Mikhail v The State of Western Australia
[2010] WASC 238
•3 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MIKHAIL -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 238
CORAM: BLAXELL J
HEARD: 1 SEPTEMBER 2010
DELIVERED : 3 SEPTEMBER 2010
FILE NO/S: INS 47 of 2010
BETWEEN: ADAM MIKHAIL
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail pending trial - Two charges of wilful murder - Unnecessary delay in trial by reason of late prosecution disclosure - Whether there are exceptional reasons why accused should not be kept in custody
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 3C
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr P S Ash
Respondent: Ms M Ridley
Solicitors:
Applicant: Peter Ash & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Mikhail v The State of Western Australia [2010] WASC 201
BLAXELL J: The applicant, Adam Mikhail, and his father (Frank Mikhail) are jointly charged on an indictment alleging that on 13 June 2008 at Kewdale they wilfully murdered Francisco LaRosa and Thi Kim Dung LaRosa. Adam Mikhail was arrested on those charges in January 2009, and he and his father will stand trial in February 2011.
On 4 August 2010, I granted an application for bail by Frank Mikhail after being satisfied that there were exceptional reasons why he should not remain in custody. In this regard, there had been unnecessary delay by the prosecution in disclosing forensic evidence which had resulted in a deferral of the trial. Having regard to the strength of the evidence against Frank Mikhail, the potential injustice arising from his prolonged and unnecessary incarceration provided exceptional reasons for a grant of bail.
Adam Mikhail now applies for bail and relies on my findings in respect of his father as establishing exceptional reasons why he also should not remain in custody. In determining whether or not to grant his application, I am bound by cl 3C of sch 1 pt C of the Bail Act 1982 (WA) which provides that in respect of murder cases:
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 accused should not be kept in custody; and
(d)bail may properly be granted having regard to the provisions of clauses 1 and 3
The requirements of cl 3C
Section 13 of the Bail Act confers jurisdiction on the court to grant bail, which jurisdiction is to be exercised in accordance with pt III of the Act and the further provisions of pts B, C and D of sch 1.
The manner in which the jurisdiction is to be exercised is set out in pt C of sch 1. Clause 1 of pt C provides that the grant or refusal of bail shall be at the discretion of the judicial officer, which discretion shall be exercised having regard to the particular questions set out in cl 1 as well as to any other questions considered relevant. In respect of some of those questions the court must also take account of the matters set out in cl 3.
However, cl 1 is expressly subject to cl 3A and cl 3C. Clause 3A concerns the grant of bail where a serious offence is committed by an accused while on bail for another serious offence. Clause 3C deals specifically with the grant of bail in murder cases, and requires that bail be refused in other than exceptional cases. Accordingly, when determining whether or not bail should be granted to an accused charged with murder, the primary focus must be on the requirements of cl 3C.
The statutory requirement in cl 3C(c) that the court be satisfied that there are 'exceptional reasons' why the accused should not be kept in custody is often confused with the common law requirement for 'exceptional circumstances' before bail can be granted in serious criminal cases. Although the authorities as to the common law requirement are sometimes applied in the context of the exercise of the general discretion under cl 1, they do not have any direct bearing on the provisions in cl 3C.
Clause 3C effectively places a hurdle in the path of any applicant for bail in a murder case, and that hurdle must be overcome before there can be any exercise of the general discretion under cl 1. Unless there are exceptional reasons why the accused should not be kept in custody, the application must be refused.
There are a wide variety of circumstances which might amount to 'exceptional reasons', but they can only do so if they provide a rational basis for concluding that the accused should not be kept in custody. In the present case, Adam Mikhail relies upon the delay in trial brought about by late prosecution disclosure as 'exceptional reasons' why he should not remain in custody.
In my opinion, delay in itself cannot provide exceptional reasons because it is the primary requirement of cl 3C that all accused in murder cases should ordinarily remain in custody until trial. In every murder case there must always be a delay until trial for the purposes of gathering evidence, briefing counsel, and enabling general preparation by each side. It is only when there is any additional delay that unnecessarily occurs that there can be any scope for 'exceptional reasons' to arise. This is because of the potential for injustice as a result of unnecessary time spent in custody in the event that the accused is ultimately acquitted. (Conversely, and in the event of an ultimate conviction resulting in a substantial term of imprisonment, no such injustice would occur).
It follows in my view, that in cases where there is unnecessary delay, the question whether this provides exceptional reasons why the accused should not be kept in custody, must in large part turn upon the strength of the prosecution case. In this regard, it is self‑evident that the weaker the prosecution case, and the longer the delay, the greater is the prospect of a potential injustice.
The prosecution case against Adam Mikhail
In my reasons for decision when granting bail to Frank Mikhail (Mikhail v The State of Western Australia [2010] WASC 201) I summarised the prosecution evidence against both accused. For present purposes, rather than repeat that summary, I simply adopt [5] ‑ [30] inclusive of that decision.
[Suppressed]
[Suppressed]
[Suppressed]
Other relevant matters
Adam Mikhail was arrested in January 2008, and if not granted bail will spend more than 2 years in custody awaiting his trial. As I have already found in respect of Frank Mikhail's bail application, a significant proportion of the delay until trial has been unnecessary, and has been caused by the prosecution's failure to expedite disclosure of its expert evidence.
Adam Mikhail was born on 23 February 1987, first went into custody at 21 years of age and is now 23 years of age. He attended a private school up until 2003 and then worked for two years supervising works and managing accounts for a construction company. In 2006, he and a partner established a business of importing and wholesaling building products.
Adam Mikhail married Phuong Tran in Vietnam on 15 March 2008 and now has a son who was born on 17 September 2008. Ms Tran is presently in Australia and has a permanent residency visa. If released to bail, Mr Mikhail, his wife and son will reside with his mother until trial. All three either have, or are willing to surrender their passports to the court to facilitate a grant of bail.
Prior to his arrest, Adam Mikhail was involved in commercial business dealings which are currently the subject of dispute and of civil proceedings in this court. If he remains in custody he will have difficulties in resolving this dispute and in securing sufficient funding for his trial. He has already sold his former residence to obtain funds for the payment of legal fees.
The present husband of Adam Mikhail's mother is willing to be his surety if granted bail. The proposed security for that surety is an interest in real estate valued in excess of $200,000. The applicant will abide by any conditions that might be imposed if granted bail.
Whether there are exceptional reasons why the applicant should not be kept in custody
In assessing whether there are exceptional reasons why Adam Mikhail should not be kept in custody, I have regard to the extraordinary and unnecessary delay until trial, the impact of that delay in respect of the personal matters I have referred to, and the strength of the prosecution case against him. For the reasons I have outlined earlier, I consider that this last factor is a very significant one in my determination.
In my view, when that factor is taken into account, the unnecessary delay in bringing Adam Mikhail to trial is not so long, and the consequent potential for injustice is not so great, as to amount to exceptional reasons why he should not remain in custody. Even when that delay is looked at in combination with the other matters raised as to why he should not remain in custody, I am not persuaded that there are exceptional reasons.
In coming to that conclusion, I am not ignoring the presumption of innocence that applies to any accused charged with a criminal offence. Adam Mikhail is presumed to be innocent, but because of the charges he faces, the Bail Act requires that he remain in custody in the absence of any exceptional reasons why he should not do so.
For these reasons, the application will be dismissed.
Suppression order
For the purposes of protecting the integrity of the trial, there will be an order suppressing publication of paragraphs [13] ‑ [15] of these reasons until the completion of the trial or any further order of the court.
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