Redman v The State of Western Australia
[2008] WASC 74
•22 JANUARY 2008
REDMAN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 74
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 74 | |
| 06/05/2008 | |||
| Case No: | INS:169/2007 | 22 JANUARY 2008 | |
| Coram: | MARTIN CJ | 21/01/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | SCOTT DANIEL REDMAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Whether necessary to show exceptional circumstances |
Legislation: | Bail Act 1982 (WA), s 14, s 15, sch 1 Criminal Code (WA), s 280, s 287, s 304(2) |
Case References: | Jemielita v The Queen (1994) 12 WAR 362 Rauch v The State of Western Australia [2005] WASC 241 Sabau v The State of Western Australia [2007] WASC 183; (2007) 173 A Crim R 401 The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Whether necessary to show exceptional circumstances
Legislation:
Bail Act 1982 (WA), s 14, s 15, sch 1
Criminal Code (WA), s 280, s 287, s 304(2)
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr L M Levy
Respondent : Mr J A Scholz
Solicitors:
Applicant : Laurie Levy & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jemielita v The Queen (1994) 12 WAR 362
Rauch v The State of Western Australia [2005] WASC 241
Sabau v The State of Western Australia [2007] WASC 183; (2007) 173 A Crim R 401
The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34
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- MARTIN CJ:
1 (This judgment was delivered extemporaneously on 22 January 2008 and has been edited from the transcript.)
2 The applicant applies for the grant of bail pursuant to s 14 of the Bail Act 1982 (WA). I will commence by setting out the circumstances which have preceded the application.
3 The applicant was charged with a number of offences in early August 2007. Amongst the offences with which he was charged was the offence of murder. That charge was pending when the applicant came before McKechnie J on 14 August 2007 under s 15 of the Bail Act because, of course, under that section persons charged with wilful murder or murder can only be granted bail by a judge of the Supreme Court.
4 An application for bail was made on that occasion. McKechnie J assumed, apparently without argument to the contrary, that exceptional circumstances needed to be demonstrated before bail could be granted and concluded that exceptional circumstances were not demonstrated and therefore refused bail.
5 On 31 December 2007, the indictment in this matter was signed and it was filed in this Court on 3 January 2008. Under the indictment, the applicant is charged that on 28 July 2007 at Mandurah with intent to harm Murray James Smith, he did an act as a result of which bodily harm was caused to Murray James Smith contrary to s 304(2) of the Criminal Code. He is charged in the alternative to that count that at the same time and place, he unlawfully assaulted Murray James Smith and thereby did him bodily harm contrary to s 317 of the Criminal Code.
6 He is also charged that on 28 July 2007 at Mandurah, he unlawfully killed Dexter Charles Williams contrary to s 280 and s 287 of the Criminal Code. That is a charge that is normally referred to as manslaughter. In the alternative to that count, he is also charged that at the same time and place with intent to harm Dexter Charles Williams, he did an act as a result of which bodily harm was caused to Mr Williams contrary to s 304(2) of the Criminal Code. So it can be seen that there are essentially two charges, each arising from an alleged assault, and each with an alternative.
7 The first set of charges relates to an incident that is said to have resulted in injury to Mr Smith, and the second set of charges arises from an incident that is said to have resulted in the death of Mr Williams.
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8 Curiously, because s 304(2) of the Criminal Code was introduced into the Code in 2004, after the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the maximum penalty available to a sentencing Court in the event that the applicant is convicted of either of the charges that has been brought against him under those sections is a penalty of 20 years.
9 By contrast, although s 287 of the Criminal Code specifies that the maximum penalty available to the offence of manslaughter is imprisonment for 20 years, because that section has not been amended since 2003, any Court passing sentence upon the applicant after his conviction for that offence would be required to reduce any sentence imposed by one-third, with the result that the maximum penalty available in the event of the applicant's conviction for the offence of manslaughter would be 13 years and four months.
10 The potential maximum penalties which the applicant faces in the event that he is convicted of the most serious charges on the indictment therefore total 40 years, if he is convicted of both offences against s 304(2) of the Code, or 33 years and four months if he is convicted of manslaughter and one offence against s 304(2). Of course, no penalty of anything approaching that magnitude is likely to be imposed, but in the event that the applicant is convicted of offences arising from both assaults alleged against Mr Smith and Mr Williams, it is a distinct likelihood that cumulative penalties, or at least partly cumulative penalties, would be imposed in respect of those offences.
11 It is, of course, entirely speculative at this stage to attempt to predict what sentences would in fact be imposed by a trial judge after hearing all the evidence, but it is sufficient for me to note at this stage that it is at least possible that a trial judge might take the view that each of the charges involving Mr Smith and Mr Williams is very serious and that penalties towards the upper end of the maximum range available could be imposed, either cumulatively or partly cumulatively. On the State case, the applicant is alleged to have assaulted each of the two men outside a kebab shop in Mandurah in the early hours of the morning, after which one man was injured and the other man died. I therefore approach the bail application on the basis that there is a possibility that a significant term of imprisonment could be imposed in the event that the applicant is convicted on these charges.
12 As I have observed, since the matter came before McKechnie J the charge against the applicant has been downgraded in that he no longer
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- faces a charge of murder. He now faces a charge of manslaughter and charges of contravening s 304(2) of the Code. It is properly accepted by the State that the change in the charges constitutes a change in circumstances so as to enliven the jurisdiction of this Court to reconsider the question of bail under s 14 of the Bail Act.
13 There was argument before me about the question of whether the applicant is required to demonstrate exceptional circumstances before bail could be granted notwithstanding the downgrading of the charges from murder to manslaughter and contravention of s 304 of the Code. My attention was drawn to a number of decisions of the Court including the decision of the Full Court in the case of Jemielita v The Queen (1994) 12 WAR 362, which arguably binds me to require that the applicant demonstrate exceptional circumstances before I could grant him bail. That proposition would be subject to my conclusion that notwithstanding the downgrading of the charge from murder to manslaughter, the charge is nevertheless serious, although my attention has been drawn to passages in some of the prior authorities which suggest that the requirement to demonstrate exceptional circumstances is limited to cases of murder and wilful murder (but see, to the contrary, Sabau v The State of Western Australia[2007] WASC 183; (2007) 173 A Crim R 401).
14 For the reasons that I have already given it seems to me that the charges pending against the applicant should be categorised as either serious or very serious, in the sense that one could not exclude the possibility that a significant penalty of imprisonment would be imposed in the event of his conviction.
15 My attention has also been drawn to cases in which single judges of the court have drawn attention to the fact that the Bail Act does not specify that exceptional circumstances are required for the grant of bail merely on the ground that the charges which the applicant faces are either serious or very serious (see Rauch v The State of Western Australia[2005] WASC 241, The State of Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34).
16 It seems to me that in the circumstances of this case, it is unnecessary for me to resolve that legal debate because whether one applies a verbal formulation of 'exceptional circumstances' or not, in this case, the essential question comes down to the assessment of the risk of flight having regard to the serious nature of the offences which the applicant is facing.
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17 The principles governing the grant or refusal of bail are set out in pt C of sch 1 of the Bail Act and under cl 1 of that schedule, the court is required to take a number of matters into account. The State accept the only specified matters relevant to this case are the matters identified in cl 1(a)(i) and par 1(g). The matter specified in par 1(a)(i) is whether, if the accused is not kept in custody, he 'may fail to appear in court in accordance with his bail undertaking'. Clause 1(g) requires the court to take account of 'whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate'.
18 Clause 3 sch 1 amplifies the matters that are to be considered when the court is having regard to risk of flight. They include the 'nature and seriousness of the offence or offences' and the 'probable method of dealing with the accused' for those offences if he is convicted. The court is also required under that clause to take account of the 'character, previous convictions, antecedents, associations, home environment, background, place of residence, financial position of the accused' and the 'strength of the evidence against him'. So whether one applies the requirement of 'exceptional circumstances' or not, in this case, the questions which I have to address include a consideration of the seriousness of the offences that have been brought against the applicant, the alleged circumstances of those offences, the likely penalties that would be imposed in the event of his conviction, and his antecedents and personal circumstances.
19 I turn to the applicant's antecedents and personal circumstances. The applicant is 27 years of age and for all intents and purposes without any prior conviction of any relevance to these charges. He has served with the Royal Australian Navy (RAN) since 2003 and shortly prior to the events which gave rise to these charges was promoted to the rank of leading seaman. He had been based at HMAS Stirling in Western Australia for a couple of years, although he was apparently posted to HMAS Adelaide and would have left with that vessel had he not been charged with these offences.
20 His counsel points out that service in the RAN involves obligations and that he could be required to remain in barracks between now and the trial which is listed to commence on 18 February for a period of five days. The applicant is based in Perth and his mother resides in Perth. She would be available to provide accommodation to him if he is not accommodated by the RAN. His family have offered to post a significant surety in the event that bail is granted and I have also been provided with
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- a number of impressive references which attest to the character and prior history of the applicant.
21 All of those factors weigh significantly in favour of the grant of bail. However, this is not a case in which the grant of bail would be for a significant period. The trial is due to commence in less than four weeks. Accordingly, it is appropriate for me to take into account the fact that the prejudice occasioned to the applicant in the event that bail is refused, and the interference with the liberty to which he would otherwise be entitled, will not be for a substantial period. As his counsel point out, that factor comes about through no fault of the applicant given the circumstances to which I have referred. It comes about as a result of the relatively recent downgrading of the charges by the State. However, it seems to me that regardless of how those circumstances came about, the fact that the trial is less than four weeks away is a significant factor to be weighed in the balance.
22 Also to be weighed in the balance is the view which I have formed as to the serious nature of the charges which the applicant is to face and the possibility, which I put no higher than that, that a significant penalty of imprisonment could be imposed if he is convicted of the most serious of those charges.
23 The weighing of competing factors in relation to the grant of bail is never an easy task and I have not found the weighing of the competing considerations in this case to be clear or obvious, but in the end it seems to me that the serious nature of the charges, the possible penalties that might be imposed and the relatively short period between now and trial lead me to conclude that in this particular case the proper exercise of the discretion is to decline the grant of bail, notwithstanding the favourable antecedents and personal circumstances of the applicant.
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