reached, that the applicant was likely to answer bail, or which operated independently of such an assessment to make the grant of bail appropriate. For instance, in Lim v Gregson, the accused had sworn an affidavit in the bail application putting his defence in detail, and the majority of the Full Court was satisfied that he was motivated to attend his trial to defend the charge against him. The unusual circumstances of that case, in which a possible defence was readily apparent, in combination with the accused's personal circumstances, satisfied the majority that he was likely to appear when required and defend the charge.

Counsel for the respondent also referred to Rayney v The State of Western Australia[17] in the context of cases in which bail has been granted when the risk of flight was assessed to be low, although he acknowledged the circumstances of that case were very different. It should be noted, however, that in that case the assessment of flight risk appears to have been made by Anderson J in the context of considering the factors under cl 1 and cl 3, pursuant to the second limb of cl 3C,[18] having concluded there were separate exceptional reasons in that case.[19] The first was that the applicant would spend an 'exceedingly long time' in custody before trial. Secondly, there was a need for the applicant 'to work more extensively than usual with his lawyers in order to properly and effectively instruct them in the preparation of his defence', because of the 'mountain of evidence' and the 'nature, size and complexity of the prosecution case'. The degree of difficulty of doing so while in custody was considered by Anderson J to be 'beyond mere inconvenience and could seriously hamper the full and timely preparation of the defence'. Thirdly, in combination with the likelihood of a long delay before the applicant was able to be tried, the welfare of the applicant's children and the desirability of keeping the family together was also considered to be an exceptional reason why the applicant should not be kept in custody.[20] That conclusion was reached against the background of a long and well‑publicised investigation, which was considered by his Honour to have caused the children strain and insecurity over a considerable period.
[17] Rayney v The State of Western Australia [2011] WASC 3.
[18] Rayney [25] – [44].
[19] Rayney [9] and [15].
[20] Rayney [15].
The decision in Rayney serves to illustrate the exceptional nature of the circumstances that must be established under cl 3C.

Circumstances of the alleged offences

The charges against the accused all arise from one incident, said to have occurred on 7 December 2017.
In short, it is alleged that the accused deliberately drove her car into a group of juvenile males, killing one of them (the deceased) and seriously injuring four others (the complainants)[21] on Eucalyptus Boulevard, Canning Vale. It is further alleged that the accused intended to kill the five males when she drove her car into the group.
[21] While each of the persons who was injured is properly to be regarded as a victim, I have used the neutral description 'complainant' in the context of the charge of attempted murder.
The summary of the prosecution case which follows is derived from the police statement of material facts and the statements of a number of key witnesses. Those statements are on the brief for prosecution which has been filed in the proceedings on indictment.
The prosecution case is that at approximately 3.00 pm on Thursday, 7 December 2017, a fight took place between two male juveniles in a park in Canning Vale. The fight was watched by a number of youths, male and female, who had gathered at the scene in expectation of the fight. It appears that, broadly speaking, they were divided into partisan groups. The accused's younger brother was among them, as were the deceased and three of the four complainants. The spectators also included local school students who were watching and recording the fight on their mobile telephones. Immediately following the fight between the two male juveniles, other altercations erupted, during which the accused's younger brother was assaulted. The deceased was believed to be responsible for that assault.
A number of the young people who had been at the park then made their way to the McDonalds restaurant on the corner of Ranford Road and Nicholson Road in Canning Vale.
The accused, who was at home, was made aware of the assault on her brother. She made her way to the McDonalds restaurant with her younger sister and two adult males.
At approximately 3.15 pm, the deceased and all of the complainants were inside the McDonalds restaurant when the accused entered with her younger sister and the two adult males. They attacked the deceased and associates of the complainants. CCTV footage from inside the store shows that the accused was physically involved in the violence. The deceased and the complainants then ran from the McDonalds restaurant.
It appears from the CCTV footage that one of the adult males who went to McDonalds with the accused was carrying a knife. During the altercation inside the restaurant, a young patron was stabbed. Somehow the accused's sister was also cut. The accused became aware of that. It is apparent from the statements of a number of witnesses that the accused became more incensed.
On CCTV footage from outside the store, the accused can be seen running after the deceased and his companions, before returning to the McDonalds carpark. She then left the carpark in her red Nissan Skyline coupe (the Nissan). Before she left the carpark, the accused was seen and heard to shout threats. Some were heard by police officers who attended the scene. It is not necessary or appropriate for present purposes to name the witnesses who describe such threats, but I will set out the various threats that have been described, as they are of significance to the State's case that the accused intended to kill the deceased and the complainants.
The following threats allegedly made by the accused are described by civilian witnesses:
(1)'I want to slit their mother's throat';[22]
(2)'I am going to kill them and their family Wallah.'[23] This is alleged to have been said by the accused to her sister, whose name is Ala;
(3)'I am going to kill them. I'm going to murder them';[24] and
(4)'I'm going to find them. I'm going to kill every single one of them. Once I find them I'm going to kill them'.[25]
[22] Brief for Prosecution, as at 6 February 2019 (BP), p 171 [53].
[23] BP 111 [115].
[24] BP 171 [53].
[25] BP 191 [140].
The following threats allegedly made by the accused are described by the police officers who attended McDonalds:
(1)'I'm going to kill them. I'm going to find them and fucking kill them';[26]
(2)'I'm going to fucking kill them';[27] and
(3)'I'll get them. They are dead. I will fucking kill them'.[28]
[26] BP 486 [18].
[27] BP 492 [22].
[28] BP 570 [32].
Some of the threats described by civilian witnesses are alleged to have been made by the accused before the police arrived, so they are not the same threats the police heard. Counsel for the accused submitted that the lapse of time, and the fact that the accused did not act on the earlier threats lessens the weight that a jury is likely to give to the verbal threats as evidence of an actual intention to kill, as opposed to simply venting anger. On the other hand, the State submitted that the repetition of the threats over a period of time tends to demonstrate the persistence of the accused's passion and her desire to exact revenge on the persons she believed had assaulted her brother and were responsible for her sister being cut. It is evidence of motive from which an actual intention to kill can be inferred. These are matters for a jury to resolve. It is sufficient at this stage to note that it is evidence capable of strengthening the State's case on the issue of intention, which otherwise relies on the accused's actions that followed.
The accused called her fiancée, Mr Abraam Habieb, and asked him to bring her car to the McDonalds restaurant, saying she needed to take her sister to the hospital. Mr Habieb delivered the car. In his statement he says that when he got to the carpark the accused was 'going nuts' and he could tell she was 'really angry about Ala being stabbed and [the accused's younger brother] being bashed'.[29] At one stage, believing she was going to drive off, he prevented her from getting in the car, because she was very angry and he did not want her leaving.
[29] BP 282 [16].
However, at some stage after making the threats described by the other witnesses, the accused was seen to be driving erratically through the carpark. When she left the carpark, Mr Habieb was in the car with her, in the front passenger's seat. He says in his statement that the accused had been saying words similar to 'I'm going to find them'. He says that he and the accused decided to go look for the people who were responsible for 'stabbing Ala and bashing [the accused's younger brother]'.[30] He says that they intended to find them and ring the police to let them know where they were. However, Mr Habieb does not indicate on what basis he believed that to be the accused's intention.
[30] BP 283 [25].
At approximately 4.15 pm, the deceased and the complainants were walking in a northerly direction on the footpath along Eucalyptus Boulevard, Canning Vale. The accused had been driving around the area looking for them. She then drove the Nissan at speed into the street in a northerly direction, with Mr Habieb in the car. The event was captured by CCTV cameras affixed to two homes in the street. I have watched the footage which the State intends to adduce as evidence at the accused's trial.
The accused saw the deceased and the complainants and drove the Nissan in their direction. The State alleges that she accelerated as she got closer. That conclusion is open from the footage captured by the first CCTV camera. Having turned into the street, by the time the accused approaches the moderate bend in the street just before where the deceased and complainants were struck, her vehicle can be seen to be travelling at a speed that can only be described as fast, and certainly much greater than the speed limit for the area, which was 50 km/h. In any event, it would be open for the jury to conclude from the CCTV footage that the accused's vehicle continued to travel fast as she approached the group of youths, with no sign of the speed abating.
The vehicle mounted the curb, travelled along the footpath and struck the deceased and some of the complainants from behind. The impact caused the deceased to be thrown into the air. He landed in a nearby bush. One of the complainants who was struck by the vehicle was propelled onto the bonnet and into the windscreen, which broke. He became lodged in the windscreen of the accused's vehicle on the passenger side, seriously injured.
The CCTV footage shows that the vehicle continued in motion for some distance beyond where the deceased and complainants were struck.
The accused stopped the Nissan in the middle of the road. She got out and went around to the passenger's side where Mr Habieb was trapped in the vehicle by the body of the complainant who was lodged in the windscreen. She assisted to remove the complainant from the windscreen and onto the road.
Mr Habieb states that the accused appeared to be in shock and that, when challenged about what she had done, she said, 'I didn't mean for this to happen.'[31] It is not obvious to me from the CCTV footage from the second camera, which shows where the vehicle came to a stop, that the accused's conduct immediately after she came out of the vehicle demonstrated shock, but it may be accepted that it would be difficult to judge from such footage.
[31] BP 286 [53].
After assisting to remove the complainant from the windscreen, the accused went to where the deceased was in the bushes and shouted to Mr Habieb that he was not responding. Mr Habieb, some of the neighbours in the street and passers‑by then attempted first aid on the deceased and the complainants who were seriously injured. Paramedics arrived shortly after and conveyed the deceased and the complainants to various hospitals. The deceased was later pronounced dead. He died from the injuries he sustained when struck by the vehicle driven by the accused. The surviving complainants suffered various leg injuries.
The accused was subsequently interviewed by police. In her video record of interview, she admitted that she was driving the Nissan at the relevant time and that she sped up when she saw the deceased and the complainants walking on the footpath. However, she claimed, repeatedly, that she did not intend to hurt them. She said that she only intended to scare them and pull her car up next to them and swear at them. She said that she did not intend to mount the curb and that she had lost control of her car. However, she admitted that she was angry at the deceased and his group. She also said that, at the time of the altercation at McDonalds, she had been upset, angry[32] and fuming.[33]
[32] Electronic record of interview, 8 December 2017 (EROI) – transcript pp 888 – 943 of the Brief for Prosecution, as at 6 February 2019 (BP).
[33] EROI at BP 890
I note that, in his statement, Mr Habieb says that, immediately after the vehicle had come to a stop, he challenged the accused about what she had done. He says the accused told him she did not 'mean for this to happen'.[34] However, on his account, she did not say or indicate that she had lost control of the vehicle. Further, there is nothing in his description of what took place in the vehicle, before the deceased and complainants were struck, to suggest that the accused lost control of the vehicle.
[34] BP 286 [53].
Examination of the vehicle by an expert examiner established that the brakes[35] and the steering[36] were in serviceable condition and operated in a normal manner when the vehicle was driven by the examiner. Electronic testing of the brakes gave readings that complied with the relevant regulations.
[35] Vehicle Examination Report of Peter George Willsher at BP 677.
[36] Vehicle Examination Report of Peter George Willsher at BP 676.
A Vehicle Crash Report (dated 18 September 2018) was prepared by a crash investigation expert, Sergeant David Magorian of the WA Police Major Crash Investigation Section, after examining the scene[37] and the CCTV footage and considering the findings of the vehicle examiner. He concluded that:[38]
(a)The accused's vehicle was travelling at about 78 km/h as it left the roadway and commenced travelling on the footpath.
(b)The evidence does not allow an objective determination to be made as to whether the driver of the vehicle was braking, and if so, to what degree, as the vehicle left the roadway and went onto the footpath.
(c)However, 'even if the vehicle had been under maximum brake application as it mounted the footpath it would not have been possible to bring the vehicle to a stop prior to … colliding with the pedestrians'.
(d)'[Had] the vehicle been under significant brake application as it mounted the footpath (and that braking continued), it would likely not have travelled as far, post-collision, before coming to a stop'. Sergeant Magorian acknowledged this was a subjective assessment.
[37] Although Sergeant Magorian did not attend the crash location on the day of the incident, he did so on 9 May 2018 when he conducted a number of tests. He also had regard to the initial scene assessment made by Senior Constable Bagley, who did attend on the day of the crash. See BP 793 - 799, 805.
[38] BP 819.
Therefore, although the evidence does not allow an objective determination to be made as to whether or not the accused braked at the time of or after driving onto the footpath, Sergeant Magorian concluded that, even if the accused had done so, she would not have been able to stop prior to colliding with the deceased and the complainants.[39]
[39] BP 819.
Sergeant Magorian acknowledged that his conclusions may change on receipt of additional information. However, as at the time of the hearing of the bail application, there was no suggestion that any additional information was available that might affect the conclusions expressed by Sergeant Magorian. In any event, there was no suggestion that Sergeant Magorian's conclusions had changed.
Finally, I note that the CCTV footage from the street in which the incident occurred does not show seamless vision of the incident. The first camera shows the vehicle as it enters the street and up to a point just after it mounts the footpath. The second camera shows footage that commences just before the deceased and complainants were struck, and it shows the moment of impact, but the vision of the impact is in the distance and obscured to some extent. It then shows the vehicle continuing to the place on the road where it stopped. In my opinion, although not seamless, the combination of the footage adequately depicts the trajectory of the vehicle and the speed at which it was travelling.

Strength of the prosecution case

Prima facie, the prosecution case appears to be strong in respect of the charges on the indictment.
As the State submitted, on the basis that evidence will be given by witnesses as disclosed in the brief for prosecution, in combination with the CCTV footage of the incident, the jury could be satisfied that the accused was extremely angry, had repeatedly stated an intention to kill the victims and then drove at some 78 km/h in a 50 km/h zone onto the footpath and directly at the victims before returning the vehicle to the roadway. Her vehicle had no identified mechanical faults which might have caused or contributed to the collision. It would be readily open for the jury to conclude on that evidence that the accused intended to kill or to cause life endangering injuries to the deceased and the complainants.
It was submitted on the accused's behalf that the fact the accused remained at the scene and attempted to assist may be regarded by the jury as being inconsistent with an intention to kill. That will be a relevant consideration, although the jury will be directed that intention is to be determined at the point in time when the deceased and complainants were struck by the vehicle, and that people may regret or be remorseful about their actions, even immediately after an incident, despite having had the relevant intention at the time of the incident. The jury will need to consider the evidence as a whole to decide whether the accused had the relevant intention.
Even if the jury was not to find that the accused intended to kill the deceased and the complainants, and considered it reasonably possible that her conduct was intended only to scare the deceased and complainants, the case for manslaughter, on the basis that the accused's driving was criminally negligent and that she thereby caused the deceased's death, is very strong, if not overwhelming. The State's case in that regard relies on the fact that the accused was travelling at high speed in a built up area, continued to do so as she entered the bend leading to where it was obvious there were pedestrians walking on the footpath, and travelled onto the footpath in the direction of those pedestrians, knowing they were there.
It was submitted on behalf of the accused that the CCTV footage does not show the vehicle or its course in 'the critical seconds after the vehicle mounts the kerb and strikes the victims'. It was submitted that 'proof of the precise course of the vehicle will be a critical issue in the case' and that 'the circumstances raise the possibility of a loss of control of the vehicle'. It will be a matter for the jury as to what the CCTV footage shows. However, as I outlined at [58] above, although the CCTV footage does not show seamless vision of the incident, in my view it does show the moment of impact, albeit somewhat obscured. That is confirmed by the report of Sergeant Magorian, who studied the footage closely. The course the vehicle took can be deduced from a combination of the CCTV footage and plans and photographs of the area, together with the physical findings at the scene.
As for the submission that the circumstances raise the possibility of a loss of control, the only circumstances put during argument at the hearing were (a) the fact that the vehicle entered a bend at speed; and (b) the fact that the front wheel struck the kerb as it mounted the footpath. Again, whether those circumstances give rise to that possibility or are simply consistent with the accused having deliberately driven at speed onto the footpath will be a matter for the jury, but it is not readily apparent that they constitute a weakness in the prosecution case either on the charge of murder or the alternative of manslaughter.

Finally, the question of whether it is reasonably possible that the accused lost control of her vehicle will need to be considered in light of the matters I outlined at [53] above concerning the evidence that is expected to be given by Mr Habieb.
Even if the jury were to consider it reasonably possible that the accused lost control of the vehicle, that circumstance would be a factor capable of supporting the conclusion that she was criminally negligent, rather than detracting from that conclusion.
The accused has engaged experts in crash investigation and vehicle examination to provide reports. Their opinions may affect the issue of whether the accused lost control. As at the time of the bail hearing, they had not completed their reports. I was informed that they had been waiting on the provision of certain information by the police investigators. That information includes airbag data (which it had only recently been confirmed was unavailable), the software to a 'Faro 3D Scan', and additional details regarding the brake tests that had been requested from the police by the defence on 23 April 2019.
I understand the FARO 3D Scan is the scan from the laser scanning device that was used by the investigators to measure and plot the scene and objects at the scene. I was informed that the police had provided disclosure of the material recorded by that process, but the expert engaged by the defence had not been able to access the material, as specialised software is required. On 23 April 2019, the parties had conferred about enabling that expert to access the scans directly from the Forensic Survey Unit.
In any event, it is not known whether the outcomes of those enquiries or the opinions that will be forthcoming from the experts engaged by the defence will assist the accused's case.
On the materials presented at the bail hearing, it could not be said that there is any weakness in the prosecution case that could affect the question of whether there are exceptional reasons why the accused should not be kept in custody.

The accused's personal circumstances

The accused is currently 22 years old. She is single and has no dependants. She is the seventh of ten children from her parents' marriage. She has completed high school and was, before these events, training as a chef. At the time of the events she was employed in three jobs as a trainee chef and was engaged in volunteer work with the Australian Arab Association. The accused comes from a supportive family. She has no criminal history.
In summary, the accused is young and has good antecedents. It is not uncommon for a person charged with murder to be relatively young and have good antecedents. Without more, those factors do not constitute exceptional reasons. The accused did not submit otherwise. However, the factors are relevant to the question whether a grant of bail would be appropriate if exceptional reasons are established.

Home detention report

The accused submits that the availability of home detention as a condition of bail is a factor that supports her case both in respect of the existence of exceptional reasons and the appropriateness of bail having regard to the provisions of clauses 1 and 3. She submits it does so in the first respect because it reduces the risk of flight to such a low level that the potential injustice of being kept in custody for a lengthy period pending trial is heightened and ought to be regarded as an exceptional reason for the grant of bail.
Prior to the events giving rise to the charges, the accused was living with her mother. A bail assessment report was prepared to assess the suitability of her mother's house for home detention.
The Community Corrections officer who prepared the report noted two matters regarding the accommodation that could raise concerns about its suitability for home detention. First, the place is also usually the home of the accused's brother, who was involved in the violence at the McDonalds restaurant and has been charged with an offence of doing bodily harm to a patron at the restaurant. He is serving a term of imprisonment for another matter, but may be released before the accused's trial, in which case he may return to the house where the accused would be staying. That would be undesirable, but it is only a possibility at this stage, and it would not have precluded a home detention condition if bail was otherwise appropriate, as a condition could be imposed to prevent the cohabitation occurring.
The second potential concern is that the house is in the area in which the alleged offending took place. While that might increase the chances of the accused coming into contact with potential witnesses, on the occasions she would be allowed to leave the house, there is no evidence to suggest the accused would interfere with witnesses. If she were to be released on bail, it would be important that she have stable support within the community, and her family home would provide that.
In any event, the author of the report assessed both the accommodation and the sponsor (the accused's mother) to be suitable for the purposes of home detention bail, and I will proceed on that basis.

The accused's submissions - the essential basis of her case

The essence of the accused's submissions is that the time she will have spent in custody from the time of her arrest until the trial in January 2020 amounts to unnecessary delay that 'transcends any tolerable limit'. It was submitted that it will occasion a serious injustice to the accused in the event that she is acquitted of the charge in the indictment.
In that context, the accused submitted that the evidence in respect of intention is circumstantial and that it could not be said the case on the charge of murder is overwhelming. As I noted in discussing the law, I do not consider that the issue of the strength of the prosecution case is to be confined to the charge of murder. Further, while the evidence in respect of intention can properly be described as circumstantial, in that the intention must be inferred from the accused's actions and utterances, her utterances included apparent declarations of an intention to kill or to cause life endangering injuries. I summarised the accused's arguments about that evidence at [42] above. As I noted there, notwithstanding the argument that it is reasonably open to infer that the accused was simply giving vent to her anger, the evidence is capable of strengthening the State's case on the issue of intention when considered in the context of the whole of the evidence.
The accused also raised the relative difficulty that counsel will have in obtaining instructions from the accused while she remains in custody. While it may be accepted that the taking of instructions will be more difficult than if the accused were subject to home detention, in my opinion it is not a factor in this case that rises above inconvenience. It does not rise to a level where it is an exceptional reason, either alone or in combination with delay, why the accused should not be kept in custody. This case bears no resemblance to the Rayney case in that regard.
The key question is whether the delay before the accused will be tried is of an intolerable length that would constitute an injustice, as discussed above at [19] and [20]. That requires consideration of whether the accused will have spent unnecessary time in custody, in that she ought to have been tried earlier. That, in turn, requires consideration of the reasons for any prolonged period of custody.
The cases on which the accused relied, Mikhail and Milenkovski v The State of Western Australia [No 2] (which was not a murder case), were cases in which the judges found fault in the way in which the prosecution had conducted the matter, particularly in terms of disclosure, which had resulted in unnecessary delay. In Mikhail, the issue concerned the disclosure of DNA evidence. Blaxell J found that at all material times the DPP 'was in the position to expedite the disclosure of the DNA evidence and to avoid the unnecessary delays in trial.'[40] In Milenkovski v The State of Western Australia [No 2], the issue concerned mainly the provision of disks of audio recordings of intercepted telephone calls. McKechnie J found that 'the defence were prevented from working on the missing disk material when they obtained it because of a constant drip-feed of material from the DPP, coupled with the foreshadowed propensity application'.[41]
[40] Mikhail [56].
[41] Milenkovski v The State of Western Australia [No 2] [80].

Delay in the present case

I turn to consider the circumstances of this case. They have been set out in the affidavit of Katherine Ann Dowling, affirmed 15 March 2019 in support of the application, and the affidavit of Lester Hobson, affirmed 1 April 2019 in response. Ms Dowling is the solicitor acting for the accused. Mr Hobson is the Senior State Prosecutor at the Office of the Director of Public Prosecutions for WA (DPP) who has conduct of the prosecution.
The accused has been in custody since 8 December 2017. The trial in this matter is provisionally listed to commence on 20 January 2020. The accused will have been in custody some 25 months before the commencement of her trial. That is a very significant period for an accused to be in custody on remand. Corboy J identified it as a matter of concern in status hearings on 11 and 28 February 2019. His Honour expressed concern about the time it had taken for the prosecution to file an indictment and a prosecution brief.[42] The indictment was filed on 8 January 2019. The brief was filed on 6 February 2019. Counsel representing the State on 11 February 2019 informed the court that there had been 'a lot of liaison with major crash detectives and a number of witnesses, and careful consideration of the evidence'.[43]
[42] ts 2, 11/2/19.
[43] ts 2 – 3, 11/2/19.
However, a more detailed history of the matter is set out in Mr Hobson's affidavit, which discloses the following.
The accused made her first appearance in the Stirling Gardens Magistrates Court (SGMC) on 28 February 2018. I note from the Integrated Courts Management System that, prior to appearing in the SGMC, the accused had made two appearances in the Perth Magistrates Court.
When she first appeared in the SGMC, the accused was represented by a different law firm from Ms Dowling's firm. That firm had instructed senior counsel.
After the accused's first appearance in the SGMC, she appeared in that court on 2 May 2018 and 27 June 2018 for mention only, because of ongoing disclosure and arrangements made by the DPP to have a meeting with the accused's lawyers and senior counsel. The meeting was originally scheduled for 25 June 2018, but for reasons that involve no fault on the part of either the State or the accused's lawyers at that time, it was rescheduled for 17 July 2018, when Mr Hobson met with the accused's solicitor and senior counsel.
Mr Hobson states that at the meeting senior counsel informed him that he would 'arrange to discuss the materials and receive instructions'. Although the extent of disclosure at that stage is not specified, it can be inferred from the earlier reference to ongoing disclosure and from senior counsel's indication to Mr Hobson that the defence considered there were sufficient materials upon which to seek instructions from the accused. I note from the materials on the prosecution brief that, as at that date, the first Vehicle Examination Report (10 January 2018) and the Initial Collision Assessment Report of Sergeant Magorian (13 May 2018) had been prepared, but the final reports were not available until 14 September 2018 and 18 September 2018 respectively.
The accused appeared in the SGMC on 27 June 2018 when the matter was adjourned to 25 July 2018, pending the discussions that were to occur between the prosecutor and the defence lawyers. On 25 July 2018, the accused was represented by a duty lawyer. The matter was adjourned to 29 August 2018.
On 27 August 2018, the lawyers who had been acting for the accused informed the SGMC by letter that they were no longer acting for the accused and that the accused had sought a transfer of the grant of legal aid that had been made to senior counsel.
On 29 August 2018, the matter was adjourned to 26 September 2018.
The DPP became aware on 20 September 2018 that Ms Dowling's firm, Chelmsford Legal, was now acting for the accused, and that Mr Elliott had been briefed as counsel.
Mr Hobson has attested that there were then two further adjournments of the matter, on 25 September 2018 and 31 October 2018, before the accused was committed to this court on 28 November 2018. He has said in his affidavit that the adjournments were 'to enable Ms Dowling and Mr Elliott sufficient time to peruse all of the materials and to meet with and receive instructions from the accused.'[44] I note that by 25 September 2018 the final Vehicle Examination Report and Crash Investigation Report were available.
[44] Affidavit of Lester Hobson affirmed 1 April 2009, [13].
There has been no suggestion in the accused's case on the application that there was default on the part of the police or the State in the provision of disclosure. Ms Dowling attested that the indictment and prosecution brief were served on her office on 8 February 2019.[45] However, she has not attested, and there is no evidence to suggest, that the evidentiary materials contained in the prosecution brief had not previously been disclosed to the defence. If there was anything new in the brief, Ms Dowling as not attested that it has affected the accused's ability to have an earlier trial. In fact, as I will discuss shortly, at the status conference before Corboy J on 28 February 2019, Mr Elliott informed the court that the defence could be ready for a trial in May 2019.
[45] Affidavit of Katherine Ann Dowling affirmed 15 March 2019, [8].
The only issue that was identified in these proceedings as one in respect of which information had not been forthcoming was in relation to the impact data from the vehicle's airbag control module. The experts retained by the defence have requested the information. It is not information available to the police investigators, who had made inquiries about it before the request came to the DPP from Mr Elliott on 3 March 2019. Attached to Mr Hobson's affidavit is correspondence from Sergeant Magorian in which he outlines his efforts to obtain that information from Nissan, the manufacturer of the vehicle. The initial response from Nissan in September 2018 was brief, simply stating that the company had been unsuccessful in obtaining the details that had been requested. Sergeant Magorian made a further effort to obtain the information, suggesting a means of inquiry Nissan might adopt. However, as at 29 March 2019 he had received no further response. On 14 April 2019, the State informed the defence that the airbag data was not available.
Returning to the procedural history, on 28 November 2018, the accused was committed for trial on the charges that are now on indictment. Her first appearance in this court was on 11 February 2019.
Mr Hobson has attested that on 13 December 2018 the Supreme Court's Listings office informed the parties of potential trial dates from 5 August 2019 through to December 2019 that could be allocated provisionally. On 31 January 2019 the State informed the court that the prosecution was available between 21 October 2019 and 29 November 2019 for the trial, which was expected to last four weeks. The same day, the accused's counsel informed the court and the State by email that he was not available during that period because of other court commitments. He did not suggest in that email that the defence could be available in May 2019.
At the hearing on 11 February 2019, Corboy J raised his concerns about the time the accused will have spent in custody if a trial did not proceed during the period when available trial dates had been identified and when the State was able to proceed. The accused's counsel. Mr Elliott, did not indicate in response at that stage that the defence would be available for a trial in May 2019. In fact he indicated that he would not be available until January 2019. Counsel representing the State on that occasion informed the court that the related trial arising from the incident at McDonalds had been listed to commence in the District Court in August 2019, and it would require witnesses to be called who will also be required at the accused's trial. Further, Mr Hobson is to be trial counsel for that matter as well as for the present matter. The other trial is in respect of the charges brought against the adult males who went with the accused to McDonalds.
Corboy J decided to adjourn the matter to a further status conference on 28 February 2019 so further consideration could be given to trial dates. He asked the State to give consideration to whether it was appropriate for the other trial to precede this one, given the seriousness of the charge faced by the accused. He also indicated to the accused's counsel that, although he understood the significance of choice of counsel in a case of this kind, he was reluctant to put off the accused's trial until January 2020, given the time the accused would have spent in custody. Mr Elliott intimated he was working on a solution, alluding to the present application.
At the hearing on 28 February 2019, Corboy J noted that the court had received a letter from Mr Hobson outlining the history of the matter. He also noted that, apart from the concern for the amount of time the accused would have spent in custody before trial, there was also a concern that the families of the victims should not be left waiting unduly for a trial. His Honour indicated that, on the information that had been provided by Mr Hobson (which appears to have been in similar terms to the contents of his affidavit in these proceedings), the best that the court could do was to list the trial towards the end of 2019. Mr Elliott indicated that he could not appear at that time and that the accused had made it clear she wanted him as her counsel. He said the accused had told him she was not comfortable with previous counsel, whose services she had terminated, but was comfortable with Mr Elliott. He then indicated that a bail application would be made and sought an order to obtain a home detention report.
Mr Elliott then enquired whether it would be possible for the court to accommodate a trial in May 2019, as there was a possibility he could arrange for other counsel to do a trial in which he was briefed to appear in May. Corboy J anticipated there could be difficulties with the availability of witnesses to be called by the State, given the relatively short notice. He adjourned the matter to a further status conference on 8 March 2019 for consideration to be given by the State to having a trial in May 2019.
On 8 March 2019, Mr Hobson represented the State and informed the court that the State would now be available for a trial in September and November 2019, but it could not accommodate a trial in May because of the unavailability of witnesses who would be required, and because it was not possible to find suitable counsel at such short notice. He noted that the seriousness of the matter required counsel of the level of a Senior State Prosecutor, and there was no one available at that level within the DPP in May because of other court commitments. Similarly, it would not be possible at such short notice to find external counsel of the appropriate experience to whom it could be briefed. No issue was taken by the accused with those representations either before Corboy J or in the present proceedings.
Corboy J considered that 'the difference between September, November and January [was] not so great that [he] should, in effect, simply force Ms Hishmeh to find alternative counsel rather than to retain her counsel of choice'.[46] Accordingly, the parties were informed by his Honour that trial dates would be held from 20 January to 19 February 2020, to be confirmed at a later date.
[46] ts 21, 8/3/19.

Consideration of the accused's submissions

It was submitted on the accused's behalf that it was 'because of decisions which the prosecution has made [that] the earliest date that the prosecution could have conducted the trial is September 2019' and that 'it must be accepted that the substantial delay is by reason of prosecution decisions'.[47] The accused relied on the prosecutor's statement on 11 February 2019 that the reason it had taken 13 months to file the indictment and prosecution brief was the need for conferral with detectives and consideration of the evidence.[48] The accused noted that Mr Elliott was briefed some five months before the indictment and prosecution brief were served on the defence. It was submitted on her behalf that it was, therefore, 'unlikely that [her] change of legal representation has caused any real or significant delay in the progression of this matter'.[49]
[47] Accused's Submissions, 23 April 2019 [31].
[48] Accused's Submissions, 23 April 2019 [32].
[49] Accused's Submissions, 23 April 2019 [30].
With respect, the accused's argument ignores the extensive history I have outlined at [86] to [104] above.
In a case of this kind, the identification and obtaining of relevant evidence commences at the same time that the accused is taken into custody, which is immediately after the incident. It is to be expected that the collection of evidence in an appropriate form will take some time. That is particularly so in respect of expert evidence that requires careful and methodical analysis. It has not been submitted that the provision of that evidence was tardy in this case.
Secondly, it is not unusual for the State to engage in discussion and negotiations with the defence before settling the indictment. Apart from ensuring that the charges on which an accused is indicted are appropriate having regard to all of the evidential material, it provides an accused the opportunity before committal to put information and submissions to the State about the appropriateness of the charges and to consider her position in terms of a plea.
In this case, it is apparent that the State engaged in discussions with the accused's former legal representatives within a reasonable timeframe of the accused having been charged and taken into custody. There were delays occasioned by the accused's legal representatives at that stage requiring time to consider the evidentiary materials. From 17 July 2018, the matter was in the hands of those representatives, who had indicated they would be taking instructions. That is not to say that the State was entitled to come to a standstill in the progression of the matter, but there is no evidence before me that it did. What is evident, however, is that there was some delay before the State was informed that the former legal representatives would no longer be acting, and a further delay of about one month before the State was made aware that Ms Dowling's firm had been instructed to act and that Mr Elliott was to be trial counsel. In my opinion, it is a relevant consideration, in assessing the causes of delay, that there had been attempts by the State to confer with the defence which were frustrated by the change of lawyers. After the change was notified, there was (understandably) further delay occasioned by the need for the new legal representatives to familiarise themselves with the evidentiary materials and to meet with and receive instructions from the accused. Those circumstances appear to account, at least in part, for the delay in the accused's committal to this court.
Those conclusions involve no criticism of the accused's decision to change her legal representation. She was entitled to have counsel of her choice in a matter as serious as this.
However, there is no basis for concluding that the delay in the accused's committal is attributable to delinquency in the manner in which the State had managed the matter until that point in time. While the State no doubt continued to confer with investigators and consider the evidence to determine the strength of the prosecution case on the charges that had been laid by the police, I am not satisfied on the materials in these proceedings that there was unnecessary delay occasioned by the State until the committal stage.
In the circumstances of this case, the accused's focus on the filing and service of the indictment and prosecution brief is misplaced. There is no evidence before me that the materials in the prosecution brief differ in any significant manner or at all from the evidentiary materials that were available to the accused's legal representatives late in 2018. As I noted earlier, Mr Hobson has attested that, as at 26 September 2018, the accused's current legal representatives had 'all of the materials' and needed time to peruse those materials and take instructions from the accused.
Further, there is no evidence to suggest that the delay in the filing of the indictment, which charges the same offences as those with which the accused was charged by the police, has affected the listing of the matter for trial. When it is known that an accused will be committed to the Supreme Court for trial, it is not uncommon for available trial dates to be sought before an indictment is filed. The history of this matter, as outlined above, shows that the Listings office informed the parties on 13 December 2018 (a relatively short time after committal) of potential trial dates. At that stage, the indications were that Mr Elliott would not be available until January 2020.
If the listing of the other trial (concerning charges against the adult males who went to McDonalds) before the trial in this matter had resulted in delay in the accused being brought to trial, it would have been appropriate to question the appropriateness of such listing, given the gravity of the charges faced by the accused and the time she will have spent in custody. However, it is apparent that the accused's counsel would not be available in August 2019 when the other trial is listed.
The suggestion of a trial in May 2019 came belatedly, and might be thought to be optimistic, given that the defence had not yet received expert reports and there was no certainty they would be available before trial dates in May, bearing in mind the accused's obligations of disclosure in respect of expert evidence. In any event, the State's explanation for not being able to proceed to trial in May 2019, when the matter was first raised on 28 February 2019, was not unreasonable. As Mr Hobson noted at the status conference on 8 March 2019, had the dates been suggested in January 2019, there may have been better prospects of the State finding suitable counsel and ensuring witnesses would be available.[50] However, in January the court had been informed that the accused's counsel would not be available until January 2020.
[50] ts 21, 8/3/19.
It is apparent from the transcript of the hearings on 28 February 2019 and 8 March 2019 that the accused was aware of the possibility that she would remain in custody until her trial in January 2020 if she retained Mr Elliott's services, because of his unavailability in the period from September until the end of November 2019, when trial dates suitable to the State were available. It was made clear on her behalf that, notwithstanding that possibility, she wished to retain Mr Elliott as counsel.
In all the circumstances, while the length of the time the accused will have spent in custody before trial understandably gives rise to a sense of disquiet, and is indeed a matter of concern for the court, I am not satisfied that it can be attributed to unnecessary or unacceptable delay caused by the prosecution. Although the time in custody will ultimately be longer than was anticipated in Mikhail and Milenkovski v The State of Western Australia [No 2], the faults found in the conduct of the prosecution in that case in respect of disclosure, which resulted in or contributed to the delay, are absent in this case.
In any event, having regard to the strength of the prosecution case, I am not satisfied that the prospect of an injustice to the accused as a result of being remanded in custody until her trial is such as to amount to an exceptional reason, either alone or in combination with any other factor. I accept the State's submission that the period will be substantially less than the term of imprisonment the accused will face upon conviction for murder, attempted murder or the available statutory alternatives to murder of manslaughter and dangerous driving occasioning death.
If convicted of murder, the accused faces a term of life imprisonment with a minimum non-parole period of at least 10 years. If the accused were to be convicted of manslaughter or dangerous driving causing death, then, taking into account the circumstances of this case, the likely disposition, having regard to the standards of sentencing for such offending, would be a term of imprisonment substantially more than the time she will have spent in custody. I note also that, in respect of the charges of attempted murder, a jury could convict the accused of causing grievous bodily harm with intent or simply causing grievous bodily harm, offences which in the circumstances of this case would also be likely to attract significant terms of imprisonment. However, for the purposes of this decision, I have relied only on the likely sentence in the event that the accused is convicted of murder or one of the alternatives to that offence, in light of the strength of the prosecution case.
I have taken into account the accused's submission that she does not pose an appreciable risk of flight, especially if placed on home detention. In that regard, the accused relied on her antecedents and the fact she remained at the scene after the incident and tried to assist. It must be acknowledged, however, that at that stage she had not been charged with murder and may not have appreciated the charges she may face.
For reasons I discussed in outlining the legal principles, I do not consider that the lack of evidence that the accused poses an appreciable flight risk, which is acknowledged by the State, constitutes an exceptional reason why she should not be kept in custody. Nor, in my view, does it render the time the accused will have spent in custody as unnecessary or intolerable in the absence of a finding that there has been delay of that kind attributable to the conduct of the prosecution. I do not consider, on the evidence before me, that I can be positively satisfied the accused does not constitute a flight risk. However, even if I was positively satisfied, my conclusions about the impact of that factor would be the same.
In summary, I am not satisfied that there are exceptional reasons why the accused should not be kept in custody pending her trial on 20 January 2020. As the accused has not satisfied the threshold condition, bail must be refused.
However, I have concluded in any event that it would not be appropriate to grant bail, having regard to clauses 1 and 3 of sch 1 pt C of the Act, because I consider this to be a case in which cl 1(g) applies, in that the alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

Consideration of clauses 1 and 3 of sch 1 pt C

The State acknowledged that the accused has no relevant offending history and that the evidence in this case is not of a type likely to be degraded by interference with prosecution witnesses. Further the State acknowledged there was no suggestion of an absence of connection with the jurisdiction which could potentially increase the risk of flight. Nevertheless, the State submitted that the accused is facing serious charges supported by compelling objective evidence, and that any person in that position has a significant incentive to fail to attend court in answer to any bail that might be granted. I agree.
Home detention provides a means of monitoring an accused's whereabouts by the electronic monitoring system installed in the house and the GPS tracking device the accused would be required to wear. While it provides the authorities with the ability to detect if the accused has absconded, it does not necessarily prevent the accused from absconding. As Le Miere J noted in R v Quaid [2009] WASC 202 [43]:
To a large extent, the effect of conditions, even home detention, is to provide early notice that the applicant has fled or is fleeing but they do not sufficiently remove the possibility that the applicant may fail to appear in court.
Further, as the State also submitted, despite the fact that the accused does not have a relevant offending history, the nature of the alleged offending is such as to give rise to concerns about her risk to the community if she were on bail.
As I have observed in another case, the recognition of public concern about the accused's possible threat to the community, arising from the seriousness of the alleged wrongdoing, may be a relevant consideration in determining that a grant of bail is inappropriate pursuant to cl 1(g), in that the seriousness of the alleged offending may be such that no risk of such a threat would be regarded as acceptable, having regard to the principles outlined in YSN. Similarly, the seriousness of the alleged wrongdoing and its impact on the community may be such that any residual risk to the course of justice (for instance, from the possibility of flight), after the imposition of reasonable conditions, will be regarded as unacceptable and warranting the detention of the accused, notwithstanding that she has not been convicted and is presumed to be innocent.
Applying those principles to the circumstances of this case, I am satisfied that a grant of bail would be inappropriate, even if I were satisfied there were exceptional reasons.

Conclusion

For the reasons I have given, I am not satisfied there are exceptional reasons why the accused should not be kept in custody pending her trial.
Bail is refused.

Suppression order

At the hearing and upon giving my decision, I made an order that there is to be no publication of this decision or my reasons for the decision, or of the submissions of counsel and my comments during the hearing of the bail application, until the conclusion of the trial of the accused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Secretary
9 AUGUST 2022