Hoonhout v The State of Western Australia
[2024] WASC 255
•12 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HOONHOUT -v- THE STATE OF WESTERN AUSTRALIA [2024] WASC 255
CORAM: HOWARD J
HEARD: 12 JULY 2024
DELIVERED : 12 JULY 2024
FILE NO/S: MBA 17 of 2024
BETWEEN: DANNIEL JOHN HOONHOUT
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail application - Bail pending trial for a single charge of murder - Grant of bail not opposed by State - Whether weakness of prosecution case constitutes exceptional reason - Bail granted - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Result:
Bail granted
Category: B
Representation:
Counsel:
| Applicant | : | Mr M R Gunning |
| Respondent | : | Ms K Robinson |
Solicitors:
| Applicant | : | Gunning Young - Barristers and Solicitors |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Cases referred to in decision(s):
Bertolami v The State of Western Australia [2009] WASCA 269
Kickett v The State of Western Australia [2020] WASC 110
Rayney v The State of Western Australia [2011] WASC 3
Shrivastava v The State of Western Australia [2010] WASCA 96
HOWARD J:
(This judgment was delivered extemporaneously on 12 July 2024 and has been lightly edited for clarity from the transcript)
Background to the Application
This is an application for bail made on 1 July 2024 pursuant to ss 7B(3) and 15 of the Bail Act 1982 (WA) (Bail Act).[1]
[1] Unless otherwise specified, all statutory references herein are to the Bail Act 1982 (WA).
The application is supported by an affidavit of Mark Russell Gunning made 1 July 2024 (Gunning affidavit) which included the statement of material facts[2] and the applicant's criminal record.[3]
[2] Affidavit of Mark Russell Gunning, made 1 July 2024 (Gunning affidavit), Attachment A.
[3] Gunning affidavit, Attachment C.
The affidavit was read without objection, and I have taken the matters there deposed as being unchallenged on this application.
The accused applicant has been charged under s 279 of the Criminal Code (WA) (Code) with one count of murder and has been remanded in custody since he was charged on 8 May 2024.
He has not previously applied for bail.
Statutory Framework
In considering the application, I have applied the principles set out by Derrick J in Kickett v The State of Western Australia [2020] WASC 110 [47] - [55].
By cl 3C of Part C of Sch 1, I am to refuse to grant bail for this offence unless I am satisfied that there are exceptional reasons why the accused should not be kept in custody. If I am so satisfied, then I must be satisfied that bail may properly be granted having regard to the provisions of cll 1 and 3 of Part C of Sch 1.
Exceptional Reasons
'Exceptional reasons' is not a defined term in the Bail Act.
It was considered by Mazza J (as he then was) in Shrivastava v The State of Western Australia [2010] WASCA 96 [28] - [30], where his Honour summarised the principles going to the assessment of exceptional reasons. That passage has been followed in a number of cases subsequently which I do not need to cite.
It was also considered by Hall J (as he then was) in Bertolami v The State of Western Australia [2009] WASCA 269 [9], after a review of the cases at [4] - [8].
Counsel for the applicant contends that the exceptional circumstances are:
1.the prosecution case against Mr Hoonhout is weak; and
2.the application for bail is not opposed by the State.
I further infer from the statements made by the State's file manager (as recorded in the Gunning affidavit)[4] and from the submissions that Ms Robinson (for the State) made this morning,[5] that the case is at an early stage of assessment, and there are significant indications that the charge against Mr Hoonhout may not proceed to trial.
[4] Gunning affidavit at [10] - [13] and 17.
[5] Transcript from bail application, 12 July 2024, pages 3 - 5.
I have taken that into consideration.
Derrick J, in Kickett [53], said:
The strength of the prosecution case may be a relevant consideration in determining if there are exceptional circumstances for not keeping an accused person in custody. If the prosecution case is a particularly weak one, or it can be said that there is a high probability of acquittal, it may be that exceptional reasons for granting bail will exist.
In my view, on the material and submissions put before me, his Honour's comments at [53] are apposite and I find that there are relevantly exceptional reasons why the accused should not be kept in custody in this case.
Part C to Sch 1 of the Bail Act
After finding exceptional reasons, I am then to consider cll 1 and 3 of part C to Sch 1, as well as any other matters which I consider to be relevant.
The first matter I am to have regard to is set out in cl 1(a) and in having regard to those matters, I am to consider the matters in cl 3 of that Part.
Considerations under clause 3
In relation to cl 3(a), I am to consider the strength of the evidence against the accused. I have already dealt with that.
In relation to cl 3(b), I am to consider the nature and seriousness of the pending offence.
As Anderson J observed in Rayney v The State of Western Australia [2011] WASC 3 [31], there is no more serious charge than the one that the accused faces. In considering the probable method of dealing with the accused for the offence if convicted, it would go almost without saying that the accused would face a lengthy period of incarceration.
In relation to cl 3(c), I am to consider the conduct of the accused in certain situations.
It is apparent from the material before me, that the accused has participated in at least one, if not two, records of interview, and appears to have fully cooperated with Police. There is no other material before me going to cl 3(c).
In relation to cl 3(d), I am to take into consideration the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused.
I note the accused's criminal record which has been put before me might be described as a comparatively modest one, in the context of the alleged offence. There do not appear to be any offences of violence, and the accused has not been subject to a period of imprisonment.
While not completely of good character, in my view, for today's purposes, the accused comes with relatively good character, and minor (in the context of this charge) previous convictions.
He was, on the material I have before me, working up until the time of the incident and his being charged. I am told in the material, to which there is no challenge, that his parents are prepared to have him reside at their family residence, and that they remain supportive of the accused.
There is no history of any previous grants of bail to the accused under cl 3(e).
Considerations under clause 1
Returning then to cl 1(a), it appears that there is little to no risk that any of the matters in cl 1(a) may occur. Notwithstanding the small to minimal risk (of which I will come to), I consider that there are conditions which can be reasonably imposed under part D of the schedule, which will obviate the small risks that may exist.
There is nothing to suggest that the accused needs to be held in custody for his own protection under cl 1(b).
Under cl 1(c), not only has the prosecutor not put forward grounds for opposing bail, but unusually, and I say that without criticism, the State has conceded both that there are exceptional circumstances and that grant of bail may be appropriate. That accords with, I am told, the views of the investigating officer as well.
There is nothing to suggest under cl 1(d) that the conduct of the trial may be prejudiced by the grant of bail.
Clause 1(f) is not applicable.
Clause 1(g) must be considered because, as I have said, there is no more serious charge than the one that the accused faces, and that must raise the prospect that the wrongdoing is of such a serious nature as to make a grant of bail inappropriate.
Against that, I take into account that it appears that the investigation and, therefore, the prosecution are at a very early stage, and that there is an ongoing assessment being conducted by the prosecution as to the accused's criminal responsibility under ss 7 and 8 of the Code.
Further, the account/s given by the accused in his record/s of interview are consistent with the forensic evidence so far, which suggests that the accused was involved in a struggle with a home invader and armed himself with a baby cot.
Both on the statement of material facts annexed to the Gunning affidavit and from the State's submissions, it appears that the fatal blow was delivered by a knife, and the statement of material facts asserts that knife was wielded by the accused's co-accused.
It is in those circumstances which, as I have observed, the assessment by the State as to Mr Hoonhout's criminal responsibility is ongoing and is, necessarily, preliminary.
That gives some context to the concession by the State of the weakness of the prosecution case, which I note, again, without criticism.
Disposition
Having had regard to the matters that I must have regard to, none of those, in my view, count significantly against a grant of bail, and in all of the circumstances, rather favour a grant of bail. That is, obviously enough, an exceptional order to make where an accused faces the charge that Mr Hoonhout does.
A set of bail conditions has been put to the court which was developed, I am told, in co-operation or consultation with the State. Those conditions do, in my view, sufficiently remove the small or minimal risk, and I consider those conditions do sufficiently remove the small possibility I have identified for the purposes of cl 1(e).
Those conditions are:
1.the accused provide a personal undertaking in the amount of $10,000;
2.surety undertaking in the amount of $10,000;
3.to reside at [address redacted], and not to change residential address without prior approval of the court and to be at that address between the hours 9.30 pm and 5.30 am every day and to present himself to WA Police if they attend during those hours;
4.to report to [redacted] Police Station every Monday and Friday;
5.not to communicate directly or indirectly with [witness list redacted], or the co-accused except through counsel;
6.not to approach or be within 100 metres of [the site of the incident];
7.not to leave Western Australia or approach within 500 metres of any port of domestic or international departure;
8.to surrender any existing passport to the officer in charge at the [redacted] Police Station within 48 hours of being released on bail and not to apply for a passport; and
9.not to consume illicit substances and to provide a valid sample for urinalysis upon the request of Adult Community Corrections.
I will grant the applicant bail on those conditions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
17 JULY 2024
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