King v The State of Western Australia - [2008] WASC 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KING -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 89

CORAM: MARTIN CJ

HEARD: 18 JANUARY 2008

DELIVERED : 18 JANUARY 2008

PUBLISHED : 16 MAY 2008

FILE NO/S: MCS 33 of 2007

BETWEEN: DANIEL MARTIN KING
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending trial - Charge of murder - Unnecessary to decide whether exceptional circumstances must be demonstrated - Insufficient evidence to justify grant of bail - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 15
Criminal Code (WA), s 23

Result:

Adjourned

Category: B

Representation:

Counsel:

Applicant: Ms L B Black
Respondent: Mr J C Whalley

Solicitors:

Applicant: Jeremy Noble
Respondent: Director of Public Prosecutions (WA)

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

Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
Rauch v The State of Western Australia [2005] WASC 241
Sabau v The State of Western Autralia (2007) 173 A Crim R 401; [2007] WASC 183
The State of Western Australia v Sturgeon (2005) 158 A Crim R 34; [2005] WASC 256

MARTIN CJ:
(This judgment was delivered extemporaneously on 18 January 2008 and has been edited from the transcript.)

The applicant applies for bail pursuant to s 15 of the Bail Act 1982 (WA). That section is applicable because the applicant faces a charge of murder. The case is presently in the Magistrates Court. There is a committal mention hearing listed for next week. There is a possibility that the applicant will be committed for trial to the Supreme Court on that date.
The grounds upon which bail is applied for are essentially two. The first ground, which has two limbs, is the assertion that the State's case against the applicant is very weak and the second limb is that the applicant's defence to the State's case is very strong. The second ground is to the effect that on assessment of all relevant factors, the Court should conclude that the risk of flight by the applicant is very low.
The second ground also has two components. The first concerns the personal circumstances of the applicant and the second is to rely upon the submissions put under the first ground. The proposition is that the State's case is weak or that the applicant's defence is strong, or both, thus reducing the risk of flight.
The personal circumstances of the applicant are that he is a man of 25 years of age who was in regular employment. He has never been in serious trouble with the law before. All his family live in Western Australia, in one suburb and all are supportive of him in his present situation. It is said that he has a small circle of friends and the rhetorical question is posed: where would he go if he were to flee?
All of those circumstances support the grant of bail, but of course must be set against the circumstance that arises from the serious nature of the charge which the applicant faces; it being the second most serious charge in the Criminal Code.
The seriousness of that charge is such that, absent other circumstances, the usual practice in this State would not be to grant bail merely based upon the personal circumstances of the applicant for bail. Counsel for both parties have pointed to an apparent tension in the authorities dealing with the grant of bail pursuant to s 15 of the Bail Act.
On the one hand there is that line of cases which include the decisions of the Full Court in Jemielita v The Queen (1994) 12 WAR 362 and Lim v Gregson [1989] WAR 1 which adopt the common law position. These authorities thus require exceptional circumstances must be shown by an applicant for bail where the applicant faces a charge of murder or wilful murder.
On the other hand, there is more recent authority from the decisions of McKechnie J in the case of Rauch v The State of Western Australia [2005] WASC 241 and of EM Heenan J in The State of Western Australia v Sturgeon (2005) 158 A Crim R 34; [2005] WASC 256 in which their Honours suggest that the Bail Act should not be taken to embody the traditional common law approach (cfSabau v The State of Western Autralia (2007) 173 A Crim R 401; [2007] WASC 183).
It is, I think, unnecessary for me to resolve that tension in the authorities for the purposes of this case. In the current circumstances, whether one adopts a formula requiring 'exceptional circumstances', or whether one simply applies the approach enunciated by the application of the factors specified in the Bail Act sch 1 pt C, the process is much the same. In each case the court is called upon to evaluate whether the level of flight risk that would ordinarily be inferred from the laying of a serious criminal charge is sufficiently reduced by the combination of the personal circumstances of the applicant for bail and the assertions with respect to the weakness of the State case to enable the court to conclude that the risk of flight is sufficiently low to justify the grant of bail.
I think that approach is much the same in substance whether or not one adopts a formula requiring the demonstration of exceptional circumstances. In the present case the general circumstances that caused the death of the deceased are not controversial. There was a domestic dispute between the deceased and the deceased's partner in which the applicant became involved. The deceased was stabbed in the course of those events.
The applicant points first to the requirement that in order to make good a case of murder the State will have to discharge the burden of proof which rests upon it at all times to establish beyond reasonable doubt that the applicant unlawfully caused the death of the deceased with an intention to cause him grievous bodily harm.
In that context, the applicant points to circumstances which might enable a jury to conclude that the death of the deceased came about as the result of an accident. The term 'accident' is used in the sense in which it is generally applied in criminal cases to embody the principles enunciated in s 23 of the Criminal Code.
The applicant also points to the prospect of a defence of self-defence either by reason of the deceased's assault upon his former partner, or the apprehension of harm that was generated in the applicant at the time the deceased approached the applicant immediately after the assault upon the former partner of the deceased.
It seems to me, at this relatively early stage in the case, that both the question of the accident and the question of self-defence will turn critically upon the precise circumstances of the stabbing of the deceased and in particular the facts which the jury find as to the circumstances in which the knife was inserted into the body of the deceased.
The only evidence that is available on that subject at the present time is a copy of an interim report to the coroner from Dr Margolius, a forensic pathologist. On the very short summary of that report, there is a brief summary of findings which specifies that two wounds were identified in the body of the deceased, the first wound being through the chest wall into the heart, the second being through the chest wall into the left lung.
The report also suggests that there was a 'defence-type wound to the left hand' of the deceased. I have been advised by counsel for the State that a full post‑mortem report is expected to be available on Tuesday, 22 January 2008.
The State have also commissioned the preparation of a blood spatter report from a forensic pathologist, which will possibly shed some light on the particular circumstances and perhaps more particularly the place or places at which the deceased was wounded by being stabbed with the knife. Counsel for the State advises that the blood spatter report is expected within two weeks. It seems to me that any evaluation of the strength of the evidence in the case against the applicant will be critically affected by the provision of those materials.
There is therefore a distinct prospect that when those materials are made available, they may result in a significant re‑evaluation of the strength of the case against the applicant. That may in turn significantly affect the risk of flight.
So the current situation is that whilst on the limited material currently available it is open to the applicant to assert that he has a strong case, the material upon which the State will be relying at trial is not presently available in full. The applicant, knowing that, is therefore in a position whereby the strength of the case against him cannot be accurately determined at present. Neither he nor the Court knows whether the provision of those reports will result in the strength of the State case being reduced or increased.
It seems to me that these circumstances preclude a conclusion that the risk of flight is sufficiently low to justify the grant of bail, given that the applicant faces a serious charge, that being murder.
In arriving at that conclusion, I have of course taken account of all the circumstances which I am required to take into account and which are specified in the Bail Act sch 1 pt C. For the sake of completeness, I observe that the only factors that are said to be relevant to that issue in this case are whether the applicant, if not kept in custody, may fail to appear in court in accordance with his bail undertaking, and the seriousness of the charge he faces. There is no suggestion that any of the other factors that are sometimes relevant to bail cases such as the risk of re-offending, the endangering of the safety, welfare or property of any other person or interference with witnesses are relevant factors.
It seems to me that the current state of the evidence is not such that I can be satisfied that the risk of flight is sufficiently low to justify the grant of bail. However, rather than dismiss the application for bail, I will adjourn it for further consideration after the two reports to which I have referred are available.