Rock v The State of Western Australia
[2013] WASC 295
•30 JULY 2013
ROCK -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 295
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 295 | |
| Case No: | MBA:18/2013 | 30 JULY 2013 | |
| Coram: | SIMMONDS J | 30/07/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Bail refused | ||
| B | |||
| PDF Version |
| Parties: | JASON MACMASTER ROCK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Whether bail should be granted in view of answers to questions in Bail Act 1982 (WA) sch 1 pt C cl 1(a)(ii) (iv) How cl 1(g) should be understood |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 1, sch 1 pt C cl 3, sch 1 pt D Criminal Code (WA), s 294(1), s 401(1) |
Case References: | Milenkovski v The State of Western Australia [2011] WASCA 99 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ROCK -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 295 CORAM : SIMMONDS J HEARD : 30 JULY 2013 DELIVERED : 30 JULY 2013 FILE NO/S : MBA 18 of 2013 BETWEEN : JASON MACMASTER ROCK
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Whether bail should be granted in view of answers to questions in Bail Act 1982 (WA) sch 1 pt C cl 1(a)(ii) (iv) - How cl 1(g) should be understood
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 1, sch 1 pt C cl 3, sch 1 pt D
Criminal Code (WA), s 294(1), s 401(1)
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant : Mr D Manera
Respondent : Ms K Robinson
Solicitors:
Applicant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Milenkovski v The State of Western Australia [2011] WASCA 99
- SIMMONDS J:
(This judgment was delivered extemporaneously on 30 July 2013 and has been edited from the transcript.)
1 This is an application for bail following refusal of such an application by two magistrates in the Perth Magistrates Court.
2 The applicant is in custody on two charges which in their present form, as Mr Manera carefully explained to me, are of the offences, as to charge 1 of aggravated armed burglary, as I understand it, with intent, contrary to s 401(1) of the Criminal Code (WA) (Code); and as to the second charge, unlawful wounding with intent to maim, disfigure, disable or do some grievous bodily harm, contrary to s 294(1) of the Code.
3 I have read the statement of material facts.
4 Those circumstances - and they are of course allegations at this point awaiting proof - are that the applicant, in the early morning of Saturday, 29 September 2012, was at the address of the victim, who was the immediate ex-partner of the applicant.
5 He banged on the door angrily demanding to be let in. He smashed the side glass sliding door and gained entry, and once inside, approached the victim who had watched him smash the door.
6 The applicant was holding a tomahawk. I note on what I was told that the tomahawk has not been found.
7 I repeat, these are allegations.
8 When the applicant went to the victim, he started swinging the tomahawk at her, five to six times, hitting her with the blade. She put up her arms to defend herself. The applicant made contact with her and cut her on her head. As the victim was defending herself, the tomahawk hit her in the arm causing the arm to fracture.
9 During the assault, the applicant kicked and punched the victim to the head and body, causing cuts above the victim's eyebrow and bruising her arms and body.
10 At one point the applicant, however, fell over. This permitted the victim to escape and run to a neighbour for help.
11 The applicant left the scene and shortly afterwards went to a friend's house, covered in blood, admitting to them that he had bashed the victim.
12 The applicant was arrested on 30 September 2012 and he has been in custody ever since.
13 On 9 October 2012 the applicant appeared in the Perth Magistrates Court before Magistrate Heaney and was denied bail by that magistrate.
14 Subsequently, on 16 May 2013, the applicant appeared in the Perth Magistrates Court before Chief Magistrate Heath, where the chief magistrate denied the applicant bail.
15 The applicant has been remanded to appear in the Perth District Court on 13 August 2013 for a trial listing hearing.
16 On the uncontradicted submission by Mr Manera, the earliest the trial could occur would be in November or December of this year and so the applicant, if allowed to remain in custody, would have been in custody certainly over a year, getting towards a year and a quarter.
17 The approach to the decision as to bail was not in contest and it cannot be contested in my view. My jurisdiction is original. It is not affected by any prior determination of a judicial officer with a jurisdiction inferior to my own, like Magistrate Heaney or Chief Magistrate Heath, and is not in any sense an appeal from or review of either decision. I put them aside. Indeed, nothing about those decisions was addressed in the submissions of either counsel to me.
18 The general approach is determined by the Bail Act 1982 (WA) (the Act), sch 1 pt C cl 1 read with cl 3 and of course the analysis in Milenkovski v The State of Western Australia [2011] WASCA 99 [39] - [43], the judgment of McLure P (Pullin JA & Hall J agreeing).
19 On a number of occasions I have indicated what I extract from Milenkovski. There are 10 principles. Those 10 principles are these:
(1) there is no expressed statutory presumption for or against the grant of bail;
(2) the court has a discretion whether to grant bail, which involves a weighing or balancing process that may only commence after considering and answering the relevant questions in sch 1 pt C cl 1(a) - (g);
(3) all of those questions, save for cl 1(e), are directed to whether there are positive grounds for refusing bail: cl 1(e) goes to the question whether it is possible to neutralise, wholly or sufficiently, the positive grounds to refuse bail;
(4) the word 'may' in cl 1(a) and (d) means the possibility of the events occurring;
(5) in answering the questions in cl 1(a) the court must have regard to all the matters in cl 3(a) - (d);
(6) the seriousness of the offence with or without regard to the maximum penalty for it does not produce under the Act the common law result of requiring the applicant to establish exceptional reasons or circumstances for the grant of bail;
(7) it may be, having regard to all of the relevant factors in cl 3, that the nature and seriousness of the offence with or without the method of dealing with the applicant for it if convicted, are sufficient to enable the court to conclude the applicant may fail to appear in accordance with their bail undertaking, and the existence and the extent of that possibility may, having regard to the answers to all of the other mandatory questions in cl 1, require or justify the refusal of bail: I should immediately add that it has not been put to me that there is a flight risk in this case, and so I can put that aspect of it to one side;
(8) the court may make a decision to refuse bail solely because of the answer to the question in cl 1(g): I particularly refer to Milenkovski [29]. There appear to be some difficulties in understanding the application of cl 1(g), not least because there does not appear to be any authority in which the court has determined that bail should be refused simply because of the answer to the question in cl 1(g), albeit in the exercise of the general discretion that I have identified;
(9) the court is required to consider, in addition to the mandatory questions in cl 1 and the answers to them, the answers to any other questions it considers relevant; and
(10) in cases where the bail application is determined under cl 1, bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail.
20 Milenkovski is clearly the principal reference point in relation to the grant of bail, such that the so-called common law approach referred to by other cases, including, I have to admit, several cases of my own prior to Milenkovski, on the Act simply must now be regarded as no longer good law.
21 That then takes me to the application.
22 The application is dated 9 July 2013. It is principally supported by an affidavit of the solicitor acting for the applicant, Mr Manera, sworn 9 July 2013 with annexures. The annexures include transcripts of the proceedings before Magistrate Heaney and Chief Magistrate Heath, but no references were made to those transcripts in submissions made to me and I therefore put them to one side.
23 The other annexure that I should particularly mention is a certified copy of History for Court - Criminal and Traffic in respect of the application compiled 8 January 2013 at 10:54:32. There was some attention directed to that.
24 The state provided me with a set of written submissions. I have taken account of those. The state in those written submissions, and elaborated upon in oral submissions, directed me to particular parts of the prosecution brief.
25 The submissions for the applicant, which were entirely oral, were that the answers to the questions in the Act sch 1 pt C cl 1 - I interpreted this as a reference to cl 1(a)(ii) - (iv) read with cl 1(g) as well as cl 1(e) - all either point towards the grant of bail or do not point away from it.
26 I should add that there was reference as well in submissions for the applicant to the possibility not simply of arrangements of any other kind described in cl 1(e), but of home detention bail under sch 1 pt D cl 3.
27 I turn then to consider the matters before me.
28 Slightly out of order in terms of their order in cl 1, it is of course appropriate for me to remind myself that for the purposes of cl 1(c), the prosecutor has indeed put forward grounds for opposing the grant of bail.
29 Those grounds were directed to cl 1(a)(ii), cl 1(a)(iii) and cl 1(a)(iv) - respectively committed an offence; endangered the safety, welfare or property of any person; or interfere with witnesses or otherwise obstruct the course of justice - expressed as, as I have indicated, possibilities. The nature of the reason to consider the possibilities and the degree of likelihood would, it seems to me, be important considerations to take into account in evaluating cl 1(a)(ii) - (iv).
30 The state also put forward cl 1(g), 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.
31 Turning then to cl 1(a)(ii) - (iv), I have noted particularly what the state drew to my attention about the character alleged. It is most important I remind myself of the offending here, particularly the angry character of it as alleged against the ex-partner of the applicant. There are also allegations in the witness statement of a Ms FB included in the prosecution brief that she felt, as was acknowledged, and was not an unreasonable reading of the witness statement in whole, concerned about the applicant, who had been a partner of Ms FB. In the statement Ms FB referred to his angry dealings with her - as a matter, of course, of allegation in that witness statement - in the immediate aftermath of the offending.
32 Mr Manera pressed on me the difficulty of entirely taking at face value that impression of concern, given the level of the dealings between Ms FB and the applicant in that aftermath: receiving him at her place of work, allowing him to sleep in her car, taking him by car to a couple of hotels and staying with him at the one settled upon. I also note, however, what Ms FB in the statement indicates, by way of the level of intimidation she states she felt to cooperate with the applicant notwithstanding the way in which he dealt with her, the concerns that she can be seen to allege she felt about him. I am not, I believe, able to substantially discount those concerns on the credibility grounds that Mr Manera put forward, or on any others.
33 The matter, however, goes beyond allegation, because there was a prior offence of violence committed in November 2008 for which the applicant was sentenced to a supervisory order, being a community based order of 12 months' supervision including, I note, anger management programmatic features. The offence was a violent assault on Ms FB, at a time when she was the partner of the applicant, on the plea of guilty in respect of that particular offence. Ms FB in her witness statement goes on to refer to incidents of violence after the relationship terminated - these, of course, would fall into the category of allegations - incidents which therefore would have post-dated the November 2008 assault.
34 Mr Manera stressed to me that none of the material so far as Ms FB is concerned represents evidence of a specific threat by the applicant to Ms FB of dealing with her adversely in the event that she gave evidence against him. However, it seems to me that, were all of what is contained in the witness statement to be accepted, there were matters of serious threat to Ms FB, whether explicitly or not, not to testify or indications of what might be done to her were she to testify, and the applicant be in a position to deal with her, of concern.
35 The same observation about no specific threat in respect of possible testimony can be made in respect of the victim herself. The victim herself, in her witness statement, refers not simply to the features of the offending and the effect upon her of what was done, but to prior incidents of violence, both while she was in a relationship with the applicant and subsequently. These again, of course, are allegations; they do not appear, unlike the incident in November 2008, to have led to a conviction and sentence.
36 However, they, it seems to me, align in a way causing concern with the allegations in the witness statement of Ms FB. And there is no doubt that there is evidence in respect of the victim here of serious injuries, not life threatening, but on the evidence which the state is seeking to have further developed through additional evidence, not yet to hand, of a grievous bodily harm kind. And there is evidence as well from other witnesses. Again, these of course are allegations still to be tested of what they observed of the victim in the time immediately following the subject matter of the alleged offending.
37 It seems to me that there is a possibility of matters of the kind in cl 1(a)(ii), 'commit an offence', that might be involved in attempting to reach the victim - or Ms FB - of endangerment of the safety, welfare or property of any person in respect of the same, and of interference with witnesses or other obstruction, in this case interference with witnesses, perhaps less clearly than cl 1(a)(ii) or (iv). The level of likelihood is, of course, rather more difficult to estimate, but it is of particular note that there is both the prior violence that resulted in a conviction against Ms FB, and the alignment in the witness statement of the two women. It was not put to me - although, of course, this is a matter that might be developed in any eventual trial - that there was any collusion between Ms FB and the victim.
38 In terms of sch 1 pt C cl 3, I have already spoken to matters arising in cl 3(a), nature and seriousness of the offences. I have noted, for the purposes of cl 3(b), the criminal record of the applicant, which is some significant distance from the most serious this court has seen, but does include incidents of violence, including the most recent incident of a domestic violence character.
39 I note that when the offender was asked by his counsel whether the incident in November 2008 was of a domestic violence character, he answered in the negative. I do not give any great weight to that answer. It is a matter of some difficulty, frequently, to determine how best to characterise an incident in this way. I am prepared to accept the explanation Mr Manera gave to me, that it was the applicant's understanding of the question that accounted for the answer, not his attempt to conceal, which could hardly have succeeded in any event, the person the subject of the assault or the relationship between that person and him at the relevant time.
40 So far as cl 3(c) is concerned, there is no history of any breach of previous bail.
41 As to cl 3(d), the strength of the evidence against him, the state put to me that it was a strong case; and having regard to the matters described, I agree. I have already referred to the evidence of witnesses who saw or appear to have seen the victim; there are also persons who had seen the applicant himself and whose evidence is briefly summarised in the submissions for the state.
42 There is also the evidence of Ms FB, which I have not referred to in this connection, of the applicant having told her he had been at the relevant place and had given the victim a few slaps. The evidence of course, again, has yet to be tested, but it seems to me difficult, indeed impossible, to avoid the conclusion that there is a strong case.
43 Further, I note that if the applicant is convicted, the likelihood must be considered to be high that he would be facing a term of imprisonment, and indeed one that has a strong likelihood of being immediately served. On his criminal record this would be a first such time he has faced such a sentence.
44 That must be factored into considering the probability I have referred to, in the matters mentioned in cl 1(a)(ii) - (iv).
45 That takes me then to cl 1(e), whether there is any condition which could be reasonably imposed under sch 1 pt D which would sufficiently remove the possibility referred to in cl 1(a) and cl 1(d); which would obviate the need referred to in cl 1(b); or which would remove the grounds for opposition referred to in cl 1(c). Clause 1(c) is the one concerning opposition by the prosecution. I have not yet reached one of those grounds; and I will shortly consider alleged circumstances and their seriousness for the purposes of cl 1(g).
46 The reference to sch 1 pt D includes of course the matter of home detention. Mr Manera did not have a minute of proposed conditions, but it seems to me he sufficiently summarised what conditions he would put forward. Those conditions were surety, reporting, residential, and curfew conditions, as well as protective bail conditions of a stringent kind. I took from this that stringent bail conditions, even before the matter of home detention was reached, were being proposed and that the applicant was prepared to accept such conditions.
47 I particularly note that the residential condition, having to do with where the applicant would reside were he to be on bail - with his parents - would be some distance away from the metropolitan area, and in particular away from where the victim, and I am prepared to accept Ms FB, lived.
48 So far as home detention bail is concerned, this of course would allow for rather more severe controls on the movement of the applicant. Of course, it would also require a report to be provided to the court, and no such report is on hand at present, for the purposes of sch 1 pt D cl 3(2).
49 I accept that those are stringent terms. However, I must also consider them against the matters that give rise to the cl 1(a)(ii) - (iv) circumstances that I have described.
50 That takes me to then to cl 1(g), the remaining part of the grounds put forward by the state. I have already indicated my understanding from Milenkovski of how cl 1(g) is to be approached. In Milenkovski [29] there was a quotation from the second reading speech for the bill that was inserted into cl 1(g). There is a reference there as follows:
While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail.
51 That second reading speech was quoted without further comment in Milenkovski; and as I have said, there is no authority I have been able to find in which bail was denied by reliance on cl 1(g), let alone in that way. It seems to me, however, that it is reasonably clear from Milenkovski - and this too would appear to follow from the plain words of cl 1(g) - that cl 1(g) is not, as it were, simply a factor to be borne in mind in reference to other factors. Were that to be the case, the language is inapt; and it is also difficult for me to understand why sch 1 pt C cl 3(a) would have been left unamended.
52 It seems to me then that cl 1(g) is as it were a factor on which the court, in exercising its discretion, may place its principal reliance, even although the cl 1(a) matters - and in particular here cl 1(a)(ii) - (iv) - might not themselves engage the possibility of the denial of bail.
53 Equally, it seems to me that because of cl 1(e)(iii), conditions that might be devised could conceivably relate to cl 1(g), although the matter is a more difficult one to determine.
54 Clause 1(g)'s plain words might be read to suggest that cl 1(e) has no role to play with respect to cl 1(g). On the other hand, I must bear steadily in mind that answers to questions here are for the purpose of informing the final decision, which is an exercise of discretion. After the answers have been returned, and even if cl 1(e) is not directly an answer to cl 1(g), the possibility of conditions that deal with offending of such a serious nature might still be relevant.
55 On the other hand, cl 1(g) is in a form which suggests the concern of the legislature is not with possible future conduct, but simply with the conduct that did in fact occur. If that is the case, then cl 1(e) would indeed have no role at all to play.
56 I do not believe in the circumstances of this case I have to resolve finally that matter.
57 I consistently remind myself that I have been dealing with matters which are at the level of allegations. There are matters of the reliability of evidence that I have referred to, and I should in addition refer to the matter of the unwell state of the victim at the time of the relevant offending allegations; although it was not suggested that she was at that stage suffering from a sobriety problem, having to do with matters of drug use or a naltrexone implant, to which her witness statement refers. Those are matters of course in another context.
58 I have carefully reviewed the answers to the questions that I have described. In my view, there is a significant possibility of the matters referred to in cl 1(a)(ii) - (iv); and the circumstances which give rise to my conclusion in that regard are circumstances for which in respect of cl 1(e) my conclusion on the answer to the question there is that it is a matter of grave doubt to me that there is any condition which could reasonably be imposed under pt D, as described in cl 1(e). That includes home detention as a possibility.
59 So far as cl 1(g) is concerned, it seems to me that the offending is indeed at least strongly arguably of such a serious nature as to make a grant of bail inappropriate. However, in view of my answer to cl 1(a)(ii) - (iv), in the final analysis I do not believe that I have to finally determine whether cl 1(e) has a role to play with respect to cl 1(g). Were to I consider that it did, I do not believe that the answer with respect to cl 1(g) is any different than it was with respect to cl 1(a)(ii) - (iv), namely that there is not any condition which could reasonably be imposed to remove cl 1(g).
60 That simply gives me the answers to the questions applicable in this case from sch 1 pt C cl 1. There is a further matter, however - Mr Manera did not press it hard, but did indeed draw it to my attention clearly in a number of points - and that is the length of time that the applicant will have spent in custody before the earlier stage at which a trial might reasonably occur. That period will exceed 12 months, and there exists substantial authority that that should indeed engage the concern of the court. That concern seems to me to fall within the category of cl 1, any other matters which the judicial officers considers appropriate. It is a factor to be weighed with the answers in the weighing or balancing process described in Milenkovski.
61 Having weighed all of these matters of the answers to the questions, and the time in custody were bail not to be granted, I have concluded on balance that I would not grant the application for bail in this case.
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