Mikhail v The State of Western Australia

[2010] WASC 201

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MIKHAIL -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 201

CORAM:   BLAXELL J

HEARD:   3 & 8 JUNE 2010

DELIVERED          :   8 JUNE 2010

PUBLISHED           :  4 AUGUST 2010

FILE NO/S:   MCS 87 of 2009

BETWEEN:   FRANK MIKHAIL

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail pending trial - Accused in custody awaiting trial on two charges of wilful murder - Lengthy and unnecessary delay in trial because of incomplete prosecution disclosure - Previous decision refusing bail - Whether continuing delay constitutes a change in circumstances as well as exceptional reasons allowing consideration of a grant of bail

Legislation:

Bail Act 1982 (WA), s 7B, sch 1 pt C cl 3C
Criminal Procedure Act 2004 (WA), s 42

Result:

Bail granted on conditions

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):

Beamish v The Queen [1962] WAR 85

Borg v The Queen [1972] WAR 194

Perkins v The Queen [1983] WAR 184

R v Dodd [1960] WAR 42

1. BLAXELL J:  The applicant (Mr Mikhail) and his son (Adam Mikhail) are jointly charged on an indictment alleging that on 13 June 2008 at Kewdale they wilfully murdered Francesco LaRosa and Thi Kim Dung LaRosa.  They have each pleaded not guilty to both counts of the indictment, and despite the fact that they were first charged with these offences in January 2009, they are still to stand trial.

2. On 29 October 2009 Mr Mikhail applied for bail, but on 9 November 2009 I refused that application.  Approximately six months later (on 21 May 2010) Mr Mikhail lodged a fresh application for bail, and on 3 June 2010 I granted that application.

3. Mr Mikhail had to overcome considerable hurdles to obtain bail. By reason of s 7B(6) of the Bail Act 1982 (WA) (the Act), he had to firstly satisfy me that there were new facts, or new or changed circumstances since bail was last refused. Secondly, and by reason of cl 3C of pt C of sch 1 of the Act, he had to satisfy me that there were exceptional reasons why he should not be kept in custody. Lastly, he had to satisfy me that bail could properly be granted having regard to the general requirements of the Act which govern any grant of bail.

4. In the end, I was satisfied as to all of these requirements, and I now set out my reasons for coming to the conclusion that Mr Mikhail should be released on bail.

The prosecution case against Mr Mikhail

1. [Suppressed]

2. [Suppressed].

3. [Suppressed].

4. [Suppressed].

5. [Suppressed].

6. [Suppressed].

7. [Suppressed].

8. [Suppressed].

9. [Suppressed].

10. [Suppressed].

11. [Suppressed].

12. [Suppressed].

13. [Suppressed].

14. [Suppressed].

15. [Suppressed].

16. [Suppressed].

17. [Suppressed].

18. [Suppressed].

19. [Suppressed].

20. [Suppressed].

21. [Suppressed]

22. [Suppressed].

23. [Suppressed].

24. [Suppressed]. 

25. [Suppressed]. 

26. [Suppressed].

The circumstances surrounding the previous bail application

1. Mr Mikhail's first application for bail was made while the matter was still proceeding in the Stirling Gardens Magistrates Court, and before he had been committed to the Supreme Court.  On the hearing of that application the submissions of counsel focused on whether or not there were exceptional reasons why Mr Mikhail should not remain in custody.  It was contended on behalf of Mr Mikhail that there were three grounds for concluding that there were exceptional reasons.  These were that there was a weak prosecution case (against Frank Mikhail), that he had particular health problems, and that there had been excessive delay by the prosecution in completing disclosure.  (In that regard the State was still to disclose significant aspects of the forensic evidence it relied on including reports of DNA analysis, and reports from ChemCentre WA).

2. [Suppressed].

3. [Suppressed].

4. [Suppressed].

5. With regard to Mr Mikhail's health problems, these existed whether or not he remained in custody.  He was receiving proper and appropriate treatment in prison.  In respect of the delay in prosecution disclosure, I considered that that was a serious matter of concern.  However, at that time it was not sufficient to amount to an exceptional circumstance.  I nevertheless expressed the view that if the delay continued for an appreciable length of time it could become an exceptional circumstance which would in itself justify bail.  In this regard, when giving my reasons for refusing bail, I specifically stated to Mr Mikhail's counsel:

   If this delay was to continue indefinitely, then you should feel free to renew the application because, in my view, the prosecution has not shown great diligence and expedition in pursuing very serious matters.  I think that they really need to do something about prioritising the forensic evidence and ensuring that the matter can be committed to trial as soon as possible (ts 53 ‑ 54).

The relevant circumstances at the time of the present application for bail

1. [Suppressed].

2. There is also evidence before me to show that as a result of Mr Mikhail's continued incarceration and his inability to follow his normal occupation as a painter, he is experiencing financial difficulties in funding his defence.  In this regard, Mr Mikhail is not legally aided, the case is complex, he wishes to engage independent experts to assess the forensic evidence, and he will have problems in finding the necessary funds if he cannot resume his occupation pending trial.

3. Unfortunately, there has been continuing delay by the State in completing disclosure of its expert evidence (and in particular the DNA evidence).  Even at the present date, it is still not known when the final report of the State's DNA expert will become available.  Because of this continuing delay it has become necessary to vacate the provisional trial dates in September 2010, and the trial now has a substituted listing in February 2011.  (Accordingly, more than two years will elapse from the arrest of Mr Mikhail until trial).

4. As to the reasons why there has been continuing delay with the final DNA report, I am informed from the bar table as follows.  When requesting the relevant DNA reports, the DPP file manager did not comply with the 'Guidelines for Disclosure of DNA reports' which are set out in this court's Practice Directions (and which I have appended to these reasons).  Those guidelines require that there be an email request from the DPP direct to PathWest, and that a copy of that email be sent to the police DNA Exhibits Coordination Unit (DECU).  (DECU has staff attached to the PathWest laboratory, who instruct PathWest on police priorities for DNA examination of exhibits).  If this procedure is followed, PathWest guarantees to provide the DPP with a preliminary DNA report within one month of request, and a final DNA report within three months of request.  (These timelines are subject to PathWest having received the exhibits requiring DNA analysis at the time of the email request).

5. Instead of following these procedures the DPP file manager made an oral request (on 19 May 2009) for preliminary and final DNA reports.  This oral request was made to the PathWest representative at the 'phase 4' conference (between police investigators, the DPP, and forensic agencies) when the priorities for forensic examinations of the exhibits in the present case were determined.  However, the DPP did not receive any DNA reports by the time of Mr Mikhail's first bail application. 

6. On 24 November 2009 (and as a result of the comments I made when refusing the first bail application) the DPP file manager sent an email to the forensics officer on the police investigating team.  This email was forwarded on to PathWest and it requested that the DNA reports be provided as a matter of urgency.  As a result the DPP received the preliminary DNA report on 19 January 2010.  Subsequently, in pursuing the final report, the DPP file manager has only dealt directly with PathWest after getting 'approval' from the police forensics officer.

7. At the time of the hearing of the present application the particular PathWest staff member responsible for the matter was on leave.  However, the file manager had been informed by other staff at PathWest that that agency had no record of any request for a final DNA report.

The problem of delay in disclosure with murder cases generally

1. The delay in obtaining expert forensic reports in the present case, while longer than normal, is typical of that which has occurred in murder cases generally in recent years.  Unfortunately, it is now quite common for the trials in murder cases to take place more than one year after an accused's arrest, which is an extraordinary delay by traditional standards.  As recently as 20 years ago, trials in murder cases commonly occurred within six months of the arrest of the accused.  Reference to authorities such as R v Dodd [1960] WAR 42; Beamish v The Queen [1962] WAR 85; Borg v The Queen [1972] WAR 194 and Perkins v The Queen [1983] WAR 184 will show that even appeals from convictions at trial were sometimes decided as soon as four months, and usually no more than eight months, after arrest.

2. There can be little doubt that modern investigative techniques requiring expert forensic analysis of exhibits have been a major contributing factor to the increasing delays in trials of murder cases over the past two decades.  In many of these cases (including the present one) there have been large quantities of exhibits requiring testing, including some exhibits which have had to pass through a number of forensic agencies in turn before reaching the last of those agencies (usually PathWest).

3. Consequently, the various forensic agencies have been subjected to increasing demands for their services, and in some instances they have not had adequate resources to meet those demands.  Agencies such as ChemCentre WA and PathWest also have obligations outside the criminal justice system, and inevitably there are competing priorities in the allocation of their work.

4. These problems have been particularly acute within PathWest and have impacted on its ability to provide timely reports on DNA analysis of exhibits in criminal cases.  DNA analysis and reporting is very resource intensive and I have been informed that analysis and reporting occurs at an average rate of only approximately three exhibits per scientist per day.  In some murder cases there are hundreds of exhibits requiring analysis, and in these circumstances PathWest faces obvious difficulties in responding promptly to the demands of the criminal justice system.

5. These difficulties have been aggravated by the reluctance of the DPP to deal directly with PathWest when communicating desired priorities and deadlines for provision of reports.  For reasons best known to itself, the DPP has always preferred to communicate with PathWest via the investigating officers on each case.  This is a cumbersome process, and the present case is a prime example of the problems that often arise as a result of this unsatisfactory chain of communication.

6. In an endeavour to overcome these difficulties the court initiated, and PathWest agreed in 2007, to a new protocol as per the attached 'Guidelines for Disclosure of DNA Reports'.  For the first time, PathWest agreed to provide a very early and standard form 'preliminary report' containing only the initial results of DNA analysis of exhibits.  PathWest also agreed that when necessary it would follow this up with a full 'final report' after the initial results had been peer reviewed and calculations made as to their statistical significance.

7. For the first time, PathWest also agreed to meet standard timelines of one month for a preliminary DNA report, and three months for a final DNA report following request.  However, those timelines would only be met if the request came directly from the DPP and was made by email to the particular email address stipulated in the guidelines (with a copy of that email being sent to DECU).

8. The major underlying purpose of this new protocol with PathWest was to provide the DPP with a useful tool by which it could prioritise the order in which DNA reports are supplied.  In appropriate cases, the DPP is now in a position to ensure that necessary court deadlines for the provision of DNA reports (consistent with the progress of proceedings) can be met.

Whether there are new or changed circumstances

1. There was a period of more than seven months between my refusal of Mr Mikhail's first bail application, and my determination of his second application.  Throughout this period Mr Mikhail remained in custody, with the consequence that by 17 June 2010 approximately 17 months had elapsed since the date of his arrest.  If the trial had been able to proceed in September 2010, this would have resulted in him spending a total of 20 months in custody awaiting trial.

2. However, the evidence before me also established the probability that has now come to pass, namely that the provisional trial dates would have to be vacated, and new dates allocated sometime in 2011.  It followed that if Mr Mikhail was not granted bail, the likely time that he would spend in custody while awaiting trial would have exceeded two years.

3. Such a delay could not have been contemplated at the time of the first bail application, and in my view, this was clearly a change in circumstances falling within s 7B(6)(a) of the Act.

Whether there are exceptional reasons why Mr Mikhail should not be kept in custody

1. If the DPP had complied with the 'Guidelines for Disclosure of DNA Reports' much of the present delay would have been avoided.  The fact that PathWest was able to supply a preliminary report by January 2010 shows that the relevant exhibits were to hand at least a month previously.  Accordingly, if the Guidelines had been followed, PathWest would have been in the position to provide a final report by March 2010. 

2. If the final DNA report had been received by the DPP by March 2010 (or even as late as June 2010 when the present application was heard) it would not have been necessary to vacate the provisional dates for trial in September 2010.  In that regard, it would have been possible to adjust the lists in September and October to accommodate the fact that the estimated length of trial has now extended from four weeks to six weeks. 

3. It follows that at all material times the DPP was in the position to expedite the disclosure of the DNA evidence and to avoid the unnecessary delays in trial.  Pending trial, Mr Mikhail is presumed to be innocent, and it could well be that he will be ultimately acquitted.  The potential for an injustice arising from his prolonged and unnecessary incarceration during the intervening period is glaringly obvious.  To my mind it is self‑evident that there are exceptional reasons why he should not be kept in custody.

Whether Mr Mikhail should be granted bail

1. I have considered the questions which I am required to ask myself under cl 1 of pt C of sch 1 of the Act. The State contends that if not kept in custody, Mr Mikhail may fail to appear in court in accordance with his bail undertaking, and may interfere with witnesses. However, the State does not advance any particular reasons for those submissions other than the fact that the charges in the indictment are very serious.

2. Mr Mikhail does face the most serious of charges, and it is well recognised that the more serious the charge against an accused the greater the incentive for him to abscond.  However, in the present case there is the countervailing consideration that Mr Mikhail's alleged motive in involving himself in the crimes was his concern for his son arising from the dispute with Mr LaRosa.  In my view, it is unlikely that Mr Mikhail would abscond from the jurisdiction while his son remains in custody, and in any event conditions of bail can be imposed which would greatly reduce that possibility.  Conditions can be similarly imposed which will reduce the possibility of interference with witnesses.

3. After settling the proposed conditions of bail with counsel, it was my view that Mr Mikhail's application should be granted.

Partial suppression order

1. For the purposes of protecting the integrity of the trial, there will be an order suppressing publication of paragraphs [5] ‑ [30], [32] ‑ [34] and [36] of these reasons until the completion of the trial or any further order of the court.