King v The State of Western Australia [No 2]
[2008] WASC 90
•8 FEBRUARY 2008
KING -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASC 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 90 | |
| 16/05/2008 | |||
| Case No: | MCS:33/2007 | 8 FEBRUARY 2008 | |
| Coram: | MARTIN CJ | 7/02/08 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail granted | ||
| B | |||
| PDF Version |
| Parties: | DANIEL MARTIN KING THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending trial Charge of murder Application granted Turns on own facts |
Legislation: | Bail Act 1982 (WA) |
Case References: | King v The State of Western Australia [2008] WASC 89 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Application for bail pending trial - Charge of murder - Application granted - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Application for bail granted
(Page 2)
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):
King v The State of Western Australia [2008] WASC 89
(Page 3)
- MARTIN CJ:
(This judgment was delivered extemporaneously on 8 February 2008 and has been edited from the transcript.)
1 The applicant, Daniel Martin King, applies for bail. The application first came before me on 18 January 2008. On that occasion, the State applied for an adjournment of the application pending the delivery of two reports, being an autopsy report and a blood spatter report.
2 For reasons which I gave on 18 January (see King v The State of Western Australia [2008] WASC 89), and in particular the prospect that those reports might have a significant impact upon the risk of the applicant absconding prior to trial, I agreed to the State's application to an adjournment and did not decide the application on that occasion.
3 The matter now comes back before me after the autopsy report has been received and placed in evidence. The blood spatter report that was anticipated on the last occasion has not been received. The State is content for me to decide the application without reference to that report, and accepts that it is unlikely to significantly influence my consideration of the relevant factors pertaining to the grant of bail.
4 The autopsy report which has been received reveals that the deceased received two major and fatal stab wounds to the left-hand side of his chest, and a wound to his left hand that could be characterised as a defensive wound. On the last occasion, I foreshadowed attempts to try to find an early trial date. Regrettably, because of various commitments of parties and witnesses and the like, those attempts have not been successful. The matter has been provisionally listed for 9 June, which is about four months away.
5 The State is of the provisional view that after considering the autopsy report, the questions of fact that arise from the circumstances that led to the death of the deceased should be determined by a jury. The State also submits that the circumstances of the case are such that the administration of justice is likely to be well served if the parties are given the opportunity to make and consider representations relating to an alternative charge or charges which might allow the matter to be resolved without a trial.
6 Counsel for the applicant has advised the court that the prospects of such a resolution are slight. Notwithstanding that advice, I encourage the parties to remain in communication in respect of any possible resolution of the case, or if that cannot be achieved, at least a narrowing of the issues for the purposes of trial.
(Page 4)
7 I return to the considerations that I identified on 18 January as being relevant to the exercise of my discretion in respect of the grant of bail. Only two of the considerations specified in sch 1 pt C of the Bail Act 1982 (WA) are relevant to this case. They are, firstly, the seriousness of the charge which the applicant faces, being the charge of murder and, secondly, the assessment of the risk of the applicant not presenting to face his trial.
8 As to the latter, the fact that the evidentiary base has now solidified, seems to me to diminish the risk which I apprehended on 18 January, that the strength of the case against the applicant was of a somewhat unknown quantity.
9 On the last occasion, I referred to the conflict in the authorities on the question of whether or not the applicant is required to demonstrate exceptional circumstances before bail can be granted. Rather than attempt to resolve that conflict on this occasion, I will proceed on the assumption that exceptional circumstances are required in this case in order to justify the grant of bail.
10 It is accepted by both parties that exceptional circumstances can arise from a combination of factors, and need not be found in one factor viewed in isolation. The State accepts that in this case, I could reasonably form the view that there are exceptional circumstances arising from a combination of factors. In that context, the State neither consents to, nor opposes the grant of bail.
11 The factors that are said in combination to constitute exceptional circumstances are the applicant's history and his lack of any significant prior record; his personal circumstances, including his stable employment and family connections; his ties with the community; the circumstances of the offence, including in particular the assault by the deceased upon Ms Cuttabutt prior to the incident that led to his death; the recording of the applicant's call to police in which it is apparent that there was an element of fear and concern on his part; and the deposition that indicates the evidence that is likely to be given by Ms Cuttabutt, which is consistent with the version of events given by the applicant.
12 Of course, the weighing of all that evidence will be a matter for a jury, and it would be dangerous for me to try to predict at this stage what view a jury might take of any aspect of that evidence. Nevertheless, that evidence is properly taken into account by me when considering the exercise of my discretion in respect of bail.
(Page 5)
13 Relevant also is the fact that there is no factor said to be relevant to the question of bail in this case, other than the seriousness of the charge and the risk of flight. There is no suggestion of any risk of interference with witnesses or any of the other factors specified in the schedule to the Bail Act. Relevant also to the question of whether there are exceptional circumstances is the fact that the State does not oppose the grant of bail.
14 When those circumstances are put together and viewed in combination, I am persuaded that they constitute exceptional circumstances. I am satisfied that, despite the seriousness of the charge, my assessment of the risk of the applicant not presenting for his trial is sufficiently low to justify the grant of bail.
15 I will hear from counsel as to the conditions which should be imposed upon the grant of bail.
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