Munro v The Queen
[2001] WASC 159
MUNRO -v- THE QUEEN [2001] WASC 159
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 159 | |
| Case No: | MCS:7/2001 | 15 JUNE 2001 | |
| Coram: | ROBERTS-SMITH J | 20/06/01 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| PDF Version |
| Parties: | ERROL MUNRO THE QUEEN |
Catchwords: | Criminal law Bail Application for bail pending trial Second application to Supreme Court Whether changed circumstances Risk of flight |
Legislation: | Bail Act 1982 (WA), Schedule 1, Part B, cl 4(a), Schedule 1, Part B, cl 1, cl 3 |
Case References: | WCVB v The Queen (1989) 1 WAR 279 Caratti v The Queen [1999] WASCA 91 KM v R, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988 Townsend v The Queen [2000] WASC 63 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail - Application for bail pending trial - Second application to Supreme Court - Whether changed circumstances - Risk of flight
Legislation:
Bail Act 1982 (WA), Schedule 1, Part B, cl 4(a), Schedule 1, Part B, cl 1, cl 3
Result:
Bail refused
(Page 2)
Representation:
Counsel:
Applicant : Mr A Palumbo
Respondent : Ms C Barbagallo
Solicitors:
Applicant : Alex Palumbo
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Caratti v The Queen [1999] WASCA 91
KM v R, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988
Townsend v The Queen [2000] WASC 63
(Page 3)
1 ROBERTS-SMITH J: This is an application for bail pending trial by application dated 12 June 2001, supported by an affidavit of Alessandro Palumbo dated 12 June 2001.
2 The applicant is charged with four others, Theodore Max Snider, Shane Lindsay Lehman, Simon Mark Jones and Vance David Jones with offences of aggravated burglary, deprivation of liberty and armed robbery in company. With two co-defendants, namely Shane Lindsay Lehman and Simon Mark Jones, he is charged with an offence of conspiracy to commit assault occasioning bodily harm to one Dino Retto. He was arrested in the afternoon of Thursday 15 February 2001 by members of the Tactical Response Group pursuant to a warrant issued under the Firearms Act.
3 The applicant was initially refused bail by a Magistrate sitting in the Fremantle Court of Petty Sessions on 21 February 2001. A further application was made to this Court by notice of motion dated 26 February 2001. That was supported by an affidavit of Alessandro Palumbo dated 22 February 2001.
4 Templeman J ordered that an affidavit or affidavits be filed by the respondent and an affidavit of Brett Thomas Bonshore was accordingly filed on 13 March 2001.
5 The substantive application was heard by Miller J on 19 March 2001. His Honour refused bail.
6 Miller J dealt with the application under cl 1 and cl 3 of Part C of Schedule 1 of the Bail Act 1982 (WA). The Crown accepted before Miller J and before me, that the offences charged did not fall into the category of "serious offences" such that the onus is on an applicant to show exceptional circumstances before bail could be granted, but rather is a case in which the onus is on the Crown to show why bail should not be granted (see WCVB v The Queen (1989) 1 WAR 279).
7 Even so, Miller J took the view that the alleged armed robbery offence was extremely serious and if the applicant was convicted the likelihood is that he would be sentenced to a substantial term of imprisonment, of anything up to 9 years. With respect, I would think it would be at least that. His Honour noted that apart from Children's Court convictions, the applicant had been convicted of breaking and entering and sentenced to 6 months imprisonment and for cannabis cultivation offences had been sentenced to a total of 5 years imprisonment and that he
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- was on parole at the time of the commission of one of the present alleged offences.
8 His Honour regarded the evidence against the applicant as strong and concluded that being a helicopter pilot he may not appear on his trial if granted bail.
9 The parties agree that because this is a second application for bail to this Court, it falls to be dealt with under cl 4 of Part B of Schedule 1 of the Bail Act which provides that:
"… where a defendant has been refused bail for an appearance or has been granted bail therefor on terms or conditions with which he is unable or unwilling to comply, the judicial officer who granted or refused bail or another judicial officer whose jurisdiction is co-extensive with his has power to grant bail for that appearance or to vary the terms or conditions of bail previously granted therefor if the defendant makes application and satisfies him that -
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was previously granted or refusal for that appearance;
(b) he failed to adequately present his case for bail on the previous occasion when it was considered; or
(c) where bail was granted to a home detention condition, he has, since the previous occasion when his case for bail was considered, complied with the home detention condition for a period of one month or more."
10 In this instance Mr Palumbo relies on changes in circumstances under cl 4(a). Consequently my power to consider the applicant's application will not be enlivened unless he can demonstrate that new circumstances have arisen or the circumstances have changed since bail was refused by Miller J on 19 March 2001. Such change must be a change to circumstances relevant to (ie in this case militating in favour of) the question whether bail should be granted.
11 If that be done, the application would then fall to be determined having regard to the consideration set out in cl 1 and cl 3 of Part C of Schedule 1 of the Bail Act.
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12 Before looking to what the changes in circumstances are said to be, it is useful to refer first to the material which was before Miller J.
13 In his affidavit dated 22 February 2001 Mr Palumbo deposed that the applicant was 35 years old, having been born on 26 February 1965 in Scotland. He has been in Perth since 1984 and does not have citizenship but is a permanent resident of Australia. The applicant is a self-employed contract helicopter pilot, martial arts instructor and truck driver. He ordinarily lives at 10 Vero Court, Iluka, which property he owns jointly with his ex-partner Tanya Arnke, although he has sole possession of it. The property is mortgaged through St George Bank and the applicant is solely responsible for the mortgage repayments in the sum of approximately $1300 per month. He and Ms Arnke have owned the property jointly for the last seven years.
14 Mr Palumbo deposes that according to his instructions from the applicant the latter was at the Vero Court property on 15 February 2001 with his girlfriend Mary Seston, a friend of hers and his brother-in-law Graham Scott, when at approximately 2.30 pm officers from the Tactical Response Group executed a warrant and the applicant was subsequently taken to the Fremantle Detectives office for questioning and later charged with the present offences. The applicant says that at 11.50 pm on Monday 5 February 2001, he was at home with his girlfriend. He says he has never heard of George's Handy Foods situated in Rockingham Road, Spearwood and has never been to the store. He says he has known Simon and Vance Jones for approximately 17 years, having met them when he was trained in martial arts by their father. He says he has no business dealings or associations with them otherwise than as friends. He says he met Shane Lehman about six months ago through the Jones brothers, but hardly knows him and has seen him only perhaps a dozen times. As to the alleged conspiracy, he denies that, and says that although he has known Dino Retto for some 10 years, he has no problems with him and no desire to do him any harm.
15 The affidavit of Detective Senior Constable Bonshore runs to some 15 pages (not including annexures).
16 He deposes that the prosecution case will allege that the applicant is the orchestrator and ring-leader in respect of all of the offences charged. He deposes that in relation to the alleged conspiracy, the prosecution case will be that between 14 and 17 December 2000 the applicant organised Shane Lehman and Simon Jones to locate Dino Retto for the purpose of causing some form of bodily harm to him. It will be alleged the applicant
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- directed the two co-accused to various locations in the Perth area in an attempt to locate Retto and directed them to conduct covert surveillance at various locations including Retto's residence in an attempt to find him. It will be said that the applicant provided guidance to the co-accused as to methods to be employed to avoid police attention and that he actively participated in the attempts to locate Retto and made statements of disappointment and frustration at their inability to locate him. He deposes that Retto was not aware that he was being targeted by the applicant and the co-accused. He says the applicant was on parole at the time of the commission of this offence. It seems this offence is to be proved by evidence of telephone intercepts.
17 As to the alleged aggravated burglary, deprivation of liberty and armed robbery in company charges, Bonshore states that the applicant was orchestrator and ring-leader in respect of an aggravated burglary committed at the premises known as George's Handy Foods at Rockingham Road, Spearwood on 1 February 2001. It will be said that Snider and Lehman entered the store for the purpose of stealing a large safe containing substantial amounts of cash but due to the size and weight of the safe, they were unable to do so. They left the store to obtain a trolley. Simon Jones was there acting as a look-out. Before leaving the store Snider and Lehman stole two air rifles belonging to the complainant. While the first two accused were away, the complainant's son arrived at the store. Jones thereupon decamped and the offence was aborted.
18 Bonshore relates the content of numerous telephone conversations between various of the accused, including the applicant, which it will be alleged demonstrate the applicant's leading role in the organisation and commission of the offences. There is talk about going back to complete the burglary. At approximately 4 am on 5 February 2001 police intercepted a car driven by Lehman in which Simon Jones was a passenger. When the vehicle was searched, police found a number of items including a loaded Ruger firearm, a police scanner, two-way radios, rope and three mobile telephones. Lehman was taken into police custody. He was released at approximately 8.30 am on 5 February. There is then reference to further telephone calls intercepted by police and in the course of which the applicant is said to have organised the further acquisition of guns, walkie-talkies, scanners and other equipment to replace the items taken by the police. This equipment was being obtained for the purpose of stealing the money from the complainant's safe. Bonshore refers to, and describes, numerous other telephone calls between the applicant and the alleged co-offenders concerning these matters and then finally about 11.50 pm on 5 February 2001, the applicant and Snider attended the
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- complainant's store dressed in balaclavas and gloves and each armed with a firearm.
19 It is alleged the 59 year old complainant was pushed down to the floor and black tape was put around his head and over his mouth. He was threatened and told to open the safe. When he was unable to do that he was hit and kicked and suffered two broken fingers. The safe was eventually unlocked and the applicant and Snider are alleged to have removed three cloth bags containing some $30,000 in cash. The complainant was then tied up with a power cord and the offender ran from the store.
20 Bonshore concedes that the complainant provided only very general descriptions of the offenders and that although it will be alleged that one of the descriptions is capable of fitting the applicant, the prosecution will not be placing a great deal of weight on the descriptions because of the circumstances in which the observations were made by the distressed elderly complainant.
21 The telephone intercepts continued and there will be evidence of further conversations between various of the alleged offenders. There will be other evidence including the results of the execution of a search warrant at the applicant's residence on 19 February 2001 when shoulder holsters, balaclavas and a pair of gloves were found.
22 As at the date of Bonshore's affidavit, all of the applicant's co-accused with the exception of Vance Jones, had been refused bail and were remanded in custody. In that affidavit, Bonshore said that there were a number of grounds on which the application for bail was opposed, including the fact that the applicant is well connected in the criminal underworld and his associates are capable of assisting him in fleeing the jurisdiction and concealing his true identity.
23 I come now to events since March 2001. These are set out in Mr Palumbo's affidavit sworn on 12 June 2001.
24 According to Mr Palumbo, the applicant appeared in the Fremantle Court of Petty Sessions on 10 April but because the prosecution brief was not then finalised, he was remanded to a further election date on 10 May. On that date the prosecution was still unable to provide a brief and the election date was set for 8 June. On 10 May the applicant made a further application for bail before Wheeler SM on the grounds that a change in circumstances had occurred, namely that the applicant's home was under threat of being sold by the Bank due to no repayments having been made
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- and the prosecution's continued delay in presenting a brief. His Worship released the applicant to bail in the sum of $75,000 with a surety in the same amount and with conditions that the applicant live at 10 Vero Court, Iluka and report to the Joondalup Police Station on Mondays, Wednesdays and Fridays.
25 The applicant was released from custody at approximately 12.30 pm on 10 May. However, that afternoon the learned Magistrate revoked the bail order on the ground that he did not have jurisdiction to make it. Mr Palumbo deposes that neither the applicant nor he were present or informed of this revocation.
26 On Friday 11 May 2001, the applicant attended Joondalup Police Station to report in accordance with his bail undertaking and was re-arrested.
27 He was brought before the presiding Magistrate in the Fremantle Court of Petty Sessions on 15 May 2001 when the issue of bail and the Magistrate's jurisdiction to grant it was again canvassed. His Worship apparently formed the view that his jurisdiction to consider bail would again be enlivened on the date of the applicant's election, namely 8 June 2001 and he remanded the applicant in custody to that date, the applicant being under the impression that on that date he would be released to bail.
28 However, on 8 June when he appeared in the Fremantle Court of Petty Sessions the learned Magistrate announced that having read a judgment by his Honour the Chief Judge of the District Court in which his Honour found that the jurisdiction of lower courts was forever fettered once a Justice of the Supreme Court had denied bail, again refused the applicant bail and remanded him and the co-accused to the Perth Court of Petty Sessions on 15 June for the setting of a date for the preliminary hearing. His Worship released the co-defendant Snider to bail on terms similar to those which had been imposed on the applicant on 10 May. Mr Palumbo deposes that the applicant now remains the only one of these alleged co-defendants in custody, all the others having been released to bail.
29 The changes in circumstances relied upon by the applicant here are said to be:
1. That the Magistrate who initially refused bail was subsequently prepared to release the applicant and did in fact do so, with the result that the applicant spent 24 hours in the community and was only re-arrested when he attended the Joondalup Police Station to
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- report in accordance with his bail conditions. He has thereby demonstrated his willingness to abide by bail conditions and that he is not a flight risk.
- 2. All other co-accused have been released to bail. They have elected a preliminary hearing, in which he is now bound to participate. That has been listed for hearing from 29 January to 4 February 2002. Being on bail, that timing would not greatly affect his co-defendants, but will be unduly onerous on the applicant if he is in custody on remand. He has already spent 4 months in custody.
3. The election papers which have now been served disclose no evidence upon which a properly instructed jury could convict the applicant.
30 Ms Barbagallo for the respondent submits that no inference can be drawn from the fact that the applicant had been released into the community for 24 hours and complied with his reporting conditions. She says the police knew the learned Magistrate had made an error in releasing the applicant and were watching him and were well aware of where he was. As to the preliminary hearing, she agrees the hearing date is a significant time away but says these are serious charges.
31 I have some hesitation about the first proposition relied upon by Mr Palumbo, but am prepared to accept the second does constitute a change in relevant circumstances for the purposes of cl 4(a). That being so, I must consider the application according to the ordinary principles.
32 The applicant is entitled to the presumption of innocence. That factor I think, is best considered in the context of an assessment of the strength of the prosecution case.
33 As indicated above, I agree with the view of Miller J that if the applicant were to be convicted of these offences - particularly the armed robbery in company - he is likely to receive a substantial sentence in the order of at least 9 years imprisonment.
34 There is very little information before me to suggest the applicant has any real links or connection with Western Australia of a nature which would carry some confidence that they would operate upon him to keep him in this State. He is 35 years old and was born in Scotland. Although he has been in Perth since 1984 and is a permanent resident of Australia, he is not an Australian citizen. He describes himself as a self-employed helicopter pilot, martial arts instructor and truck driver. No further details
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- of his employment or business interests or activities are given. There is nothing to suggest business assets or commitments would keep him in Western Australia. The only reference to personal property or assets is his joint interest in the Vero Court property. It is not said whether that is a house or a unit. There is no indication of the value of the property or of the applicant's equity in it. No other personal or financial details of the applicant are given.
35 I accept that the applicant has never breached bail in the past. As to his release into the community by the learned Magistrate on 10 May 2001, I agree with Ms Barbagallo's submission that in the circumstances, no relevant inference can be drawn from that.
36 Before me Mr Palumbo conceded the evidence against the applicant in respect of the alleged offences of aggravated burglary and conspiracy to assault could be characterised as strong, but he submitted there is no evidence at all in the prosecution brief to show the applicant was present at the commission of the armed robbery in company on 5 February. He says the extremely broad description given by the complainant does not even remotely fit the applicant.
37 In the complainant's statement dated 6 February 2001, the only portion going to the description of the offenders is the following:
"I would describe the first males (sic) as being about 5 foot 10 tall, solid build. I only remember seeing that he was wearing a dark coloured balaclava, with holes for the eyes and mouth, and dark coloured gloves. I cannot remember seeing any other clothing.
The second male would have been about 5 foot 5 or 6 tall, medium build. I only remember seeing that he was wearing a dark coloured balaclava, with holes for the eyes and mouth, and dark coloured gloves. I cannot remember seeing any other clothing."
38 Mr Palumbo says the applicant is between 6 foot 2 and 6 foot 3 inches tall and that neither of these descriptions can possibly relate to him.
39 It seems to me those two descriptions would have no evidentiary value either way. Whether or not the prosecution will be able to prove the applicant was one of those offenders will necessarily turn on other evidence. I do not have the prosecution brief before me. Apparently Ms Barbagallo does not have it either - the matter has still to go to
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- preliminary hearing. The impression I have is that Mr Palumbo is saying there is no direct evidence of the applicant's presence. Ms Barbagallo submits there will be considerable evidence from telephone intercepts and the location of certain items that will afford evidence that the applicant was present. On the material before me, and acknowledging that Mr Palumbo says the applicant will adduce evidence of alibi (about which I have no details other than it seems he will be asserting he was with his girlfriend at home), I consider that the prosecution case does appear to be strong, albeit circumstantial. That of course will be better able to be assessed after the preliminary hearing.
40 That brings me to the question of delay. The 24 hour release aside, the applicant has been in custody since 15 February 2001. By the time of the preliminary hearing on 29 January 2002, he will have been in custody some 11 months. If he is committed for trial, the trial itself would still be some way off - although as Miller J pointed out, an armed robbery in company would be listed for hearing in this Court, which would give a trial much earlier than in the District Court, given the state of the lists. In any event, the bail position would no doubt be revisited after the preliminary hearing if there was a committal for trial.
41 Eleven months in custody pending a preliminary hearing is unsatisfactory in the extreme. It is a cogent factor militating in favour of a grant of bail. But I must balance against that my assessment of the risk that if bail is granted the applicant may abscond. I consider the strength of the prosecution case and the likely substantial term of imprisonment if he is convicted, would be very powerful influences upon the applicant to abscond. There is nothing before me as to his personal circumstances or links with Western Australia to afford any basis for the view that there are interests or connections which will keep him in this State. When one adds to that his age, the fact that he is a qualified pilot and the assertion by Detective Bonshore that he has criminal associations who could assist him abscond and conceal his identity, I am driven to the conclusion there must be a real risk that the applicant would not attend for his trial if granted bail. I have considered the imposition of reporting and other conditions, but I would have no confidence that even the imposition of stringent conditions would allay my concerns about the extent to which the applicant must be regarded as a flight risk.
42 The application is refused.
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