Mansell v The State of Western Australia
[2011] WASC 170
•8 JULY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MANSELL -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 170
CORAM: McKECHNIE J
HEARD: 1 JULY 2011
DELIVERED : 8 JULY 2011
FILE NO/S: INS 177 of 2010
BETWEEN: CAMERON JAMES MANSELL
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Murder - Exceptional reasons - No new principles
Legislation:
Bail Act 1982 (WA), Sch 1 pt C, s 3C
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr A E Eyers & Mr T J Saayman
Respondent: Mr B Fiannaca SC & Mr L M Fox
Solicitors:
Applicant: Saayman Law
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Saka v The Queen [2001] WASC 92
McKECHNIE J: The accused is charged with murder and makes application for bail. The accused has not sworn an affidavit. There are in evidence affidavits from his solicitor dated 15 June 2011, 30 June 2011 and 1 July 2011 annexing amongst other things an affidavit of the accused's wife.
Principles
The accused accepts that he carries the burden of establishing that there are exceptional reasons why he should not be kept in custody and also that bail may properly be granted in the circumstances: Bail Act 1982 (WA) sch 1 pt C s 3C.
The accused submits, correctly, that a single matter may constitute exceptional reasons, or a combination of matters may constitute exceptional reasons.
A grant of bail is opposed by the prosecution who submits there are no exceptional reasons and that in any event bail should be refused in discretion.
The issues
The accused's written submissions set out a number of factors:
•delay;
•nature, size and complexity of the prosecution requires the accused to be free on bail to give appropriate instructions;
•the accused's autistic son is in need of daily care and assistance requiring the accused, who is separated, to work and provide financial contributions to his wife's household, provide emotional support to his wife and meaningful contact with his son;
•the accused's personal safety.
Discretionary factors which may impact upon the decision are whether:
•the accused is a flight risk;
•the accused may interfere with prosecution witnesses.
The oral submissions, capably advanced by Mr Eyers, did not abandon other reasons but concentrated on delay and on the volume and complexity of the brief and the difficulties in preparation of the defence case which are exacerbated because the respondent is in custody. He particularly dealt with the issue of flight and witness interference in the event that exceptional reasons are made out.
Delay
The applicant was arrested on 25 May 2010 and has been held in custody since that time.
A trial of six weeks was listed to commence on 16 March 2011. That trial date was vacated on 24 February 2011 and the trial rescheduled for 6 September 2011. The reason for the vacation was that the accused terminated his previous legal representation. It is unnecessary for me to find whether there was good cause or not. I accept Mr Eyers formulation that the accused considered his application was made for good reason knowing that in all probability there would be a delay. On 24 February 2011, in the course of the application to adjourn the trial, the following exchange occurred:
McKECHNIE J: Have you or your instructor spoken to Mr Mansell about a trial in August?
EYERS, MR Yes, sir.
McKECHNIE J: What is his view about that?
EYERS, MR: He would be content for that - that was one of - I've spoken to Mr Mansell once by telephone yesterday evening when he phoned me from Hakea and longer this morning in the cells downstairs. I explained to him my position, I explained I wasn't available and would be telling your Honour that, and he was welcoming of the opportunity for his case to be prepared even if it meant not bringing it on before August, and I was explicit with August, as I have been with your Honour.
McKECHNIE J: So that he understands that while the court could give him an early trial date, he may remain in custody for a longer period?
EYERS, MR: Well, he appreciates he is in custody. He appreciates that unless or until he were granted bail, he would remain in custody.
McKECHNIE J: He may remain there longer than necessary if we could have given him an earlier trial date because he is content with August.
EYERS, MR: Precisely.So it didn't need a lot of explanation but Mr Mansell was explicitly explained that a longer - a further away trial date, namely August, rather than potentially May or June, would mean that potentially he would remain in custody for a longer period of time. He knows that and he was happy to accept that (ts 29 ‑ 30).
The prosecution was ready to proceed in March. Had the matter proceeded then the delay between arrest and trial would have been 10 months. Without in any way imputing blame, the fact is that delay beyond that date has been due to the applicant's decision to terminate the retainer of his legal team and appoint new lawyers, knowing that there was going to be a delay, at least until August, and being prepared to accept that delay.
In these circumstances delay is not, either alone or together with other matters, an exceptional reason.
A decade ago I commented on the detention of a person, presumed innocent by law, for a period in excess of one year: Saka v The Queen [2001] WASC 92 [38] ‑ [40].
As I will shortly amplify, since the passage of the Criminal Procedure Act 2004 (WA), a factor which may now contribute to delay, and about which no blame can be attributed, is prosecution disclosure. The effect of disclosure in most cases is to increase the time between arrest and trial.
Preparation of the defence
It was this reason that Mr Eyers most strongly pressed.
The effect of continuous prosecution disclosure: general matters
The Criminal Procedure Act sets out the requirements on the prosecutor at various stages of the proceeding: s 42, s 45, s 61. The definition of evidentiary material in s 42 is very wide and includes confessional material; and:
evidentiary material relevant to a charge, means -
(a)a copy of -
(i)every statement that has been made in accordance with Schedule 3 clause 4 by;
(ii)every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by;
(iii)every recording that has been made under the Evidence Act 1906 of; and
(iv)every other recorded statement, whether oral or written, by,
any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence;
(b)if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person;
(c)a copy of any document or object to which a statement or recording referred to in paragraph (a) refers;
(d)a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and
(e)a copy of every other document or object that may assist the accused's defence,
that is in the possession of the organisation or person who investigated the offence;
The disclosure requirements are extensive and the magnitude of their impact on the criminal process may not have been fully realised at the time of enactment. Today, in addition to the material which might traditionally have formed the prosecution brief, that is, witness statements and copies of or reference to exhibits sought to be led by the prosecution, the other material referred to in s 42 must be disclosed.
A prosecutor or a police officer may not know what the defence might regard as relevant to the charge or what the defence might regard as assisting it. Increasingly, the prosecution and the police disclose everything to the defence thus avoiding the necessity of making a judgment about relevance or assistance which they may be ill‑equipped to make in any event. As a result, even a simple trial requires more preliminary work and preparation than previously. The prosecution or police have to devote resources to collating and copying all material on the chance that it may be relevant or of assistance, and the defence must go through all the material to determine whether it is relevant or of assistance. The burden falls on each. Increasingly, the listing of trials is delayed firstly, by the prosecution's duties under the disclosure requirement, and then, as here, the significant burden on the defence in having to analyse all the material in case there is something within it that may be useful or open up a line of inquiry.
All this is partly by way of background and to explain why the comments I made in Saka may have to be modified a decade later to take into account the significant extra time involved by both parties due to the wide disclosure requirements.
I should make it clear that I am not in any way criticising the disclosure requirements. They are enacted by Parliament and in any event largely reflect settled common law principle. I am simply commenting on the practical effect on the preparation for and listing of criminal trials. Every action has a consequence. Greater fairness and transparency in the criminal process brought about by rigorous disclosure has led to greater expense for the State, including Legal Aid, and longer delay before a case is ready for trial. These delays are now normal, not exceptional.
Prosecution disclosure: the impact on the accused
This case reflects the norm. The accused's counsel advises that the case materials comprise up to 104 compact discs or digital video discs, noting there is some duplication. The accused's solicitor deposes that the case materials run to 36 paper files. The disclosure matrix is 49 pages. The disclosure of evidence summary as at 23 June 2011, prepared by Detective Sergeant Stephen, supports the volume and nature of material.
The accused's access to the material: a computer is required
The accused is entitled to look at this material and give instructions on it. His lawyers are entitled to refer it to him for specific instruction or comment. All of this is naturally more inconvenient if an accused is in custody. However, inconvenience does not constitute exceptional reasons. The issue is whether the accused's trial may be unfair if, by reason of his continuing custody, he is unable to properly assess the evidential material or is unable to give proper instructions to his lawyers about it.
The accused is an unconvicted person detained in custody. He is not a sentenced prisoner. It is the State's obligation to afford him a fair trial. This is an obligation that falls on all departments of the State, including the police, the DPP and custodial services.
It is understandable that the Department of Corrective Services has policies in respect of computer use. The departmental 'Policy Directive 2' entitled 'Use of Computers by Prisoners' states as a Purpose 'makes provision for the supply of suitable Departmental computers to prisoners with bona fide legal or educational needs'. The Policy intent is as follows:
5.1Intent
The Adult Custodial Division is committed to:
5.1.1Implementing a sustainable level of appropriate access to Departmental owned computers by prisoners, for bona fide educational or legal purposes.
5.1.2Ensuring use of Departmental computers by prisoners is vigorously scrutinised and monitored for any non‑compliance with requirements.
5.1.3Reducing the risk to the good order and/or security of its facilities.
5.2Principles
The principle underpinning this policy is that no prisoner in need of access to a computer for bona fide educational or legal purposes, is to be disadvantaged.
Following an email chain between the accused's solicitors and the prison on 22 June 2011 a prison officer advised:
Further to our conversation today Mr Cameron James MANSELL has been given access to a computer at Hakea Prison to assist him in preparing his defence case for his forthcoming court proceedings. A suitable laptop with security clearance has been made available for his usage. The device can be used by him at any time as required. Mr Mansell does have to advise the local Superintendent if the computer is required to be used in his cell for operational security reasons.
In answer to a further inquiry:
I am advised that the computer that he has access to currently does not have that capacity [CD/DVD viewing capabilities] and the Assistant Superintendent K Bishop is currently arranging for a suitable computer to be made available for cd/dvd access.
As in this case, disclosure under the Criminal Procedure Act is by provisions of CDs, DVDs or other forms of electronic data. It is a right not a privilege for an unconvicted person in custody to have access to a computer with CD/DVD facility in order to prepare their defence. They simply cannot properly prepare a defence if all they can do is stare forlornly at a CD in its case. Policy Directive 2 appears to recognise the right of an unconvicted person to general access to a computer for legal purposes, subject only to security issues in which case access may need to be managed although not withdrawn.
In the present case it appears from the emails that the prison authorities recognise this right and have taken steps to enable the accused to exercise that right. If he does not presently have a computer with CD/DVD capability, he should be provided with one forthwith.
That provision will remove one leg of the submission that there are exceptional reasons. There remain the other matters in contention, including the lack of a proper indexing of documents and the need for regular access by lawyers to the accused.
I am not persuaded that the indexing matter of itself, alone or with other matters, constitutes exceptional reasons. The substance of the brief was served long ago. The prosecution are working on a new index. The general outline of the factual matters requiring input by the accused should be well advanced by now. The accused can have little meaningful input into the legal issues regarding admissibility and other matters.
Access to lawyers
The limited access by the accused's legal team is an issue. It appears that there are refurbishment works taking place in Hakea Prison and as a result there is a limited number of meeting rooms so that lawyers' visits are disrupted or postponed. There is undoubtedly competition for limited space as the accused and his lawyer are not the only parties who need access. In this case, simply rationing the available space may not be a sufficient response by Hakea Prison as it is essential that the accused have free and regular access to his lawyers.
Conclusion on preparation
It is likely to be an unusual case where the facilities which the State is required to provide are so inadequate as to lead to a conclusion that an accused is unable to properly prepare a defence while in custody. There may be cases of such complexity or personal circumstances that require such a conclusion. I do not consider this is one such case. True it is that the case is circumstantial and that therefore there is likely to be considerable evidence called. The case may take months to complete, which gives an indication of volume. It should be remembered that while his lawyers have only joined the case in the last few months, the accused has had access to material over a longer period. I am not persuaded on the material before me that the difficulties posed by Mr Eyers, and in the affidavits of the accused's lawyer, are such as to constitute exceptional reasons, although I do accept that they do indicate considerable inconvenience.
The accused's family: wife and son
The accused and his wife separated months prior to his arrest and therefore unrelated to it. His wife moved to Adelaide with their son. There is dispute as to several matters to do with the present relationship between the accused and his son, the accused and his wife, and the number of hours that she is required to work. I do not need to resolve those issues because, taken at their highest and most favourable to the accused, I nevertheless do not consider that they constitute, alone, or with other matters, exceptional reasons. It is very regrettable, but custody of a person generally throws a significant burden on immediate family. There is nothing in the matters outlined which take this case outside the ordinary, while fully accepting the consequences on the family of the accused's continuing custody. While I accept that the accused's financial contribution would greatly assist his family, he has not made a meaningful contribution so far. The proposed employment does not give grounds to hope that much would change.
The accused's personal safety
Mr Eyers did not address the accused's personal safety. The accused has not sworn an affidavit about an incident said to have occurred in prison. His solicitor deposes to matters about which he has no personal knowledge. This significantly affects the weight of this information. The prosecution has put the alleged incident in issue with evidence. I am not persuaded that the accused's security constitutes an exceptional reason.
For these reasons, I am not persuaded on the balance of probabilities that the accused has shown exceptional reasons why an order for bail should be made.
Nevertheless, I will deal with the two matters raised by the prosecution in the event that the issue of bail was enlivened.
Flight
As Mr Eyers accepted, it is the fact that the applicant shaved his head, purchased an airline ticket in a false name, flew to South Australia and made his way to Queensland where he was located. The prosecution at trial will seek to draw an inference from this journey as evidence of flight following the commission of a criminal act. The accused advances an alternative explanation, namely fear of certain persons in Western Australia. Those will be matters for the jury. I am unable to resolve them at this stage, although I do note that the accused has not sworn directly to the explanation which he has instructed counsel to advance.
What is relevant is the fact that for reasons that seemed sufficient to him, the accused was capable of leaving the State clandestinely. He is a flight risk. I do not consider that bail conditions would reduce that risk to an acceptable degree.
Interference with witnesses
This is an allegation by the State based on a telephone call recorded between the accused and his brother. In the presence of counsel, in my chambers, I have listened to the telephone call. I have heard submissions on it. If it is played at trial, again its relevance, and what may be made of it, will be a question for the jury. My impression was that the call was impotent bluster. Strictly for the purposes of this bail application, even if I only interpreted the telephone call in the manner in which the prosecution contend, I would not regard that as a sufficient reason to refuse bail because I am satisfied steps could be taken to manage that risk.
Conclusion
The accused has failed to satisfy me on the balance of probabilities that there are exceptional reasons why he should be granted bail.
In any event, due to a continuing risk of flight, having regard to the charge, I would not grant bail in discretion.
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