The State of Western Australia v Herbert [No 3]

[2016] WASC 278

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HERBERT [No 3] [2016] WASC 278

CORAM:   FIANNACA J

HEARD:   26 AUGUST 2016

DELIVERED          :   26 AUGUST 2016

FILE NO/S:   INS 135 of 2015

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

KODEY RAY SEATON HERBERT
First respondent

TRACEY CHRISTINE HERBERT
Second respondent

ROCKY RAY HERBERT
Third respondent

Catchwords:

Criminal law and procedure - Application to adjourn trial - Accused actively avoiding police - Interest of justice to adjourn

Legislation:

Nil

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant:     Mr C Henderson

First respondent            :     Mr A E Monisse

Second respondent        :     Mr S R McGrath

Third respondent           :     Mr B C Tyers

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

First respondent            :     Not applicable

Second respondent        :     Stephen McGrath Barrister & Solicitor

Third respondent           :     Ben Tyers Barrister & Solicitor

Cases referred to in judgment:

The State of Western Australia v Herbert [2016] WASC 189

The State of Western Australia v Herbert [No 2] [2016] WASC 222

FIANNACA J: 

(This judgment was delivered extemporaneously on 26 August 2016 and has been edited from the transcript.)

Introduction

1. The State has applied to adjourn the trial of the three accused in these proceedings, which was listed to commence on 5 September 2016, at the Supreme Court sitting in South Hedland.  All three accused are charged on indictment with the offence of attempting to pervert the course of justice upon the prosecution of Kodey Herbert on a charge of criminal damage by fire, which I will refer to as the arson offence.  Kodey Herbert is also charged on the same indictment with the arson offence, and with other offences involving being armed with offensive weapons so as to cause fear, and making threats which are alleged to have been directed at the key witness in the cases concerning the arson offence and the offence of attempting to pervert the course of justice.  Rocky Herbert is jointly charged with Kodey Herbert in respect of one of the offences of being armed, and separately for an offence of doing an act likely to endanger the life, health or safety of that key witness. 

The facts

1. The details of the charges and the facts alleged in each case are set out in the reasons of Corboy J in The State of Western Australia v Herbert,[1] which are also suppressed.  In that decision, his Honour refused an application to sever the charges in the indictment.  An application for leave to appeal against that decision has been refused, and the appeal dismissed.  Until 20 June 2016, Kodey Herbert had been on bail for the offences the subject of this indictment.  On that date, his bail was revoked by Simmonds J, and a bench warrant issued for his arrest.  The reasons in that decision are also suppressed.[2]

   [1] The State of Western Australia v Herbert [No 2] [2016] WASC 222.

   [2] The State of Western Australia v Herbert [2016] WASC 189.

2. An affidavit has been filed in this application, affirmed by Detective Senior Constable Nathan Nunn.  He sets out the efforts that have been made to locate Kodey Herbert in order to arrest him under the warrant.  Those efforts commenced on the day of the warrant issued on 20 June 2016.  He was known to be in South Hedland at that time.

3. I am satisfied that reasonable efforts have been made to find him, but it is apparent that he has been actively avoiding the police, and the police have not yet been able to apprehend him.  His mother, who is the co‑accused, Tracey Hepburn, has told police that Kodey Herbert has told her he will not hand himself in to the police, as he does not want to go back to jail.  Detective Nunn attests that local sources have informed him that Kodey Herbert is not disclosing his location outside his close family, as he does not want to be captured.  It seems, however, that he is probably still in the South Hedland area.  It appears unlikely that he will be found before the trial is scheduled to commence.

4. His counsel has appeared in these proceedings this morning and has informed me that his client instructed him about a month ago that he will appear for the trial.  As I said to counsel, the court cannot rely on information provided from the bar table in that way, particularly in circumstances where one of the charges being faced by the accused, Kodey Herbert, is an attempt to pervert the course of justice.  While I have full regard to the fact that he is presumed innocent until proven guilty of that charge, nevertheless, the fact that he faces a charge of that kind is sufficient cause for the court to be very reluctant to rely on information being provided in that way to suggest that he will appear at the trial.  In any event, the information appears to have been given a month ago.  Counsel has said he is not in a position to contact his client.  It is not known what his attitude might be at this time.  The court simply cannot rely on such unreliable information to decide an application of this kind.

5. In any event, it is not appropriate to leave in place arrangements for the trial to commence, involving, as they do, the commitment of significant resources and the need for a jury panel to be assembled, if there is a real prospect that the trial cannot proceed because the accused Kodey Herbert has not been found.

6. The State seeks the adjournment to enable the police to apprehend Kodey Herbert.  It maintains, as was the case during the severance application and the hearing of the application for leave against the decision of Corboy J, that it is in the interests of justice that the trial proceed against the three accused jointly.  For the reasons given by Corboy J, I am of the view that that remains the case.

7. The application to adjourn the trial is neither consented to nor opposed by either Tracey Hepburn or Rocky Herbert.  However, I have regard to the fact that, pending the trial, Rocky Herbert will be in custody on remand for the offences the subject of the trial.

8. In an application of this kind, the determining factor is whether the adjournment is in the interests of justice.  This requires me to balance the prejudice to the State, if the matter were to proceed other than as a joint trial, against the interests of each of the co‑accused of Kodey Herbert in this case.

9. It is the case that, generally, the public interest will be in favour of bringing criminal litigation to a close efficiently and without undue delay.  However, the effect of refusing the adjournment today would be to frustrate the decisions that have been made to date refusing severance of the indictment.  Of particular significance is the fact that the key witness would need to give evidence on more than one occasion if the trial is not now adjourned and a separate trial were to proceed against Kodey Herbert at a later time because he is not apprehended in time for the commencement of the trial on the date currently listed.  In the decision in which Simmonds J revoked Kodey Herbert's bail, he referred to facts that highlight the vulnerability of that witness.  In my opinion, those matters are relevant for me to consider in coming to the view that it would not be appropriate to require him to give evidence on more than one occasion, effectively in respect of the same facts.

10. I bear in mind that Rocky Herbert is in custody at the moment.  He went into custody around April 2016, when the last of the charges was brought against him.  The delay that may now occur in Rocky Herbert being brought to trial is unfortunate, but in my opinion, in the circumstances, it is not such as to justify a refusal of the application to adjourn on this occasion. 

Conclusion

1. I am satisfied, ultimately, that it is in the interests of justice to adjourn the trial and to vacate the trial dates.

2. I have indicated that, if Kodey Herbert were to be arrested either today or over the weekend, and if it then became apparent that the trial could proceed, the matter can be brought back before the court on Monday.  However, there is no guarantee that it will be possible to re‑list the trial.  I simply indicate that the court will entertain an application to re‑list the trial if that were to occur.

3. In the circumstances, the adjournment is granted.

4. The trial dates to commence on 5 September 2016 are vacated, and the matter will now be adjourned to a status conference.