Sarantos v The State of Western Australia
[2015] WASC 480
•24 NOVEMBER 2015
SARANTOS -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 480
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 480 | |
| Case No: | INS:299/2015 | 24 NOVEMBER 2015 | |
| Coram: | FIANNACA J | 24/11/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Bail application refused | ||
| B | |||
| PDF Version |
| Parties: | JONATHAN STANLEY SARANTOS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Bail application Exceptional circumstances Murder charge Selfdefence Strength of prosecution case |
Legislation: | Bail Act 1982 (WA), sch 1, cl 1, cl 3, s 15 Criminal Code (WA), s 248 |
Case References: | Bertolami v The State of Western Australia [2009] WASC 269 Goodwyn v The State of Western Australia [2011] WASC 328 Heaney v The State of Western Australia [2013] WASCA 146 James v The State of Western Australia [2013] WASC 235 Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 Tyson v The State of Western Australia [2009] WASC 328 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Exceptional circumstances - Murder charge - Selfdefence - Strength of prosecution case
Legislation:
Bail Act 1982 (WA), sch 1, cl 1, cl 3, s 15
Criminal Code (WA), s 248
Result:
Bail application refused
Category: B
Representation:
Counsel:
Applicant : Ms A M Padmanabham
Respondent : Mr D L S Davidson
Solicitors:
Applicant : Brennan & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bertolami v The State of Western Australia [2009] WASC 269
Goodwyn v The State of Western Australia [2011] WASC 328
Heaney v The State of Western Australia [2013] WASCA 146
James v The State of Western Australia [2013] WASC 235
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Tyson v The State of Western Australia [2009] WASC 328
- FIANNACA J:
Introduction
1 This is an application for bail on a charge of murder. The applicant is charged with the murder of Trent Jobse on 1 May 2015. The application is brought under s 15 of the Bail Act 1982 (WA). Consideration of bail on a charge of murder is governed by the provisions of cl 3C of sch 1 pt C of the Bail Act.
The relevant principles
2 The principles applicable on such an application were considered by Edelman J in James v The State of Western Australia [2013] WASC 235.
3 The consideration of bail in murder cases is governed by cl 3C of pt C of sch 1 of the Bail Act which states:
Notwithstanding clause 1, 2 or 4 or any other provision of this Act, where an accused is in custody -
(a) awaiting an appearance in court before conviction for an offence of murder; or
(b) waiting to be sentenced or otherwise dealt with for an offence of murder of which the accused has been convicted,
the judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that -
(c) there are exceptional reasons why the accused should not be kept in custody; and
(d) bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
4 As was stated by Edelman J in James:
The matters, or limbs, in (c) and (d) are not wholly independent. Clause 1 of sch 1, pt C of the Bail Act, to which reference is made in (d), requires consideration of various questions 'as well as ... any others which [the judicial officer] considers relevant'. A common approach to take to the consideration of cl 3C is to consider first whether there are exceptional reasons why the accused should not be kept in custody. It is possible, although not necessarily the case, that matters which establish exceptional circumstances could also be relevant to the consideration of whether bail may properly be granted under (d) [23]. (footnotes omitted)
- His Honour referred to the cases of Goodwyn v The State of Western Australia [2011] WASC 328 [26] (Sleight C); Tyson v The State of Western Australia [2009] WASC 328 [3] - [4] (Martin CJ); and Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99, 109 [37].
5 This was the way in which I indicated to counsel that I considered the matter needed to be considered, that is, that the first question to be determined is whether there are exceptional reasons why the applicant should not be kept in custody. Secondly, if there are exceptional reasons, then to consider the matters that would ordinarily arise under cl 1 and cl 3 of pt C of sch 1 of the Bail Act.
6 The matters set out in cl 1 are in the form of questions going to whether there are reasons why bail should be refused. In other words, the court is required to ask whether bail should be refused having regard to the various factors set out in cl 1. Clause 3 sets out matters that need to be taken into account in determining the question in cl 1 that is concerned with flight risk.
7 As Edelman J indicated in James, the factors that are contained in cl 1 may be relevant to the question of whether there are exceptional reasons. That is accepted by the State in this application and the real question ultimately for me is whether there is a combination of factors that would allow me to conclude that there are exceptional reasons why the applicant should not be kept in custody.
8 It is necessary to set out the facts that are alleged against the applicant on the charge of murder in order to have some context in which to consider the arguments that have been put on behalf of the applicant, to which I will come shortly.
The alleged facts
9 The allegation is that the applicant, who at the relevant time was 28 years of age and who is said to be 180 cm tall and of solid build, went to the home of an associate at 22 Bonito Place, in Yangebup, with his girlfriend, on the evening of Friday, 1 May 2015, at about 9.30 pm. The house that he went to was the home of a man called Musulin. Also at that house was the deceased man. An arrangement had been made for the four people to meet at that house in Yangebup. It is alleged that, after the applicant and his girlfriend arrived, all four were in the kitchen and, after a short while, the deceased began to argue with the applicant over stolen property about which the applicant allegedly had knowledge. It is alleged that the argument turned into a physical fight between the deceased and the applicant. The girlfriend of the applicant became frightened and ran from the house. The deceased's associate, Musulin, followed a short time later. He followed her outside to the front yard.
10 The deceased was seen to be applying a headlock to the applicant. The fight between the two continued and progressed toward the front door, in the foyer of the house.
11 It is further alleged that, at some point during the fight, the deceased received a single stab wound to his upper chest and three other superficial cuts to his right calf and the back of his head. The applicant was seen to leave the house and then immediately returned inside and retrieved a bag, before meeting his girlfriend outside and leaving in the car that they had come in. The deceased bled profusely from his injuries. He collapsed in the front foyer of the house and died a short time later.
12 On Monday, 4 May 2015, the applicant and his girlfriend attended a solicitor's office where arrangements were made to surrender to the police. The applicant and his girlfriend were taken into police custody and conveyed to the Major Crime Squad offices, where the applicant declined to be interviewed. He was subsequently charged with the offence that he now faces.
13 Those are the facts that are alleged against the applicant. I will come in a little while to some of the evidence that may support those facts. It will become apparent that there is more evidence available than what those facts, stated in that bare way, would reveal.
This application
14 The application for bail is brought on the basis that exceptional reasons have been demonstrated why the applicant should not remain in custody when one combines three propositions that are put on behalf of the applicant. The first of those propositions is that the prosecution case is a weak case and that there is a strong defence of self-defence available to the applicant. The second proposition is that the applicant's behaviour after the alleged offence, whereby he surrendered himself to the police, and including his reaction when he learnt of the death of the deceased, are matters that should persuade the court that he is not a significant flight risk. The third proposition is that the applicant is suffering particular hardship while in custody because he is a prosecution witness in another case in which he was the victim of violence (the victim of a shooting), and it is said that that has resulted in him being placed in protective custody, which has made his time in custody more difficult than it would otherwise have been.
Evidence tendered at the hearing
15 Evidence has been tendered on the application. First, there is an affidavit of the applicant's solicitor, Alana Mariamma Padmanabham, dated 28 October 2015. That affidavit deposes to a number of matters, particularly the manner in which the applicant came to surrender himself to the police, but also the applicant's personal circumstances that would ordinarily be relevant to the question of bail, although I note that they do not necessarily inform the question of whether there are exceptional reasons why he should not be kept in custody.
16 Two of the paragraphs in that affidavit were struck out. They purported to relate to matters that the applicant had told the deponent of the affidavit. It was accepted, on behalf of the applicant, that that material was inadmissible. There is no affidavit from the applicant, and, as I indicated in stating briefly the facts alleged against him, he did not participate in an interview with the police. So there is no evidence before me of the account that the applicant might give should he give evidence at any future trial in respect of the murder charge.
17 I should indicate that the affidavit of Ms Padmanabham annexed part of the prosecution brief, no doubt what was available at the time that the affidavit was prepared, including witnesses' statements, the post-mortem examination report and sketches that were prepared by the forensic pathologist. It also annexed records that have been obtained in relation to an incident involving the deceased, in which his mental health was assessed at a time proximate to when the offence is alleged to have occurred, the records being dated 28 April 2015, so only a matter of a few days before the alleged offence. I will come back to those later.
18 The information also included the applicant's criminal record and a psychologist's report of James McCue, dated 12 August 2015, which purported to deal mainly with the assessment of post-traumatic stress disorder in the applicant, resulting from the incident in which he was shot, in respect of which he is to be a prosecution witness. As I indicated to counsel for the applicant, it seems to me that there is little in that report that informs the question that I have to deal with today as a threshold question of whether there are exceptional reasons why the applicant should not be kept in custody.
19 The other evidence that was received was tendered by the State, and that was an affidavit of Sharni Maree Lawler, sworn 23 November 2015. Ms Lawler is a Detective First Class Constable with the Major Crime Squad. She annexed a number of statements, including a more recent statement of Damian Melput Musulin, dated 4 June 2015. That is a more recent statement than the one that was contained in the materials that were annexed to Ms Padmanabham's affidavit. It also annexes photographs of the crime scene, photographs of the applicant and statements of material facts in respect of other offences with which the applicant has been charged, including offences that involved his carrying weapons, in particular, knives. There was also annexed a statement of the forensic pathologist, Dr Cooke, which sets out his opinion in relation to the manner in which the fatal wound was inflicted.
20 The injury that was inflicted to the deceased was a penetrating injury to the right side of the top of his chest, and Dr Cooke describes that the wound track appears to be directly rearwards, with no apparent left, right, or up and down direction. He expresses the view that the degree of force is difficult to state accurately, but that it would be mild to moderate given that it did not penetrate cartilage. It essentially went through soft tissue.
The submissions
21 I come to deal then with the submissions that were made on behalf of the applicant in support of the argument that there are exceptional reasons.
22 The term 'exceptional reasons' in the Bail Act is not defined. The term has its ordinary meaning: something which is unusual or out of the ordinary: Bertolami v The State of Western Australia [2009] WASC 269 [6] (Hall J). Alternatively, it might be put in terms that it is, in some way, special or an exception to the general run of cases: Heaney v The State of Western Australia [2013] WASCA 146 [8] (Mazza JA).
23 The first proposition that is put on behalf of the applicant is that the prosecution case is a weak case. That requires consideration of the evidence that is contained in the prosecution brief. At this stage, that is the only evidence that I have upon which any assessment can be made of that proposition. Obviously, the strength of a prosecution case for murder can vary to a considerable extent from case to case. In this case, it was conceded by counsel appearing for the State that it might not be regarded as an overwhelming case, but he submitted that it could not be regarded as a weak case either.
24 It has been held that it is not sufficient merely that the prosecution case is less than overwhelming: Bertolami [16], referred to by Edelman J in James [27]. The case that I am required to consider, for the purposes of determining whether there are exceptional reasons under cl 3C, is the case against the applicant in relation to the charge of murder, not the case against him for any statutory alternative such as manslaughter or an unlawful assault causing death. Murder, of course, will require proof of either an intention to kill or an intention to do an injury of a kind that, objectively, was life-threatening.
25 In the applicant's submissions it was not suggested that the applicant did not cause the injury that resulted in the deceased's death. The matter has proceeded on the basis that it is accepted that he did cause the death but that he has a defence under s 248 of the Criminal Code (WA), that is, that he acted in self-defence. It is necessary for me to set out the provisions in relation to self-defence in order to explain the deficiencies in the information before me that affect my ability to properly consider the argument of the applicant that the evidence in support of self-defence in this case is such as to render the prosecution case for murder a weak case.
26 Section 248 provides:
(1) In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
(3) If -
(a) a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and
(b) the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,
the person is guilty of manslaughter and not murder.
(4) A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(5) A person's harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.
(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
27 In this case, the applicant's argument essentially relies on s 248(4). The applicant, at trial, would only bear an evidentiary onus in relation to the issue of self-defence. Once evidence is available on that issue, it will be for the prosecution to negate the defence under s 248(4) and to do so beyond reasonable doubt.
28 However, in terms of my consideration of that issue now, it is important to have regard to the fact that s 248(4) refers to the belief of the person who does the act that is said to have been done in self-defence. It is necessary that the person believes the act is necessary to defend himself from a harmful act. Secondly, the harmful act must be a reasonable response by the person in the circumstances as the person believes them to be. So, once again, there is a reference to the state of mind of the accused person. Finally, it is necessary that there are reasonable grounds for those beliefs. Of course once there is evidence on which self-defence may be considered, it will be for the prosecution to prove beyond a reasonable doubt that any one of those matters does not exist.
29 What is said on behalf of the applicant in this case is that self-defence arises simply by reference to the evidence that will be given by the prosecution witnesses. There are only two witnesses who are in a position to give evidence about what happened at Mr Musulin's house in Yangebup when the applicant stabbed the deceased, and they are Mr Musulin and the applicant's girlfriend, Kristina Gulin. I have read the statements of both those witnesses, and it is true to say that Mr Musulin gave an initial account that did not contain information that he provided in a subsequent account. The initial account was on 2 May 2015. Essentially, both the account of Mr Musulin and Ms Gulin is that the four people were in the kitchen area when the deceased commenced to make accusations against the applicant and then threw a drink or a drink container at the applicant. It might also be concluded that the deceased then moved towards the applicant in a way that suggested that he was going to assault him. But the evidence that then follows from Mr Musulin is as follows (Mr Musulin's statement of 4 June 2015, par 27):
Trent stood up suddenly and I saw a Macca's drink go flying. Then Johnno also stood up and they started pushing and shoving each other.
30 He then says that Ms Gulin went to the front door and that he followed and opened the door for her. However, he goes on to say that he:
[C]losed the door, turned, and saw that both Johnno and Trent [the applicant and the deceased] were wrestling each other in the hallway between the front of the house and the kitchen and they were half standing, half on the ground.
- He says that what he means is that the applicant was on the ground and the deceased was standing over him and had him in what he describes as a 'sleeper hold'. He says that at that point in time he saw a kitchen knife in the applicant's right hand (pars 27 - 33).
31 Mr Musulin says that the knife looked like one of a set that he had in his kitchen. He says that the knife block sits on his microwave on the kitchen bench. He says that the knife that he saw the applicant holding was either his biggest or his second biggest knife in that set, and that the blade was just under 30 cm long and was quite deep. He says that the applicant was swinging the knife around. He says that he attempted to move in to get the knife from the applicant but every time he got close to the applicant, the applicant would swing the knife towards him. Mr Musulin says that he told the applicant to drop the knife. He says that the applicant's knuckles were turning white because he was holding the knife so hard. He says that the deceased was also yelling at him to grab the knife, and was also telling the applicant to let go of the knife. Mr Musulin says he remembers the deceased saying, 'Drop the knife and I will let you go', and that he was saying this consistently. He says that while this was happening he could hear Kristina screaming and throwing things at his front door (Mr Musulin's statement of 4 June 2015, pars 34 - 45).
32 Mr Musulin, in his initial statement dated 2 May 2015, having described seeing the applicant with the knife, then suggested that he went outside and remained outside with Ms Gulin. However, in his statement of 4 June 2015 he says that he grabbed a rock that was on the bookshelf near the front door and struck the applicant on the back of the head with the rock.
33 The essence of what Mr Musulin goes on to say is that he was trying to get the applicant to drop the knife, that he wanted to diffuse the situation, and he thought that the only way to do so was to use some sort of weapon to get him to release his grip. Beyond that, Mr Musulin does not describe seeing what actually happened when the applicant stabbed the deceased. Nor does Ms Gulin see that. The evidence in her statement is that she saw the initial struggle in which the deceased was the aggressor, but that she went outside and that she later only saw some of what was going on when she came back to the front door, but did not actually see the stabbing of the deceased with the knife.
34 So the evidence, as it will be presented at trial in the prosecution case at least, is that part of what happened between the applicant and the deceased was seen by Mr Musulin, part of it was seen by Ms Gulin. Mr Musulin saw more of what happened than Ms Gulin did, and he participated in the way that I have already described. However, at the point in time when the deceased was stabbed, there is no direct evidence of precisely what happened.
35 It was put on behalf of the applicant that on the basis of the evidence that I have just described, it will be open to a jury to conclude that the applicant considered that his life was at risk because of the fact that he was in a sleeper hold, and that it was for that reason that he obtained the knife and then was trying to defend himself against the deceased, and that the fatal injury that was inflicted on the deceased occurred in the course of him defending himself.
36 There is no evidence in the materials on the prosecution brief at this stage as to when it was that the applicant obtained the knife. If the jury accepted the evidence of Mr Musulin, it would be open to conclude that the applicant had obtained the knife before the point in time when Mr Musulin saw the deceased holding the applicant in the sleeper hold. There would be no basis for concluding simply on the prosecution case that the applicant obtained the knife because he had been put in such a hold. It may well have been the case that he had the knife before then.
37 I note that the evidence of the forensic pathologist is that there were superficial cuts to the deceased. Interestingly, they were to the top of his head, to the back of his left arm, to his upper right back and to his calf muscle on his right leg. It will be a matter for the jury as to what they make of those additional injuries to the deceased and whether they are consistent with the claim on the part of the applicant that he was acting in self-defence. But what is significant for the purposes of my determination is that there is no evidence before me as to the applicant's state of mind. The inference that counsel for the applicant suggests could be drawn as to his state of mind from the circumstances as they were observed by Mr Musulin, for instance, may well be open, but they are not such that it could be said that they render the prosecution case a weak case.
38 Ultimately, the location of the fatal injury to the deceased would of itself be sufficient for a jury to conclude that the deceased had the intention at least of causing an injury of a kind that objectively was life-threatening. The question of whether he was acting in self-defence will depend very much on the jury's assessment of the evidence of both Mr Musulin and Ms Gulin and any evidence that the applicant may give.
39 A submission was made on behalf of the applicant as to what it is that the applicant might say, but I must reject that, as there is simply no material before me that would enable me to conclude that. For instance, there is no account given by the applicant to the police that would enable me to accept that that would be what he might say at trial. It is, of course, the applicant's right to remain silent, not to give an account to the police, but it seems to me that I cannot now be asked to speculate about what might have been in his mind and what it is that he may say about that at trial.
40 So, having regard to the evidence in relation to the manner in which the fatal injury was inflicted upon the deceased, it seems to me that it could not be said that the prosecution case is a weak one. The applicant placed reliance on the deceased's mental health records annexed to Ms Padmanabham's affidavit. They concerned an incident on 28 April 2015. An opinion was expressed that the deceased posed a chronic moderate risk of harm to himself and others, and that was relied on to suggest that it supported the conclusion that the deceased was the aggressor in the incident the subject of the indictment, and the applicant was at risk of a harmful act. As I said during the course of submissions by both parties, putting aside what weight can be given to the facts and opinions stated in the records, in the absence of further explanation by the author(s), the opinion that was expressed as to the deceased's then current condition was that there was 'no current risk to self and others' (affidavit of Ms Padmanabham, page 140). In any event, there is no evidence that the applicant was aware of the information in the medical records, so it cannot be said to have had any bearing on his state of mind at the relevant time. In my opinion, it does not support the applicant's argument that the prosecution case is weak.
41 The applicant's submission is that the aspects of the evidence that may provide a defence to the applicant should be taken into account in combination with the other matters that have been put on his behalf, to determine whether there are exceptional reasons. Two other matters were relied on.
42 First of all, it was put on behalf of the applicant that his reaction when he found out that the deceased had died, as described by Ms Gulin (in her statement dated 4 May 2015, par 141) suggests he would not be a flight risk. Ms Gulin describes the following events having occurred on the Sunday. She says (par 138):
I was watching the news on the TV on Sunday and saw that there had been a murder in Yangebup.
- She goes on to say that:
Up until then I didn't know that anyone had been injured to that extent. The TV didn't name the deceased person but it showed the address, and considering I had seen Damo I assumed it must have been [the deceased] Jonathan burst into tears. He had told me over the last two days that he couldn't get out of the house.
44 The third matter concerns the hardship that the applicant is said to be suffering in custody because he is a prosecution witness in another case and has been kept in protective custody. It was submitted on his behalf that his circumstances need to be considered in the light of the psychological report that suggests he suffers from post-traumatic stress disorder because of that particular incident, not the incident with which we are now dealing.
45 It was put on his behalf that he is being kept in segregated custody and that he is only able to leave his cell for four hours a day and he is restricted in what he can do. It is of course unfortunate that the applicant has to endure his time in custody in that way, in particular because it is said to arise from his being a witness for the prosecution in the matter which involved violence having been inflicted upon him, by shooting. However, it seems to me that, once again, that scenario of itself would not be sufficient to amount to exceptional reasons why he should not be kept in custody.
46 There is still the question to be considered whether the combination of those matters would justify the conclusion that there are exceptional reasons. I am not satisfied that the combination of those matters amounts to exceptional reasons.
47 In these circumstances I do not consider that it is necessary for me to traverse the other submissions that were made on behalf of the applicant and the response to those submissions on behalf of the State concerning the factors in cl 1 of pt C of sch 1 which would go to whether bail would otherwise be appropriate if exceptional reasons were established.
Conclusion
48 The threshold question is whether there are exceptional reasons. As I am not satisfied that there are exceptional reasons why the applicant should not be kept in custody, bail must be refused. Accordingly the order that I make is that the application is refused.
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