James v The State of Western Australia
[2013] WASC 235
•14/06/13
JAMES -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 235
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 235 | |
| Case No: | MBA:14/2013 | 11 JUNE 2013 | |
| Coram: | EDELMAN J | 14/06/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | KIMBLE JAMES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail Exceptional circumstances Strength of prosecution case of murder Manner of assessing exceptional circumstances for a bail application |
Legislation: | Bail Act 1982 (WA) Criminal Code 1913 (WA) |
Case References: | AC v The Queen [2003] WASCA 280 Bertolami v The State of Western Australia [2009] WASC 269 Garvey v The Queen [2003] WASCA 10 Goodwyn v The State of Western Australia [2011] WASC 328 Goodwyn v The State of Western Australia [2013] WASCA 141 Heaney v The State of Western Australia [2013] WASCA 146 Lim v Gregson [1989] WAR 1 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Quaid v The State of Western Australia [2013] WASC 228 Tyson v The State of Western Australia [2009] WASC 328 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Exceptional circumstances - Strength of prosecution case of murder - Manner of assessing exceptional circumstances for a bail application
Legislation:
Bail Act 1982 (WA)
Criminal Code 1913 (WA)
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Mr T F Percy QC and Ms B J Lonsdale
Respondent : Mr G R Higgins
Solicitors:
Applicant : Brendon Slattery
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AC v The Queen [2003] WASCA 280
Bertolami v The State of Western Australia [2009] WASC 269
Garvey v The Queen [2003] WASCA 10
Goodwyn v The State of Western Australia [2011] WASC 328
Goodwyn v The State of Western Australia [2013] WASCA 141
Heaney v The State of Western Australia [2013] WASCA 146
Lim v Gregson [1989] WAR 1
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
Tyson v The State of Western Australia [2009] WASC 328
- EDELMAN J:
Introduction
1 On 30 December 2012, Mr James was charged with the murder of Mr Peter David Cheer. He has been remanded in custody since then. This is his first application for bail, which must be considered only by a judge of this Court.1
2 An application for bail for murder requires the judicial officer to be satisfied of matters including that 'there are exceptional reasons why the accused should not be kept in custody'.2 There is no restriction on the matters which can constitute exceptional circumstances.
3 The sole basis upon which it was submitted that exceptional circumstances arise on this application was the weakness in the prosecution case against Mr James for murder. This requires an assessment of whether the strength of the case is an exception to the general run of cases. As counsel for Mr James conceded, there is no previous authority which has reached this conclusion. This is unsurprising because in the general run of murder cases the strength of a case can vary significantly. By definition, the presence of such an exceptional case must be rare.
4 The submissions concerning the exceptional nature of this case were based solely on the strength of Mr James' defence of self-defence and the difficulty at trial for the prosecution in negating that defence, at least in relation to the partial defence to murder under s 248(3)(b) of the Criminal Code 1913 (WA).
5 I have considered the information put before me in the context of the submissions and, at the invitation of the prosecution, watched the hours of video recorded interviews (which do not always correspond with the transcript). My conclusion, not without hesitation, is that although I would otherwise have granted bail, the circumstances of this case for the purposes of a bail application do not involve such weakness of the prosecution case that the case could be described as exceptional.
The charge and the statement of material facts
6 Mr James is charged with murder under s 279 of the Criminal Code. That section relevantly provides as follows:
(1) If a person unlawfully kills another person and -
(a) the person intends to cause the death of the person killed or another person; or
(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,
the person is guilty of murder.
(2) For the purposes of subsection (1)(a) and (b), it is immaterial that the person did not intend to hurt the person killed.
7 The prosecution statement of material facts, with minor edits simply for clarity, is as follows. I will describe Mr James' sister, following the approach taken by all counsel, by the initials BJ.
8 Mr James and his sister, BJ, lived together in a house in Kalgoorlie. BJ was engaged to Mr Cheer, a 35-year-old male, of medium build, approximately 176 cm tall.
9 At around 2.30 pm on Friday, 28 December 2012, Mr James arrived home and commenced drinking with BJ and Mr Cheer on the outside patio area.
10 At approximately 10.45 pm that evening, Mr Cheer and BJ had an oral disagreement which led to Mr James intervening by telling Mr Cheer that he did not like the way Mr Cheer was speaking to BJ. The argument between Mr James and Mr Cheer became heated and escalated when Mr James picked up the outdoor table they had been sitting at and flipped it over.
11 Mr James and Mr Cheer began physically fighting each other with BJ attempting to intervene and break up the fight. The altercation ended shortly afterwards at which point Mr Cheer and BJ went inside the premises, locking the rear door preventing Mr James from entering the house.
12 Inside the house, Mr Cheer and his fiancée continued their oral argument. Mr James, concerned for BJ's welfare, went to a side fence to draw the attention of neighbours so that he could get them to call police. Mr James walked back to the patio area where Mr Cheer and BJ had now exited the premises, Mr Cheer looking for his phone in order to gather his possessions and leave. Mr James went back inside the house leaving Mr Cheer and BJ outside arguing.
13 After going to the front door and opening it, Mr James returned to the kitchen area where he observed Mr Cheer and BJ on the floor inside. Mr Cheer was kneeling on his fiancée, using his weight to pin her to the floor. Mr James also observed a large 30 cm long blade stainless steel knife in the corner of the room which Mr Cheer alleged BJ had tried to stab him with. Mr James did not intervene and walked into the lounge room in the centre of the house. When Mr James next turned around, Mr Cheer and his fiancée had both moved into the lounge room and were now standing within a metre of Mr James' position.
14 Mr James observed Mr Cheer was carrying the large steel knife under his armpit with the blade pointing to the floor. Mr James approached Mr Cheer from behind and disarmed Mr Cheer pulling the knife upwards, out from under Mr Cheer's armpit. As Mr James held the knife, an altercation occurred which resulted in the victim receiving a penetrating would to the abdomen causing Mr Cheer immediately to fall to the ground.
15 Mr James walked out to the front of the house, placed the knife in the gutter of the roof and called triple zero. A short time later police and an ambulance arrived. The victim was conveyed to Kalgoorlie Hospital where he received initial treatment. Due to the severity of the wound Mr Cheer was transferred to Royal Perth Hospital where he subsequently died from his injury.
16 On 29 December 2012 Mr James participated in a video record of interview where he admitted thrusting the knife toward Mr Cheer, causing the wound. He was further interviewed on 30 December 2012 during which he admitted stabbing Mr Cheer however he could not recall the circumstances of how Mr Cheer came to be stabbed.
17 Although I turn to the proposed evidence separately below, there are several points of particular note concerning allegations in the statement of material facts related to the events shortly prior to Mr James' stabbing of Mr Cheer. Those points of particular note are relevant to the issues raised on this application and discussed below of
(i) whether Mr James believed that his act was necessary to defend Mr Cheer's fiancée from a harmful act, including a harmful act that was not imminent, and
(ii) whether there were reasonable grounds for that belief.
18 First, shortly prior to Mr Cheer and his fiancée moving into the lounge room, Mr Cheer had alleged (in Mr James' presence) that Mr Cheer's fiancée had tried to stab him with a knife. Mr James had seen a 30 cm knife in the corner of the room.
19 Secondly, at that time, Mr James had observed Mr Cheer and his fiancée on the floor with Mr Cheer was kneeling on his fiancée, using his weight to pin her to the floor.
20 Thirdly, when Mr Cheer and his fiancée moved into the lounge room, they were about 1 m away from Mr James. Mr James saw Mr Cheer carrying the large steel knife under his armpit with the blade pointing to the floor and Mr James disarmed Mr Cheer from behind by pulling the knife upwards. On this version of events, Mr Cheer may have turned around before Mr James stabbed Mr Cheer in the abdomen.
The applicable legal principles
21 The jurisdiction to grant bail is required to be exercised subject to and in accordance with pt III of the Bail Act 1982 (WA) and the further provisions in pt B, pt C and pt D of sch 1.3
22 Clause 3C of pt C of sch 1 of the Bail Act provides as follows:
3C Bail in murder cases
Notwithstanding clause 1, 2 or 4 or any other provision of this Act, where an accused is in custody -
- (a) awaiting an appearance in court before conviction for an offence of murder; or
(b) waiting to be sentenced or otherwise dealt with for an offence of murder of which the accused has been convicted,
the judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that -
(c) there are exceptional reasons why the accused should not be kept in custody; and
(d) bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
The first limb: exceptional circumstances
24 The sole basis upon which it was initially submitted by Mr James that there are exceptional reasons why he should not remain in custody is that the prosecution case for murder is so inherently weak that, in all of the circumstances on the present state of the evidence, no properly directed jury could convict Mr James of murder. As all counsel accepted in oral submissions, this is not the proper test to be applied. The proper test is one of exceptional circumstances, to be determined as a matter of discretion, and not to be glossed in this way.6
25 The term 'exceptional circumstances' in the Bail Act is not defined. The term has its ordinary meaning: something which is 'unusual or out of the ordinary'7 or 'in some way special or an exception to the general run of cases'.8
26 It is trite that the strength of a prosecution case for murder can vary to a considerable extent from case to case.
27 It was frankly conceded by the prosecution in this application that the case for murder was less than overwhelming. But it has been held that it is not sufficient merely that the prosecution case is 'less than overwhelming'.9
28 I accept that the relevant case to be considered, for the purposes of the exceptional circumstances limb in cl 3C, is only the case against an accused for murder, not the case against an accused person for a statutory alternative such as manslaughter or unlawful assault causing death.10
29 Senior counsel for Mr James explained that Mr James denies that he is guilty of murder for various reasons. These include a lack of relevant intention, the defence (excuse) of unwilled act under s 23A of the Criminal Code,and the defence of self-defence. The latter was the only defence which was relied upon for the submission that there are exceptional circumstances to justify a grant of bail.
30 The defence of self-defence in s 248 of the Criminal Code provides as follows:
248. Self-defence
(1) In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
(3) If -
(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and
(b) the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,
the person is guilty of manslaughter and not murder.
(4) A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(5) A person's harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.
(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
32 The submissions by senior counsel for Mr James were only concerned with s 248(3) for the purposes of this application.12 For the purposes of this bail application only, senior counsel relied only upon self-defence of another (Mr James' sister, BJ). Therefore, the information put before the Court must be assessed to consider the likely strength of evidence at trial that
(i) Mr James believed that his act was necessary to defend his sister from a harmful act, including a harmful act that is not imminent; and
(ii) there were reasonable grounds for that belief.
33 All counsel proceeded on this application on the basis that the relevant 'act' of Mr James was the act of stabbing Mr Cheer. But no submissions were made concerning the characterisation of the 'harmful act' of Mr Cheer from which Mr James believed it necessary to defend his sister. A 'harmful act' for the purposes of s 248 includes a large number of offences.13 It includes behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat to endanger or harm a person.14
34 This characterisation is important. The more serious the harmful act about which Mr James believed his sister would be subjected, the more likely that he would have reasonable grounds for a belief that his response with the knife was necessary to defend his sister.
35 Counsel for both Mr James and for the prosecution descended in some detail to the proposed evidence at trial. It is necessary to set out a summary of the relevant information15 relied upon by counsel as well as some of the information put before the Court which places the submissions in context.
36 In the reasons which follow, I will adopt the approach of counsel and use the verb 'stab' to describe the manner in which the injury to Mr Cheer was caused. There may, however, be a real issue concerning whether this verb is accurate in the context of possible defences of accident or unwilled act.
37 The information before the Court included witness statements from proposed prosecution witnesses as well as video records of interview and transcripts of those records of interview. Counsel for the prosecution explained that there are inaccuracies in the transcripts of the records of interview. I have viewed the records of interview as well as read the transcripts.
38 The following is a broad summary of the essential points relevant to an assessment of whether
(i) Mr James believed that his act was necessary to defend his sister from a harmful act, including a harmful act that was not imminent; and
(ii) there were reasonable grounds for that belief.
Information16 concerning self-defence
39 I have already summarised the material facts alleged against Mr James. Some of the essential matters in support of Mr James' defence of self-defence, deriving from information before the Court, were as follows.
Prior to the event of stabbing
(i) Mr James' employer described Mr James' behaviour during his employment from May 2012 in terms which included Mr James being passive, getting along with everyone at work, never being involved in conflict, never acting aggressively and never having outbursts of anger.
(ii) Mr James described a verbal altercation between him and Mr Cheer that evening involving Mr James' allegations that Mr Cheer was treating Mr James' sister poorly. This verbal altercation involved an event when Mr James flipped over the glass table,17 followed by threats and abuse by Mr Cheer against Mr James and his sister and then acts of violence by Mr Cheer against Mr James, including punches to Mr James' face.
(iii) Mr James also described later acts of violence by Mr Cheer that evening against Mr James' sister (BJ). In the 29 December 2012 video record of interview given by Mr James shortly after the incident, when he said that 'everything's fresh in my mind',18 Mr James described how Mr Cheer hit Mr James' sister (BJ) in the face and upper body.19
(iv) One witness who lives nearby describes at 11pm that night hearing a big bang and a lady screaming and a man shouting and a second male voice, speaking in a calmer non-aggressive voice, saying 'Do you always go around hitting your fiancée?'20
(v) A nearby resident describes a person, likely to be Mr James, coming to the door of the property she was visiting shortly after 10.45 pm and telling her 'Call the cops, there's going to be a murder [here], I fear for my life'.21 Mr James also described begging a neighbour to ring the police because he was locked out of the house and Mr Cheer was inside attacking BJ.22
Matters at the time of the stabbing
40 Mr James also made various statements in his video records of interview which support his defence that he believed that his act was necessary to defend his sister from a harmful act, including a harmful act that is not imminent; and also supporting reasonable grounds for that belief.
41 In relation to the interview on 29 December 2012, Mr James said:23
I didn't want things to escalate any further ... so I thought I'd get the knife off him ... I didn't think it would penetrate but it did ... .
I didn't think it would penetrate ... to tell you the honest truth, I just thought he might get a little nick ... I thought it would ... it was just a split second thing. I grabbed it and I didn't intentionally cos things were very heated between the three of us and things had got violent and he had the knife, I didn't know what his intentions were and ... I thought before he hurts me or my sister I would just - it just happened.
42 And in relation to the interview on Sunday 30 December 2012, senior counsel for Mr James pointed to the following extracts:24
I grabbed the knife ... it was not like pulling it out of a knife block because it was ... I yanked it out and it was in my hand ... I didn't know why I had the knife. I mean, if you wanted to collect your stuff and go he would have gone but why pick the knife up? I mean, I wanted to get the knife off him ... I didn't know what his intentions were and I just wanted to get it off him. Obviously after what had transgressed earlier it's like - my concern was for my and my sister's safety ... I wanted him to leave. He had a knife ... and I wasn't sure what his intentions were ... he spun around ... and the next thing I know he's on the canvas ... I can't recall which way he came around but he definitely did because the knife went into his stomach and I was standing there and I had the knife and he spun around ... I didn't have to extend my arm, it was just there ... and he spun around and the knife went in... .
43 Later in the interview was asked why he 'did not move back when [he] took that knife away'25 he replied:
I didn't have time. It happened in the blink of an eye ... you know I take the knife off him, it was down here low and he spun around and the next thing I know he was on the deck ... I didn't have time, it just happened so quick ... my reflexes were probably slow. Um, I'd been hit to the head, I was still a bit groggy and dizzy. I thought I'd take it off him and then get rid of it, but why I took longer than - it was all over in seconds. I just can't - it wasn't something I intentionally did. I didn't want to ... he was close. The knife was here. And I'm thinking - the knife ended up in his stomach.
44 The information concerning the event of stabbing suggests that there was a very short period of time in which the following events allegedly occurred after physical assaults by Mr Cheer. Even on the prosecution case, the following events must have occurred rapidly.26
(i) Mr James enters the house, after being locked out, and was 'panicky',27 previously having asked neighbours for the police to be called.
(ii) When the door opens, Mr Cheer has some belongings in his arms and looks outside for his phone, then enters the house again.
(iii) Soon after this, Mr James walks into the kitchen to see Mr Cheer pinning BJ to the ground, a knife on the ground about a metre away from them, and Mr Cheer alleging that BJ had tried to stab him.
(iv) Mr James walks to the area of the front door then returns and sees the 30 cm cook's knife being held by Mr Cheer under his arm and Mr Cheer standing close to BJ, who is small in stature.
(v) Mr James takes the knife from Mr Cheer from behind.
(vi) Mr Cheer, being very angry,28 turns around on Mr James.
(vii) Mr James stabs Mr Cheer 'a fraction of a second' later29 using force which he described as being a two or three out of 10.30
45 The short period of time in which these events occurred, and the heated atmosphere and screaming, is relevant to an assessment of whether Mr James had a belief that a defensive act was necessary, and also to an assessment of whether that belief was reasonable. Mr James also said in the video record of interview that things happened so quickly, they were 'blurry', and he tried to get them in the right order.31 Mr James had also been punched in the head by Mr Cheer and was affected by alcohol.32
Subsequent to the event of stabbing
46 Immediately after the incident, Mr James called 000 and requested that an ambulance attend. A witness heard Mr James yell for help and call for an ambulance.
47 Another witness overheard Mr James shouting for help, for an ambulance, and issuing instructions to stop the bleeding.33
48 When a police officer spoke to Mr James at the scene, Mr James admitted that he stabbed Mr Cheer, saying 'I didn't realise how easy it would go in' and said 'I had to do it, I thought he was gonna kill her'.34 Mr James said to another police officer 'I stabbed him. He was attacking my sister'.35
Matters emphasised by the prosecution
49 In addition to the matters described above, there are additional matters raised in submissions by the prosecution, which must also be considered when assessing all the information before the Court. Those matters are as follows.
50 First, Mr James said that prior to 28 December 2012 he had 'got along' with Mr Cheer and he said that there had not been any altercations between them.36 However, Mr James also said in the same interview that Mr Cheer took 'pleasure in seeing other people sad and upset'.37 Mr James said that Mr Cheer acted in an overpowering, possessive way towards BJ,38 and took great pleasure in seeing her upset.39 Mr James witnessed verbal arguments between them weekly.40 But he could not recall seeing or being told of physical violence from Mr Cheer towards BJ.41
51 Secondly, Mr James said in a later interview from the one described above that he did not actually see Mr Cheer punch BJ. He said that Mr Cheer was punching him, he was punching him back and trying to push him away, and BJ was in the middle 'it was like not only having a go at me, but having a go at her'. However, he also added that he was getting more and more confused the more he thought about it.42 He also said that BJ had marks on her that he could see above one of her eyes.43
52 Thirdly, in a video record of interview, Mr James describes circumstances prior to him taking the knife from Mr Cheer:44
I didn't actually see him pick up the knife but it was in his possession and - you know - things were still quite, quite heated at this stage and she was crying and balling and there was a lot of heated discussion ... he just wouldn't go, he wouldn't, he wouldn't go ... he had his phone and a couple of other things and he had it [the knife] in his arms. (Emphasis added).
53 In oral submissions, the prosecution placed some emphasis on the submission that Mr Cheer had 'his arm, with belongings in his arm. The knife is actually in his - sticking under his armpit, with the handle up around shoulder height and the blade pointing towards the floor'.
54 The visual description by Mr James of how he saw Mr Cheer holding the knife involved the blade tucked under Mr Cheer's armpit with the blade pointed towards Mr Cheer's stomach and the handle pointed outwards. Mr James explained that he did not see the knife in any other position other than under Mr Cheer's arm.45
55 Mr James said in one record of interview that immediately prior to taking the knife from Mr Cheer he was standing behind Mr Cheer and could not recall if Mr Cheer was threatening BJ.46 However, it is also relevant that Mr James said that Mr Cheer was verbally abusing BJ and screaming at her.47 And in the interview on the morning of the same interview day Mr James said (in a passage which is partly described as indistinct in the transcript) something to the effect that he 'didn't like the things that [Mr Cheer] was saying and he was, you know, mentioning physical things as well and I didn't know if he was going to carry those things out. He said it like he meant it, so'.48 But he also couldn't recall Mr Cheer saying something that would suggest that Mr Cheer was going to harm BJ.49
56 On 29 December 2012, Mr James said that he didn't think that the knife would penetrate Mr Cheer because it was fairly blunt, or 'blunt as all hell' and he thought that Mr Cheer would just get a little nick.50 He demonstrated on the video how he had thrust the knife. On 30 December 2012, Mr James said that he had sharpened the knife 3 days' earlier on Christmas Day so it was sharper than usual.51 But he did not say whether he had recalled this on 28 December 2012, at the time of the stabbing.
Other evidence related to matters in submissions
57 In assessing the proposed evidence above, it is material that the events surrounding the stabbing happened in a very short period of time. Understandably, with such a rapid and highly pressured sequence of events there will be differences in the recollections that different people have of the events, and even subsequent recollections by the same people. For instance, some of the proposed evidence concerning how Mr Cheer obtained the knife differs to some degree. On one view of the proposed evidence, as set out above, Mr Cheer had told Mr James that 'your sister's gone at me with a knife'52 and Mr Cheer pointed to a knife near the doorway.53 Shortly afterwards, Mr Cheer must have picked up the knife. Mr James then saw Mr Cheer with the knife under Mr Cheer's arm in proximity to Mr James' sister.54
58 In another view of the proposed evidence, the stabbing occurred because 'She [BJ] had the knife and he [Mr Cheer] started struggling to get it off her and it just happened'.55
59 BJ describes how Mr James obtained the knife from Mr Cheer, saying that '[Mr James] had pinned [Mr Cheer] against the lounge room wall to get the knife off him ... . They were still scruffing. I don't remember what they were saying but they were yelling at each other'. She says that Mr James had the knife down by his hip with the tip pointing forward and she saw Mr Cheer step towards Mr James, although she did not see Mr Cheer land on the knife.
60 In Mr James' third video recorded interview, he says that he couldn't recall if he pushed Mr Cheer up against a wall and could not recall restraining Mr Cheer in any way.56
61 It may be that this version of events could provide some support for a different defence, but in relation to the defence of self-defence, which was the subject of this application, this proposed evidence illustrates the difficulty which will be involved in making a precise determination of the manner in which the relevant events occurred.
Conclusion on exceptional circumstances
62 I have described above the salient features of the voluminous information before me. It is not necessary, nor is it appropriate, on this bail application to descend to a more detailed assessment of the strength or weaknesses of aspects of that evidence. It suffices to say that on the information before me as described above, I do not accept that the prosecution case against Mr James for murder is so weak as to constitute exceptional circumstances. The sole basis upon which I express this conclusion is that the prosecution case, assessed for the purposes of a bail application only, is not so exceptionally weak concerning whether the prosecution can prove beyond reasonable doubt that there were not reasonable grounds for Mr James' belief that his act of stabbing was necessary to defend his sister from a harmful act (including a harmful act that is not imminent).
63 I emphasise that this is not a conclusion that the prosecution has a strong case for murder on this matter, or on any matter related to the charge of murder. Counsel for the prosecution properly accepted that the State case could not be described as overwhelming.
The second limb: whether bail may properly be granted
64 If it were not for the lack of exceptional reasons, I consider that bail would properly have been granted having regard to the provisions in cl 1 and cl 3 of sch 1, pt C of the Bail Act.
65 Clause 1 sets out a list of factors to which a judicial officer must have regard. I set out the relevant principles in relation to this in Quaid v The State of Western Australia,57 and I do not repeat them here.
66 It suffices to say that having regard to all of the factors in cl 1, and to Mr James' personal circumstances, I do not consider that there is any basis upon which to conclude that bail should be refused having regard to any of the factors in cl 1(b) to (g). It is relevant, under cl 1(c), that counsel for the prosecution quite properly accepted that there was only one possible matter which could raise concern. That matter was whether there would be any communication between Mr James and his sister, BJ.
67 I have considered the issues concerning cl 1(g), as well as those concerning cl 1(a)(iv) in light of the matters in cl 3. In addition to the discussion of the circumstances of the offence in these reasons, the following observations explain why my discretion under cl 1 would have been to allow bail despite the matters in these two sub clauses of cl 1.
68 Although the prosecution says that Mr James did speak with his sister after his first recorded interview, he had not been instructed not to do so. It is also understandable that, in the circumstances which I have described above at [57], statements of each of Mr James and BJ may have varied between each other and between their earlier and later statements. As explained below, I also consider that conditions upon a grant of bail could address this issue under cl 1(a)(iv) appropriately.
69 In relation to cl 1(g), the offence with which Mr James has been charged, and the statutory alternative of manslaughter,58 carries a penalty of life imprisonment. However, the mere charging of Mr James with that offence should not be considered in a vacuum.59 All information concerning the circumstances of the alleged offence must be considered, including information relating to possible defences. I have discussed aspects of one defence above, but there are other relevant defences. It is not necessary to consider further the defences to alternative charges other than to say that these are open on the proposed evidence before me and not insignificant.
70 Mr James is of good character and has no criminal convictions. He does not smoke or use any illicit drugs. He no longer drinks any alcohol at all. He is a qualified chef with a supportive family. I accept that he would not have any difficulty finding employment either as a chef or in the mining industry in which he had worked as an exemplary employee prior to this incident.
71 If granted bail, Mr James would remain in Kalgoorlie/Boulder until his trial (which would be heard in that locality), residing with a friend of his who has sworn an affidavit acknowledging this.
72 In considering any concern under cl 1(a), including cl 1(a)(iv), it is also relevant (see cl 1(e)) that Mr James proposed substantial conditions on any grant of bail including reporting conditions, restrictions on travel, prohibitions on contacting any witness, and surety conditions. Apart from the issue of exceptional circumstances, I consider that the proposed conditions would have resolved any concern I had against exercising a discretion to grant bail to Mr James in relation to matters in cl 1, including cl 1(a)(iv).
73 I also consider it relevant that in an affidavit, Mr James' father, who is 70 years old, says that he is retired from a very successful business which he ran for nearly 30 years. He is currently assisting Mr James with mortgage repayments and it would be of great assistance to him if Mr James were to gain employment and contribute to his financial responsibilities. He has also offered Mr James with a cash surety of between $50,000 and $100,000.
Conclusion
74 The application for bail must be refused solely on the basis that there are not exceptional circumstances. It must be emphasised that although I have considered all of the submissions made on this application, and the volume of evidence to which reference was made in those submissions, it will rarely (if ever) be appropriate on a bail application to attempt to engage in a highly refined analysis when considering whether a prosecution case is so weak as to constitute exceptional circumstances. The more it is necessary to descend into detail concerning the strength of the prosecution case, the less likely it will be that the case is exceptional. This is why, on appeals, it is often said that so far as the merits of the appeal are concerned it is necessary to show strong arguable grounds, without detailed argument.60
75 It is also worth noting that with any relevant change in circumstance, a bail application can be renewed. One common relevant change in circumstance is delay in reaching trial, although that factor was expressly disclaimed as a basis for the current application. Another matter can be the nature of the appropriate charge upon which it is determined to indict Mr James. No indictment for murder has yet been filed.
1Bail Act 1982 (WA), s 15.
2Bail Act 1982 (WA),sch 1, pt C, cl 3C.
3Bail Act 1982 (WA), s 13.
4Goodwyn v The State of Western Australia [2011] WASC 328 [26] (Sleight C); Tyson v The State of Western Australia [2009] WASC 328 [3] - [4] (Martin CJ).
5Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 109 [37].
6Lim v Gregson [1989] WAR 1, 13 (Malcolm CJ).
7Bertolami v The State of Western Australia [2009] WASC 269 [6] (Hall J).
8Heaney v The State of Western Australia [2013] WASCA 146 [8] (Mazza JA).
9Bertolami v The State of Western Australia [2009] WASC 269 [16] (Hall J).
10Criminal Code 1913 (WA),s 280.
11Goodwyn v The State of Western Australia [2013] WASCA 141 [96] (Buss JA).
12 ts 7.
13Goodwyn v The State of Western Australia [2013] WASCA 141 [168] (Mazza JA).
14Criminal Code 1913 (WA), s 338, s 338B.
15Bail Act 1982 (WA),s 22.
16Bail Act 1982 (WA),s 22.
17 Transcript of video record of interview, 29 December 2012, pages 13 - 14.
18 Transcript of video record of interview, 29 December 2012, page 6.
19 Transcript of video record of interview, 29 December 2012, page 16.
20 Statement of S Herring, 3 January 2013, [13].
21 Statement of G Orlandi, 21 December 2012, [16]. See also Statement of R Orlandi, 21 December 2012, [16].
22 Transcript of video record of interview, 29 December 2012, page 23.
23 Transcript of video record of interview, 29 December 2012, pages 23, 29.
24 Transcript of video record of interview, 30 December 2012, 6.57 pm, pages 26, 29, 37.
25 Transcript of video record of interview, 30 December 2012, 6.57 pm, page 33.
26 ts 12 - 13.
27 Transcript of video record of interview, 30 December 2012, 5.07 pm, page 55.
28 Transcript of video record of interview, 29 December 2012, page 32.
29 Transcript of video record of interview, 29 December 2012, page 32.
30 Transcript of video record of interview, 29 December 2012, pages 28 - 29.
31 Transcript of video record of interview, 29 December 2012, page 35.
32 Transcript of video record of interview, 30 December 2012, 6.57 pm, page 41.
33 Statement of R Orlandi, 21 December 2012.
34 Statement of C Auckland, 11 January 2013, [13] - [16].
35 Statement of M Earle, 3 January 2013, [16].
36 Transcript of video record of interview, 30 December 2012, 5.07 am, pages 21 - 22.
37 Transcript of video record of interview, 30 December 2012, 5.07 am, page 34.
38 Transcript of video record of interview, 30 December 2012, 5.07 am, page 35.
39 Transcript of video record of interview, 30 December 2012, 5.07 am, page 37.
40 Transcript of video record of interview, 30 December 2012, 5.07 am, page 57.
41 Transcript of video record of interview, 30 December 2012, 5.07 pm, page 56.
42 Transcript of video record of interview, 30 December 2012, 8.40 pm, page 31.
43 Transcript of video record of interview, 30 December 2012, 8.40 pm, page 12. Cf Statement of C Mottershead, 18 January 2013, [23].
44 Transcript of video record of interview, 29 December 2012, page 21.
45 Transcript of video record of interview, 30 December 2012, 6.57 pm, page 31.
46 Transcript of video record of interview, 30 December 2012, 6.57 pm, pages 42 - 43.
47 Transcript of video record of interview, 30 December 2012, 6.57 pm, page 31.
48 Transcript of video record of interview, 30 December 2012, 5.07 am, page 38; see also page 44.
49 Transcript of video record of interview, 30 December 2012, 5.07 am, page 39.
50 Transcript of video record of interview, 29 December 2012, pages 18, 28.
51 Second transcript of video record of interview, 30 December 2012, page 27.
52 Transcript of video record of interview, 29 December 2012, page 17.
53 Transcript of video record of interview, 29 December 2012, page 19.
54 Transcript of video record of interview, 29 December 2012, page 21.
55 Statement of C Auckland, 11 January 2013, [13] - [16].
56 Transcript of video record of interview, 30 December 2012, 6.57pm, pages 40 - 41.
57Quaid v The State of Western Australia [2013] WASC 228 [12] - [13].
58Criminal Code, s 280.
59Quaid v Western Australia [2013] WASC 228 [18].
60Garvey v The Queen[2003] WASCA 10 [32] (Roberts-Smith JA); AC v The Queen [2003] WASCA 280 [20] (Hasluck J); Heaney v The State of Western Australia [2013] WASCA 146 [8] (Mazza JA).
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