Johns v The Queen - [2003] WASC 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: JOHNS -v- THE QUEEN [2003] WASC 270

CORAM: ROBERTS-SMITH J

HEARD: 18 DECEMBER 2003

DELIVERED : 18 DECEMBER 2003

FILE NO/S: INS 257 of 2003

BETWEEN: HERZEL PETER JOHNS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Bail Act 1982 (WA) - Serious offences - Attempted murder - Aggravated burglary - Unlawfully doing grievous bodily harm with intent - Exceptional reasons required

Legislation:

Bail Act 1982 (WA), Sch 1, Part C, cl (1) and cl (3)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Ms C A McKenzie
Respondent: Ms J Martin

Solicitors:

Applicant: McKenzie Lalor
Respondent: State Director of Public Prosecutions

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

Firkins v Director of Public Prosecutions [2002] WASC 203
Gillis v Gawned & Anor (1992) 8 WAR 211
WCVB v The Queen (1989) 1 WAR 279
Williams v The Queen [2001] WASC 308

Case(s) also cited:

Pinkstone v The Queen [2000] WASC 321

ROBERTS-SMITH J: This is an application by notice of motion dated 9 December 2003 for bail pending the applicant's trial in this court on an indictment dated 9 December 2003 charging one count of aggravated burglary, one of attempted murder, one of unlawfully doing grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm, and two of wilful damage. I am told the applicant's trial has been listed for hearing in Kalgoorlie to commence on 24 February 2004, some 2 months away.
The application is supported by an affidavit of the applicant sworn on 10 December 2003 and by an affidavit sworn by Jean Marie Bilston provided to me in the course of the proceedings this afternoon.
In WCVB v The Queen (1989) 1 WAR 279, his Honour Ipp J noted that the Bail Act 1982 (WA) is silent as to the approach that should be adopted where there are material disputes of fact and as to the onus of proof, if any, which either an applicant or the crown has to bear on a bail application.
His Honour concluded nonetheless that the common law position continued to apply and so in short, the situation therefore was that the onus is on the crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. Where, however, the charge is properly to be described as a serious charge, the circumstances then would have to be shown to be exceptional before bail would be granted and the onus of demonstrating that is on the applicant. That approach was adopted and applied by White J in Gillis v Gawned& Anor (1992) 8 WAR 211 and has been consistently applied by single Judges of this Court since (see for example Williams v The Queen [2001] WASC 308).
Attempted murder is clearly a serious charge for this purpose in objective terms as is one of unlawfully doing grievous bodily harm with intent to do so.
Apart from that, the circumstances of these alleged offences, as they are revealed in the papers before me, would show them to be, if those facts are made out, serious offences of their kind. In this case, therefore, bail must be refused unless the applicant can show exceptional reasons why he should not be kept in custody and that bail may otherwise properly be granted having regard to the provisions of cls (1) and (3) of Pt C of Sch 1 of the Bail Act which govern the grant or refusal of bail in ordinary cases.
The brief for prosecution is before me. From that I distil the following short summary of the substance of the case for the prosecution.
The complainant Stuart Anthony Johns is 35 years of age and he is on disability benefits. At the relevant time he was staying at his sister's house in Boulder. He states in his statement to the police that on Friday, 2 May he was at his sister's house and went to sleep about 1 pm. He woke when he felt a strange sensation to his head.
When he went to sleep the only people in the house were his sister and her husband and children. When the complainant woke up he felt pain and realised his younger brother, the applicant, was standing over him holding something that was stuck in his head. According to his statement the complainant heard the applicant say something along the lines of, "I'll kill you," followed by an abusive term.
According to the complainant's statement the applicant then pulled the object out of the complainant's head and he saw then that it appeared to be a machete. While the complainant's head was raised, the applicant hit him with the machete again. The complainant sought to defend himself. The applicant continued to swing the machete. There was a fight. They were wrestling. They fell against the bedroom window and that smashed. I do not think it necessary for present purposes to canvass the facts as they are alleged, particularly beyond that point. Suffice to say the other statements in the prosecution brief tend to confirm those circumstances.
The position is apparently that when the applicant first appeared in the Kalgoorlie Court of Petty Sessions in May 2003 he was released on bail in relation to these charges. His bail was set at $5000 with a surety in the same amount and a condition that he live at his nominated address in Boulder and not leave the State. His wife, Jean Bilston, was his surety. It appears that there was subsequently an incident between the two of them in the course of which he assaulted her, apparently as the result of or involving alcohol, and as a consequence he was charged with assault occasioning bodily harm in relation to her.
In August this year he pleaded guilty to that charge in the Kalgoorlie Court of Petty Sessions and was sentenced to 6 months' imprisonment. He is eligible for release as of the 7th of this month, that is to say, he is presently eligible for release. I am told - and it is confirmed by Ms Bilston's affidavit - that the situation between the two of them, the applicant and Ms Bilston, has been reconciled and she is prepared now to go surety for him again and to continue to support him. She states that their relationship is not a violent one and he is not normally a violent person.
It is put to me on his behalf that one of the circumstances which either alone or in combination with others should make this an exceptional case, or should be considered as exceptional circumstances for the purposes of a grant of bail, is the background to the commission of these offences. That can be gleaned to some extent from the applicant's own affidavit.
He deposes that he was born in Katanning in January 1974 and is currently 29 years of age. He is of Aboriginal descent and has six brothers and sisters and has lived in various locations in Western Australia and South Australia. He was made a ward of the state when he was very young as his mother was not able to cope with seven children following his father's death by suicide. The applicant left home at 16 years of age and moved to Esperance and has lived in the Goldfields since then.
He has been in a de facto relationship with Ms Bilston for 14 years. Their daughter is 9 years old and Ms Bilston's 14‑year‑old also lives with them. They have purchased their home and are paying the mortgage off, although that is becoming increasingly difficult. Ms Bilston was employed as the manager of a bottle shop at an hotel in Kalgoorlie and has had to give that up. She is unable to work as a result of injuries inflicted upon her by the complainant.
The applicant describes the circumstances in which that occurred. He states that in late 2002 he, Ms Bilston and their daughter Shelby, travelled to South Australia to visit his mother and sister. They had moved to Whyalla and the applicant travelled to visit them for Christmas.
On 19 December 2002 they were at his sister's home. The complainant was also staying there. The applicant and the complainant got into argument because, as the applicant puts it, the complainant was terrorising the applicant's sister. The applicant deposes that he tried to intervene to protect her and the complainant became angry with him. The applicant left the house to cool down, but the complainant chased him with two knives, threatening to kill him. He ran away and the complainant did not find him.
When the complainant was unable to find the applicant, he sought out Ms Bilston and Shelby and attacked them. According to the applicant's affidavit, both of them were bashed by the complainant with a piece of wood. Ms Bilston received a broken arm, multiple fractures to her skull, loss of hearing in one ear and haemorrhages behind both eyes. She was rushed to Royal Adelaide Hospital and spent months in rehabilitation in Perth. He says she is lucky to be alive. She is now unable to work as a result of her injuries.
He further deposes that from the date of that incident Ms Bilston and the girls refused to live in their home for fear that the complainant would attack them further. The complainant was arrested and released on bail, but absconded. Before he absconded, according to the applicant, he told the applicant's nephew who was living with him at the time to tell the applicant that he was a dead man.
When the applicant left South Australia the complainant also threatened him and his family. The applicant learned that the complainant was in Perth and where he was staying. He informed the Whyalla police CIB of this address and they, he says, advised that they would obtain an extradition order. Some time later he learned that the complainant had come to Kalgoorlie.
He deposes (and Ms McKenzie puts to me on his behalf) that the complainant had no reason to be in Kalgoorlie other than, on any rational view, to, as it were, "get" the applicant. He deposes that he and his family continue to fear for their safety. The complainant, he says, has a history of attacking family members and he gives examples of that.
As to the current charges, he says that they arise out of an incident which occurred when he discovered that the complainant was staying with their sister in Kalgoorlie where he and his family had been living for nearly a year. He had been told by various people that the complainant was intending to harm him and his family and he had a genuine reason to believe that he could do so.
He says he is advised by his solicitor that he has a strong defence to the charges, that he has no intention of absconding, that he is happy that the complainant is on regular reporting conditions in South Australia so that there is now less risk of him absconding to Western Australia again.
He states finally that after the incident with Ms Bilston he has participated in anger management and substance abuse counselling.
The applicant in his affidavit concludes that before the incident he was employed as a handyman‑gardener‑groundsperson at a caravan park in Kalgoorlie for 20 hours a week. If he obtains bail, he would propose to seek employment as a matter of urgency, so he can bring his mortgage payments up to date. He proposes to reside at his address in Boulder with his family. He confirms that Ms Bilston is able and willing to provide surety for him. He says that she needs his support as a result of her head injuries which render her unable to work.
Ms McKenzie on behalf of the applicant emphasises that the exercise which I must undertake here is to balance the applicant's right to be of liberty and to prepare for trial with the risk that he may not appear at his trial. It seems to me there is however the preliminary question whether or not exceptional circumstances have been shown. Ms McKenzie concedes, as is the case, where at least two of the charges fall into that category and that exceptional circumstances must therefore be shown, although, as I apprehend her submissions, she qualified that to some extent by arguing that the seriousness of the charges must be assessed by reference to the evidence. I make that point because Ms McKenzie's submission in that regard is that the case against the applicant is not in fact particularly strong.
She says there is a video record of interview in which the applicant was repeatedly asked whether or not he had an intent to kill his brother when he went there, and the applicant repeatedly denied that he did. She also says that in the video record of interview the applicant maintained that he had no particular intent at all. Ms Martin for the respondent concedes that is so and acknowledges that in the video record of interview the applicant said he went to his brother's place to see him, and she adds that he told the police that when he saw the complainant asleep, he decided to "give him some of his own medicine".
I will not canvass in detail the submissions put by counsel for the applicant and for the respondent, suffice to say Ms McKenzie says that the prosecution is weak on the issue of intent and is unlikely to be able to prove a relevant intent. Ms Martin submits to the contrary notwithstanding the applicant's denials of any relevant intent. She says the objective evidence is powerful support for the drawing of an inference that he did have an intent to kill or, at the very least, as I understand it, an intent to cause grievous bodily harm or to maim his brother.
Of course there is no obligation on an applicant to disclose his defence or to give evidence in relation to it on a bail application. At the same time the material before me in support of the prosecution case has not been tested by cross‑examination, and indeed I have not even had the benefit of hearing the witnesses give evidence‑in‑chief, but these are circumstances which apply to any bail application made at this stage of proceedings and I am nonetheless required to make the best assessment as I can of the apparent strength of the prosecution case.
I am obliged to say that, having regard to the material before me such as it is, the prosecution case in support of the charges seems to me to be a strong one. It must also be the case that should the applicant be convicted of these charges, he is likely to be sentenced to a substantial term of immediate imprisonment.
In Firkins v Director of Public Prosecutions [2002] WASC 203 Pullin J took the approach that on an application for bail in respect of a serious offence, if the ordinary considerations applicable under cl (1) and cl (3) of Pt C of Sch 1 of the Bail Act make a grant of bail inappropriate, it is unnecessary to consider whether exceptional reasons have to be shown.
I would prefer to reserve for another day with the benefit of argument the question whether that must necessarily always be the approach. In the present case I propose to deal with the question whether exceptional circumstances have been shown, first, since if they have not, bail must be refused in any event.
It appears clear and likely not to be contested that the applicant went to the complainant's address whilst armed with a machete. There is clearly a contest about the intention he had at that time. Nonetheless the evidence on the face of it would establish that he went into the complainant's bedroom and found the complainant asleep, and at that stage attacked him with the machete.
Ms McKenzie says that in his video record of interview not only did he deny having any relevant intent but he said that he struck the complainant with the back of the blade and, I think, on only one occasion. Ms Martin, on the other hand says that the evidence of the wounds and the surrounding circumstances would lead to the only inference at the very least of an intention to cause serious harm.
The complainant received multiple deep lacerations, including lacerations over both cheekbones, a 4‑centimetre laceration to his scalp and lacerations to his arms and legs. Ms Martin submits there were deep lacerations, indicating at least four blows to the head and face with the sharp edge of the machete blade. The material before me, albeit presently untested, would seem to support that.
It is said by Ms McKenzie that other factors going to the exceptional circumstances requirement are first of all the support given to the applicant now again by his de facto partner, the need for him to provide financial, physical and emotional support to her and the child, that there is nothing to suggest the applicant will not attend for his trial and what she described as significant hardship to the family if the applicant is not released on bail.
In her affidavit Ms Bilston says that she has had some financial difficulties since the applicant has been in prison and that it would certainly be easier for them to manage if he were released and obtained a job to contribute to household expenses.
I accept Ms Martin's submission that, put that way, those matters are not capable either by themselves or in combination with other factors of constituting exceptional circumstances; likewise, the assertion at [28] of Ms Bilston's affidavit that their daughter appears to miss her father and is herself receiving ongoing counselling in respect of issues arising out of the attack by the complainant on her and Ms Bilston.
I have already mentioned the strength of the crown case and I accept Ms Martin's submission about that. I do not accept for present purposes the assessment proffered by Ms McKenzie. The other considerations to which Ms McKenzie referred in reliance upon an aggregation of circumstances establishing exceptional circumstances do not, to my mind, constitute such.
As I have already said, on the material before me I consider there to be a very strong prosecution case. The circumstances alleged are particularly serious. If the applicant were to be convicted the offences would attract a substantial term of imprisonment. In my view the charges are allegations of such grave and dangerous criminal conduct as to make a grant of bail inappropriate.
I note that the applicant is due to face his trial in Kalgoorlie in 2 months. Overall, and having regard to the considerations which I have mentioned, I do not consider that exceptional circumstances have been shown as would justify a grant of bail. That being so, the application must be refused.