Kaokula v The State of Western Australia
[2014] WASC 189
•5 MAY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KAOKULA -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 189
CORAM: COMMISSIONER SLEIGHT
HEARD: 5 MAY 2014
DELIVERED : 5 MAY 2014
FILE NO/S: MBA 16 of 2014
BETWEEN: KASPER KAOKULA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :MBA 17 of 2014
BETWEEN :KULDAR KAOKULA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail application - Turns on its own facts - Applicants in Australia on temporary visas
Legislation:
Bail Act 1982 (WA)
Result:
Bail granted
Category: B
Representation:
MBA 16 of 2014
Counsel:
Applicant: Ms S Naumovski
Respondent: Ms M Mattocks
Solicitors:
Applicant: Tudori & Co
Respondent: Director of Public Prosecutions (WA)
MBA 17 of 2014
Counsel:
Applicant: Mr M Millington
Respondent: Ms M Mattocks
Solicitors:
Applicant: Mark Millington, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99
Ribot-Cabrera v The Queen [2004] WASCA 101
COMMISSIONER SLEIGHT:
(This decision was delivered ex tempore and is edited from the transcript.)
The applicants, Mr Kaspar Kaokula and Mr Kuldar Kaokula apply for a grant of bail. The applicants made an initial application for bail before his Honour Magistrate G R Smith on 13 March 2014. The learned magistrate refused bail to both applicants. This application before the Supreme Court is made pursuant to s 14 of the Bail Act 1982 (WA) which gives jurisdiction to a judge of the Supreme Court to exercise a power to grant bail, which is conferred upon any other judicial officer. The jurisdiction of a judge may be invoked by application by either the prosecutor or the accused and whether or not any other judicial officer has previously refused bail in respect of that appearance.
The applicants are charged with an offence under s 294(7) of the Criminal Code (WA) that on 12 February 2014 at Denbarker the accused, with intent to do some grievous bodily harm to one Hassan Haidary and Suhbah Haidary, unlawfully threw at the person of the said Hassan Haidary and Suhbah Haidary a flammable fluid, namely petrol. The maximum penalty on conviction for this offence is 20 years' imprisonment.
Magistrate Smith, when refusing bail on 13 March 2014, stated in his reasons as follows:
In my view there's an unacceptable risk that each accused will flee Australia even if neither has a passport. For that reason, and also for the seriousness of the allegations, bail is refused.
Allegations
The allegations are that at about 4.15 pm on 12 February 2014, the accused persons were parked in a Toyota Camry sedan across Seymour Street, Denbarker (which is near Mount Barker). At this time Mr Hassan Haidary drove his Holden Apollo sedan along Seymour Street, Denbarker. His daughter, aged 3, was seated in a car seat in the driver's side rear passenger seat of the vehicle.
Mr Haidary and the accused are known to each other as they all work at the same farm. Mr Haidary is the supervisor of the girlfriend of the accused Mr Kaspar Kaokula.
As Mr Haidary's vehicle approached the accuseds' position, Kaspar Kaokula, it is alleged, drove his vehicle across the victims' path, blocking the road. A witness, Mr Light, was travelling in front of Mr Haidary's vehicle. Mr Light was also impeded by the accused persons' vehicle across the roadway. As Mr Light's vehicle approached the obstruction on the roadway, Mr Light was 'waved' around the accused's vehicle by the accused.
Mr Haidary's vehicle drove towards the accuseds' vehicle and stopped. He asked the accused Mr Kaspar Kaokula if he required assistance. Mr Kaspar Kaokula is alleged to have stated, 'I will show you', and picked up a jerry can of fuel, throwing a considerable quantity of the fuel over Mr Haidary's vehicle. Mr Kaspar Kaokula also threw fuel through the open window of the vehicle. It is alleged that approximately 25 ml of fuel landed on both occupants of the vehicle. It is alleged the accused Mr Kuldar Kaokula approached Mr Haidary's vehicle, lit a cigarette lighter and attempted to ignite the fuel. However, it is alleged his lighter extinguished prior to being able to ignite the fuel.
Mr Haidary, fearing for his safety and that of his daughter, accelerated his vehicle and attempted to leave the scene. Mr Kaspar Kaokula dropped the jerry can he was holding and ran towards Mr Haidary's vehicle. The accused Mr Kaspar Kaokula attempted to ignite the fuel with another cigarette lighter, but was unsuccessful.
Mr Haidary left the scene. The accused persons followed Mr Haidary in their vehicle until Mr Haidary got to his place of employment.
The accused persons then decamped the area and on 13 February 2014 were arrested in Northbridge. Both accused participated in an electronic record of interview in which they denied the offence.
Evidence produced by the State in opposition to the bail application
The State opposed the application for bail before the learned magistrate and maintains that opposition to bail on the application before this court.
The State has tendered a number of written witness statements in support of its opposition to bail. There are five statements relating to commission of the offence and they consist of:
(1)A statement of Mr Hassen Haidary dated 12 February 2014.
(2)A statement of Mr Hassen Haidary dated 13 February 2014.
(3)A supplementary statement of Mr Hassen Haidary dated 17 February 2014.
(4)A statement of Mr Ryan Keith Light dated 13 February 2014.
(5)A statement of Mr Clinton Young dated 13 February 2014.
The first two statements of Mr Hassen Haidary dated 12 February 2014 and 13 February 2014 give a description of the alleged offence, substantially in terms of the summary given earlier by me. Mr Haidary's supplementary statement goes to the issue of motivation. Mr Haidary describes, in his supplementary witness statement, tensions between Mr Haidary and Mr Kaspar Kaokula's girlfriend concerning work‑related issues.
Mr Light, in his witness statement, describes an incident where he was driving his motor vehicle on a roadway near Denbarker at about 4.30 pm on 12 February 2014 when he approached a vehicle pulled across the road, blocking the roadway. Mr Light described two male persons standing adjacent to the vehicle blocking the road. Mr Light stated he slowed his vehicle down and came to a stop about 100 m away from the vehicle blocking the road. One of the persons standing near the vehicle blocking the road approached Mr Light's vehicle and, on identifying Mr Light, apologised and stepped out of the way. Mr Light then drove his vehicle partly off the road in order to manoeuvre his vehicle around the vehicle that was still blocking the road.
Mr Young, in his statement, stated that he was at the hotel in Mount Barker at about 1.00 pm on 12 February 2014. At about 2.00 pm, Mr Young observed the accused Mr Kaspar Kaokula come into the bar and Mr Young had a conversation with him. In this conversation, it is alleged that Mr Kaspar Kaokula stated that he hated Mr Hassen Haidary and that he was going to 'smash him'. It is alleged Mr Kaspar Kaokula stated the reasons that he wanted to do this was because of the way Mr Haidary had spoken to Mr Kaspar Kaokula's girlfriend.
Mr Young stated that he warned Mr Kaspar Kaokula that Mr Haidary was a kickboxer, to which Mr Kaspar Kaokula replied, 'It doesn't worry me. I will find a way'. Mr Young said that he warned Mr Kaspar Kaokula he could be charged and sent to gaol; to which Mr Kaspar Kaokula replied 'I don't care. I have been to gaol a few times. I can handle gaol'.
Legal principles
The grant or refusal of bail to an accused before conviction is at the discretion of the court and that discretion shall be exercised having regard to the matters listed in cl 1 of pt C of sch 1 of the Bail Act. Relevantly, this clause provides that the discretion to grant bail shall be exercised having regard to the following questions, as well as to other matters which the court considers relevant:
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
When considering these matters, in particular the matters set out in cl (a) of that subsection, the judicial officer shall have regard to the matters listed in cl 3 of pt C of sch 1, as well as any other matters the judicial officer considers relevant. The items listed in cl 3 are as follows:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The construction of these provisions of the Bail Act were considered in Milenkovski v The State of Western Australia [2011] WASCA 99
The following principles emerged:
1. Clause 1 of pt C contains no express statutory presumption for or against bail. Rather, the grant or refusal of bail is at the discretion of the person invested with jurisdiction who is required to have regard to the questions in pars (a) ‑ (g) and to any other questions the decision‑maker thinks relevant. However, the correct approach to the exercise of the discretion is sourced in and guided by the matters in pars (a) ‑ (g). There are a number of significant points to note. First, the matters in pars (a) ‑ (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
2.With the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in par (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
3.The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
4.The relevance of the seriousness of the offending is primarily twofold:
(i)it may be that the likely penalties that will be imposed provide an incentive for an accused not to attend court (see Ribot-Cabrera v The Queen [2004] WASCA 101 [50] (Steytler P & EM Heenan J); and
(ii)the nature of the allegations may suggest that to leave the accused at liberty creates a risk of reoffending and therefore bail should be refused in order to protect the public.
Personal circumstances of the applicant
The applicant Kaspar Kaokula is 24 years of age. He is single and he has no children. Mr Kaspar Kaokula normally lives in Estonia and arrived in Australia in March 2013 on a working holiday visa. This expired in March 2014, but was renewed, and the new expiry date is in March 2015.
Mr Kaspar Kaokula has no prior convictions in Australia. He has traffic convictions, according to an Interpol report, but there is no history of convictions before me of committing any violent offence. He is willing to comply with any conditions of bail set. He is also able to obtain a surety. He proposes to live in Perth at 49 Charles Street, Maylands. This is a residential property occupied by his girlfriend and others.
The applicant Kuldar Kaokula is aged 38. He also is single and has no children. Mr Kuldar Kaokula also normally lives in Estonia and arrived in Australia in September/October 2013 under a working holiday visa for 12 months. This visa expires in October 2014. Prior to being arrested, Mr Kuldar Kaokula had booked a flight to leave Australia on 15 February 2014. The flight was booked on 14 January 2014; that is, prior to the commission of the alleged offence. He has no prior convictions in Australia. He has traffic convictions in Estonia and has served a brief period of imprisonment, according to Interpol, for traffic matters. He is willing to comply with any conditions of bail that are set by the court. He is also able to obtain a surety. He also proposes to live in Perth at 49 Charles Street, Maylands.
Compulsory questions
The first issue to consider is whether the accused persons, if granted bail, will fail to appear in court, commit an offence, endanger other people or property; or interfere with witnesses. It is relevant in considering these issues to take into account the seriousness of the alleged offence and the other factors listed in cl 3 of pt C of sch 1.
On the alleged facts, both accused persons face a very serious charge. If the accused persons had successfully ignited petrol that had allegedly been thrown at Mr Haidary's vehicle and the occupants, the consequences for Mr Haidary and his young daughter would have been catastrophic. The nature of the alleged offence suggests a ruthless attitude by the accused and a disregard for the consequences in order to harm Mr Haidary.
It is relevant to consider the strength of the State's case. Certainly the State's case depends upon the credibility of Mr Haidary. His credibility is significantly boosted by the evidence of Mr Light and Mr Young, although counsel appearing for Mr Kaspar Kaokula says that her client, although acknowledging a conversation, disputes that he made any threats against Mr Haidary.
No forensic evidence has been presented on this application to support the allegation that the accused persons doused the vehicle of Mr Haidary and its occupants with petrol. The prosecutor has indicated two persons have indicated that they spoke to Mr Haidary immediately after the incident and smelt petrol, but a statement has yet to be obtained from these persons. Without any forensic evidence, it is difficult to assess the strength of the State's case as, ultimately, whether the State is successful in this prosecution will depend upon whether a jury accepts the credibility of Mr Haidary.
There is no material that the accused have threatened or be likely to threaten witnesses or other members of the public or threaten or be likely to threaten the trial process. The State contends that there is a risk to the complainant if the accused are released on bail. However, Mr Haidary lives in Denbarker. A condition can be set that the accused persons remain in Perth and these conditions will substantially, in my opinion, reduce the risk to the complainant. Although the alleged offence is serious, the alleged offence, in my opinion, is not so serious that the grant of bail is, per se, inappropriate.
It is relevant in this matter to take into account that both accused are in Australia on a temporary visa only. Both normally live in Estonia and all their family (other than an older brother studying in Western Australia) live in Estonia. There is, by virtue of the seriousness of the offence and the lack of connection to Western Australia, a flight risk.
The State has tendered further statements, being statements of friends and associates of the two accused persons. These statements were of Ragne Bergvald, Mihkel Sinivesi, Lauri Taurum and Artur Magomedon. All of these persons are from Estonia. I do not propose to go into detail of the contents of these statements other than to state that they explain the circumstances and movements of the accused persons on leaving the Denbarker area immediately after the commission of the alleged offence.
In my opinion, is clear from these statements that the accused persons and their associates had resigned their positions of employment prior to the commission of the alleged offence. They intended to leave the district in any event. I am not convinced that the contents of these statements demonstrates that there was a surprising haste in leaving the district or an intention to take flight in order to avoid being arrested.
In my opinion, the State's concern that the accused will take flight can be reduced significantly by requiring the accused to surrender their passports and identification cards. It is difficult to see how the accused would be able to leave the country without a passport or a travel document. Ms van Hattem, who is the Honorary Consulate of Estonia in Western Australia, gave evidence before me. She indicated that a passport can be replaced on application to the Estonian authorities, but on receiving notification of any restriction imposed by this court, that such documents would not issue.
Without a passport or a travel document, it is difficult to see how the accused could leave the country unless they are connected to some supporting sophisticated criminal group. There is no evidence that that is in fact the case here. However, such a condition will not prevent the accused persons from failing to attend court and absconding to other parts of Australia. However, the risk of the accused persons absconding to other parts of Australia can be reduced significantly by placing conditions upon their movement and requiring them to report to the local police station on a regular basis.
Conclusion
Having considered all factors, on the balance I conclude that bail should be granted. I consider that the risk of flight, notwithstanding the seriousness of the alleged allegations, can be minimised by imposing appropriate conditions. Further, I am satisfied that the risk to other persons, including the complainants, can be reduced by placing tight controls upon the movement of the accused persons.
I will grant bail in the sum of $5,000 with a similar surety. I will set the following conditions:
(1)Until further order of the Supreme Court, District Court or Magistrates Court of Western Australia, the accused are to reside at 49 Charles Street, Maylands.
(2)Until further order of the Supreme Court, District Court or Magistrates Court of Western Australia, the accused are not to go beyond a 100 km radius of the Perth GPO.
(3)Until further order of the Supreme Court, District Court or Magistrates Court of Western Australia, the accused persons are to report to the Perth police station each Monday, Wednesday and Friday, between the hours of 10.00 am and 3.00 pm.
(4)Until further order of the Supreme Court, District Court or Magistrates Court of Western Australia, the accused persons are to surrender passports and identification cards to the Western Australian Police Force and not to apply for replacement passports, identification cards or travel documents.
(5)Until further order of the Supreme Court, District Court or Magistrates Court of Western Australia, there are to be protective bail conditions that the accused persons are not to approach within 100 m of the complainant, Hassan Haidary, or any member of his family or his place of work or residence.
(6)Until further order of the Supreme Court, District Court or Magistrates Court of Western Australia, the accused persons are not to contact, directly or indirectly, any person (other than Ragne Bergvald) who has provided a statement to the police in relation to the prosecution.
Order for non-publication of decision
I order that, other than to report that bail has been granted/refused, my reasons for my decision are otherwise suppressed until completion of the trial or further order of the court except as to:
(a)the parties to this application and their respective counsel and solicitors;
(b)any counsel or solicitors who are or may be retained or instructed to act for the respondent or accused in connection with the prosecution proceedings;
(c)any judicial officer or staff of the Supreme Court of Western Australia, the District of Western Australia or the Magistrates Court of Western Australia;
(d)any police officer.
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