Shaw v The State of Western Australia - [2013] WASC 405

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SHAW -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 405

CORAM: JENKINS J

HEARD: 17 & 22 OCTOBER & 1 NOVEMBER 2013

DELIVERED : 1 NOVEMBER 2013

PUBLISHED : 13 NOVEMBER 2013

FILE NO/S: MBA 30 of 2013

BETWEEN: PHILIP FRANCIS SHAW
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Bail - Turns on own facts

Legislation:

Bail Act 1982 (WA), s 13(1), s 14, sch 1 pt B, sch 1 pt C cl 1, sch 1 pt D

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Ms M R Barone
Respondent: Mr D T Carlson

Solicitors:

Applicant: Barone Criminal Lawyers Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Milenkovski v The State of Western Australia [2011] WASCA 99

JENKINS J: These are my reasons for decision in respect to an application dated 4 October 2013 for orders that the applicant be released on bail. After having given careful consideration to the matter I have decided to refuse bail.
The application is brought pursuant to the Bail Act 1982 (WA), s 14, which permits a Supreme Court judge to exercise a power to grant bail which is conferred upon any other judicial officer, even if bail has been refused by another judicial officer, as it has been in this case.
The application is supported by the affidavit of Mara Rita Barone, the applicant's solicitor, sworn 4 October 2013; a letter from Outcare, dated 22 October 2013; a certificate recognising the applicant's trade qualification in Australia; Acacia Prison reports for 20 and 21 December 2012; and five excerpts from the complainant's patient care notes. The State opposes bail and relies upon the following documents: the committal mention brief, 25 photos from the prosecution brief, and nine statements of material facts relating to the applicant's prior convictions.
The applicant is charged on prosecution notice MI 1216 of 2013, with one count of aggravated grievous bodily harm. The circumstance of aggravation being that the complainant was over the age of 60. The alleged facts of the charge are contained in the prosecution statement of material facts. In summary, it is alleged that in the morning of 4 January 2013, the applicant approached the complainant who was sitting inside his cell at Acacia Prison, and an argument ensued.
The argument turned into a physical altercation. The complainant threw a warm cup of coffee towards the applicant. The applicant retaliated by grabbing the complainant and head butting him approximately five times to the forehead. The applicant then pinned the complainant against the wall and repeatedly punched him in the chest and abdomen area with clenched fists. The fight was broken up by other inmates. The complainant attended the prison medical unit for treatment.
Whilst he was being treated his condition deteriorated. He was taken to Royal Perth Hospital. He was stabilised and treated for splenic lacerations and internal arterial bleeding. The injuries were such that they amounted to grievous bodily harm.
On 9 January 2013, police spoke to the applicant who refused to participate in an electronic record of interview. The complainant is 71 years of age and has other medical conditions.
My assessment of the strength of the State's case is that there is a very strong case against the applicant that he caused grievous bodily harm to the complainant. This view is based on the undisputed evidence that the complainant suffered the injury as alleged in the charge. The complainant and two other prisoners have given written statements which say that the applicant assaulted the complainant.
The applicant says that he was assaulted by the complainant and the other prisoners, who have provided statements to the police in support of the complainant. He says that any injury the complainant received was inflicted in self‑defence. This is not said on affidavit or in an interview with the police; it is said from the bar table and is supported to a very limited extent by a contemporaneous statement made by the applicant to a prison officer.
Self‑defence will raise issues about the credibility of the complainant and the other State's witnesses. Whether self‑defence succeeds will depend upon the jury's resolution of those credibility issues. Even if the jury decides that the applicant was acting in self‑defence, the jury will have to decide whether the State has proved that the applicant's response to any harmful act by the complainant was not a reasonable response to the threat offered to him.
At the bail hearing, the applicant placed a lot of stress on alleged witnesses in the State's case. For example, he said that the complainant in the days before the relevant incident had threatened to pour boiling liquid over him, and had in fact done so immediately prior to the alleged grievous bodily harm being inflicted. Secondly, he says that contrary to the complainant's statement there is a substance on the floor of his, the applicant's cell, in the photographs in the prosecution brief, which is consistent with liquid having been poured on him in his own cell rather than as the complainant alleges, in the complainant's cell. Thirdly, he says that he received injuries consistent with an assault on him.
The State on the other hand says that the liquid poured on the applicant by the complainant was not boiling hot, and the applicant's response was not reasonable. It says that there is also a substance on the floor in the photographs of the complainant's cell consistent with the incident occurring, at least in part, in that cell as alleged by the complainant.
The State also points to evidence in the State's brief that there was some mopping up of material on the floor, which would have occurred well before any photographs were taken. Thirdly, it says that any injuries received by the applicant are very minor in comparison to that received by the complainant, and are consistent with the applicant being injured whilst he was assaulting the complainant.
I also take into account that there is no guarantee that the complainant and the other State's witnesses, who are prisoners, will come up to proof. There is a well‑known reluctance in prisoners giving evidence for the prosecution.
The applicant also relies on the bad character of the complainant; he says that this is shown by his conviction for murder, and for the fact that when he was in hospital he threatened hospital staff. This is a two‑edged sword for the applicant, because whilst the complainant's character is questionable, the applicant himself is not a stranger to violence and aggression. If he attacks the character of the complainant, then his character may also be open to attack at trial.
However, it will be a matter for the jury to assess all of these matters depending upon the evidence at the trial. They do not cause me to change the conclusions I have reached about the State's case which I have already stated.
If found guilty of this offence, the applicant is likely to receive an immediate custodial penalty. Given his prior criminal record it is likely to be of significant length.
The applicant is 44 years of age. He has a prior criminal record which includes convictions, most recently for assault occasioning bodily harm and aggravated assault. The facts of those offences are that on 3 April 2011 the applicant was at his home with his 6‑year‑old son. Pursuant to Family Court custody arrangements, the son was due to be handed over to his mother. The child's mother and her neighbour arrived at the applicant's home. The applicant refused to hand over his son. The neighbour walked through a gate at the side of the house and entered a backyard. He said he did this because he heard the child call out that he wanted his mother, and he was concerned for the child.
The applicant then rushed out of a sliding door at the rear of the house, breaking a flyscreen door. He struck the complainant in the middle of his back with a wooden cricket bat. He then jumped onto the neighbour's back and bit him on the left ear. Part of the neighbour's left ear was bitten off. The striking of the neighbour with the cricket bat constituted the assault, and the biting off of a portion of the neighbour's left ear constituted the unlawful wounding. The applicant pleaded not guilty to those offences, but was convicted after trial.
He appealed his convictions; his appeal was dismissed. The applicant was sentenced to imprisonment for 15 months on 31 May 2012 in respect of those offences. His sentence finished on 26 May 2013. Since that date he has been held on remand in respect of the current charge.
The applicant also has a lengthy record in Western Australia for other offences. That record commences in 1995. There are breaks in his offending between 1999 and 2005, and between 2007 and 2011. These periods of abstinence are to be compared with his chronic offending during the remainder of a nearly 20‑year period.
The applicant's record shows that he has a problem with drinking and driving. In 1995 he was convicted of refusing a breath test. He has convictions for exceeding .08 in 1995, 2006, and 2012; he also has a conviction for driving under the influence in 2012, which was committed a month after the exceed .08 charge in the same year. The applicant has convictions for refusing to supply or providing false particulars to police in 1995 and 2000; these offences appear to have been committed in respect of traffic incidents. In a similar vein in 2007, he was convicted of failing to give his personal particulars after a traffic accident.
The applicant has convictions in 1998 of assault occasioning bodily harm, and in 2008 for common assault. He was fined for both of those offences. He has a number of convictions relating to the breakdown of his relationship with the mother of his child. He has a conviction in 2008 for a number of offences involving an incident with her, including one for assault. These offences occurred in August of 2007.
On 9 November 2007, whilst on bail for those charges, he breached protective bail conditions and a violence restraining order in her favour by asking a third party to contact her. After the applicant committed the assault and unlawful wounding charge in April 2011, he was charged and bailed. His bail again contained protective bail conditions in favour of his former partner. He committed an exceed .08 offence whilst on bail in January 2012, then on 27 February 2012 he committed the DUI offence and a breach of protective bail conditions. The circumstances were that the applicant had a traffic accident in Lemana Road, Nollamara. By being there he was in breach of the protective bail conditions. He then left the scene of the accident and was found by the police a short distance away.
He was taken to hospital because he was talking about self‑harm. He says that he was drunk and suicidal. This is said in order to apparently minimise the breach of the protective bail conditions; it does not do this. The applicant also says that he lived close by, so by inference it was difficult for him not to be in breach of the protective bail condition. Again, I do not accept this. There is no evidence before me that there was any need for the applicant to be within the exclusion zone provided for by the protective bail condition. The fact that he was drunk and, if he was not suicidal, he was thinking about self‑harm, makes his breach even more serious.
The applicant has lived in Australia since 1984. He has an expired British passport; he is not an Australian citizen. The applicant's elderly parents live in Perth, but are unable to act as sureties because of their limited assets. I think that he also has siblings who live in Perth, but they are apparently unable or unwilling to act as sureties. As a substitute for a surety, the applicant says he is prepared to report as often as required to the police, and to comply with a curfew and residential conditions.
If released on bail, he proposes to live in premises provided by Outcare. I have evidence before me that those premises will not be available until the beginning of December. If he resides at Outcare premises, he will also be required to comply with their conditions of counselling. The applicant does not have any work immediately available to him, but he is confident he will be able to get work. He is currently single with no dependants.
He told me that this year he has been receiving counselling on a weekly or fortnightly basis from a counsellor associated with SARC for post‑traumatic stress disorder. He is also taking a mild antidepressant. He says through his counselling that he has learned that there are other ways to deal with stress other than by violence. He says that he is also resolved to give up his fight with the mother of his child and to give up his rights to see his child. He says that this is because he has realised that if he loves his child, it is in the best interests of his child that the child should be able to live a peaceful life with his mother.
He says that the Family Court proceedings have now been concluded. He says that he does not know where his former partner and his child are living, and he has no intention of attempting to find them.
The applicant is next due to appear in the District Court for a trial listing hearing on 29 November 2013. I am told that he is likely to obtain a trial date within six months, although as the defence wish to obtain independent medical evidence regarding the complainant's injury, the listing might be a bit delayed.
The applicant says that the State's case is not strong because of the credibility issues I have referred to, and the risks of flight and re‑offending can be appropriately managed by the imposition of conditions on bail. The State opposes bail on the basis the prosecution case is strong, that the risks of flight are real, and that there is a significant risk of re‑offending which cannot be managed by the imposition of conditions on bail, especially as the applicant has no assets, no surety, and no stable accommodation.
I approach this application on the basis of the principles outlined in Milenkovski v The State of Western Australia [2011] WASCA 99. The Court of Appeal said that the Bail Act s 13(1) provides that jurisdiction to grant bail is to be exercised subject to and in accordance with pt III of the Bail Act and the further provisions in pt B ‑ pt D of sch 1 to the Bail Act.
Schedule 1, pt C, cl 1 requires me to exercise my discretion, having regard to the following relevant questions:
(a)whether, if the applicant is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
...
(e)whether there is any condition which could reasonably be imposed [on bail] which would -
(i)sufficiently remove the possibility [that the applicant will fail to appear in court, commit an offence, or endanger the safety, welfare, or property of any person].
I have already referred to the matters personal to the applicant, which are relevant to these considerations. There is no onus on the applicant to prove that he should be granted bail. In Milenkovski it was said that the focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The court also said that the judicial officer considering bail is required to consider and answer the mandatory questions in sch 1, cl 1 before commencing the weighing or balancing process inherent in the exercise of a discretionary power. The focus of the questions direct attention to whether there are proper grounds to refuse bail.
Embarking on those tasks, I am satisfied that if the applicant is not kept in custody he may fail to appear in court in accordance with his bail undertaking, commit an offence, or endanger the safety of himself or another person. I acknowledge that the applicant has, generally speaking, answered his bail. However, the risk of a lengthy sentence of imprisonment upon conviction is significant enough that the incentive to abscond is also significant. Further, he has shown in the past a preparedness to lie to the authorities and to breach court orders.
More importantly, there is a substantial risk that the applicant will re‑offend whilst on bail and thereby endanger the safety and health of himself or another person. This risk is borne out by the applicant's prior criminal record and the evidence against him in the present case. There is also a risk that he will, as I have said, endanger his own safety. The question then is whether there are any conditions which could reasonably be imposed on his bail which could sufficiently remove the risks I have identified.
The applicant's record shows that before going into custody in early 2012 he had a drinking problem, mental health issues, and relationship issues. He had problems dealing with stress and had resorted to quite extreme violence in the past in stressful situations. In 2012, when on bail for a serious assault, he breached a protective bail condition and committed two drink driving offences. There is now a further credible allegation that whilst in custody, in a situation of conflict with others, he inflicted violence and serious injury on another. If he is convicted of that offence, he is likely to receive a significant custodial penalty. If released on bail he would be without a surety and be living by himself.
Even though I acknowledge that there are other conditions which could be placed on his bail in an attempt to control his behaviour, my conclusion is that the objective evidence shows there are significant risks of re‑offending and harming himself or others. These matters are enough to satisfy me that there are no conditions which could be placed on his bail to ensure that he complied with his bail conditions, answered his bail and lived offence free in the community.
On the other hand, I was impressed by what the applicant said to me about his rehabilitation whilst he has been in custody under his last sentence, including the fact that he is receiving weekly counselling from SARC. That was why I took some time to consider his application. In the end, what I note is that the positive things that I have heard are from the applicant himself directly or from him, through Ms Barone. I have decided after quite a deal of thought that I simply cannot give those matters significant weight. This is because the applicant has a prior criminal record, which shows that he has been dishonest with the authorities in the past and he has breached court orders. Further, he gave evidence before the magistrate at the hearing of his last set of charges and was disbelieved. I have decided that it would be quite wrong of me to accept what he says about his rehabilitation when it is unsupported by any material from an independent third party. These considerations have also made me hesitate before giving significant weight to what the applicant says about the alleged offence. For these reasons, I refuse his application for bail.
However, I add this, and Mr Nicol, I would ask you to take special note of this and to communicate it to the file manager - I am concerned about the characters of the State's proposed witnesses; I think that the State should be too. As I have said, it is well‑known that prisoners are usually reluctant to give evidence for the prosecution. I am of the opinion that in the proper discharge of its duties the DPP should speak to the complainant and the two other State witnesses before the trial listing hearing in the District Court and satisfy itself that they are witnesses who could be believed on their oath or affirmation and that they are prepared to give evidence for the State against the applicant in accordance with their statements. It should only be then that the State asks the District Court to list the matter for trial. If the State does not do that or if it does and the witnesses do not come up to proof, that in my view would justify a fresh application for bail on the basis of changed circumstances.