Jones v The State of Western Australia
[2014] WASC 234
•1 JULY 2014
JONES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 234
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 234 | |
| Case No: | MBA:26/2014 | 26 JUNE 2014 | |
| Coram: | HALL J | 1/07/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | DANIEL WADE JONES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail Murder charge Whether exceptional reasons for bail exist |
Legislation: | Nil |
Case References: | Bertolami v The State of Western Australia [2009] WASC 269 Fazzari v The State of Western Australia [2004] WASC 71 Hedgeland v The State of Western Australia [2011] WASC 181 Mansell v The State of Western Australia [2011] WASC 170 Mikhail v The State of Western Australia [2010] WASC 238 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) 149 A Crim R 303 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Murder charge - Whether exceptional reasons for bail exist
Legislation:
Nil
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Mr P Sullivan
Respondent : Mr R G Wilson
Solicitors:
Applicant : Paul Sullivan
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bertolami v The State of Western Australia [2009] WASC 269
Fazzari v The State of Western Australia [2004] WASC 71
Hedgeland v The State of Western Australia [2011] WASC 181
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 238
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) 149 A Crim R 303
1 HALL J: The applicant is charged with one count of murder pursuant to s 279 of the Criminal Code (WA). He and a co-accused were initially charged on 17 November 2013 with doing grievous bodily harm. The applicant has been in custody since that time. He has entered a plea of not guilty to the murder charge in the Magistrates Court and has been committed for trial to this court. He is due to appear in this court for a first appearance on 11 August 2014. On 24 June 2014 he filed an application for bail.
2 Section 15 of the Bail Act 1982 (WA) provides that when an accused is in custody for murder the power to grant bail can only be exercised by a judge of the Supreme Court (other than in the case of a child). Section 7B of the Bail Act provides that an accused person charged with murder may make an application to a judge for bail at any time prior to conviction.
3 Section 13 of the Bail Act provides that the jurisdiction to grant bail is exercised subject to, and in accordance with, pt 3 of the Bail Act and pt B, pt C and pt D of sch 1 to the Act. Schedule 1 pt C cl 3C relevantly provides that where an accused is in custody on a charge of murder bail must be refused unless the court is satisfied that there are exceptional reasons why the accused should not be kept in custody and that bail may be properly granted having regard to the provisions of cl 1 and cl 3 of pt C.
4 The use of the word 'exceptional' in cl 3C implies that the reasons justifying a grant of bail in a murder case must be unusual or out of the ordinary: Tieleman v The Queen [2004] WASCA 285; (2004) 149 A Crim R 303 and Bertolami v The State of Western Australia [2009] WASC 269. However, there is no closed list of circumstances which might constitute exceptional reasons: Roberts v The State of Western Australia [2011] WASC 118 [9] - [10].
5 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: Mansell v The State of Western Australia [2011] WASC 170 [3]; Bertolami [9].
6 The rationale for the requirement that bail only be granted in murder cases in exceptional circumstances is that there is a strong inference that a person facing a murder charge is likely to abscond or fail to appear in accordance with his bail undertaking given the severity of the sentence of imprisonment likely to be imposed if guilt is proven: Fazzari v The State of Western Australia [2004] WASC 71.
7 The strength of the prosecution case may be a relevant consideration. Where 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 there are exceptional reasons to grant bail: Bertolami [16]. In such a case the inference that there is a strong incentive to abscond may not be so readily drawn. However, to suggest that the prosecution case is merely not strong or not an overwhelming one is unlikely to meet the criteria of exceptional circumstances.
8 Delay may, in some circumstances, constitute exceptional reasons, either alone or in combination with other factors: The State of Western Australia v Sturgeon [2005] WASC 256; Hedgeland v The State of Western Australia [2011] WASC 181 and Mikhail v The State of Western Australia [2010] WASC 238. In Mikhail Blaxell J granted bail to one of the two co-accused in circumstances where the accused would be in custody for more than two years before coming to trial. However, His Honour took into account the strength of the case against each of the two accused and refused bail in respect of the co-accused because the case against him was strong and notwithstanding the delay. His Honour said:
In my opinion, delay in itself cannot provide exceptional reasons because it is the primary requirement of cl 3C that all accused in murder cases should ordinarily remain in custody until trial. In every murder case there must always be a delay until trial for the purposes of gathering evidence, briefing counsel and enabling general preparation by each side. It is only when there is any additional delay that unnecessarily occurs that there can be any scope for 'exceptional reasons' to arise. This is because of the potential for injustice as a result of unnecessary time spent in custody in the event that the accused is ultimately acquitted. (Conversely, and in the event of an ultimate conviction resulting in a substantial term of imprisonment, no such injustice would occur).
It follows in my view, that in 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 [10] - [11].
9 In the present case the applicant submits that exceptional reasons for a grant of bail exist because the State case is weak, there will be a substantial delay before trial and that he has favourable personal circumstances.
Strength of the prosecution case
10 The prosecution case is that in mid November 2013 the applicant and the co-accused were camping at the Middle Swan Reserve. They had arrived separately, the accused in his white utility and the co-accused with his partner and her children in a Tarago towing a caravan. The Middle Swan Reserve is situated on the Swan River and has a number of car parks, barbeques and some public toilets. The public toilets are a meeting place for homosexual males.
11 At about 1.30 am on the morning of Sunday, 17 November 2013 the deceased arrived at the Middle Swan Reserve and parked near the toilet block. He went into the toilets and entered the disabled toilet cubical. Shortly after he was joined by Jeremy Yarran and they began to engage in sexual activity. As this was occurring the cubical door was kicked open. Two men entered. The prosecution case is that these two men were the applicant and the co-accused.
12 The prosecution case is that the co-accused punched the deceased to the head causing him to fall to the ground. He continued to kick and hit the deceased whilst he was on the ground. The applicant then hit the deceased several times to the head with a metal pole. Whilst this was occurring Mr Yarran retreated to the toilet seat with his arms over his head in an attempt to protect himself.
13 The co-accused then approached Mr Yarran and punched him to the face. He then produced a knife and threatened to stab Mr Yarran. The applicant then approached and hit Mr Yarran with the metal pole, striking his arm as he held it over his face in an attempt to protect himself. Mr Yarran then ran from the toilets pursued by the co-accused still wielding a knife. Mr Yarran was able to flee in his car.
14 The deceased regained consciousness and made his way back to his vehicle but subsequently collapsed. He was assisted by others present at the park and police and ambulance services were called. He was taken to hospital and underwent emergency surgery but died as a result of his head injuries on 19 November 2013.
15 The applicant and the co-accused were arrested at the scene and conveyed to the Midland Detectives Office. They both declined to make any comment in relation to the incident.
16 The applicant submits that the case against him depends critically upon the evidence of Mr Yarran, who was subsequently unable to identify him from a set of digital photographs. It is also suggested that Mr Yarran's description of the two men is inconsistent with one of them being the applicant.
17 For the purposes of this application I was provided with the statements of a number of witnesses, including three statements from Mr Yarran. In his first statement he describes the two men in the following terms. He says that the first man was about five foot eight inches tall, aged around 35 to 45, wearing a light blue singlet and knee length shorts. He said this man had long hair and a goatee beard. He was solidly built. He says that the second man was also Caucasian and about the same height. This man was also aged about 35 to 45 years old and was 'more plumpish' than the first man. He was wearing a dark t-shirt with shorts and his head was completely shaved or bald. He subsequently amended this to say that the man's hair was merely very short. Assuming that the first man was the co-accused it is submitted that the description of the second man does not fit with the applicant. This is principally because the applicant did not have short hair at the time.
18 The prosecution case does not depend solely on the evidence of Mr Yarran to establish that the applicant was one of the two men. A number of other witnesses saw Mr Yarran being pursued by the co-accused out of the toilets. These witnesses place the incident somewhere between 1.00 am and 2.00 am on the morning of 17 November 2013.
19 Significantly, another witness who was camping at the park with her partner was woken at about 1.50 am and states that she could hear a sound like a baseball bat hitting a wall coming from the toilets. This witness, Brenda Bentley, then saw a man running from the toilets being pursued by the co-accused. Ms Bentley then started to walk towards the toilets. She did not feel threatened as she knew the co-accused and did not believe that he would hurt her. As she walked towards the toilets she saw the co-accused standing in the entrance to the male toilets. He appeared to be talking to somebody. She then saw the applicant walk out of the toilets. She knew the applicant because she had previously spoken to him at the park and he had told her that his name was Dan. She subsequently identified both the co-accused and the applicant from digital photoboards. She said that both men then walked off in the direction of where the co-accused's caravan and the applicant's utility vehicle were parked. She said that as they walked away they turned back and looked at her but did not say anything.
20 There is no DNA evidence that assists in identifying the applicant as one of the perpetrators. However, this may not be a matter of great significance since Mr Yarran says that neither of the two men touched the deceased's clothes and the second man only made contact with the deceased using the metal pole.
21 The State concedes that its case is not a strong one but says that it could not be described as weak. I agree with that characterisation. The critical issue in respect of the applicant is likely to be whether a jury can be satisfied beyond reasonable doubt that he was one of the two perpetrators. Mr Yarran's evidences does not stand alone in this regard. It would be open for a jury to accept the evidence of Mr Yarran that two perpetrators were involved and to accept the evidence of Ms Bentley that the applicant was seen leaving the toilet block with the co-accused shortly after the incident. This evidence would be sufficient to support a conclusion that the applicant was the second assailant. This may depend significantly on the credibility and reliability of Ms Bentley as a witness but at present I have no reason to doubt that she will give the evidence set out in her statement.
22 I am not prepared to conclude that the prosecution case is so weak as to constitute exceptional reasons to grant bail.
Delay
23 The applicant was arrested on 17 November 2013 and has been in custody since that date. On the hearing of this application I was advised by counsel for the applicant that any trial was likely to last between seven and eight days and that the earliest date on which such a trial could be listed was March 2015. On this basis the applicant is likely to have been in custody for 16 months prior to coming to trial.
24 I have no reason to doubt that the earliest trial dates are in March 2015. It is certainly my experience as the judge managing the criminal list that trials are presently being listed in mid 2015 and the delay referred to by the applicant's counsel is not uncommon. Indeed a March date is comparatively early compared to other matters and this is likely to be because a seven or eight day trial is more easily accommodated. Murder trials often last several weeks and the availability of dates for such trials are very limited prior to July 2015. None of that is to suggest that the delay in this case is acceptable. The large number of homicide cases presently pending before this court and the limited judicial resources available means that there has been an increasing backlog of cases. However, in any individual case what needs to be considered is whether the delay is such as to constitute an exceptional circumstance either in itself or together with other factors.
25 At present the applicant has been in custody for seven months. He is likely to be in custody for a similar further period before coming to trial. That is undesirable but I am unable to conclude that it is a delay of such a nature as to justify a grant of bail.
26 The issues in this case appear to be comparatively straightforward and there is unlikely to be any impediment to the matter proceeding to trial as planned. Unlike many murder cases, this is not one where further delays due to the unavailability of forensic evidence are likely to occur. I am unable to accept that the delay in this case is such as to justify a grant of bail either in itself or in combination with other factors.
Personal circumstances
27 The affidavit of the applicant states merely that he normally resides with his de facto partner and two school aged children in Broome. It contains nothing by way of personal history or his ability to obtain a surety and comply with bail conditions. However, in written and oral submissions I was given further details of the personal circumstances of the applicant.
28 The applicant is aged 36 years old and has lived in Broome for most of his adult life. He is a boilermaker by trade and normally self-employed. He has a longstanding drug problem and at the time of this incident was travelling in his utility from Broome to Sydney in order to participate in a rehabilitation programme. He was due in Sydney within two weeks of the date of the incident and was on a waiting list for the residential programme.
29 The applicant has a criminal record, which includes a number of serious offences for which he has received terms of imprisonment. Most recently he was sentenced to a total effective sentence of 3 years and 8 months for offences including aggravated burglary and assault occasioning bodily harm on 16 October 2008. He has also been imprisoned for other offences prior to that date. His adult criminal record also includes two offences of breach of bail. The first of those was on 12 March 1998 for which he was fined $50. The second was on 14 June 2001 for which he received a sentence of 4 months' imprisonment concurrent with other imprisonment that was imposed on the same day. Whilst those breach of bail offences were committed some time ago they do not support a conclusion that there is no real risk that the applicant would abscond.
30 I am prepared to conclude that the applicant has a stable residence and is capable of work. He has longstanding established family ties to Western Australia. On the other hand he has failed to comply with bail requirements in the past in respect of offences that are far less serious than that he presently faces. There is nothing in his personal circumstances that could be described as exceptional or that could justify a grant of bail.
31 Having considered all of the factors in this case, both individually and in combination, I am not satisfied that exceptional reasons exist for granting bail. Accordingly cl 3C of the Bail Act requires that I refuse to grant bail.
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