Kickett v The State of Western Australia

[2020] WASC 110

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   KICKETT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 110

CORAM:   DERRICK J

HEARD:   30 MARCH 2020

DELIVERED          :   3 APRIL 2020

FILE NO/S:   INS 241 of 2018

BETWEEN:   WILLIAM WADE KICKETT

Applicant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

Catchwords:

Criminal law - Applicant charged with murder - Application for bail under s 7B(3) and s 15(1) of the Bail Act 1982 (WA) - Whether exceptional reasons for not keeping applicant in custody - Whether bail may be properly granted having regard to questions posed in cl 1 of pt C of sch 1 of the Bail Act 1982 (WA)

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)

Result:

Application allowed

Category:    B

Representation:

Counsel:

Applicant	:	Ms M R Barone SC
Respondent	:	Ms L E Christian SC

Solicitors:

Applicant	:	Angus Hockton
Respondent	:	Director of Public Prosecutions (WA)

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

Bertolami v The State of Western Australia [2009] WASC 269

Broad v Haas [2002] WASC 155

De Faria v The Queen [2012] WASCA 256

Dymock v The State of Western Australia [2019] WASCA 213

Fazzari v The State of Western Australia [2004] WASC 71

Hedgeland v The State of Western Australia [2011] WASC 181

Hoddy v Hawes [2003] W\ASC 22

James v The State of Western Australia [2013] WASC 235

Mansell v The State of Western Australia [2011] WASC 170

Mikhail v The State of Western Australia [2010] WASC 238

Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99

Rayney v The State of Western Australia [2011] WASC 3

Shrivastava v The State of Western Australia [2010] WASCA 96

The State of Western Australia v Samura [2019] WASC 210

The State of Western Australia v Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34

YSN v The State of Western Australia [2017] WASCA 155

DERRICK J:

Introduction

1. Mr William Wade Kickett (the applicant) is charged jointly with Mr Sannah Samura (Samura), Mr Poria Akhbari Sadiqi (Akhbari Sadiqi) and Mr Amirali Farsijani (Farsijani) with one offence of murdering Mr Dejan Dimitrovski (the deceased) contrary to s 279 of the Criminal Code (WA) (the Code).[1]

   [1] Throughout these reasons I will refer to the applicant's co-accused, and the applicant's uncharged alleged co‑offender Mr Saied Akbar Hussaini, by their surnames only.  This will be done for convenience.  No disrespect is intended.

2. The applicant is currently remanded in custody.  He has been in custody since he was charged with the offence of murdering the deceased on 12 March 2019.

3. The trial of the applicant and his three co‑accused is listed to commence on 15 February 2021.  The trial has been set down for approximately three months.

4. The applicant now makes an application to be released on bail pursuant to s 7B(3) and s 15(1) of the Bail Act 1982 (WA) (the Act). The applicant has not previously applied to be released on bail.

5. The applicant has filed in support of the application an affidavit sworn by his counsel Ms Barone SC on 23 March 2020.

6. The State does not take issue with the contents of Ms Barone's affidavit.  I will therefore, for the purposes of dealing with the application, act on the contents of Ms Barone's affidavit.

The State's position in response to the application

1. By an email to the court dated 26 March 2020 counsel for the State, Ms Christian SC, advised the court as follows:

   1.The State 'opposes the application based on the seriousness of the charge' but acknowledges the views that I expressed in relation to 'exceptional circumstances' in dealing with an application for bail made by Samura in June 2019;[2]

   2.The State is unable to advance any submissions as to why the applicant's situation differs from Samura's with respect to 'exceptional circumstances';

   3.The State is not able to point to any other considerations that would make a grant of bail inappropriate, except that the applicant has some prior convictions for offences of breaching protective bail conditions which appear to have been committed in the context of a domestic relationship; and

   4.If the applicant is granted bail, the conditions of his bail should be the same conditions of the bail granted to Samura, with an additional condition prohibiting the applicant from disclosing the contents of the prosecution brief to any person.

   [2] The State of Western Australia v Samura [2019] WASC 210.

2. Senior Counsel's advice that the State opposed the application 'based on the seriousness of the charge' was not, with respect, particularly helpful in that it did not reveal precisely why the State contended that the seriousness of the charge was, in the applicant's case, relevant to the determination of any of the questions that the court is, by reason of the provisions of the Act (referred to below), required to consider in determining the application.  In any event, in light of the contents of the email, and for reasons that are apparent from my below expressed reasons in relation to the 'exceptional circumstances' issue, I requested that the State file submissions dealing with the issue of the strength of the State's case against the applicant. 

3. On 27 March 2020 the State, in response to my above referred to request, filed an outline of submissions dealing with the issue of the strength of its case against the applicant.

4. At the hearing of the application the State substantially maintained the position as set out by Ms Christian in her email.  During the hearing I took the opportunity to ask Ms Christian to clarify the State's position in relation to the precise relevance of the seriousness of the charged offence to its opposition to the application.  Ms Christian did so by stating that the reference in her email to the State opposing the application on the basis of the seriousness of the charged offence was a shorthand way of stating that the State opposed the application on the ground that 'the more serious the charge…the greater … the consequences if convicted and the greater the risk … that a charged person would flee …'[3] 

   [3] ts 534, 30 March 2020.

The alleged facts of the charged offence

1. The alleged facts of the charged offence, briefly stated, are as follows.

2. In August 2017 the applicant, Samura, Farsijani and Akhbari Sadiqi were known to the deceased.

3. Between around 8.00 pm and 8.30 pm on Friday 4 August 2017, the deceased was at his home address of 43 Dallington Crescent in Balga.

4. On the evening of Friday 4 August 2017 Samura and Akhbari Sadiqi drove in convoy to Dallington Crescent.

5. Samura drove to Dallington Crescent in his 2007 white Mercedes SUV ML280 cdi model, registration 1 CNS 104.  Samura arrived in Dallington Crescent at approximately 7.55 pm.  He parked his vehicle close to the deceased's house.  Also in the vehicle with Samura was Farsijani. 

6. The applicant may also have been in the vehicle with Samura and Farsijani at the time that Samura drove to Dallington Crescent. 

7. Akhbari Sadiqi drove to Dallington Crescent in a vehicle that he was in possession of and made use of at the relevant time, namely a 2012 white Lexus sedan IS250X model, registration 1 DZM 236.  Akhbari Sadiqi also arrived in Dallington Crescent at about 7.55 pm.  He parked his vehicle in Balney Place, Balga near to the intersection of Balney Place and Dallington Crescent and close to the deceased's house.

8. On arriving in Dallington Crescent Samura, Farsijani, Akhbari Sadiqi and perhaps also the applicant walked to and entered the deceased's house.  At the time that they arrived at the house another male, Mr Saied Akbar Hussaini (Akbar Hussaini), was already with the deceased in the house.

9. If the applicant did not travel to Dallington Crescent with Samura in Samura's vehicle, he arrived at the deceased's house earlier that evening with Akbar Hussaini.

10. At some point the applicant, Samura, Farsijani, Akhbari Sadiqi, Akbar Hussaini and the deceased, and possibly one or more other persons also, were in the theatre room on the second floor of the deceased's house.  While in the theatre room one or more of the applicant, Samura, Farsijani, Akhbari Sadiqi and Akbar Hussaini, and any other person present, restrained and severely assaulted the deceased.  The assault caused significant injuries to the deceased.

11. At approximately 8.28 pm the applicant, Samura, Farsijani, and Akhbari Sadiqi left the deceased's house.  Samura and Akhbari Sadiqi drove away in their respective vehicles.  Akbar Hussaini remained at the house.

12. At approximately 8.29 pm Akbar Hussaini made a triple 0 call which resulted in the police attending the deceased's house.  When the police arrived at the deceased's house Akbar Hussaini was present and was performing cardiopulmonary resuscitation on the deceased.

13. At the time of the arrival of the police the deceased was lying on the floor in the theatre room.  He was lying on his back.  He was wearing underpants, grey tracksuit pants and socks.  He had visible significant injuries to his body.  He was wet. 

14. Underneath and near to the deceased were lengths of rope and duct tape.  A pillow next to the deceased's head was significantly soiled with blood.  Numerous empty 600 ml plastic water bottles were scattered near the deceased.

15. There was a large amount of blood near the deceased and on two couches that were close to where he was lying.

16. An ambulance attended the deceased's address.  At about 8.45 pm the ambulance officers declared the deceased to be dead.

The cause of the deceased's death

1. On 8 August 2017 forensic pathologist, Dr C T Cooke, performed a post‑mortem examination on the deceased.[4]  On the post‑mortem examination Dr Cooke found the deceased to be suffering from widespread injuries to the surface of his body, particularly to the central part of his face.  The injuries identified by Dr Cooke included fractures to the nose and both of the cheeks, a penetrating stab type injury to the right side of the torso, a penetrating stab type injury to the top of the right foot, bruising to the muscle at the top of the neck, a thin fracture of the main throat cartilage (fractured right superior horn of the thyroid cartilage), and fractured ribs at the front of the chest (most likely the result of CPR).  Dr Cooke also found that the deceased had congested lungs with aspiration into the airways as well as early arteriosclerotic hardening of the arteries.

   [4] Prosecution Brief (PB), 770 ‑ 779, 784.

2. On 29 November 2017 Dr Cooke, following the receipt of results of further investigations, formed the opinion that the cause of the deceased's death was 'injuries to the face and neck in a man with focal coronary arteriosclerosis and amphetamines effect'.

The legal basis for the State's case against the applicant

1. The State's case is that the applicant, Samura, Farsijani, Akhbari Sadiqi, Akbar Hussaini and possibly one or more other persons were all present when the deceased was assaulted and killed, and that it was one or more of the applicant, Samura, Farsijani, Akhbari Sadiqi, Akbar Hussaini and any others present who assaulted the deceased and inflicted the various injuries to him which in combination caused his death.  Therefore the State's case against the applicant will be put on three alternative bases.  First, that if he inflicted any of the injuries which in combination with other injuries caused the deceased's death he was a principal offender within the meaning of s 7(a) of the Code.  Second, that if he did not inflict one of the injuries which in combination with other injuries caused the deceased's death and was therefore not a principal offender, he aided the principal offender or principal offenders in the commission of the offence within the meaning of s 7(c) of the Code by restraining or assisting to restrain the deceased, or by assaulting or assisting in the assault of the deceased, or by obtaining items used to restrain the deceased, or by otherwise rendering the deceased incapable of defending himself, or by being physically present and available to overcome any resistance by the deceased or to prevent the deceased escaping or to prevent the deceased obtaining assistance.  Third, if he was neither a principal offender nor an aider, he was criminally responsible for the murder by reason of s 8 of the Code in that he formed a common intention with at least one of the other persons present to prosecute an unlawful purpose, specifically to inflict serious physical harm to the deceased or to demand something from the deceased with the threat of violence, and that in the prosecution of this unlawful purpose an offence was committed, namely the murder of the deceased, that was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.

2. I note that my above statement of the legal basis for the State's case against the applicant is in accordance with the State's email response dated 9 January 2020 to a request by Farsijani's counsel for the particulars of the State's case.

The applicant's defence

1. The applicant has not disclosed to the court the substance of his defence to the State's case against him. 

The current status of Akbar Hussaini

1. On or about 20 August 2017 Akbar Hussaini left Australia.  He was under investigation but had not been charged at the time that he left Australia.  He is currently believed to be in Iran. 

The procedural history to the application

1. On 31 August 2017 Farsijani and Akhbari Sadiqi were charged with the offence of murdering the deceased.

2. On 17 November 2017 Samura was charged with the offence of murdering the deceased.

3. On 3 October 2018 Samura, Farsijani and Akhbari Sadiqi were committed together to appear in this court on the murder charge.

4. On 18 January 2019 the State filed an indictment charging Samura, Farsijani and Akhbari Sadiqi with the offence of murdering the deceased.

5. On 21 January 2019 Samura, Farsijani and Akhbari Sadiqi appeared for the first time in this court.  On that date the court informed the parties that trial dates of 13 May 2019 to 24 June 2019 were being held on a provisional basis.

6. On 8 February 2019 Samura, Farsijani and Akhbari Sadiqi appeared at a status conference.  They were arraigned on an indictment dated 18 January 2019 containing the charge that they had murdered the deceased.  They all pleaded not guilty to the charge. 

7. On 12 March 2019 the applicant was charged by the police with the offence of murdering the deceased.

8. On 13 March 2019 Samura, Farsijani and Akhbari Sadiqi appeared at a status conference.

9. On 21 March 2019 the applicant, Samura, Farsijani and Akhbari Sadiqi appeared at a status conference (although the applicant had not at this time actually been committed by the Magistrates Court to appear in this court).  At the status conference the provisional May to June 2019 trial dates were vacated and January to April 2020 trial dates were allocated on a provisional basis.  The provisional May to June 2019 trial dates were vacated due to the inability of the applicant's legal representatives to properly prepare for a trial in May 2019.

10. On 27 March 2019 the applicant was committed to appear in this court on the murder charge.

11. On 30 April 2019 the applicant, Samura, Farsijani and Akhbari Sadiqi appeared at a further status conference.  At this hearing the State discontinued the prosecution on the indictment dated 18 January 2019 and presented a fresh indictment dated 29 April 2019 jointly charging the applicant, Samura, Farsijani and Akhbari Sadiqi with the murder of the deceased.

12. In January and February 2020 the commencement date of the trial was, for various reasons none of which are material to the determination of the application, pushed back to 24 February 2020. 

13. On 19 February 2020 the applicant, Samura, Farsijani and Akhbari Sadiqi appeared at a directions hearing.  At the directions hearing an application was made by the applicant to adjourn the trial.  The application was made in light of the very late disclosure by the State (not due to the fault of the State) of a supplementary statement provided by a prosecution witness, Ms Jade Stillwell, the contents of which materially impacted upon the applicant's defence to the charge.  The application for the adjournment of the trial was not opposed by the State.  Nor was it opposed by Samura, Farsijani or Akhbari Sadiqi.  The application was ultimately allowed. 

14. On 28 February 2020 the trial of the applicant, Samura, Farsijani and Akhbari Sadiqi was listed to commence on 15 February 2021.

The applicable statutory provisions and legal principles

1. Section 13 of the Act provides that the jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Act and pt B, pt C and pt D of sch 1 of the Act. 

2. Of particular relevance in the present context is cl 3C of pt C of sch 1 of the Act which relevantly provides as follows:

   Notwithstanding clause 1…or any other provision of this Act, where an applicant 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 applicant 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 applicant should not be kept in custody; and

   (d)bail may properly be granted having regard to the provisions of clauses 1 and 3 ...

3. The Act does not define the term 'exceptional reasons'.  Moreover, the courts have refrained from attempting to provide any sort of list of 'exceptional reasons'.  However, in Shrivastava v The State of Western Australia[5] Mazza J said the use of the word 'exceptional' denotes something which is unusual, out of the ordinary, in some way special or an exception to the general trend of cases.  His Honour said that what might constitute exceptional reasons would depend upon the facts in each particular case.

   [5] Shrivastava v The State of Western Australia [2010] WASCA 96 [28] ‑ [32].

4. Mazza JA's comments were confirmed in De Faria v The Queen.[6]

   [6] De Faria v The Queen [2012] WASCA 256 [13].

5. A single matter or a combination of matters may constitute exceptional reasons.[7]

   [7] Broad v Haas [2002] WASC 155 [15]; Hoddy v Hawes [2003] WASC 22 [61]; Bertolami v The State of Western Australia [2009] WASC 269 [9]; Mansell v The State of Western Australia [2011] WASC 170 [3]; Emile-Bruning v The State of Western Australia [2016] WASC 211 [6].

6. The rationale for the requirement that bail should only be granted in murder cases if there are exceptional reasons for not keeping an accused person in custody 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.[8]

   [8] Hoddy v Hawes [31; Fazzari v The State of Western Australia [2004] WASC 71 [13]; Bertolami v The State of Western Australia [4]; Emile‑Bruning v The State of Western Australia [6].

7. The strength of the prosecution case may be a relevant consideration in determining if there are exceptional reasons for not keeping an accused person in custody.  If 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 exceptional reasons for granting bail will exist.[9]  In such a case the inference that there is a strong incentive for an applicant to abscond may not be able to 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 reasons.[10]

   [9] Bertolami v The State of Western Australia [16]; Emile‑Bruning v The State of Western Australia [8].

   [10] Emile‑Bruning v The State of Western Australia [8].

8. In cases involving a charge of murder a lengthy delay in proceeding to trial is a regrettable common experience for accused persons.  Nonetheless, an unusually long delay before an accused charged with murder can be tried may, in some circumstances, either by itself or in combination with other factors (such as the degree of strength of the prosecution case), amount to an exceptional reason for not keeping an accused in custody.[11]  The strength of the prosecution case will be relevant to the determination of whether an unusually long delay before an accused charged with murder can be tried amounts, either by itself or in combination with other factors, to an exceptional reason for not keeping him or her in custody pending their trial.[12]

   [11] The State of Western Australia v Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34 [50]; Mikhail v The State of Western Australia [2010] WASC 238; Rayney v The State of Western Australia [2011] WASC 3; Hedgeland v The State of Western Australia [2011] WASC 181.

   [12] Mikhail v The State of Western Australia [10] ‑ [11].

1. A common approach to take to cl 3C is to first consider whether there are exceptional reasons why an accused should not be kept in custody and then, if exceptional reasons are established, to consider if bail may properly be granted having regard to the provisions of cl 1 and cl 3.[13]

   [13] James v The State of Western Australia [2013] WASC 235 [23].

Clause 3C(c):  Are there exceptional reasons for not keeping the applicant in custody?

1. The applicant submits that there are a number of circumstances which, considered in combination with each other, justify the conclusion that there are exceptional reasons for not keeping him in custody.  The circumstances pointed to by the applicant are as follows:

   1.The amount of time that he will spend in custody prior to the completion of his trial if he is not granted bail;

   2.The strength (or lack thereof) of the State's case;

   3.The impact which the conditions that he is currently subject to while in custody are having on his ability to adequately prepare his defence;

   4.The impact which the conditions that he is currently subject to while in custody are having on his ability to communicate with his family members;

   5.The hardship currently being experienced by members of his immediate family; and

   6.The risks posed to his health by his remand in custody.

2. I will address each of these identified circumstances in turn.

Delay

1. By the time of the commencement of the applicant's trial he will have been in custody for approximately 23 months.  By the end of the trial he will, in light of the current estimate of its length, have been in custody for approximately 26 months.

2. The delay between the time that the applicant was charged and the date of his trial is not due to the fault of the State.  However, nor is it in any way due to the fault of the applicant.  It has come about by reason of the decision of a prosecution witness to provide additional information which she could have provided at an earlier point in time but refrained from doing so.

3. I note in this context that the delay in this case is not connected with the COVID‑19 pandemic.  The applicant's trial was adjourned before the Chief Justice and the Chief Judge of the District Court issued their joint direction on 16 March 2020 suspending the commencement of new jury trials in this State.  Moreover, the allocated February 2021 trial dates were, as at the date of their allocation and given the state of the court's lists at that time, the earliest dates which the court could allocate to the three month trial of this matter.

4. As I have already acknowledged, accused persons charged in this court with the offence of murder will commonly spend relatively significant amounts of time in custody as an unconvicted person prior to their trial.  This is of course not something that is in any way desirable.  It is simply an unavoidable consequence of the time that it takes to prepare a murder case for trial and the competing demands on the court's resources. 

5. What constitutes an unusually long time for a person charged with murder to be remanded in custody pending the completion of their trial may obviously change over time.  A period that was previously unusually long may, due to the extent of the court's lists or factors beyond the court's control, unfortunately become the norm. 

6. A period of approximately 26 months is on any view of the matter a very lengthy period of time for an accused charged with murder to be remanded in custody prior to the completion of their trial.  It is certainly longer than the periods of time that have, in some of the cases to which I have referred earlier in these reasons, been accepted, either alone or in combination with other factors, as constituting an exceptional reason for granting bail.  Nonetheless, when I take into account the length of time that accused persons charged in this court with murder currently and ordinarily spend in custody awaiting their trial,[14] I am not persuaded that a period of 26 months is so lengthy as to of itself constitute an exceptional reason for not keeping the applicant in custody.  To put it another way, I am not persuaded that the delay of 26 months is sufficiently lengthy to of itself make the applicant's case unusual, out of the ordinary, in some way special or an exception to the general trend of cases.

Strength of the State's case

[14] As at 1 March 2020, the median time to trial in this court from the date of an accused being charged was approximately 19 months.

1. In relation to the issue of the strength of the State's case, it is important to recognise at the outset that it is not, given the nature of both the application before the court and the material before the court, either possible or appropriate for me to attempt to engage in some form of highly refined analysis of the evidence and the various strengths and weaknesses thereof.  Nor is it possible or appropriate for me to attempt to make a definitive assessment of the strength of the State's case.  In addition, it needs to be borne in mind that in considering the strength of the State's case for the purpose of determining if there are exceptional reasons for not keeping the applicant in custody, it is the strength of the State's case on the charge of murder as opposed to a statutory alternative (for example, manslaughter or accessory after the fact) that is relevant.[15]

   [15] James v The State of Western Australia [28].

2. Having made the above points I turn to the submissions of the parties on the issue of the strength of the State's case.

3. The State acknowledges that its case against the applicant is largely circumstantial.  The State submits that its case against the applicant on the murder charge is a strong circumstantial case.  The evidence that has been disclosed by the State and which the State points to in support of its submission that its case against the applicant is a strong case is in summary as follows:[16]

   [16] In the State's written outline of submissions dated 27 March 2020 the pages in the PB and the exhibits comprising the evidence to which I refer are specified.  It is not necessary for me to make express reference to the relevant PB page numbers and exhibits herein.

   1.Evidence that more than one person was present at the time that the deceased was assaulted;[17]

   [17] The evidence is comprised in part of evidence relating to the deceased's size, the nature of the assault inflicted on him, and shoe impressions found at the scene.

   2.Evidence that the applicant, the co‑accused and Akbar Hussaini were known to the deceased;

   3.Evidence that the deceased knew the persons who entered his house and attacked him;[18]

   [18] The evidence is comprised in part of evidence that there was no sign of forced entry into the house, evidence that the motivation for the entry into the house and attack on the deceased was something other than the theft of valuables, evidence that the deceased was extremely security conscious and evidence that it is extremely unlikely that the deceased would have permitted people that he did not know to enter his house.

   4.Evidence that the applicant was seen arriving at Akbar Hussaini's house during the afternoon or early evening of 4 August 2017 by two persons;

   5.Evidence that at about 7.18 pm on 4 August 2017 a vehicle that Akbar Hussaini had use of, specifically a black Camaro with the registration 'SAYNUTTIN' (the Camaro), arrived in Dallington Crescent and was still parked outside the front of the deceased's house at the time that the police attended the deceased's house later that night;

   6.Evidence that Akbar Hussaini was still at the deceased's house when the police attended the deceased's house;

   7.Evidence that the applicant's finger and palm prints were found on the passenger side door frame, door handle and door of the Camaro;

   8.Evidence that on the evening of 4 August 2017 the applicant was picked up by one Omar Saleh from an address in Nollamara and driven to a bush location off Lloyd Drive in Hamersley (the bush location) where he got out of the car, retrieved a plastic bag from the boot of the car which he had placed there earlier and then did something with the bag that Saleh was unable to observe;

   9.Evidence that on 5 February 2019 police searched the bush location and found the following items:  the remnants of a plastic bag; two pairs of shoes; three gloves; a grey long sleeved top and tracksuit pants; a black and white hoodie; a t‑shirt; a Goodlife gym towel; remnants of pants; a pair of socks; a drawstring bag; two pieces of rope; a Telstra modem and a Panasonic telephone base connected by a telephone cable;

   10.Evidence that the modem and telephone base were taken from the deceased's house on 4 August 2017 some time after the deceased returned home on that day;

   11.Evidence that the grey long sleeve jumper found buried at the bush location is similar in appearance to a jumper Samura was wearing on the afternoon of 4 August 2017;

   12.Evidence that the tracksuit pants found buried at the bush location are the same colour as those that Samura was wearing on the afternoon of 4 August 2017;

   13.Evidence that one of the pairs of shoes found buried in the bush location were light grey or white in colour and that the shoes that Samura was wearing on the afternoon of 4 August 2017 were light grey or white in colour; and

   14.Evidence that in or around November 2017 the applicant said to Ms Stillwell, 'Dejan was a dog, he had been fucking my sister.  I popped that dog in the head'.

4. The applicant contends that the State's case cannot properly be described as strong.  In support of this contention the applicant makes the following points.

5. First, there is no forensic evidence that links the applicant to the scene of the alleged murder at the time of the alleged murder.

6. Second, there is no evidence from any witness or any other form of evidence (for example, mobile phone cell tower evidence or closed circuit television footage) that places the applicant in the vicinity of the deceased's house at around the time of the alleged murder.

7. Third, although there is evidence that the applicant's finger and palm prints were found on the Camaro, there is no evidence capable of establishing when those prints were deposited.  Specifically, the evidence is incapable of establishing that they were deposited by the applicant at a time proximate to the time of the alleged murder of the deceased.

8. Fourth, with respect to the items located in the bush location, none of the items are capable of establishing that the applicant was present at the deceased's house at the time of the alleged murder.

9. Fifth, the evidence as to the timing of the applicant's attendance at the bush location (which is substantially to the effect that the attendance occurred late in the evening of 4 August 2017) is equally consistent with him having acted as an accessory after the fact.

10. Sixth, there are good grounds for concluding that the credibility of the evidence to be given by Ms Stillwell at trial will be significantly undermined.  The grounds for arriving at this conclusion include the following:

    1.The statement attributed to the applicant is not on its face consistent with what the medical and other evidence reveals in relation to the means by which the deceased was killed;

    2.Material disclosed by the State reveals that when the police spoke to the applicant's sister, Ms Rahmese Kickett, on 14 February 2020 she informed them that she had only been sleeping with the deceased for a few weeks, that she was not aware that the applicant knew of the relationship, and that her relationship with the applicant was not of a type by which the applicant was protective of her;[19]

    3.Material disclosed by the State reveals that when on 12 February 2020 police spoke to Mr Tom Daly, the person in whose house Ms Stillwell asserts that her conversation with the applicant took place, Mr Daly stated that the applicant had never been in the house;[20] and

    4.Ms Stillwell's evidence is that she and the applicant were heavily under the influence of the illicit drug fantasy at the time of the conversation.

    [19] During the course of the hearing the applicant's counsel informed me that Ms Kickett has to date cooperated with the defence and that 'without going into what her evidence may be, is consistent on my understanding with what was said to the police':  ts 546, 30 March 2020.

    [20] During the course of the hearing the applicant's counsel informed me that it was the intention of the defence to pursue obtaining a statement from Mr Daly with a view to calling him as a witness:  ts 546, 30 March 2020.

11. With respect to Ms Stillwell's proposed evidence I accept, in light of the matters identified by the applicant, and also the time that elapsed between the provision by her to the police of her original statement and the disclosure by her to the police of the asserted admission by the applicant, that there will be a number of bases on which the applicant will be able to seek to substantially undermine the credibility of her evidence. 

12. In making an assessment of the strength of the State's case against the applicant I must consider the evidence to be adduced as a whole and not on a piecemeal basis.  Doing the best I can on the material before me and considering the evidence that the State is intending to adduce as a whole, I am not persuaded that the State's case against the applicant on the murder charge can properly be described as strong or even relatively strong.  Nor, however, do I consider that it can be described as obviously weak or tenuous.  All that can be said, in my view, is that the prosecution case against the applicant on the murder charge (and for that matter on the statutory alternative of manslaughter also) is sufficiently strong to preclude the conclusion that there are no reasonable prospects of securing his conviction for the charged offence. 

13. It follows from what I have just said that I do not consider that this is a case in which it can be said that the strength of the prosecution case (or lack thereof) of itself constitutes an exceptional reason for not keeping the applicant in custody. 

14. The State's case against the applicant on the statutory alternative charge of accessory after the fact would appear to me to be a reasonably strong case.  However, in determining if there are exceptional reasons for not keeping the applicant in custody, the strength of the State's case on the statutory alternative is not relevant.

Impact on ability to prepare defence

1. During the hearing of the application the applicant's counsel informed me of the following:

   1.Up until recently her instructing solicitor, who is no longer in a position to act as her instructor, had been attending Hakea Prison (Hakea) as an official visitor to meet with the applicant in person for the purpose of going through the prosecution brief with the applicant and obtaining his instructions;

   2.The applicant is more comfortable with having material read and explained to him in simple language rather than having to read the material himself.  In addition, although it may be possible to provide the applicant with a computer containing an electronic copy of the prosecution brief and disclosed materials the applicant has concerns about being in possession of such material within the prison environment.  One of the applicant's concerns is that if it becomes known within the prison environment that he is connected with the alleged murder of the deceased his safety may be endangered.  The applicant's other concern is that if another prisoner becomes aware of the nature of the material contained within the prosecution brief they may attempt to dishonestly use the information for their own benefit (specifically, by falsely alleging that the applicant has made a statement to them implicating himself in the commission of the charged offence in the hope that this will result in a discount in any sentence to be imposed on them); and

   3.As a result of the material recently disclosed by the State, most specifically the supplementary statement made by Ms Stillwell, there is significant work to be done in the preparation of the applicant's defence.  The applicant's ongoing instructions will be required to enable this work to be undertaken.

2. In addition to providing the above information counsel asserted, in substance, that although it is impossible to know precisely what impact the COVID‑19 pandemic will have on the ability of the applicant's legal representatives to continue to conduct official visits with him in prison in order to obtain his instructions, there is at least a possibility that this will, by reason of the pandemic, become more difficult.

3. In light of matters referred to above and the asserted possibility of the applicant's legal representatives encountering increased difficulties in attending on the applicant in person to obtain instructions from him, counsel submitted that if the applicant is kept in custody his ability to adequately defend the charge will be prejudiced.

4. In answer to the submission made on behalf of the applicant, the State submits that any computer provided to the applicant containing an electronic copy of the prosecution brief and other disclosed materials can be set up so that only he can gain access to its contents.[21]  The State submits that if this is done the concerns expressed by the applicant will be addressed.

   [21] During the course of the hearing counsel for the State informed me that a computer had previously been made available to the applicant, that the police and the prosecution only learned very recently that the applicant was not actually in possession of the computer that had previously been made available to him, that the police and the prosecution do not know what has actually happened to the computer previously made available to the applicant, and that assuming the computer is in storage somewhere it will be able to be located and easily updated with any material that is not already contained on it:  ts 537, 30 March 2020.

5. I accept that in light of Ms Stillwell's supplementary statement there is significant work that needs to be done in order to properly prepare the applicant's defence.  Further, although I am not, for the reasons advanced by the State, persuaded of the validity of the applicant's concerns about being provided with a computer containing an electronic version of the prosecution brief and disclosed materials, I do accept that a person in his position is likely to have considerable difficulty digesting and understanding the complexities of the prosecution brief as a result of simply reading it.  I accept that in order for the applicant to be in a position to provide clear instructions to his legal representatives he needs to meet with them in person so that they can go through the relevant material with him and explain the issues that the material gives rise to so far as his defence is concerned.

6. As to counsel's assertion that there is at least a possibility that the COVID‑19 pandemic will impact on the ability of the applicant's legal representatives to continue to conduct official visits with the applicant at Hakea, there is no evidence before me which provides any clear support for this assertion.  Nonetheless, I think it is reasonable to conclude that there will, over the coming weeks or months, by reason of the COVID‑19 pandemic, be some ongoing impact on the operations of most if not all prisons in this State, and that consequentially it is possible that there will be difficulties encountered by the applicant's legal representatives in conducting in person meetings with him.

7. In summary, I am satisfied that there is a possibility, and on the evidence before me I can put it no higher than that, that if the applicant is kept in custody his legal representatives will encounter difficulties, over and above those ordinarily faced by legal practitioners whose clients are in custody, in preparing the applicant's defence.  Having said this, given that the applicant's trial is not listed to commence for another 11 months, I am not satisfied that the possible difficulties, if they eventuate, will be such as to prevent his legal representatives from being able to properly prepare his defence by the time of his trial.  In my view 11 months will be more than enough time for the applicant's legal representatives to obtain necessary instructions from the applicant even if they are, for a period of time, prevented from meeting with him in person.

1. In summary, I am not satisfied on the evidence before me that if the applicant is kept in custody his ability to adequately prepare his defence prior to trial will be prejudiced.

Impact of incarceration on ability to communicate with family members

1. On 20 March 2020 the Department of Justice suspended all social prison visits.  The terms of the relevant media release were as follows:

   To protect Western Australia's prisoners, detainees and staff from the spread of COVID‑19, social prison visits have been suspended for now.

   Additional phone calls will be available to maintain contact with family, friends and loved ones and the Department is exploring other technological solutions such as Skype.

   Prison visits have been suspended around Australia in response to the novel coronavirus pandemic.

   WA Health and government advice will determine when normal visits can resume.

   Thank you for your understanding - these measures are in place to protect prisoners and the staff who look after them.

2. I do not doubt that the indefinite suspension, for good reason, of social prison visits will cause the applicant significant additional hardship over and above that which he would ordinarily experience by reason of being incarcerated.  The impact on the applicant of him not being able to receive visits from his partner, children and other family members, perhaps for a relatively extended period of time, should not be underestimated.  Having said this, and as is clear from the Department's media release, the applicant will be able to maintain contact with his family members by telephone and possibly also Skype.  Therefore the applicant will not be cut off completely from those close to him, although contact by telephone and Skype will from the applicant's perspective no doubt be a poor substitute for in person visits.

3. As I have indicated, I accept that the applicant's inability, perhaps for a relatively extended period, to receive social visits from those closest to him while he is in custody will make any time that he spends in custody pending his trial significantly more onerous for him than would otherwise be the case.  However, given that he will be able to maintain contact with members of his family by other means, I do not consider that the inability to receive social visits is by itself an exceptional reason for not keeping him in custody.

Hardship being experienced by members of immediate family

1. During the hearing of the application the applicant's counsel, without objection from counsel for the State, informed me of the following.

2. The applicant's partner is Ms Ashleigh Marie Fenn.  The applicant and Ms Fenn have four children together aged 9, 4, 3 and 2.

3. Ms Fenn is usually employed by Outcare as a disability justice case worker.  However, she has been informed by her employer not to attend work because she is responsible for the care of her young Indigenous children who are at increased risk from the COVID‑19 virus.  Accordingly, she is currently on unpaid leave and dependent on Centrelink benefits to support her family.  Further, due to social distancing rules implemented in response to the COVID‑19 virus, Ms Fenn does not currently have any support from the members of her extended family who usually assist with the care of her children.

4. In light of the above, counsel for the applicant submitted that if the applicant is released from custody the pressures being experienced by Ms Fenn will to some extent be reduced.

5. I am willing to accept that Ms Fenn and the children are currently experiencing considerable hardship.  I am also willing to accept that if the applicant is released from custody it is likely that the hardship that Ms Fenn and the children are experiencing will to some extent be reduced.  I am not, however, persuaded that the extent of the hardship currently being experienced by Ms Fenn and the children as described to me by counsel is such as to be capable of supporting the conclusion that there are exceptional reasons for not keeping the applicant in custody.

Risks posed to applicant's health

1. It is submitted on behalf of the applicant that because he is Indigenous 'he falls into that group of the community in which the health [sic] is being significantly impacted or there are warnings that their health may be significantly impacted'.[22]  I take this submission to mean that because the applicant is Indigenous he is at greater risk of suffering a significant adverse impact to his health if there is an outbreak of the COVID‑19 virus in the prison environment.  The applicant has not put before the court any evidence to support this submission.  Despite the absence of evidence, counsel for the State expressed her acceptance of the proposition that the applicant 'is potentially at higher risk, should he get coronavirus.'[23]

   [22] ts 499, 30 March 2020.

   [23] ts 537, 30 March 2020.

2. The submission made on behalf of the applicant is speculative in the sense that it is premised on the possibility of the COVID‑19 virus finding its way into the prison environment.  I do not think that it can simply be assumed that this will inevitably occur.  Moreover, although I am of course aware that many Indigenous Australians are at greater risk of suffering severe illness from the COVID‑19 virus by reason of, for example, their age, environment or their underlying chronic health conditions, I do not think that I can, in the absence of any supporting evidence, make a positive finding that the applicant (a 33‑year‑old man who so far as I am aware is in good health) is, because he is Indigenous, at increased risk of suffering a significant adverse impact to his health if the COVID‑19 virus does find its way into the prison system.  For these reasons the submission advanced on behalf of the applicant is not one that I consider I can place any weight on in deciding if there are exceptional reasons for not keeping the applicant in custody. 

Decision

1. I have concluded that none of the circumstances identified by the applicant of themselves constitute an exceptional reason for not keeping him in custody.  The question which therefore remains is whether any one or more of the circumstances, considered in combination with each other, constitute exceptional reasons for not keeping him in custody.

2. As I have already stated, the length of time that the applicant will spend in custody prior to the conclusion of his trial if he is not granted bail will, due to no fault of his own, be significant.  If the applicant is kept in custody until the completion of his trial but is ultimately acquitted he will, by reason of having spent such a lengthy period of time in custody, suffer a very significant injustice.  Moreover, given my assessment of the strength of the State's case against the applicant on both the murder charge and any statutory alternative, I do not think that it can be said that the possibility of the applicant suffering such an injustice is remote or fanciful.  My view, based on what is before me, is that the applicant does have a realistic prospect of being acquitted.  Indeed, even if the applicant is ultimately acquitted of the murder charge and found guilty of the statutory alternative of being an accessory after the fact, there is a very slight possibility (and I would put it no higher than that) that he will, if he is kept in custody pending the completion of his trial, be incarcerated for a period that is longer than the non‑parole period of any sentence that will be imposed on him for such an offence.[24]  Obviously, whether or not this proves to be the case would depend very much on the precise findings as to the accessorial role played by the applicant. 

   [24] See Dymock v The State of Western Australia [2019] WASCA 213 and the cases cited therein.

3. In addition to these matters, the above referred to restrictions on the ability of prisoners to receive social visits from family, which may well remain in place for some time, will make any time that the applicant spends in custody significantly more onerous than would ordinarily be the case.

4. Ultimately, I have come to the conclusion that the length of time that the applicant will spend in custody prior to the completion of his trial if he is not granted bail and the additional onerous restrictions that he will for some time likely be subjected to while in custody by reason of the COVID-19 pandemic, when considered in light of the strength of the State's case and his prospects of acquittal, combine to constitute exceptional reasons for not keeping him in custody within the meaning of cl 3C(c).  In my opinion these circumstances, considered in conjunction with each other and in light of the strength of the State's case, make the applicant's case unusual, out of the ordinary, or an exception to the general trend of cases.

Clause 3C(d):  Should bail be granted having regard to cl 1 and cl 3?

1. The fact that I have found that there are exceptional reasons for not keeping the applicant in custody is not, of course, the end of the matter.  As I have already pointed out, by cl 3C(d) I must also be satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act.  This requires me to have regard to the questions specified in cl 1 and also any other matters that I consider to be relevant.

2. I turn then to deal with each of the questions specified in cl 1 of pt C of sch 1 to the extent that they are relevant.  In dealing with the questions I will apply the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia[25] and YSN v The State of Western Australia.[26]

The questions posed by cl 1

Clause 1(a)

[25] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [44].

[26] YSN v The State of Western Australia [2017] WASCA 155 [16] ‑ [21].

1. The first question specified in cl 1(a) of pt C is whether, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence, or endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.  Clause 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with the offence.  Rather, the risk or possibility must be actual or real, as distinct from theoretical and hypothetical.[27]

   [27] YSN v The State of Western Australia [17].

2. By cl 3 of pt C I am required, in considering whether the applicant may do any of the things mentioned in cl 1(a), to have regard to a number of matters as well as to any other matters which I consider to be relevant.  The matters that I am required by cl 3 to have regard to are as follows:

   1.The nature and seriousness of the offence and the probable method of dealing with the applicant for the offence if he is convicted;

   2.The character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant;

   3.The history of any previous grants of bail to the applicant; and

   4.The strength of the evidence against him.

Nature and seriousness of offence and probable outcome

1. As to the first of the matters specified in cl 3, the applicant is obviously charged with a very serious offence the maximum penalty for which is life imprisonment.  Accordingly, and taking into account the alleged circumstances of the offence, if the applicant is convicted of the charged offence he will inevitably be sentenced to a very lengthy term of imprisonment.

Current circumstances, antecedents and history of grants of bail

1. I turn to the second and third of the matters specified in cl 3.

2. I have already made some reference to the applicant's personal circumstances in dealing with the question whether there are exceptional reasons for not keeping him in custody.

3. As I have already indicated, the applicant is a 33 year old Indigenous man.  He was born in this State.  Both of his parents reside in this State.

4. The proposal is for the applicant to live with his partner Ms Fenn and their four children in their house in Ellenbrook if he is granted bail.

5. The applicant does not have a current passport.

6. The applicant does have a reasonably lengthy and relevant adult criminal record.  Without attempting to be in any way exhaustive, the applicant has since 2008 been convicted of offences of receiving, possessing a prohibited weapon, assault, assault occasioning bodily harm, aggravated assault occasioning bodily harm, breaching a protective bail condition, breaching a violence restraining order, breaching a bail undertaking, possessing drug paraphernalia, selling a prohibited drug and breaching a community based order (CBO).  He has also been convicted of numerous driving related offences.

7. The applicant was convicted of his four breach of protective bail condition offences on 11 October 2013.  He committed the offences on four separate days in August 2013.

8. It was also on 11 October 2013 that the applicant was convicted of his six offences of breaching a violence restraining order.  He committed these offences on a number of days in August 2013.

9. The applicant was convicted of his breach of bail undertaking offence in October 2014.

10. The applicant was convicted of his assault occasioning bodily harm offence in 2009.  He was convicted of his aggravated assault offence and the first of his aggravated assault occasioning bodily harm offences in July 2011.  He was convicted of the second of his aggravated assault occasioning bodily harm offences on 24 March 2015.  This is the most recent of his violence related convictions.

11. The applicant's drug related convictions were recorded against him in September 2016.

12. With respect to the applicant's offences for breaching a CBO, he was originally placed on a six month CBO for his March 2015 aggravated assault occasioning bodily harm offence.  He breached the order by reoffending and on 5 November 2015 was placed on a further CBO for a period of nine months for the offence.  He breached that order, again by reoffending, and on 20 September 2016 was sentenced to a term of imprisonment of 6 months and 1 day suspended for six months.

13. The applicant was not convicted of any offences between 20 September 2016 and the date of his arrest on the murder charge.

14. The applicant has never been sentenced to a term of immediate imprisonment for any of his offences.

Strength of evidence against the applicant

1. The last of the matters specified in cl 3 is the strength of evidence against the applicant.  I have dealt with this issue earlier in these reasons.

Determination of the question posed by cl 1(a)

1. I come back, in light of the observations that I have made in relation to the matters specified in cl 3, to the question posed by cl 1(a) for determination.

2. The State submits that there is a risk that if the applicant is not kept in custody he may fail to appear in court in accordance with any bail undertaking. 

3. Given what I have said about the strength of the State's case, it necessarily follows that there is, in my view, some prospect of the applicant being convicted of the charged offence.  The prospect of the applicant being convicted of the charged offence, and the inevitable outcome of the imposition on him of a very lengthy term of imprisonment if he is convicted, supports the conclusion that there is a risk that if the applicant is not kept in custody he will abscond and/or fail to appear in court.  In addition, the applicant's criminal record, which does demonstrate a tendency on his part to ignore court orders including conditions of bail, also points towards the existence of such a risk.

4. There are, however, other factors that need to be considered.  The applicant has spent his entire life in this State.  He has strong family ties to this State in the form of his parents, partner, children and extended family members.  Also relevant in this context is the fact that the applicant did not attempt to leave the jurisdiction during the approximate 19 month period that elapsed between the date that the deceased was murdered and the date on which he was charged with the deceased's murder.

5. I do need to make reference in this context to the restrictions that have been imposed by the State and Federal governments in an attempt to combat the spread of the COVID‑19 virus.  Most if not all states in Australia have imposed restrictions on border crossings.  On 25 March 2020 the Commonwealth government introduced a ban on Australians travelling overseas save in a very limited number of circumstances none of which apply to the applicant.  Further, as of midnight on 31 March 2020 the State government introduced significant restrictions on people travelling between various designated regions within the State. 

6. The restrictions to which I have referred, while they are in place, will make it extremely difficult for the applicant, if he is released on bail, to abscond to another state, and near on impossible for him to abscond overseas.  However, some or all of these restrictions may well not remain in place right through until the time of the applicant's trial.  This being the case, I propose to put to one side the current COVID-19 pandemic restrictions in determining if the applicant is at risk of absconding and/or failing to appear in court if he is released on bail.

7. Ultimately, taking the various competing considerations to which I have referred into account, and putting to one side the COVID-19 pandemic travel restrictions, I am satisfied that the risk of the applicant absconding and/or failing to appear in court in answer to his bail if he is not kept in custody is relatively low.  I consider that despite the incentive for the applicant to abscond that is created by the charge which he faces, his long term and strong ties to this State significantly diminish any such incentive. 

8. As to the risk that the applicant, if he is not kept in custody, will commit further offences (which for present purposes I treat as encompassing endangering the safety, welfare or property of any person) I am satisfied, given the nature and extent of the applicant's record, that there is a moderate risk of the applicant committing further offences if he is not kept in custody.

9. The evidence before me does not provide a basis for concluding that if the applicant is not kept in custody there will be an appreciable risk of him interfering with witnesses or otherwise obstructing the course of justice in relation to himself or any other person. 

Clause 1(b)

1. The question specified in cl 1(b) is whether the applicant needs to be held in custody for his own protection.  There is nothing before me which provides a basis for concluding that the applicant does need to be held in custody for his own protection.

Clause 1(c)

1. The third question that I must consider, specified in cl 1(c), is whether the prosecutor has put forward grounds for opposing the grant of bail. 

2. I have already addressed the State's ground for opposing bail in dealing with the question posed by cl 1(a).

Clause 1(d)

1. The fourth question that I must consider, specified in cl 1(d), is whether, as regards the period when the applicant is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial might be prejudiced.  On the material before me there are no grounds for holding such a belief. 

Clause 1(e)

1. The fifth question for my consideration, specified in cl 1(e), is, so far as is relevant in the present context, whether there is any condition which could reasonably be imposed under pt D of sch 1 which would sufficiently remove the possibilities of the applicant failing to appear in answer to his bail and committing further offences.  I will return to this question shortly.

Clause 1(g)

1. The final relevant question, specified in cl 1(g), is whether the alleged circumstances of the offence with which the applicant is charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. 

1. Clearly, and as I have already stated, the applicant is alleged to have committed a very serious offence.  However, if the fact that a person is charged with murder was of itself sufficient to justify the conclusion that the alleged circumstances of the offence amounted to a wrongdoing of such a serious nature as to make a grant of bail inappropriate, no person charged with murder could ever be granted bail.  In this respect it is, I think, fair to say that while the alleged circumstances of the applicant's commission of the charged offence are self‑evidently very serious, they are not such as to elevate the level of seriousness of the alleged conduct to something above and beyond the level of seriousness ordinarily associated with a charge of murder.  The State did not contend to the contrary.  Moreover, whether the alleged circumstances of the charged offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate cannot be considered in a vacuum.  The question must be considered in light of all of the other circumstances bearing on the exercise of the discretion as to whether or not to grant bail. 

Other relevant matters

1. As I have already indicated, in dealing with the application I am required by cl 1 to have regard not only to the questions specified in the clause but also to any other matters that I consider to be relevant.  One such other relevant matter is the amount of time that the applicant will spend in custody if he is not granted bail prior to being finally dealt with for the charges.

2. I have already dealt with this issue in determining that the applicant has demonstrated exceptional reasons for not being kept in custody.  In this context it suffices to say that the risk to which I have already referred of the applicant suffering a significant injustice by reason of spending a lengthy period of time in custody as an unconvicted person pending the final determination by trial of the charge laid against him, is a factor that points in favour of him being granted bail.

The imposition of conditions to sufficiently remove the risks

1. I come back now to the question specified in cl 1(e), specifically whether there are any conditions that can reasonably be imposed which will sufficiently remove the possibilities of the applicant, if he is not kept in custody, absconding and/or failing to appear in court, and committing further offences.  I note that the question is not whether the imposition of conditions will completely remove the possibility of the applicant engaging in such conduct, but rather whether the imposition of conditions will sufficiently reduce the possibility of this occurring.[28] 

   [28] YSN v The State of Western Australia [20].

2. At the hearing of the application, and consistently with the terms of Ms Christian's above referred to email, the State did not attempt to argue that if I was satisfied that there were exceptional reasons for not keeping the applicant in custody I should nonetheless find that bail on stringent conditions could not properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act.  The State's position in this regard was, with respect, difficult to reconcile with its stated and explained opposition to the application on the basis of the seriousness of the charged offence.

3. The possibilities of the applicant, if he is not kept in custody, failing to appear in court and committing further offences will be sufficiently removed by conditions where the remaining risk of him engaging in such conduct no longer constitutes a proper ground for refusing him bail.[29]  The question whether the remaining risk no longer constitutes a proper ground for refusing bail must be assessed by reference to the nature and extent of the risk to the integrity of the criminal justice system and community safety, and also in light of the possibility that the applicant will suffer an injustice if he is held in custody but is ultimately acquitted of the charge.[30]  As was stated by the court in YSN v The State of Western Australia[31] this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.

   [29] YSN v The State of Western Australia [20].

   [30] YSN v The State of Western Australia [19].

   [31] YSN v The State of Western Australia [20].

4. The applicant has indicated that he is willing to abide by conditions of bail mirroring the conditions on which Samura was released as well as any conditions of bail considered by the court to be appropriate.  The conditions proposed include a condition requiring the provision by the applicant's father of a surety in the amount of $100,000, a residential condition, a curfew condition, a reporting condition, non‑contact conditions, conditions relating to the applicant's use of a mobile phone, a condition preventing the applicant from applying for a passport, a condition preventing the applicant from using illicit substances and a condition requiring the applicant to undertake urinalysis.

5. The State, for its part, supports the imposition of the conditions proposed by the applicant in the event that bail is granted.  It also seeks the imposition of a condition prohibiting the applicant from disclosing the prosecution brief to any person.  The applicant does not object to the imposition of the additional condition sought by the State. 

6. The conditions proposed by the applicant are very stringent.  The provision of a surety in the amount of $100,000 by the applicant's father should be a very strong deterrent to the applicant absconding or otherwise failing to appear in court in accordance with his undertaking.  Furthermore, conditions of the type to which I have referred will significantly reduce not only the risk of the applicant failing to appear in answer to his bail, but also the risk of him committing further offences.

7. Based on the material before me, I am satisfied that it is appropriate to grant the application for bail on the conditions proposed by the applicant with the additional condition sought by the State.  I am satisfied that the imposition of the proposed stringent conditions will sufficiently remove the possibilities of the applicant, if he is not kept in custody, absconding and/or failing to appear in court, and committing further offences.  To put the matter more fully, when I take into account the risk of the applicant suffering an injustice by reason of being kept in custody as an unconvicted person pending his trial, I am of the view that the risks of him absconding and/or failing to appear in court, and committing further offences will be sufficiently reduced by conditions such that the extent to which these risks remain no longer constitutes a proper ground for refusing bail.

Decision

1. For the reasons I have given I allow the application.

2. I will hear from the parties as to the precise terms of the conditions of bail.  However, the conditions that I intend to impose will be to the following effect:

   1.The applicant is to give a personal undertaking in the amount of $100,000;

   2.A surety in the amount of $100,000 is to be provided by the applicant's father Mr William Paul Kickett;

   3.The applicant is to reside at 8 Catlidge Street, Ellenbrook;

   4.The applicant is to remain at 8 Catlidge Street, Ellenbrook between the hours of 6.00 pm and 7.00 am each day and is to present to the front door of this address upon demand of the Western Australian police during these hours;

   5.The applicant is to report every day to the Ellenbrook Police Station between the hours of 8.00 am and 5.00 pm;

   6.The applicant is to surrender any passport to the Principal Registrar of the Supreme Court and is not to apply for any further passport;

   7.The applicant is not to leave the State of Western Australia or approach within 1 km of any international or domestic point of departure;

   8.Until further order, the applicant is not to contact any witness named on the indictment or any witness whose statement has been disclosed in relation to the location of his or her Mercedes SUV or Lexus sedan on 4 August 2017, or any witness whose name is specified on a list to be provided by the Director of Public Prosecutions for Western Australia by 6 April 2020 or from time to time;

   9.The applicant is prohibited from disclosing the prosecution brief to any person;

   10.The applicant is not to contact, directly or indirectly, Sannah Samura, Amirali Farsijani, Poria Akhbari Sadiqi or Saied Akbar Hussaini;

   11.The applicant is not to possess and make use of more than one mobile telephone and is, on acquiring possession of the phone, to immediately notify the officer in charge of the investigation, either verbally or in writing, of the phone's service number;

   12.The applicant is to present his mobile telephone to a representative of the Western Australian Police Force for inspection upon request;

   13.The applicant is not to possess or use illicit substances; and

   14.The applicant is to attend urinalysis testing as directed by a community corrections officer and is to provide a valid sample for urinalysis, with a failure to provide a valid sample or a positive result to an illicit substance being a breach of bail.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CP

Associate to the Honourable Justice Derrick

3 APRIL 2020