Shaw v The State of Western Australia [No 2]
[2014] WASC 2
•20 DECEMBER 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | SHAW -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASC 2 |
| CORAM | : CORBOY J | ||
| HEARD |
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| DELIVERED |
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| PUBLISHED |
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| FILE NO/S |
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| BETWEEN | : PHILIP FRANCIS SHAW |
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Renewed application for bail where possible change in evidence would be given by prosecution witnesses
Legislation:
Bail Act 1982 (WA), cl 4 pt B, cl 1 pt C, cl 1 and cl 2(2b) pt D of sch 1
Result:
Application for bail granted
[2014] WASC 2
Category: B
Representation:
Counsel:
| Applicant | : | Ms M R Barone |
| Respondent | : | Mr A Dungey |
Solicitors:
| Applicant | : | Barone Criminal Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Davies v The State of Western Australia [2013] WASC 165
Melonkovski v The State of Western Australia [2011] WASCA 99; (2011) 42
WAR 99
Shaw v The State of Western Australia [2013] WASC 405
[2014] WASC 2
CORBOY J
CORBOY J:
(These reasons were delivered orally and have been edited from the
transcript.)
This is a renewed application for bail.
2 The applicant has been charged with doing grievous bodily harm
contrary to s 297 of the Criminal Code (WA) (the Code). One circumstance of aggravation is alleged: that the alleged victim of the assault was over the age of 60 years. Section 297(3) of the Code provides that an offender is liable to imprisonment for 14 years where the offence is committed in circumstances of aggravation.
3 The applicant first applied for bail on 17 April 2013 in the Midland
Magistrates Court. His application was refused. The applicant again applied for bail when he appeared in the Perth Magistrates Court on 11 July 2013. That application was also refused.
4 The applicant pleaded not guilty to the charge in the Perth
Magistrates Court on 4 September 2013. He was committed to the District Court for trial. He is due to next appear in that court on 24 January 2014.
5 The applicant applied to this court for bail by an application dated
4 October 2013. The application was supported by an affidavit made by his solicitor. The application was heard by Justice Jenkins. Her Honour dismissed the application: Shaw v The State of Western Australia [2013] WASC 405. Publication of her Honour's reasons were suppressed for obvious reasons. I will make an order suppressing publication of these reasons pending the completion of the trial of the charge alleged against the applicant.
6 The applicant has made a further application for bail on the ground
that new circumstances have arisen or the circumstances have changed since bail was refused by Jenkins J: see cl 4 of pt B of sch 1 to the Bail Act 1982 (WA) (the Act). The respondent does not dispute that the circumstances have changed since the applicant's previous application had been refused in this court. I am satisfied that the circumstances relevant to the applicant's applications for bail have changed within the meaning and for the purpose of cl 4 pt B of sch 1 for reasons that will be shortly explained.
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CORBOY J
7 The facts alleged against the applicant in the statement of material
facts are that, as at 4 January 2013, the applicant and the complainant were sentenced prisoners held at Acacia Prison. Sometime between 9.30 am and 10.30 am, the applicant allegedly approached the complainant who was sitting in his cell. An argument developed and the complainant threw a cup of warm coffee at the applicant. It is alleged that the applicant retaliated by head butting the complainant approximately five times and by pinning him to the wall and repeatedly punching him to the chest and abdomen. The complainant was taken to the Swan District Hospital where it was ascertained that he was bleeding internally. He was transferred to Royal Perth Hospital in a critical condition. He was treated for severe splenic lacerations. His injuries were so severe that he would have died if he had not been treated at that time.
8 In rejecting the applicant's previous application, Jenkins J observed
that the applicant was likely to receive a sentence of an immediate term of imprisonment if he was found guilty. Her Honour further suggested that it was likely that the term would be substantial given the applicant's criminal record. I agree with those observations.
9 A copy of the prosecution brief was tendered at the hearing of the
application before Jenkins J. Her Honour concluded from her review of
the brief that: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 [8] - [9].
10 The two prisoners to whom Jenkins J referred were Stefano Palotta
and Roy John Logan. They stated in the statements that they had provided to the police, and which were included in the prosecution brief, that they had seen the applicant assault the complainant in the cell occupied by the complainant. The account that they gave not only corroborated the complainant's statement about the alleged assault but also
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CORBOY J
provided evidence that would, in my view, assist the State in discharging any onus that it might carry to prove that the applicant did not act in self-defence.
11 Jenkins J noted in her reasons various submissions that had been put
on behalf of the applicant regarding the strength of the prosecution case but concluded that they did not cause her to alter her view that the State's case was strong. In reaching that conclusion, her Honour observed:
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 [14].
Her Honour then noted submissions that were made on behalf of the applicant concerning the character of the complainant and concluded:
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 [16].
13 Her Honour then made various further findings by reference to the
questions that must be addressed under cl 1 pt C of sch 1 to the Act. In doing so, her Honour applied the principles identified by the Court of Appeal in Melonkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99. I have set out my understanding of those principles in Davies v The State of Western Australia [2013] WASC 165 at par 21. I have applied the principles identified in Davies in determining this application.
14 Jenkins J set out the applicant's personal circumstances in some
detail in her reasons commencing at [18]. I will not repeat her Honour's summation of those circumstances. Subject to one matter, it is sufficient to note that it has not been suggested that her Honour made any factual error in her summary. The one matter that should be noted from her Honour's account of the applicant's personal circumstances that appears at
[28] of the reasons: He [that is the applicant] told me that this year he had been receiving counselling on a weekly or fortnightly basis from a counsellor associated with [the Sexual Assault Resource Centre] 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 [has] also resolved to give up his fight with the mother of his child and to give up his rights to see his child.
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CORBOY J
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.
Her Honour then made the following findings:
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 respondent'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 quite extreme violence in the past in stressful situations. In 2012, while 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 had 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
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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 any 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 [36] - [40].
Her Honour, however, concluded with the following observations:
However, I add this, and Mr Nichol, [who appeared for the State before her Honour on the occasion when her Honour delivered her reasons] 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 there 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 [41].
It is those concluding observations that provide the foundation for the present application.
18 The application was supported by a further affidavit made by
Ms Barone on 10 December 2013. Annexure 'MRB1' to that affidavit comprises an email from the DPP to Ms Barone advising of statements made by Mr Logan and Mr Palotta in further briefing sessions held with the DPP on 14 November 2013.
19 In relation to Mr Logan, it was said in the email from the DPP that he
had indicated that the Acacia prisoner statement and disclaimer was written by him and he identified his signature. He further identified his police statement and his signature. He then stated that he did not like 'giving up people' or giving statements to the police and was not really willing to give the prison a report or statement. He knew both the complainant and the applicant before the incident. He knew them about the same. He was not friends with them but would talk to them. He was
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CORBOY J
in his room and did not really see anything. He was in cell 12 which was one back from the kitchen. He indicated that he was not willing to go through the contents of his statement with the solicitor from the DPP and he further indicated that he did not want to go to court or to help either party.
20 In relation to Mr Palotta, the email from the DPP stated that he had
undergone a hip operation on 20 August 2013 at Casuarina. While at Casuarina he had made a second statement in which he had retracted his first statement. He had given a second statement to a Justice of the Peace at Casuarina to pass it on. The Justice of the Peace was an older male and it had been about six weeks ago when he had made the second statement. He did not keep a copy of the statement.
21 Mr Palotta stated that he had been pressured into making statements,
feeling when he did make the statement he did not want to be 'kicked out' of a good unit. He knew both the complainant and the applicant. He had spoken to both from time to time. His writing and signature appeared on the Acacia prison statement and disclaimer. He had pulled the applicant off the complainant. He thought he saw punches but, in fact, he had not. The incident had happened pretty quick outside the door to cell 4. Mr Palotta did not want to be involved and he had not seen the complainant or the applicant since that day.
22 Mr Palotta's police statement had been read aloud to him by a police
officer but Mr Palotta believed that he had not read the whole statement. He executed a copy of the statement and he thought it had contained more details that he did not see. Mr Palotta had no difficulty reading and could not say why the officer read the statement to him. He did not see what happened and though that there was 'stuff' that he did not put his statement and that was the reason why he did not want to become involved. The solicitor from the DPP also noted that Mr Palotta was not willing to go through the contents of his statement and he indicated that he did not want to go to court or to help either party.
23 The email from the DPP then concluded that, at this stage, the State's
view was that both Mr Logan and Mr Palotta may have some relevant evidence to give. However, it would be a matter for trial counsel to determine whether or not to lead evidence from either or both of them at trial. Neither Mr Logan nor Mr Palotta had been named on the indictment.
[2014] WASC 2
CORBOY J
24 Finally, the author of the email confirmed that he had asked the
investigating officer to obtain a further statement from the complainant to disclose matters that arose in briefing, and that he had asked the investigating officer to try and obtain the second statement that had been described by Mr Palotta in his briefing session.
25 I was informed at the hearing on 19 December 2013, by Ms Barone,
that a further statement had been received from the complainant. The complainant maintains his account of what occurred as stated in his witness statement that forms part of the prosecution brief that had been tendered to Jenkins J.
26 I accept Ms Barone's submission that the statements made by
Mr Logan and Mr Palotta to the solicitor from the DPP are both inconsistent with the statements that they had previously made and raise significant questions concerning their credibility. There must, in my view, be a real issue as to whether the State would accept that either of them are truthful witnesses. That is reflected in the statement to Ms Barone that their names had not been included on the indictment at this time.
27 The strength of the State's case against the applicant is, in my view,
significantly affected by the statements made by Mr Logan and Mr Palotta in the further briefing sessions with the DPP. As Ms Barone submitted, it is likely that the trial will substantially turn on a direct conflict between the evidence of the complainant and the applicant; that is, it has become 'an oath on oath' case.
28 That is not to say that the State's case is now necessarily weak. The
complainant apparently received severe injuries. It is accepted that there was an incident between the complainant and the applicant in which the complainant was assaulted. The nature and extent of the complainant's injuries may provide significant evidence that the applicant's response to any threat or act by the complainant was not reasonable. However, the State's case would now appear to be substantially different to that considered by Jenkins J and to be a materially weaker case. That is obviously relevant to the risk that the applicant would fail to attend court as required if he was released on bail.
29 In my view, the State's case can no longer be characterised as being
so strong that no conditions could be imposed that would sufficiently remove the risk of non-appearance. That is so, notwithstanding the applicant's prior criminal record and past breaches of bail conditions. The
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CORBOY J
breaches appear to have been connected with the breakdown of the applicant's relationship with the mother of his child and with problems with alcohol. Ms Barone has provided a letter from the Sexual Assault Resource Centre indicating that the applicant has regularly attended counselling sessions with the centre since April 2013. The applicant has indicated that arrangements have been made for him to continue to receive counselling should he be released on bail.
30 Jenkins J found that there was a risk that the applicant would
re-offend if he was released from custody, including harming others, or that he could harm himself. She considered that the risk could not be sufficiently removed by imposing protective bail conditions. The applicant has an extensive criminal record. His record indicates that he has a problem with alcohol and that he committed offences consequent upon or connected with the breakdown of his relationship with the mother of his child. I infer that he has endeavoured to address those issues by counselling with SARC.
31 I acknowledge that the strength of the State's case is less relevant to
an assessment of the risk of the applicant re-offending or self-harming. Nevertheless, it remains a relevant factor that is reflected in the reasons delivered by Jenkins J and in my own assessment of the circumstances relevant in this application.
Sub-clause 2(2b) of pt D of sch 1 to the Bail Act provides that:
Where a judicial officer is of the opinion that the accused should while on bail -
(a) be counselled for a behavioural problem; or (b) attend a course or programme that may assist with such a problem, the judicial officer may under subclause (1) impose a condition for that
purpose that requires the accused to -
(a) attend a prescribed person to be counselled; or (b) attend a prescribed course or programme, that is specified by the judicial officer in the condition.
33 I do not propose to impose a requirement that strictly adheres to
subclause 2(2b) but I intend to release the applicant on bail with a condition regarding counselling to be imposed. In my view, that condition will sufficiently address the risk of the applicant re-offending,
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CORBOY J
or of self-harming, if released on bail and remove the grounds advanced
by the State for opposing the grant of bail.34 Accordingly, I have concluded that the application should be allowed
and that the applicant should be released on bail subject to a number of
conditions.35 I would propose that the applicant give a personal undertaking that
he would forfeit the sum of $15,000 in the event that he breached his bail conditions. I would further propose that he report to the officer in charge of the Perth Police Station at 2 Fitzgerald Street, Northbridge each Monday, Wednesday and Friday between 9.00 am and 12.00 pm.
36 I further propose protective bail conditions being a condition
imposed for a purpose mentioned in cl 2(2)(c) or cl 2(2)(d) of pt B of sch 1 of the Bail Act to reside as directed by Outcare at 23 Chapman Street, Bassendean, and to remain at that address between 9.00 pm and 7.00 am each day and he is to answer any query made by the police during that time. So there will be a curfew condition and a residential condition: that he is to report any change in address to the officer in charge of the Perth Police Station and to the Department of Community Corrections within 24 hours. He is not to apply for any further passport. He is to attend for any assessment that may be considered appropriate by a community corrections officer and to comply with any direction by a community corrections officer.
37 The applicant is to participate in any counselling prescribed by that
officer including, but not limited to, psychological and substance abuse counselling. He is not to approach within a 100 metre radius of any domestic or international departure point being a protective bail condition imposed for the purpose mentioned in cl 2(2)(c) of pt D of sch 1 of the Bail Act. And he is not to attempt to contact or contact directly or indirectly any State witness.
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