The State of Western Australia v Hayward
[2019] WASC 205
•17 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HAYWARD [2019] WASC 205
CORAM: HALL J
HEARD: 26 APRIL 2019
DELIVERED : 26 APRIL 2019
PUBLISHED : 17 JUNE 2019
FILE NO/S: INS 213 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL KENNETH HAYWARD
Respondent
Catchwords:
Nil
Legislation:
Bail Act 1982 (WA), s 13, sch 1 pt A , pt C cl 1 & cl 3
Criminal Procedures Act 2004 (WA), sch 3 cl 4 & cl 7
Result:
Application to admit statements of deceased witness granted
Application for bail refused
Representation:
Counsel:
| Applicant | : | Ms K Robinson |
| Respondent | : | Mr A G Elliott |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Patti Chong Lawyer |
Case(s) referred to in decision(s):
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
State of Western Australia v Higgins [2016] WASC 33
YSN v The State of Western Australia [2017] WASCA 155
HALL J:
(These reasons were delivered extemporaneously and have been edited from the transcript)
There are two applications before the court. The first is an application by the State to admit into evidence the statement of a deceased witness. The second is an application for bail by the accused.
Background
The accused has been charged together with Anthony Graham Woods on the indictment containing four counts. One of aggravated home burglary, two of aggravated armed assault with intent to rob and one of aggravated armed robbery. All of the offences are alleged to have taken place at the same time and place.
The prosecution case is that on the afternoon of 22 May 2018, two men entered a home in Gosnells without consent. Their faces were concealed. They were armed with a gun and a knife. The occupants of the house were at home at the time. They were Alistair Forrest, Toni Athersmith, Kylie Wood and Ms Wood's two small children.
Ms Wood and her children were confronted by one of the men, who I will refer to as the first man, and a demand was made for money. The demand was repeated and the gun was pointed as Ms Wood. Ms Wood feared for the safety of herself and her children and pulled them to the ground with her. It is alleged that the other man, who I will refer to as the second man, then directed the first man to a bedroom occupied by Mr Forrest and Ms Athersmith. The two men banged on the door and forced their way into the room. One of them threatened Mr Forrest with the gun.
Ms Athersmith then passed a pepper spray to Mr Forrest, who used it in an attempt to get the two men out of the house. There was a scuffle and when they were near the front door material covering the face of the second man fell away and Mr Forrest was able to see that man's face. He stated that he recognised the second man as being the accused, a person he had known for about two years and who he said has a distinctive tattoo under his right eye.
Mr Forrest stated that he demanded that the accused take his friend and leave the house. He said that the accused dropped a gun he was holding and pulled out a knife. As this was occurring the accused made a demand for car keys. He said that the accused threatened to stab him unless he handed over the keys to his car. Whilst this was occurring, the first man went back to the bedroom and demanded gold and money from Ms Athersmith.
Ms Athersmith had attempted to hide her gold jewellery under the bed, however the man found it. He then stole the gold jewellery and a wallet containing $700 in cash. Both men then fled the house and left the area in a white Mitsubishi Magna. The first man was bleeding from a cut incurred during the scuffle in the house. Forensic examination of blood found in the house returned a match for the DNA of the co-accused.
A number of fingerprints were also found on a sealed roll of shade cloth that was in the house. That item can be seen being touched by one of the men in CCTV footage from the house. The CCTV footage also generally confirms the presence of two intruders, as described by the prosecution witnesses. One of the prints on the roll of shade cloth was later compared to prints of the accused and found to be a match. There is only a preliminary report in this regard at the present time. A final report is due in May.
Application to admit
By an application dated 18 April 2019, the State applies to admit the statement of Mr Forrest, dated 22 May 2018 and a second statement of Mr Forrest dated 2 July 2018.
Clause 7(1)(a) of sch 3 of the Criminal Procedure Act 2004 (WA) provides that a court may admit into evidence the statement of a witness if the court is satisfied that the statement complies with cl 4 and the witness is dead. The requirements of cl 4 in respect of a written statement are relevantly that the written statement identifies the maker, the statement contains a declaration in accordance with cl 4(5), and statement purports to be signed by the maker. Both of the statements of Mr Forrest meet these requirements.
If these requirements are met, the court has a discretion to admit the statement. Clause 7(5), further states that the court may refuse to admit a statement if the court is satisfied that to do so would be unfair. The discretion has been considered in a number of cases. In the State of Western Australia v Higgins [2016] WASC 33, at [17], Mitchell J summarises the general propositions arising from those cases. I incorporate that summary into these reasons.
The essential issue here is whether it would be unfair to the accused to admit the statements of Mr Forrest, having regard to the fact that if the statements are admitted, the accused will have no opportunity to cross-examine Mr Forrest.
On behalf of the accused, it is said that unfairness would arise because, firstly, the accused would be deprived of the opportunity to put an alternative explanation for the fingerprint evidence. The case for the accused will be that, earlier the same day, he met with Mr Forrest at a park for the purpose of doing a drug deal; that they sat in Mr Forrest's car; and that there were some items on the seat that the accused moved.[1] The implication being that one of those items was the roll of shade cloth.
[1] ts 43.
Secondly, the only evidence as to identification of the accused as being one of the intruders, apart from the fingerprint, is the recognition evidence of Mr Forrest, and this evidence can no longer be tested to determine its veracity and whether Mr Forrest may have had some reason to falsely implicate the accused.[2]
[2] ts 44.
Thirdly, it is said that count 4 relates to the threat made in regard to the car keys and Mr Forrest is the only witness who gives any evidence regarding this threat.[3]
[3] ts 42.
Fourthly, there are some inconsistencies in the details given by Mr Forrest and the other two witnesses, and it would not be possible to put those inconsistencies to Mr Forrest.[4]
[4] ts 50.
The defence places reliance on the case of Higgins, to which I have earlier referred, in which the statement of a deceased witness was not admitted. It was submitted that the factors that led to that conclusion in that case are also present in this case. In particular, in that case, the evidence was the only evidence of a number of elements of the offences charged, and the accused had identified a line of questioning from which he had a real prospect of obtaining a material advantage, including a chance of acquittal.
The State submits that the evidence is highly probative of the issue of identification, but it is not the only evidence in that regard. The State notes that the defence case does not involve a denial that the accused was known to Mr Forrest, so cross-examination as to a possible mistaken identification was never reasonably open. The only thing that might have been put to Mr Forrest was that he was lying. The State says that the inability to put that proposition does not create unfairness.
As to the suggested alternative explanation for the fingerprint, the State points to the fact that the CCTV footage from the house shows that one of the intruders touched the roll of shade cloth. This, it is said, provides a plausible explanation for the print, which is consistent with the direct evidence of Mr Forrest that the accused was one of the intruders.[5] The accused would not be prevented from adducing evidence as to another explanation, if he chose to do so.
[5] ts 38.
The State says that the case of Higgins can be distinguished because on the critical issue of identification there is evidence independent of Mr Forrest, and that the line of cross-examination identified is not one that could realistically be expected to have produced answers favourable to the accused, or obviated the need for him to give evidence to explain the presence of his fingerprint.
Conclusion
In my view, it is not unfair to the accused to admit the statements of Mr Forrest. I have come to that view for the following reasons:
1.The evidence of Mr Forrest is highly probative of the issue of identification;
2.The evidence does not stand alone. The important evidence of the fingerprint is capable of supporting the identification by Mr Forrest;
3.The possibility of error in the identification is not realistic, given that Mr Forrest says that he knew the accused and describes a distinctive feature. In any event, this is not a claim made by the accused. Rather, the defence case must be that Mr Forrest lied. Whilst the accused will not have the opportunity to test credibility, there is less room for any concern in regards to reliability. As to credibility, there has been no suggestion, at this stage, of any motive that Mr Forrest would have had to lie, nor any evidence that would support such a motive;
4.The alternative explanation for the fingerprint is not one presently supported by any evidence. What Mr Forrest would have said about that proposition is entirely speculative. It is likely that the accused would have to give evidence in support of that proposition in any event. He would have the advantage at trial of being able to put this explanation without fear of contradiction from Mr Forrest;
5.As to what occurred in the house, the jury would have the evidence of the other two witnesses and the CCTV footage. To the extent that there are inconsistencies, these could be pointed out and it would be open to defence counsel to suggest that the evidence of the witness in these respects should be rejected or accorded less weight;
6.As to the fact that the threat element on count 4 relies solely on the evidence of Mr Forrest, that is not in itself a reason to reject it. The context needs to be taken into account and the jury would need to consider whether they are prepared to accept this part of the evidence, having regard to the credibility or reliability of other evidence given by Mr Forrest; and
7.The jury would be given directions to treat the evidence with caution and to take into account the fact that it has not been tested in cross-examination and that they have not been able to see the witness to make their own assessment of his credibility and reliability.
In my view, this case can be distinguished from that of Higgins. In that case, the deceased was essentially the only witness to the alleged act of stealing. Identity was not an issue in that case and the only witnesses as to what had occurred were the accused and the deceased witness. There was also an identified line of cross-examination that went directly to the issue and which the accused was deprived of putting. In the present case, the evidence of Mr Forrest as to what happened in the house is not the only evidence, nor does his evidence as to identity, as important as it is, stand alone.
Bail application
The accused was arrested and charged on 28 May 2018. He has been in custody since that date. An application for bail was made in the Magistrates Court on 29 May 2018 and was refused. The committal report indicates that the reasons for that were the seriousness of the allegations, the strength of the prosecution case and the significant risks that the applicant would not attend and would commit offences if released.
The accused entered pleas of not guilty in the Magistrates Court on 29 October 2018 and was committed to this court for trial.[6] Although he has yet to be formally arraigned on the indictment, I understand that he intends to confirm his pleas of not guilty to the charges and trial dates of 7 to 11 October 2019 are being held. He is next due to appear in this court for a status conference on 4 July 2019.
[6] Following the hearing it was clarified that pleas of not guilty were entered in the Magistrates Court on 29 August 2018 and on 17 October 2018.
Section 13 of the Bail Act 1982 (WA), read with sch 1 pt A of that Act, provides that this court has jurisdiction to grant bail in a case such as this and that the jurisdiction must be exercised in accordance with pt 3 and sch 1, pt B, pt C and pt D of the Act.
Clause 1 of pt C provides that a grant or refusal of bail is in the discretion of the presiding judicial officer, but the discretion is to be exercised having regard to the questions posed by paragraphs (a) to (g) of that clause, as well as any other consideration that the judge considers relevant. The questions in cl 1 of pt C focus on whether there are grounds for refusing bail. This is the means by which the legislature has acknowledged the presumption that an accused person is innocent until proven guilty.[7]
[7] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [40].
There is no legal onus on any party to a bail application, however in practical terms, unless there is material which establishes proper grounds for refusing bail, it should be granted. In practical terms it therefore usually falls on the State to provide any such material. The exercise of the discretion involves two stages. First, answering the questions in cl 1 and second, exercising the discretion having regard to the answers to those questions.[8]
[8] Milenkovski [39].
The ultimate issue in the ordinary case is whether the answers to those questions and any other questions the judicial officer considers relevant provide proper grounds for refusing bail in order to secure the integrity of the criminal justice process and to protect the community.[9] The questions in cl 1 are generally concerned with whether a particular circumstance may occur. The use of the word 'may' indicates that the focus is on whether there is a risk that the applicant might engage in the conduct referred to if not kept in custody.[10]
[9] YSN v The State of Western Australia [2017] WASCA 155.
[10] Milenkovski [42]; YSN [17].
The risk or possibility must be actual or real, not merely theoretical or hypothetical.[11] In the present case, the relevant questions are:
1.Is there a risk that the applicant will fail to appear in court in accordance with a bail undertaking if not kept in custody?
2.Is there a risk that the applicant will commit an offence if not kept in custody?
3.Is there a risk that the applicant will endanger the health, safety, welfare or property of any person?
4.Is there a risk that the applicant will interfere with witnesses or otherwise obstruct the course of justice?
5.Has the prosecutor put forward grounds for opposing bail?
6.Whether there is any condition that could reasonably be imposed which would sufficiently remove the possibility that the applicant would fail to appear or would remove the grounds for opposition by the prosecutor; and
7.Whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature that bail is inappropriate.
[11] YSN [17].
In considering whether there is a risk of a failure to appear, the court is required to have regard to the factors in cl 3, as well as any other considered relevant. Those factors are the nature and seriousness of the offence and the probable method of dealing with them in the event of conviction, the character, previous record, antecedents, associations, home environment, background, place of residence and financial position of the applicant, the history of any previous grants of bail and the strength of the prosecution evidence.
In considering whether any risk can be sufficiently removed, the judicial officer must assess the nature and extent of the risk and consider whether it provides any proper ground for refusing bail. It is not required that there be no risk. Further, the reference to 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the applicant engaging in the conduct is sufficiently reduced.[12]
[12] YSN [19] - [20].
A risk will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That is, the risk that would remain after the imposition of any reasonable conditions must be such as would warrant the detention of a person who has not yet been convicted and is presumed to be innocent.[13]
[13] YSN [19] - [21].
I have referred earlier in these reasons to the prosecution case. It may be fairly described as a reasonably strong case, but not an overwhelming one. The issue of identification is central and the death of Mr Forrest must weaken the prosecution case. This is because even though I have made a ruling admitting the statements of that witness, the evidence will be accompanied by a warning to the jury which may cause them to accord that evidence less weight than they might otherwise have done. It cannot be said that the likelihood of conviction is such that the accused has a strong incentive for that reason to abscond. There is a reasonable possibility on the evidence that he may be acquitted.
Turning to the material tendered on this application, there is an affidavit that has been filed by the accused which refers to incidents which have occurred in prison in regard to his safety.[14] Out of respect for his privacy, I do not intend to detail those incidents, but I have taken them into account. I have also had regard to the contents of the prosecution brief, and to a home detention report that has been prepared for the purposes of this application.
[14] Affidavit of Paul Kenneth Hayward dated 2 April 2019.
The charges in this case are very serious in nature. The allegation is that the applicant was one of the two intruders that entered a home. Clearly, if that is established, it involves a very serious offence, and that both of the intruders are likely to be considered as equally culpable. The maximum penalties for the offences charged are 20 years, in respect of count 1, and life imprisonment, in respect of counts 2 to 4. If convicted of these charges, the applicant would almost certainly receive a significant sentence of imprisonment.
The personal circumstances of the applicant are, to some extent, set out in his affidavit. As to his family's circumstances, he has family both in Perth and in Albany, where he would propose to reside. The suggestion is that he would reside with a sister, who presently lives in a house with her young child.
He is not presently employed, and I am not aware of any suggestion that he would be employed if released. Indeed, the proposed conditions of home detention would, effectively, prevent that occurring. He has an extensive criminal record. It includes a number of breaches of bail and court orders. I recognise that most of those breaches occurred some years ago, however, there are more than one of them, and they do indicate a tendency not to comply with orders of a court.
The nature of the charges, the high likelihood of a long sentence if convicted and the accused's record of non-compliance with court orders, in combination, mean that there is a risk that the applicant would fail to attend if not kept in custody. That is so notwithstanding his personal and family history.
As to the risk of committing offences, as I have noted, his record is extensive and shows a propensity for offending. It also tends to indicate that the accused has had difficulty in regards to drug use and offences of violence. There is no suggestion of any risk to the interference with witnesses, and so I disregard that consideration.
The real issue here is whether there are conditions that would sufficiently remove the risks I have referred to, in particular the risk of failing to appear, or the risk of committing offences.
I have received a home detention report. The proposed residence, with the sister in Albany, has been found to be a suitable residence. This means that it is a residence in which equipment relevant to a home detention condition can be installed and monitored. However, the report raises two issues. Firstly, the fact that attendance of corrections officers in Albany would not be as prompt as in Perth. Secondly, that the applicant is considered to be at risk of a breach because of what is described as his erratic behaviour.
Presumably, some arrangement with the police could mitigate the first concern, and that has been effectively conceded by the State. The second concern is more problematic. It is clear from the report, and the applicant's criminal record, that he has longstanding issues with drug use and violence. He also has multiple offences of breaching bail and escaping legal custody.
The imposition of a home detention condition assumes, notwithstanding that there is electronic monitoring, some degree of voluntary compliance on the part of the person concerned. In this case, the imposition of such a condition is not likely to sufficiently reduce the risk that the accused would abscond or would commit offences.
As to the risk of his safety in prison, there is nothing to confirm or contradict the claims made by the applicant. If true, they are certainly matters of concern. However, it is the responsibility of the prison authorities to ensure the safety of inmates and to properly investigate any threats or incidents of violence. I am not prepared to conclude that the authorities will not do their duty, or that the safety of the applicant cannot be ensured.
Accordingly, in my opinion, there is a significant risk of both offending and absconding if the accused were released on the bail conditions that are proposed. Those risks can be reduced, but not to an acceptable level, by home detention. Put another way, they cannot be sufficiently removed by conditions of the type proposed.
The application for bail is, therefore, refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honourable Justice Hall17 JUNE 2019
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