Kakai v The State of Western Australia - [2014] WASC 109

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KAKAI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 109

CORAM: SIMMONDS J

HEARD: 7 MARCH 2014

DELIVERED : 7 MARCH 2014

FILE NO/S: MBA 6 of 2014

BETWEEN: WILFRED MUTO KAKAI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal procedure - Bail - Bail Act 1982 (WA) sch 1 pt C cl 1 and cl 3

Legislation:

Bail Act 1982 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Ms A M Padmanabham
Respondent: Mr B F Stanwix

Solicitors:

Applicant: Alana Padmanabham, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)

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

Hedgeland v The State of Western Australia [2011] WASC 181
Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99
SIMMONDS J:
(This judgment was delivered extemporaneously on 7 March 2014 and has been edited from the transcript).

I have reached a determination in this matter, and I should explain how I arrived at it, having reflected on the helpful submissions I received from both counsel, considered in the light of the most recently provided material, being a letter or a note addressed to counsel for the applicant by the complainant, Ms Pollard, in respect of two of the present three offences.
This is an application for bail in relation to three charges pending in the Perth Magistrates Court. A previous application to Magistrate R H Bromfield in that court was unsuccessful.
I should first set out the background to the present application.
On 23 January 2014, the applicant appeared before Magistrate Bromfield on those three charges.
PE 63722 of 2014 is that on 22 January 2014 at Osborne Park, the applicant unlawfully assaulted the complainant and thereby did her bodily harm in circumstances of aggravation, namely the applicant was in a family or domestic relationship with the victim. There is a maximum penalty of 7 years' imprisonment for that offence, at least if tried on indictment.
PE 63723 of 2014 is that on the same date, in the same place, the applicant threatened unlawfully to kill Ms Pollard, the complainant, and that, too, carries a maximum penalty of 7 years' imprisonment, again, at least if on indictment.
PE 63724 of 2014 is that on the same date, but at Mirrabooka, which was the place to which the applicant had been taken following his arrest, the applicant had in his possession a prohibited drug, namely amphetamine. That is an offence under the Misuse of Drugs Act 1981 (WA) which carries a heavier penalty, at least if dealt with the District Court or the Supreme Court, being a fine not exceeding $20,000 or imprisonment for a term not exceeding 10 years, or both.
I have noted the statement of material facts in relation to those three matters. I consider that I need to recite the statements, recognising, of course, and I here affirm, that these are, of course, allegations. They have not been proved.
With respect to PE 63722 of 2014, the applicant was at a unit on Cape Street in Osborne Park. The complainant lived in that unit. The applicant entered the first floor bedroom through the window to that room in the unit. He was confronted by the complainant. The applicant grabbed the complainant by her hair and pulled her onto the bed. He stood over her and punched her twice in the face with the closed fist of his right hand.
While he was still on the bed, he picked up a DVD player and, holding it above his head, threw it at the complainant's head, striking her in the side of her left eye. The applicant then picked up a silver portable stereo and threw it at the complainant's head, striking her in the left side of her face. The complainant kicked the applicant and was able eventually to leave the unit and call police.
However, the applicant approached the complainant again, near the letter box at the front of the unit complex. The applicant was brandishing a wooden stick approximately a metre long, and he struck the complainant numerous times on the abdomen, legs and forearm.
As a result of the assault, the complainant sustained injuries in the form of bruising under her left eye and on her legs, with marks and redness to her abdomen and scratches and redness to her forearm.
The applicant is 34 years old, of medium build and 175 cm tall. The complainant is 29 years old, of medium build and 170 cm tall. It appears to have been common ground before Magistrate Bromfield, and it was before me, that until their separation approximately 18 months ago, prior to the alleged incident, the applicant had been in a de facto relationship with the complainant that had lasted several years. They have a son, now 1‑year‑old.
There are, as I will shortly indicate, indications that that relationship may, at least from the perspective of the complainant, be one that she is prepared to or is seeking to resume, particularly in the interests of their son. That material was not available to Magistrate Bromfield, as far as I am able to tell.
Following his arrest, the applicant participated in an electronically recorded interview. He denied the aggravated assault offence. When he was shown a photograph of the complainant's injuries he said she must have fallen over. I immediately note, as his counsel did before Magistrate Bromfield, that any such explanation is, of course, simply a matter of what he said at the time, not necessarily reflective of a final or determined view.
With respect to PE 63723 of 2014, on the same date, while the applicant was present inside the unit, he was armed with a large kitchen knife as a result of an argument he had had with the complainant. The applicant grabbed the complainant by the throat with his left hand and pushed her backward over the kitchen counter in the unit. The applicant had then held the point of the knife to the complainant's face and neck, touching her skin. While doing this the applicant said, 'I am ready this time. Let's do this. I am going to kill you, bitch'. While being held in the position by the applicant, the complainant felt fearful for her life and believed the applicant was going to slit her throat.
In the electronically recorded interview that I have referred to, the applicant denied the threat to kill offence. He stated that the complainant was manipulative and a liar.
With respect to PE 63724 of 2014, on the same date the applicant was arrested for the previous two matters. A wallet belonging to him was removed from his pants. He was conveyed to the Mirrabooka police station, where his wallet was searched and a small clip seal bag was located. The bag contained trace amounts of methylamphetamine.
In an electronically recorded interview the applicant made full admissions to the possession offence. He stated the amphetamine was his own and he was about to use it.
At the hearing before Magistrate Bromfield on 23 January 2014 the applicant pleaded not guilty to the aggravated assault and threat to kill charges. He was not asked to enter a plea with respect to the possession of amphetamine charge.
Magistrate Bromfield, on that day and the following day, 24 January 2014, heard submissions on an application for bail and concluded by refusing it. As I explained in the hearing before me today, it is not, it seems to me, in all the circumstances, of even informational significance for me to consider why Magistrate Bromfield arrived at the position he did. Information put before him of the kinds that I have referred to are matters that I can use in the hearing today, as I will again explain. However, beyond that Magistrate Bromfield's decision, in terms of the reasons for it, are not matters for me to reflect upon.
Magistrate Bromfield then set a committal date for the two charges of the aggravated assault and threat to kill, to proceed on indictment, as Magistrate Bromfield put it, for 24 April 2014 and the charge, possession of amphetamine, was confirmed as for mention only. The applicant was remanded in custody to appear on that 24 April date by video link.
The present application is in relation to all three charges. It is expressed to be made as subject to the Bail Act 1982 (WA) sch 1, pt C, the application being made on any terms or conditions the court may see fit to impose. Initially, I had thought, consistently with what was put to Magistrate Bromfield and what was before me in written submissions from the applicant, that the language I just referred to fell short of acceptance of a surety condition, because the applicant was not in a position to find a surety. That circumstance, I was told today, has changed, at least to the extent of the applicant having identified a possible - if not necessarily a guaranteed - surety.
The solicitor for the applicant swore an affidavit in support of the application, I call it the supporting affidavit. She also provided written submissions in support of the application. For the state there are written submissions in response to the application. There is also an affidavit of counsel for the state. I call those the affidavit for the state and the state's written submissions. I also have a criminal record for the applicant, running some 11 pages and shown as complied 23 January 2014, 07:45:22. I call that the applicant's criminal record.
I briefly describe the approach to the decision as to bail.
My jurisdiction is original. I am in no sense engaged in a review of Magistrate Bromfield's decision to refuse bail. It is important that I confirm that.
The general approach to the grant of bail is determined by Bail Act sch 1, pt C, cl (1) read with cl (3). In a case like this, as counsel for the applicant reminded me, there is no question here of establishing exceptional circumstances. They are not called for. As they are not called for by the legislation, they are not matters which I am called upon to address.
The authority that explains in some detail how the approach to the grant of bail so determined is to be understood is Milenkovski v The State of Western Australia [2011] WASCA 99, particularly at [39] ‑ [43] and [34] in the judgment of her Honour, McLure P (Pullin JA & Hall J agreeing). In Hedgeland v The State of Western Australia [2011] WASC 181 [16], I extract 10 principles, which I will not repeat here, that I take from Milenkovski. I also, as noted in Hedgeland [15], by reference to Milenkovski [34] read with [35], that the Bail Act is to be approached as a comprehensive code on the subject of bail. Authorities, including Court of Appeal authorities that might be read to a different effect prior to Milenkovski, should not be so relied upon.
I note that in determining the present application I may receive and take into account such information as I see fit, whether or not the same would normally be admissible in a court of law. I note the reference to information for this purpose, Bail Act s 22. The weight of that information is, of course, a distinct consideration. This enables me to take into account material in, but also going beyond, material the subject of the two affidavits before me.
It includes, for example, the note that I have referred to from the complainant. It also includes material before Magistrate Bromfield. I have referred, in that last respect, to what I take from that hearing for my purposes. I refer, as a most helpful authority in this respect to Lai v The State of Western Australia [2010] WASC 334 [20] ‑ [25] (EM Heenan J).
I understood the basis for the present application to be as follows, in summary: that, on the information which I may take into account, properly weighed, the answers to the applicable questions in Bail Act sch 1, pt C, cl 1(a) read with cl 3 and cl 1(e), all either point towards the grant of bail or do not sufficiently point away from it.
I turn then to consider those matters, beginning with the questions in cl 1(a). The relevant subparagraphs for this purpose, as was specifically confirmed before me, are subparagraphs (i) through (iv). The state submitted, and this was specifically confirmed in oral submissions before me following the written submissions from the state, that the questions that arise could be distilled down to its contention that, if the applicant were not kept in custody he might assault, intimidate or otherwise interfere with the complainant.
It was common ground that the complainant would be an important witness. Indeed, I am prepared to accept she would be an indispensable one at the eventual trial, if one does occur, on the aggravated assault and threaten to kill charges. I leave aside the possession of amphetamine charge.
For the purpose of that contention, the state drew to my attention two matters. The first was the applicant's criminal history, for what the state said it showed as to the applicant's general disobedience of directions given by police and orders made by the courts, to which counsel for the applicant added what might be called general instructions from the laws of the state, in particular Misuse of Drugs Act on the use of illicit substances.
Also the state drew to my attention what it said the applicant's criminal history showed as to the applicant's particular willingness to disobey such orders and directions where they related to the protection of the complainant.
The other matter to which the state drew my attention was what the state said was a domestic violence dynamic between the applicant and the complainant, demonstrated by the present alleged offending, the prior convictions relating to the complainant in the applicant's criminal history, and certain charges brought against the applicant in respect of alleged unlawful conduct involving the complainant, where those charges were discontinued following the withdrawal of cooperation by the complainant.
By this reference to a domestic violence dynamic, I understood the state to be saying that, from what had occurred concerning previous charged incidents of unlawful conduct by the applicant towards the complainant, there was a reason to be apprehensive that that history would be repeated. I took the state, for the purposes of these submissions, to be relying upon Bail Act sch 1, pt C, cl 3, in particular upon cl 3(b), with respect to previous convictions and antecedents and (d), the strength of the evidence against the applicant.
In respect of cl 3(d), both counsel addressed me, the counsel for the state in written submissions and counsel for the applicant in oral submissions. The state directed my attention to evidence of three types, which it said makes the prosecution case more than merely oath on oath. The applicant was found by the police at the scene shortly after the incident; objects consistent with the account of the complainant, were also found at the scene, namely, a DVD player, a stereo, a security grille lying on the ground, a stick and a large knife; and the injuries to the complainant photographed at the scene were said to be consistent with her account.
I should indicate that I accept the characterisation of the case of the state as being more than merely oath on oath. I have heard what counsel for the applicant said to me, that the case was not a particularly strong one. However, it seems to me that by virtue of cl 3 I am required to evaluate that case as it stands at present when there has not been an opportunity for the applicant to test the case thoroughly or, indeed, at all and if the applicant saw fit, adduce evidence of his own. In that light, it seems to me that it is, in my view, impossible to resist the view that it is a strong case, subject to the qualifications I have described.
I turn then to examine the matters the state commended to me and consider the position of the applicant in respect of those.
That is because, of course, the questions in cl l(a)(i) to (iv) go to matters of the possibilities referred to there, where it would naturally fall to the state to point to matters which go to such possibilities and for the applicant to respond if it saw fit with respect to those matters.
As to the applicant's criminal history, for what the state said it showed as to general disobedience, as I have indicated, as well as the applicant's particular willingness to disobey orders and directions where they related to the protection of the complainant, I have noted the 16 matters from the criminal record which the written submissions for the state direct me to.
Most notably, there is a conviction for breach of violence restraining order in May 2004 in respect of a former partner of the complainant.
I leave aside a May 2004 conviction for breach of bail in relation to the charge of that offence because of the explanation of confusion about the correct date for the applicant's appearance to which the submissions for the state refer.
In August 2004, there were four convictions of unlawfully remaining in premises, damage, resisting police and assaulting a police officer arising out of a domestic disturbance, where the complainant refused to leave the address, broke a window, resisted police attempts to place him in a police vehicle after he had been arrested and then assaulted a police officer.
In February 2005, there was a conviction for giving false personal details to the police, and a conviction of a breach of a conditional release order.
In May 2006, there was a conviction of a breach of a suspended imprisonment order and conviction of a breach of a conditional release order or a community order.
In August 2006, there was a conviction of a breach of a move-on notice in circumstances of disorderly conduct.
In May 2007, there was a conviction of breach of a suspended imprisonment order.
In June 2007, there was a conviction of disorderly behaviour in public, which involved him yelling obscenities at police.
In June 2007, there was a conviction of breach of a move‑on notice, which was a notice issued to the applicant, which he then scrunched up in front of police and threw to the ground, apparently in circumstances involving consumption of illicit substances.
In November 2008, there was a conviction of giving false personal details to the police, where they had attended his home address in connection with an incident of fighting there.
In December 2010, there was a conviction of giving false personal details to the police.
In January and March 2013, there were convictions of obstructing public officers, assaulting a public officer, disorderly behaviour in public and failing to comply with a request to give personal details to the police. This offending related to a disturbance at what I understand to be the unit where the complainant lives, involving the applicant struggling to avoid police officers putting him in restraints after they had arrested him, becoming abusive to a police officer who came to the scene and refusing to supply his personal details when requested to do so, with an assault on one of the attending officers coming shortly afterwards.
In October 2013, there was a conviction of a breach of a police order, where he had been given a 72 hour police order requiring him among other things not to enter or remain upon, or go within 100 m of the unit where the complainant was living or be within 100 m of her. After being called to the unit complex at about 9.10 pm the following evening, police saw the applicant in the rear yard there and subsequently found him hiding in an upstairs bedroom.
Finally in November 2013, there was a conviction of failing to obey an order given by an officer for which, I note, he was fined, as he was for all the previous convictions that I have noted or in respect of which an order was simply continued. The applicant had been given a move‑on notice requiring him to move 500 m away from the unit in which the complainant live, and not to return until after 9.00 pm the following day. At 9.50 am the following day, police were called to the unit complex where they saw the applicant in the rear yard there. On seeing the police, the applicant jumped the fence and ran away. This offence, it may be noted, as the state's written submissions do, was committed less than a week after having been convicted and punished for the offence for which he was convicted in October 2013.

It seems to me - and the contrary was not pressed strongly by counsel for the applicant - that the applicant's criminal record tends to show the matters which the state puts. At the same time, it must be noted that the offences were ones in respect of which fines were imposed, as I have said, and they followed a pattern which is not altogether continuous.
That then takes me to the second matter that the state drew to my attention for the purposes of their contention that, if the applicant were not kept in custody, he might assault, intimidate or otherwise interfere with the complainant. This is the domestic violence dynamic I referred to.
I have already referred to the present alleged offending being, I repeat, alleged offending, and the prior convictions relating to the complainant in the applicant's criminal history. That then takes me to the charges brought against the applicant in respect of alleged unlawful conduct involving the complainant.
There were seven of these, prosecution of which had been discontinued following the withdrawal of co‑operation by her, including materially altering her account of the incidents in question. I note in passing that there does indeed appear to have been an account of the incidents in this case made by the complainant.
I consider the state to be referring these matters to me as matters they consider are within the general words of Bail Act, sch 1, pt C, cl 3, notwithstanding they were charges that were discontinued. I agree they may be so referred to.
The seven charges were of assault by the applicant on the complainant, a threat to kill her, breaching protective bail conditions in respect of her, aggravated common assault on her, carrying an article with intent to cause fear, aggravated burglary and another breach of protective bail conditions.
I consider those matters, together with the reference to the complainant's position, in particular her change of position with respect to them, against the background of the allegations in this present prosecution and the criminal history matters to which I have referred, tend to show a domestic violence dynamic - I emphasise the word 'dynamic' - of the sort the state refers me to. That domestic violence dynamic is one of some concern.
There is some indication, from the note that was brought to my attention by counsel for the applicant, that this dynamic may be about to repeat itself. However, again I note allegations are the proper characterisation of the present offending and that the charges referred to were discontinued, albeit against the back‑drop I have described.
That takes me then, having noted as I have done, by my treatment of cl 1, the grounds the state has put against bail, to cl 1(e). It seems to me to be appropriate to record that it was in respect of cl 1(e) that the principal burden of the submissions made by counsel for the applicant fell. Counsel for the state's response is a matter I need to address.
As was noted in Milenkovski, cl 1(e) is unlike the other questions in cl 1 in going to whether the matters which would otherwise go to a refusal of bail have been wholly or sufficiently neutralised. Here, I have already referred to the generality of the conditions which the applicant has indicated he is prepared to submit to.
In more specific terms, counsel for the applicant addressed me at some length on conditions prohibiting consumption of alcohol or illicit substances, which I will get back to those in a moment; a curfew; a search at least for a surety; and provision for protective bail conditions, which I would understand to be, at the least, that the applicant not contact or be in communication with the complainant directly or indirectly by any means, even if she initiated contact, and not to approach within the stipulated distance of her or any place where he might expect her to be or allow himself to be approached, including the unit where the applicant now lives.
With respect to the matter of consumption of alcohol and drugs, counsel for the applicant reminded me of the importance of that matter as a back‑drop to the criminal history matters to which I earlier referred, to the extent they pointed to the possibilities the subject of cl 1(a)(ii) to (iv). Those possibilities arose in virtue of consumption of alcohol and drugs operating upon, as counsel for the applicant accepted, a tendency in those circumstances, at least, of the applicant to yield to impulses to anger or aggression or disobedience of authority.
Counsel for the applicant indicated to me that, as is indeed the case, there is no conviction that the applicant has received for breach of protective bail conditions; and that comfort could be drawn from that and from the fact that the applicant has a particular concern, as undoubtedly I could imagine that he does, about the prospect of being returned to custody because of a breach of bail conditions, most notably the protective bail conditions, the no consumption conditions and the curfew conditions.
At the same time the matter is, it seems to me, irreducibly one of degree. There have been orders in the past which the applicant has not complied with notwithstanding a previous history he had of non‑compliance; and the consequences of non-compliance, which, while not leading to a term in custody, were undoubtedly matters of significance. Notwithstanding that prior experience, the applicant had behaved as he had done.
Further, matters of that kind have to be considered against the back‑drop of the domestic violence dynamic I have referred to. This is not a matter of generalised disobedience possibilities but rather disobedience possibilities in the context of such a domestic violence dynamic.
Finally, there is a problem, and I put it that way slightly awkwardly, for reasons which will shortly appear. The problem is that the applicant may have the best will in the world to comply with the protective bail conditions in particular; however, the complainant has indicated, not only in the note, but also by what I was told were her visits to the applicant in prison, an interest in the possibility, at least, of resuming contact, or even perhaps the relationship with the applicant, for the sake, at least in significant part, of their child, who appears to mean a great deal to her and I would assume as well to the applicant.
For his part, counsel for the state stressed matters of the kind to which I just referred, save for the very last, as tending against the possibility that the applicant will indeed have the best will in the world to comply, but in any event, as a reason for extreme circumspection that even with the best will in the world that the applicant would indeed comply.
There were no other questions drawn to my attention from Bail Act, sch 1, pt C, cl 1(a) through (g); and there were no other questions drawn to my attention in terms of the generality of the language that begins cl 1.
The position then at which I arrive is that, having considered the questions and the answers to them that I will now describe, I must exercise the discretion in weighing or balancing those answers referred to in Milenkovski. The answers with respect to cl 1(a)(ii) to (iv) are that I am satisfied there is a significant possibility in each of those cases.
The answer with respect to cl 1(e) is that I am left with a residual concern that the neutralisation referred to in Milenkovski coming from the language of cl 1(a) to cl 1(e) is not apparent.
In the weighing or balancing process that I then must undertake in accordance with Milenkovski in the exercise of my discretion - I emphasise it is a discretion - I have borne all of this in mind.
In the final conclusion on which I have arrived, I would refuse the present application for bail.