R v Rechichi - [1999] WASC 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- RECHICHI [1999] WASC 73

CORAM: SCOTT J

HEARD: 18 JUNE 1999

DELIVERED : 24 JUNE 1999

FILE NO/S: IND 186 of 1998

BETWEEN: THE QUEEN
Crown
AND
RAFFAELE RECHICHI
Accused

Catchwords:

Criminal law - Jurisdiction, practice and procedure - Bail application pending trial - Prior bail application refused - Consideration of principles to further invoke jurisdiction - No change in circumstances - No exceptional circumstances

Legislation:

Bail Act 1982 s14

Result:

Application dismissed

Representation:

Counsel:

Crown : Mr M Mischin
Accused : Mr A O Karstaedt

Solicitors:

Crown : State Director of Public Prosecutions
Accused : Kevin Penkin & Assoc

Case(s) referred to in judgment(s):

Alexopolous v The Queen, unreported; SCt of Vic; 23 February 1998; BC9800603
Marotta v The Queen [1999] HCA 4
WCVB v The Queen (1989) 1 WAR 279

Case(s) also cited:

Nil

SCOTT J: On 18 June 1999, the accused applied for bail pending trial. The accused's trial is scheduled for hearing in the Supreme Court in the October sessions with a voir dire hearing scheduled for the September sessions.
The accused has been in custody since February 26, 1998 when he was taken into custody on a charge in similar terms to that which he now faces on indictment. A preliminary hearing on those charges commenced on 29 June 1998 and the accused was committed for trial. The trial was initially scheduled for February 1999 and was later adjourned until April 1999 and again until October 1999. Each of those adjournments was at the request of the accused or his counsel and I will return later to the reasons for those adjournments.
The accused applied for bail on 21 October 1998. The application was heard by Miller J. On that occasion Miller J heard evidence from two psychiatrists, the first being Peter John Shannon, who was called on behalf of the accused, and the second, Ananth Subrahmanyam Pullela. There was a dispute between the psychiatrists as to the degree of danger represented by the accused. Dr Pullela, in his evidence, said to Miller J:
"Mr Rechichi, in my view, fits into a classic description of a major personality disorder; that is, an anti-social/paranoid cluster with an extreme degree of psychopathic deviancy."
Dr Pullela went on to say that the accused had major deficits in all four components and in particular had a paranoid/anti-social cluster. In conclusion, Dr Pullela indicated that the accused has "a reckless disregard for the safety of others by making the serious threats to kill".
That evidence was contrary to the evidence of Dr Shannon, who testified that "I could not find any particular evidence of Mr Rechichi seeking to be a danger to others."
Miller J had detailed evidence placed before him and the assistance of counsel, both for the accused and for the Crown, and considered the evidence and submissions. In his conclusions, Miller J said:
"I refer to the matter set out in Pt C cl 1 (of the Bail Act) briefly and I'm also asked there to consider whether if the accused is not kept in custody he might firstly fail to appear in court in accordance with the bail undertaking, I do not see any danger of that; secondly, he might commit an offence, and I do see a danger of that because Dr Pullela whose evidence I accept, identifies a risk of that; thirdly whether he would endanger the safety, welfare or property of any person, and I see a risk in that for the reasons that Dr Pullela has identified; fourthly, whether he would interfere with witnesses or otherwise obstruct the course of justice, and I see the possibility of a risk of that in the light of Dr Pullela's evidence."
In the end result, Miller J reached the conclusion that even although the accused would have been in custody for nearly a year at the time of trial, bail should be refused.
Pursuant to the provisions of s 14 of the Bail Act 1982 ("the Bail Act") where bail has been refused, the applicant has to satisfy the court either:
(a) that new facts have been discovered, new circumstances have arisen, or circumstances have changed since the occasion when the jurisdiction was invoked; or
(b) that the applicant failed adequately to present his case for bail on the first occasion.
The only matter of significance that counsel has brought to the attention of the court which reveals new circumstances, is that whilst Miller J considered the application on the basis that the accused's trial would be in February 1999, the matter now falls for consideration on the basis that the trial will be held in October 1999. It is thus argued by counsel, that the accused will have served some 20 months in custody before trial, which is the equivalent of the custodial portion of a five year term of imprisonment with a parole order.
Counsel for the accused argues that this is not a capital offence and that the maximum term of imprisonment for which the accused would be liable were he convicted, is a term of 14 years. As a consequence, counsel says, this case does not fall into the same category as homicide cases where different considerations apply. Nonetheless, in my opinion, where, as here, the accused is charged with the offence of attempting to procure another to aid him in a wilful murder, it is an extremely serious allegation and must be viewed in that light. In WCVB v The Queen (1989) 1 WAR 279, the applicant was facing a total of 96 charges, including burglaries, false pretences and forgery charges. None of those charges were homicide charges and none carried a term of life imprisonment. There were allegations, however, of a very serious nature.
In that case, Ipp J said at 283-284:
"I regard the charges with which the applicant is charged as falling within a class that can be regarded as extremely serious. In my view, the principles applicable to such a case require the applicant to show extremely exceptional circumstances to justify bail."
In my opinion, where, as here, an accused person is charged with an offence, the nature of which is extremely serious, it is incumbent upon him to demonstrate exceptional circumstances before bail should be granted.
The accused, therefore, needs to overcome two hurdles, that is to establish that:
(a)new facts have been discovered, new circumstances have arisen, or the circumstances have changed since the occasion when the jurisdiction was invoked; and
(b)there are exceptional circumstances demonstrated.
With respect to both matters, counsel for the accused contends that the fact that the accused will have been in custody 20 months prior to his trial, is a matter not taken into account by Miller J (because when Miller J considered the matter the trial was scheduled for February – whereas it is now scheduled for October) and that the accused will have spent 20 months in custody pre-trial which is an inordinately long period.
It is also of some significance that the accused faces two perjury trials in the District Court scheduled for hearing in July. Those charges are to be defended. In addition, he faces a charge of assault occasioning bodily harm which is not listed for trial in the District Court but where an indictment is pending and trial dates are awaited.
The delay in scheduling of the trial has been brought about by reason of the time it has taken for legal aid to be granted to the accused and because of procedural matters that have intervened. Both the accused when he was acting in person, and his counsel, have sought additional material from the Crown in relation to the brief and the case to be presented against the accused. Counsel for the accused is correct in saying that the Crown's case against the accused is substantially based upon the evidence of a man who acted in conjunction with the police in securing evidence. That man was provided with electronic recording equipment and much of the case against the accused is based upon evidence obtained through the use of recording equipment. Part of the delay arises from the fact that counsel for the accused wishes to examine the original microchip from which the transcript of these alleged conversations was taken and counsel seeks other scientific evidence for use at the trial. In addition, there will be a Criminal Code s 611A hearing which is scheduled for September and which is to determine the admissibility of part of the evidence the Crown seeks to adduce at trial.
I accept the submission made by counsel for the accused that if the accused is detained in custody until his trial, it is likely that a substantial portion of any custodial sentence will have been served by the time of trial, even if the accused is convicted. That is a factor to take into account: see Marotta v The Queen [1999] HCA 4. Delay between arrest and trial is undoubtedly a significant matter to take into account in determining bail: see Alexopolous v The Queen, unreported; SCt of Vic; 23 February 1998; BC9800603 per Hampel J at 5:
"The delay of what I consider to be at least one and a half years from arrest to trial is, in the circumstances of this applicant, inordinate."
I turn to the reasons for the delay. The accused was originally arraigned in the Supreme Court on 9 September 1998. He was remanded to a status conference and trial dates were tentatively set for February 1999. The accused, both in person and through his solicitors, has been chasing particular evidence from the Director of Public Prosecutions since that time.
When the application for bail was heard by Miller J, the trial was set for February 1999. Shortly after the application for bail, the accused was unrepresented. The Legal Aid Commission of Western Australia had supplied to the accused the names of counsel who were prepared to act for him on certain conditions. The accused, however, was not prepared to accept the conditions and believed that the amount of money offered by the Legal Aid Commission was inadequate for the trial. Counsel was not engaged by the accused until March 1999 and as a result the trial dates in February were vacated and new trial dates set for April 1999. It was not possible for counsel to be properly briefed to conduct the trial in the April sessions of the court and as a consequence these trial dates were also vacated. When counsel became acquainted with the brief and requirements of the accused, it was necessary to further adjourn the trial so that the material, which the accused now seeks from the Director of Public Prosecutions, could be obtained, certain expert evidence could be sought with respect to the tape recordings, which the Crown seeks to lead in evidence against the accused, and so that the s 611A hearing anticipated to take five days could be conducted before the trial. As a consequence, those matters could not take place before the September and October sessions of the Supreme Court.
At the hearing of this application on 18 June, counsel for the accused did not seek to place any further psychiatric evidence before the court. As a consequence, the conclusions reached by Miller J remain unchallenged. The only additional matter that was said to constitute the changed circumstances, was the length of time that the accused would be in custody prior to trial. In addition, it should be pointed out that the accused is prepared to submit to stringent bail conditions, including strict reporting conditions and an undertaking to remain away from the prosecution witnesses. In addition, he has indicated he is prepared to live at a specified address and comply with a curfew if the court was inclined to impose one.
As I have also said, the accused faces trial in the District Court in June, where two trials, each for perjury are to be conducted. In addition, he faces a charge of assault occasioning bodily harm, which has not yet been set for trial.
The accused's criminal record, generally speaking, is not of significance in dealing with this application.
Weighing all of the factors that the court is required to weigh under the Bail Act and bearing in mind that the accused is to face trial in the District Court in July, which is now something less than a month away, I have reached the conclusion that it would not be appropriate to grant the accused bail at this time. The considerations evident in the reasons of Miller J are substantially unaltered and no further psychiatric or psychological evidence has been called to indicate any change in the accused's condition.
For these reasons, I am of the view that it is not appropriate for bail to be granted, notwithstanding the inordinate length of time before the accused's trial commences.