Rankins v The State of Western Australia - [2016] WASC 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: RANKINS -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 178

CORAM: SIMMONDS J

HEARD: 8 JUNE 2016

DELIVERED : 8 JUNE 2016

PUBLISHED : 16 JUNE 2016

FILE NO/S: INS 155 of 2015

BETWEEN: DENNIS LLOYD RANKINS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Application for bail - Application refused - Time spent in custody on remand - Risk of safety of applicant - Criminal history of applicant - Strength of prosecution case based on circumstantial evidence

Legislation:

Bail Act 1982 (WA)
Criminal Code (WA)

Result:

Bail not granted

Category: B

Representation:

Counsel:

Applicant: Mr B G Illari
Respondent: Mr J L C Rivalland

Solicitors:

Applicant: Bruno Illari
Respondent: Director of Public Prosecutions (WA)

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

Lai v The State of Western Australia [2010] WASCA 33
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Quaid v The State of Western Australia [2013] WASC 228
Va v The State of Western Australia [2014] WASC 74

SIMMONDS J: The present application is in relation to a charge of armed robbery pending in this court. A previous application for bail to Hall J was unsuccessful. Since that application was made a trial before a jury, over which I presided, was held (the previous trial). However, I discontinued the previous trial because of information coming to light in the fourth day of the listed five days. A new trial has been listed to commence on 18 July 2016 (the new trial).

Background to the present application

On 1 December 2015, Hall J of this court denied the applicant's application for bail, after a receiving a home detention report ordered at the hearing of the application on 13 November 2015.
The application before Hall J was in respect of the same charge as before me. That charge is that, contrary to Criminal Code (WA) s 392, on 8 April 2015 at Denmark the applicant stole from Simone Freitag, with threats of violence, a sum of money the property of National Australia Bank Ltd trading as National Australia Bank Denmark, and that the applicant was armed with an offensive instrument, namely a hatchet.
The prosecution case is outlined in Hall J's reasons for decision of 1 December 2015 at ts 2 ‑ 3. I draw on that description, as well as on what occurred at the previous trial, in what follows.
On 8 April 2015 the applicant, it is alleged, committed the armed robbery on the bank and some $6,800 was stolen. At that time the applicant was armed with a tomahawk and was wearing a hooded Everlast jumper with black drawstrings, a beanie, and a black mask covering his face.
There are general descriptions of the body type of the offender and that person's age. However, there was no positive identification by any person present that the robber was the applicant. Indeed, as counsel for the applicant reminded me at the hearing today, there was a misidentification by one of the witnesses.
A Ms Narelle Ninyette and a Mr Wade Ninyette provided witness statements appearing in the prosecution brief. Ms Ninyette was the applicant's partner. Mr Ninyette was Ms Ninyette's nephew. Both statements are to a similar, although certainly not identical, effect, that Mr Ninyette was seated in the back of a car with the applicant while Ms Ninyette was in the front as a passenger at all material times. Ms Ninyette did not give evidence at the previous trial.
Mr Ninyette states the following, among other things, which was also the effect of his evidence in those respects at the previous trial. On the day in question they were with the applicant in the car and the car arrived in Denmark. The car was stopped there at the applicant's request. The applicant got out wearing a black Everlast jumper. He returned about 15 minutes later, jumping into the back of the car beside Mr Ninyette, and saying 'Let's go'.
About 15 minutes later, on the road to Mount Barker, the applicant asked for the car to be stopped again. He had a black Everlast jumper and a tomahawk, among a number of items, when he got out of the car. He threw a number of items away. When he got back into the car he was not wearing the jumper. Soon afterwards the applicant was seen to have a large wad of cash when the car stopped at a roadhouse in Mount Barker for petrol.
Not long afterwards a black Everlast jumper and a tomahawk were found by police under a bridge on the road to Mount Barker. It was determined on the fourth day of the trial that the black Everlast jumper so found had black drawstrings. While the Everlast jumper shown by CCTV feed from the roadhouse as having been worn by Ms Ninyette had white drawstrings, the CCTV feed from the bank did not show a jumper with white drawstrings although it did not clearly indicate the colour of the drawstrings otherwise.
It may be noted that it was the disclosure on the fourth day of the trial for the first time of the evidence as to the colour of the drawstrings of the jumper, found as I have described, that was the basis upon which the previous trial was discontinued.
So far as the present application is concerned, by reason of Hall J's decision, in order to invoke the jurisdiction of the court to grant bail, the applicant must show new facts have been discovered, new circumstances have arisen or the circumstances have changed, or the applicant failed adequately to present his case for bail before Hall J: see Bail Act 1982 WA s 14(2a). The applicant relies on two matters for the purposes of that provision. The first is the completion of a period of custody in respect of a sentencing for a burglary in a dental office, and the other is discontinuation of the previous trial. The respondent does not argue that these are insufficient for the purpose of s 14(2a) and I therefore conclude that the condition in s 14(2a) has been met.
There are written submissions for the applicant and a supporting affidavit from his solicitor. There are also written submissions for the respondent as well as supporting affidavits from Ms Joanne Andretich sworn 13 May 2016 and 2 June 2016, and from Detective Daniel Joseph Heller sworn 17 May 2016. Ms Andretich is employed by the Director of Public Prosecutions and, as I understand it, is again to be counsel at the new trial as she was at the previous trial. Detective Heller is the investigating officer for the matter.
So far as the approach to the decision as to bail is concerned there can, in my view, be no contest as to the principles applicable. Section 14 of the Bail Act is the relevant provision. I am not concerned to find any reason to depart from Hall J's decision.
The general approach to the grant of bail is determined by the Bail Act sch 1 pt C, cl 1 read with cl 3, and those provisions are to be approached as stated in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [43]. On those paragraphs, I note Va v The State of Western Australia [2014] WASC 74 [27] ‑ [29] (EM Heenan J) adopting the summary in Quaid v The State of Western Australia [2013] WASC 228 [13] and following.
EM Heenan J in Va stated:
In Milenkovski, at [31] - [45], McLure P set out extensively the now authoritative exposition of the significance of the Bail Act for present applications. I, of course, accept that and apply it accordingly. A summary of the effect of that decision was helpfully made by Edelman J in the recent case of Quaid v The State of Western Australia [2013] WASC 228, where his Honour said, at [13] and following, that the principles concerning the application of Sch 1, Pt C, cl 1 of the Bail Act, which applies by virtue of s 14 of that Act, can be summarised by the following points:
'1.The Bail Act is a Code in a sense that it is intended to displace the common law.
2.In circumstances such as those in this application, the text and purpose of the Bail Act is inconsistent with the common law approach in general and the requirement that the accused establish exceptional circumstances in order to obtain bail.
3.As to the general provision in cl 1 of pt C, that clause contains no express statutory presumption for or against the grant of bail. The only clauses of pt C, sch 1 of the Bail Act which provide for a (rebuttable) statutory presumption against the grant of bail are cl 3A, cl 3C and cl 4A.'
None of those clauses was relevant to the application before Edelman J, and as I have said, none is relevant to the present case. The only situation where there is a rebuttable statutory presumption in favour of bail is clause 2 of part C of schedule 1, which again does not apply:
'4.The Bail Act does not place any legal onus on any party to a bail application. However, in circumstances where a bail application is to be determined and under cl 1, the consequence of the structure of that clause is that bail would be granted if there is no material before the Court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required for provide proper foundation for refusing bail.
5.The grant or refusal of bail is at the discretion of the person vested with jurisdiction who is required to have regard to the questions in paragraphs (a) - (g) and to any other questions which the decision-maker considers relevant. The correct approach to the exercise of the discretion is sourced in and guided by the matters in paragraphs (a) - (g). The mandatory answers to the "questions" in those paragraphs and other relevant questions of findings provided the factual basis for the exercise of the discretion. The Court is required to consider an answer to mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
6.The Court is not required to consider questions directed to whether there are positive grounds for granting bail.
7.Paragraphs (a) and (d) of cl 1(a) are concerned with the possibility of the relevant event occurring. In answering that, and other questions in cl 1(a), the Court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C.
8.The seriousness of the offence does not produce the common law result of requiring the applicant for bail to establish exceptional reasons or circumstances. The Court is required to have regard to all the questions in cl 1 and the matters in (c)(iii) in the exercise of the discretion to grant or refuse bail.'
And finally:
'9.It may be that, having regard to all relevant matters in cl 3, the nature and seriousness of the events and the probable consequences if the accused is convicted are sufficient to enable the Court to conclude that the accused may fail to appear in Court in accordance with his bail undertaking. The nature of the potential sentence imposed by the court, having regard to the answers to all the other mandatory questions in cl 1, may require or justify the refusal of bail.' [27] ‑ [29]
I note that in determining the present application I may receive and take into account such 'information' as I see fit 'whether or not the same would normally be admissible in a court of law': Bail Act s 22.
The weight of such information, as I was reminded by counsel for the applicant, is a distinct consideration. This allows for me to receive and take into account material in and also going beyond the material subject of the supporting and other affidavits before me: see Lai v The State of Western Australia [2010] WASCA 33 [20] ‑ [25] (EM Heenan J). That includes matter in oral submissions at the bail hearing itself. However, any such matter when not supported by any evidentiary foundation would likely be of diminished, sometimes substantially diminished weight.
Further, I consider that matter that may be received and taken into account can include material such as that put before Hall J as that was shown by his Honour's decision.
The basis for the present application appears to be that on the information which I may take into account, the answers to the applicable questions in the Bail Act provisions I have referred to, all either point towards the grant of bail or do not specially point away from it. I am called upon to make my present determination because, as I will explain, the respondent has put forward grounds for opposing bail.

Questions in cl 1(a)(i) to (iv) as read with cl 3

I note the following as to cl 3(a). It could not be contested that the charge is a serious one and the probable method of dealing with it were the applicant to be convicted of it after trial would be a sentence of immediate imprisonment for a substantial term.
Further, I note that the applicant had been sentenced to a term of imprisonment of 18 months in the District Court on 18 February 2015, a term that was suspended for 2 years. Were he to be convicted on the charge it seems likely he will be required to serve the entirety of that suspended sentence and to do so cumulatively upon any other sentence imposed. This matter, considered with cl 3(d), is relevant to the risk in cl 1(a)(i), subject to other matters including the personal circumstances of the applicant, particularly those that show ties to the jurisdiction.
Also in respect of the risk in cl 1(a)(i) I note the applicant's criminal history referred to in Hall J's decision and appearing in the document that is in the file compiled 18 June 2015 at 9:36:11. That record includes offences of escaping legal custody, breach of bail and breach of violence restraining orders. It seems to me, as it seemed to Hall J, that that record indicates the applicant has had difficulty complying with court orders. I particularly note the four prior convictions of escape legal custody, the most recent being on 20 September 2013.
I have noted the age of the bulk of those convictions and I have noted as well the explanation of the circumstances of the most recent ones put forward to me by counsel for the applicant. All of that having been taken into account, however, it seems to me that there are matters of concern arising out of the matters I have just referred to.
As to cl 3(b), the applicant's criminal history includes not only the offences in relation to court orders I have referred to, but also offences of burglary and armed robbery.
The applicant's criminal history is a lengthy one, as referred to in Hall J's decision, and counsel for the applicant frankly admitted this. However, I note that, although the possibility was referred to in Hall J's decision, and indeed appears in some of the hearings prior to the previous trial, there was no application before or at the previous trial for any aspect or aspects of the criminal record of the applicant to be admitted as propensity evidence. There is, as I understood it from counsel for the respondent today, no present intention to make any such application for the new trial.
As to cl 3(b), I note the matter as the applicant's mother referred to in Hall J's decision. That matter indicates she suffered from various incapacitating medical conditions and required assistance in her daily living. That matter also indicates she intended to return to Western Australia. The matter as to her mental condition is not repeated in the supporting affidavit of the applicant's solicitor but I have no reason to believe that it does not continue to obtain. The affidavit does indicate that she has returned permanently to Western Australia, although I understood that to have been corrected at the hearing before me, to her intention to return to this State shortly, on or about 1 July 2016.
I further note what was put to me in oral submissions at the hearing before me by counsel for the applicant, that Ms Ninyette, by reason of various conditions from which she suffers, has a need for assistance of a kind that the applicant may be in a position to provide.
I consider those matters as to the mother and as to Ms Ninyette to be relevant to the risk in cl 1(a)(i) to the extent that they go to the risk the applicant would flee the jurisdiction and thereby be separated from his mother and not able to assist Ms Ninyette.
As to cl 3(c), I previously referred to a criminal history that includes breach of bail.
As to cl 3(d) I note, as is accepted on all hands, that the case against the applicant is a circumstantial one. Again, as counsel for the applicant readily admitted, that does not necessarily indicate it is lacking in strength. The case derives its principal strength as appears to me from the three matters which counsel for the applicant engaged. That is evident to me both from the material referred to in the respondent's submissions and to the course of the previous trial. One of those matters is the expected evidence of Mr Ninyette. Another is CCTV feed of the incident and certain other CCTV feed. A third is a recording of conversations some four months after the incident between the accusing custody and Ms Ninyette.
It may be noted that, as I have already indicated, Ms Ninyette did not give evidence at the previous trial while Mr Ninyette did. It is expected the same will be true at the new trial. It is expected Mr Ninyette will give evidence to the same effect as that he gave at the previous trial. While it appears to have been expected at the time of Hall J's decision that Ms Ninyette would also give evidence at any trial of the applicant, I do not consider the likelihood she will not affects the strength of the evidence against the applicant to a significant extent. I so conclude, having regard to the nature of Mr Ninyette's expected evidence as I have described it.
It may also be expected there will be a substantial testing of the credibility of Mr Ninyette at the new trial, as there was at the previous trial. It is not apparent to me, however, that it can confidently be said at this point that such testing at the new trial can be expected to substantially undermine his evidence. The matter of course will ultimately be for any jury.
The CCTV feed of the incident shows a person whose appearance is consistent with that of the applicant. However, it may be noted that that appearance is also consistent with that of Mr Ninyette. At the same time, that CCTV feed also shows a person wearing shoes consistent with those shown to be worn by the applicant in the CCTV feed from a roadhouse in Mount Barker and a clothing store in Albany not long after the incident, and inconsistent with shoes shown to be worn by Mr Ninyette at the roadhouse.
Further, the evidence as to the drawstrings of the Everlast jumper found under a bridge on the road to Mount Barker is inconsistent with an account of Mr Ninyette having worn the Everlast jumper shown as later worn by Ms Ninyette and Mr Ninyette having done so while he was committing the robbery.
There is also a recording, as I have indicated, of conversations between the applicant, while being held in custody on the present charge, and Ms Ninyette. In that conversation it would seem he is directing her as to buried money. I note, as counsel for the applicant reminded me, that that conversation occurred some four months after the incident. Further, there is no material in that conversation directly or indeed indirectly associating the buried money with the proceeds of a robbery. However, I consider that conversation to be relevant and not insignificant evidence as part of the mosaic of evidence in this case going to support the prosecution case.
I consider overall that the prosecution case, so reviewed, is a strong one. This indeed was not contested.
Further, I also consider that case not to be overwhelming. That too was accepted on all hands.
I have already noted the relationship between this paragraph and cl 1(a)(i) previously. I consider it has been shown that there is a significant risk in the terms of cl 1(a)(i).

As to cl 1(a)(ii), the respondent did not put forward any ground in those terms. However, I note from Hall J's decision that there was a basis in his view for concluding there was a significant risk in those terms, that basis being the applicant's long history of offending and the lack of indications he had mastered his substance abuse problems, both as referred to there. Having noted that, I put it aside as it was not a matter upon which the respondent, as I understood it, relied in this application.
As to cl 1(a)(iii), the respondent did not put forward any ground in those terms.
As to cl 1(a)(iv), I note the matter in the affidavit of Detective Heller. Detective Heller deposes that Mr Ninyette had told him he received a letter from the applicant while Mr Ninyette and the applicant were both in custody. Mr Ninyette found the contents of the letter threatening and had ripped it up and thrown it away. Mr Ninyette had also told Detective Heller that while Mr Ninyette had been in custody he had been threatened by a group of males in relation to giving evidence in terms of his statement to police in the present matter. Detective Heller further deposes that Mr Ninyette appeared to have a genuine concern for his safety in relation to the applicant.
I further note that at the previous trial Mr Wade Ninyette appeared to me to be a most reluctant witness.
I have noted the hearsay character of what appears in Detective Heller's affidavit. I have noted the terms of the threats made by others and the lack of a clear connection to the applicant. I also put aside the reference made by counsel for the respondent before me to matters in witness statements on the prosecution brief, including one from Ms Narelle Ninyette, concerning the possibility of, as it was put, stitching up Mr Wade Ninyette.
Weighing all of these matters, however, I consider it has been shown to me that there is a significant risk for my purposes in the terms of cl 1(a)(iv).
The question in cl 1(b) is whether the applicant needs to be held in custody for his own protection. There is nothing to indicate that this question applied and the respondent did not so contend.
The question in cl 1(c) is whether the respondent has put forward grounds for opposing the grant of bail. As I have indicated counsel for the respondent did of course indicate such grounds. They are in terms of the answers to the questions in cl 1(a) above for which the respondent contended.
As to the question in cl 1(d), that question does not, it seems to me in its terms, represent an applicable question.
The question in cl 1(e) is whether there is any condition which could reasonably be imposed under Bail Act sch 1 pt D which would sufficiently remove the possibility referred to in cl 1(a) relevantly for my purposes or remove the grounds for opposition referred to in cl 1(c) which is, in effect, in this case the same thing.
The respondent says that there is not any such condition. In this regard I should note I have taken account of the possibility of home detention bail as I will indicate.
The supporting affidavit of the applicant's solicitor indicates that the applicant's mother would act as surety and has property in that respect and that he would reside with his partner, Ms Ninyette in Walpole. Although that place is not presently available for that purpose, there is likely to be an application which would permit her to reside there. She is residing where she is now by reason of conditions of bail in charges, none of which relates to the present offending, of her own, and any bail could be made subject to success in that application.
Further, the applicant was prepared to submit to any conditions on bail that might be imposed, including reporting to police, curfew, residential requirements and protected bail conditions. I took the reference to residential requirements to be a reference to home detention bail. I have considered all of this. In view of the applicant's history in respect of court orders, I have a significant concern that any such conditions, singly or in combination would sufficiently remove the risks I have identified.
The question in cl 1(f) is inapplicable.
So far as the question in cl 1(g) is concerned, although there is some question as to what that question means, it does not seem to me that it has significance in this case notwithstanding the seriousness of the charge and its circumstances. It was not put to me that cl 1(g) was relevant for my purposes.
There are other questions, however, that the court might appropriately ask itself in an application, and in this application it was suggested to me that there were two. One was the matter of the total period in custody before the new trial, and the other appeared to be the matter of the history of prosecution disclosure.
As to the first, the applicant was taken into custody on the present offending on 9 April 2015. It will be apparent then he will have been in custody for a period of approximately 15 months, more or less, by the time of the commencement of the new trial. That is not an insignificant period. However, relative to the total effective term of imprisonment he might receive were he to be convicted and his suspended sentence activated in full and made cumulative on his sentence on the charge, that period is not an inordinate one. At the same time that matter is a matter to be weighed, in my view not substantially, against the refusal of the present application.
I have previously described the issue of prosecution disclosure, the second question, which led to the discontinuation of the previous trial. I do not consider the circumstances under which the issue arose to be ones which would cause concern that there was a significant risk of other issues of disclosure arising in similar ways.
I accept that there had been previous issues of disclosure which required to be resolved before the previous trial, and I note from the most recent status conference before Fiannaca J that there were still other matters of disclosure in course of resolution. I further accept that the particular issue which led to the discontinuation of the previous trial was one that the defence had pursued prior to the previous trial.
However, I note that at the most recent status conference it was agreed that all issues of disclosure had been or would be resolved.
I do not consider that the history I have referred to is a matter that is to be substantially weighed against the refusal of the present application.
I have now considered and answered all the questions that I have determined are questions applicable in the present case. I must now exercise the discretion referred to in Milenkovski by engaging in the weighing or balancing process referred to in that decision.
Engaging in that weighing or balancing process, I have arrived at the conclusion that I should refuse the present application. That is to say, I would not grant bail in this case.