Pearce v The State of Western Australia
[2011] WASC 178
•28 JULY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PEARCE -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 178
CORAM: McKECHNIE J
HEARD: 30 JUNE & 8 JULY 2011
DELIVERED : 28 JULY 2011
FILE NO/S: MCS 24 of 2011
BETWEEN: RODERICK PHILLIP PEARCE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Murder - Whether exceptional reasons shown
Legislation:
Bail Act 1982 (WA), Sch 1 pt C cl 3C
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Ms K A Clohessy
Respondent: Mr D Dempster & Ms L E Christian
Solicitors:
Applicant: Curt Hofmann & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Mansell v The State of Western Australia [2011] WASC 170
McKECHNIE J: On 17 February 2011 the applicant was charged with murder and remanded in custody. He applies for bail. The provisions of the Bail Act 1982 (WA) Sch 1 pt C cl 3C are applicable and he must show exceptional reasons why he should not be kept in custody.
The issues
•The case is circumstantial
•The safety of the applicant
•His family's wellbeing
•Delay
The nature of the case
The applicant has sworn an affidavit in support of his application. Counsel submits that the prosecution case is circumstantial. The applicant deposes:
9.I believe and understand that the prosecution case is generally circumstantial. I do not believe that there are any witnesses who directly implicate me in the commission of the offence, which occurred during a melee in Carnarvon at the relevant time.
10.I believe and understand that the prosecution material consists of some 140 witnesses and I reiterate that none of those witnesses state that I committed the offence as alleged.
In response the prosecution has filed an affidavit annexing various witness statements and the video record of interview.
It is sufficient to say that the prosecution case is not simply circumstantial but there is also direct evidence, if accepted by the jury.
A particularly weak prosecution case might be an exceptional reason, alone or together with other reasons.
However, to describe a case as a circumstantial case says nothing whatever about the strength of the case. That description merely indicates the mode by which the prosecution will set out to prove its case.
No submission was made that the case was weak, simply that it was circumstantial. This is not an exceptional reason.
The applicant's safety
The applicant deposes:
7.On or about 12 May 2011 I was attacked by two unknown assailants in Casuarina Prison. I was approached from behind and beaten by the two assailants. During the course of my attack, one of my assailants threatened that he would kill me for what I had supposed to have done, and I understand and believe that my assailants were relatives of the deceased murdered victim in this matter or are friends of the deceased.
8.I fear that I will be attacked in the future unless released from custody on bail as relatives and friends of the deceased of the alleged offence are prisoners throughout the prison system within the State of Western Australia. I genuinely fear for my safety and submit that the threats against my life are real and represent exceptional circumstances why I should be released on bail pending my trial in the Supreme Court.
In response, the prosecution has filed an affidavit of Detective Senior Constable Marshall who indicates, in summary, that the accused's safety is a real concern and would be more of a concern if he was in the community.
He deposes that the Department of Corrections has a specially designed unit within the prison system for inmates who feel insecure or threatened while incarcerated.
The records from the prison indicate that the applicant declined protection status on 9 June 2011. He no longer felt safe in the education area but felt safe in the unit. He did not know who attacked him.
The applicant gave evidence and explained the attack in more detail and the response to it. He says that he has been threatened and that the victim, who had been incarcerated many times, had developed friendships within prisons so that effectively he did not know who might be a threat to his safety. The alert system only works if he is able to nominate a specific person.
The applicant explained that when he was in the education area he was sucker punched on the jaw causing him to fall to the floor. He was then taken to the isolation unit and remained there for 24 hours when he had thought it would only be 10 or 15 minutes. There had been some mediation by a respected Elder who had advised the other person not to bring outside problems into the prison. The applicant signed the 'No Further Action' form because he feared that he would be placed in isolation for an extended period and he did not wish this to occur. There is nothing to do, minimal human contact and only a radio to keep him company.
He confirmed that he was offered protective custody but he rejected this offer as it meant going into a protected area known as the 'dog yard' or the 'bone yard', peopled by paedophiles and granny bashers. He felt reasonably secure in his own division.
The applicant acknowledges that security is an issue within prison and outside of prison but submits he would be safer outside of prison where his address is unknown and could take steps to avoid trouble. Inside prison his location is known and he is marked.
I accept that the applicant's fears are genuine and, based on the evidence of Detective Marshall, they are well‑founded. The prison authorities appear to have acted appropriately on the one incident that has occurred. Obviously, the applicant's safety is an issue inside and outside prison. I am not persuaded that by itself, the applicant's safety constitutes an exceptional reason. I consider the risk to the applicant should be and can be managed in a custodial setting.
The family's wellbeing
The applicant is aged 41. He is married and has two children aged 4 and 2 years. Prior to his arrest he lived on a farm in the mid‑west with his family and extended family. He gave evidence that his wife suffers from anxiety and agoraphobia.
Since he has been in custody, she has been subjected to three anxiety attacks where she has been removed by ambulance. This leaves members of his extended family, who may not always be sober, to look after the children. Because of her agoraphobia she cannot take public transport and is dependent on others for lifts down to Casuarina. She is staying with her sister in a Perth suburb. He is very concerned about his family, particularly his children, and his need to protect them. He has been threatened that if they cannot get to him, they will kill his children.
Although Ms Christian noted, correctly, that there is no direct evidence as to his wife's condition and no medical evidence in support, nevertheless, for the purpose of the bail application, I accept in general terms the applicant's evidence about his wife's state of health and their relationship which he describes as loving but under stress.
Delay
The matter is listed for committal mention on 7 September 2011. If he is committed on that date, a trial is likely early in the new year, probably March. It will then be 13 months between arrest and trial. I have commented on the effect of disclosure and trial delay in Mansell v The State of Western Australia [2011] WASC 170.
At this stage, I would not regard the potential delay as falling within exceptional reasons. Any delay, of course, may adversely effect the prosecution and inevitably will adversely affect an accused person who is detained in custody. But the delay is not of such a magnitude which would be classified as an exceptional reason to grant bail.
Combination of all matters
I have concluded that individually or collectively, the issues advanced by the applicant do not constitute exceptional reasons. I have also looked at the combination of the factors which have been advanced to see whether together they can amount to exceptional reasons sufficient to enliven the discretion to grant bail. I have concluded that they do not. The safety of the applicant can be adequately managed in custody. The delay, while unfortunate, is potentially of the same order as commonly experienced in cases of murder where accused are remanded in custody. The family situation of the applicant is a very real concern but not one which, alone or together with the other matters, can amount to exceptional reasons. The application must be dismissed.
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