The State of Western Australia v Kickett
[2020] WASC 173
•19 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- KICKETT [2020] WASC 173
CORAM: DERRICK J
HEARD: 22, 29 APRIL & 18 MAY 2020
DELIVERED : 19 MAY 2020
FILE NO/S: INS 241 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
WILLIAM WADE KICKETT
Accused
Catchwords:
Criminal law - Accused charged with murder - Accused on bail - Accused brought before court pursuant to s 54(1)(a)(ii), s 54(2)(a) and s 54(2a) of the Bail Act 1982 (WA) - Application to revoke bail and for accused to be remanded in custody pursuant to s 55(1)(d) of the Bail Act 1982 (WA) - Whether to revoke bail - Whether to grant fresh bail on conditions including a home detention condition
Legislation:
Bail Act 1982 (WA)
Result:
Application adjourned for consideration of release on home detention condition
Category: B
Representation:
Counsel:
| Prosecution | : | Ms L E Christian SC |
| Accused | : | Ms M R Barone SC & Ms G M Cleary |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Angus Hockton |
Case(s) referred to in decision(s):
Kickett v The State of Western Australia [2020] WASC 110
DERRICK J:
(These reasons were delivered orally and have been edited from the transcript.)
The application
The accused is jointly charged with three others with one count of murder. His three month trial is listed to commence on 15 February 2021. He is next due to appear in this court at a status conference on 18 June 2020.
On 30 March 2020 I heard the accused's application for bail.
On 3 April 2020 I allowed the accused's application. I released him on bail on stringent conditions. I provided detailed written reasons for doing so.[1]
[1] Kickett v The State of Western Australia [2020] WASC 110.
The conditions on which I released the accused on bail included the following:
1.The applicant is not to possess or use illicit substances (condition 1); and
2.The applicant is to attend urinalysis testing as directed by a community corrections officer and is to provide a valid sample for urinalysis, with a failure to provide a valid sample or a positive result to an illicit substance being a breach of bail (condition 2).
On 21 April 2020 the accused was arrested pursuant to s 54(1)(a)(ii), s 54(2)(a) and s 54(2a) of the Bail Act 1982 (WA) (Act). Having been arrested he was, in accordance with these sections of the Act, brought before the court on 22 April 2020.
The accused was arrested and brought before the court in light of information provided to senior counsel for the State, Ms Christian, who was the relevant officer for the purposes of s 54(1) of the Act. The information provided to Ms Christian gave her reasonable grounds to believe that the accused had while on bail committed breaches of condition 1 and condition 2.
At the hearing which took place before me on 22 April 2020, the State made an application pursuant to s 55(1)(d) of the Act for an order revoking the accused's bail (the application). The accused opposed the application. I adjourned the hearing of the application to 29 April 2020 and made orders relating to the obtaining and provision of further material relevant to the determination of the application. The further material that I ordered be provided included, at the request of the accused's then counsel, a mental health assessment of the accused.
By the time that the application came back before me on 29 April 2020 the mental health assessment had not, for reasons that I outlined during the hearing on that date, been able to be prepared and provided to the court. I therefore, with the agreement of the parties, again adjourned the hearing of the application to 18 May 2020 to enable a mental health assessment in the form of a psychiatric report to be prepared in relation to the accused. I also made some additional programming orders.
On 18 May 2020 the hearing of the application proceeded. At the conclusion of the hearing I reserved my decision to today's date.
The accused has been in custody since his arrest on 21 April 2020.
The evidence
The State has filed in support of the application the following:
1.An affidavit affirmed by Ms Sharni Maree Lawler on 21 April 2020;
2.An affidavit affirmed by Ms Lawler on 23 April 2020;
3.An affidavit affirmed by Ms Emma Secker on 22 April 2020;
4.An affidavit affirmed by Ms Secker on 1 May 2020; and
5.An affidavit affirmed by Professor David Joyce on 30 April 2020.
Ms Lawler is a detective attached to the Homicide Squad. She is a member of the team responsible for the investigation of the murder with which the accused is charged.
Ms Secker is a Senior Community Corrections Officer within the Corrective Services Division of the Department of Justice. One of the annexures to Ms Lawler's first affidavit is an affidavit affirmed by Ms Secker on 21 April 2020. There are therefore three affidavits of Ms Secker before me.
Professor Joyce is, among other things, the Director of the Clinical Pharmacology and Toxicology Laboratory at PathWest Laboratory Medicine. He is responsible for the performance of the laboratory and for the interpretation of results generated by the laboratory. Professor Joyce has annexed to his affidavit an undated report prepared by him in relation to this matter.
The accused elected not to give evidence on the application. However, in opposing the application the accused has filed an affidavit sworn by his partner Ms Ashleigh Fenn on 14 May 2020.
None of the makers of the affidavits to which I have referred were required to submit themselves for cross‑examination on their affidavits.
I also have before me the court ordered psychiatric report which has been prepared by Dr Adam Brett, consultant psychiatrist, dated 5 May 2020.
Ms Secker's evidence
The evidence providing the basis for the allegations that the accused has breached condition 1 and condition 2 is contained in the affidavits affirmed by Ms Secker. In her affidavits Ms Secker relevantly affirms the following matters:
1.She is the accused's allocated case management officer;
2.At 1.24 pm on 8 April 2020 she received an email from a Midland Adult Community Corrections (ACC) clerical officer with a message to phone the accused on a specified mobile phone number;
3.Between 1.24 pm and 1.52 pm on 8 April 2020 she received a phone call from the accused on the mobile phone number that had been specified in the email from the ACC clerical officer. The accused advised her that the mobile phone he was using belonged to his partner, Ms Fenn, that he did not intend to purchase a phone and that the best way to contact him was via Ms Fenn's phone number;
4.On 14 April 2020 the accused was directed to attend for urinalysis testing at Midland ACC at 4.45 pm that day. The accused attended for his testing late, specifically at 5.40 pm. When he attended he failed to provide a valid sample on his first attempt. There was insufficient time to arrange for a second sample to be provided due to the fact that the accused had attended late for the testing;
5.The accused was verbally directed to attend urinalysis testing at Mirrabooka ACC on 15 April 2020;
6.On 15 April 2020 the accused attended at Mirrabooka ACC and provided a valid urine sample for testing;
7.The accused was verbally directed to attend urinalysis testing at Midland ACC on 16 April 2020;
8.On 16 April 2020 the accused attended at Midland ACC and provided a valid urine sample for testing;
9.On 20 April 2020 it was ascertained that the sample provided by the accused on 15 April 2020 had returned a positive result for methylamphetamine with a reading of 296 micrograms per Litre ug/L;
10.On 20 April 2020 it was also ascertained that the sample provided by the accused on 16 April 2020 had returned a positive result to methylamphetamine with a reading of 1,204 micrograms per Litre ug/L;
11.On 20 April 2020 she contacted Ms Fenn. Ms Fenn told her that the accused was not home but confirmed that she would tell the accused that he was required to attend Midland ACC for urinalysis testing at 2.30 pm on 21 April 2020. She asked Ms Fenn to instruct the accused to contact Midland ACC so that he could be verbally directed to attend for the urinalysis testing. The accused did not make contact with Midland ACC;
12.On 21 April 2020 she contacted Ms Fenn. Ms Fenn told her that the accused was not home but that she had made the accused aware that he was required to attend Midland ACC for urinalysis testing at 2.30 pm that day. She again requested Ms Fenn to request the accused, if he returned home, to contact Midland ACC so that he could be given the verbal direction to attend for testing at 2.30 pm that day. The accused did not make contact with Midland ACC;
13.The accused attended at Midland ACC at 3.12 pm on 21 April 2020. He provided a urine sample at 3.18 pm;
14.After the accused provided his urine sample she was approached by the PathWest collector who advised her that the sample was too hot, being outside the acceptable temperature range and therefore not compliant with the Australian standard;
15.She verbally directed the accused to provide a second sample. He provided this sample at 5.00 pm. After the accused had provided this second sample the PathWest collector approached her and told her that the accused's sample had no temperature and was therefore not compliant with the Australian standard; and
16.On 22 April 2020 the results of the analysis of the samples provided by the accused on 21 April 2020 were received. For both samples the results indicated that the temperature of the test was outside the acceptable range at the time of collection, was therefore not compliant with the Australian standard, and deemed to be an invalid sample.
Ms Lawler's evidence
The evidence contained in the second of Ms Lawler's affidavits reveals that checks were made by the police at the accused's residence at 10.30 pm on 7 April 2020, 7.29 pm on 14 April 2020 and 11.00 pm on 15 April 2020 to ensure that he was complying with the curfew condition of his bail. The accused presented himself to the police on each of these occasions in accordance with his curfew condition.
Professor Joyce's evidence
The material aspects of Dr Joyce's evidence can be stated as follows:
1.The extent of the change between the two positive results for methylamphetamine returned from the samples taken on 15 April 2020 and 16 April 2020 means that there must have been a further use by the accused of methylamphetamine during the time between the collection of the two samples;
2.The creatinine concentration in the sample provided by the accused on 16 April 2020 was particularly low and indicates that a great deal of water was consumed before testing. Consumption of a large amount of water is a method employed by drug users to dilute drugs in the urine to the point where the concentration falls below the reporting thresholds;
3.Human urine is passed at body temperature. The temperature is measured in the collection cup. A temperature within the range of 33 ‑ 38 degrees Celsius is consistent with just passed urine. A temperature above 38 degrees Celsius is not consistent with just passed urine;
4.A urine temperature of below 33 degrees Celsius also indicates that the sample may not have been recently passed;
5.Although a failure on temperature testing of one sample should not be taken as proof of substitution, substitution is the implied explanation;
6.The two samples that fell outside of the acceptable temperature limits may not have come from the accused; and
7.Negative screening results from the two samples that fell outside the acceptable temperature limits cannot be taken as evidence that the accused's body was free of methylamphetamine or any other drug on 21 April 2020.
Ms Fenn's evidence
In her affidavit Ms Fenn deposes to the financial hardship that will be caused to her and her four children if the accused's bail is revoked. She states, in essence, that after the accused was released on bail she arranged to return to work on the understanding that the accused would be at home to assume responsibility for the care of their four children. She states that she cannot return to work if the accused is not at home to act as the children's primary care giver.
In her affidavit Ms Fenn expresses her 'grave concerns' for the wellbeing of the accused while in custody. She states that prior to the accused's arrest while on bail he was showing signs of deteriorating mental health. She states, in substance, that she is aware that shortly prior to being arrested the accused sought help for his mental health by speaking to someone at ACC and that for the accused to seek help was a significant step for him to take.
In her affidavit Ms Fenn states that she does not condone drug use in her house. She states that she is happy for the accused not to have his own mobile phone which means that people will not be able to contact him and encourage him 'back to his old ways'. She states that she will allow the accused to use her phone during the day while she is at work so that they can contact each other if needs be.
In her affidavit Ms Fenn states that she is unable to visit the accused in custody due to the COVID‑19 pandemic restrictions and that the accused is only allowed to make one phone call a day to her.
Finally, in her affidavit Ms Fenn states that she has contacted her General Practitioner (GP) who works in the Department of Health's Aboriginal Health Team, that she has told her GP about the accused, and that her GP has agreed to assist the accused as a new patient if he is released.
I note that it is accepted by the State that prior to his arrest on 21 April 2020 the accused did speak to Ms Secker about his mental health, and that based on what the accused said to her Ms Secker had real concerns about the accused's mental health.
Dr Brett's psychiatric report
Dr Brett's report reveals the following.
Dr Brett saw the accused for a clinical interview on 4 May 2020.
The accused told Dr Brett that since being charged with the murder of Mr Dimitrovski he has experienced depressed mood with associated anxiety, and that he has had fleeting suicidal ideas but has never acted on them. The accused told Dr Brett that his children are a significant protective factor.
The accused told Dr Brett that when he was remanded in custody following his arrest for the charged offence he was prescribed antidepressant medication which he found helpful, that he did not continue this medication when he was released into the community on bail, and that the medication had been reinstated since he had been taken back into custody on 21 April 2020.
In Dr Brett's opinion the accused has a mood disorder, specifically adjustment disorder with depression and anxiety. His mood disorder is secondary to his current legal situation and is likely to persist and fluctuate until his current legal issues are concluded. He has mild symptoms that are impacting on his functioning. He is on appropriate medication for his mood disorder.
In Dr Brett's opinion the accused also has an associated history of substance use, including alcohol and methylamphetamine.
In Dr Brett's opinion the accused has no acute risk issues, has grossly intact cognition, and has reasonable insight into his mental health and legal situation. He does not require specialist mental health services. His mental health issues should not impact on his ability to comply with bail conditions.
The submissions of the parties
The State submits that I should, on the evidence before me, find that the accused has, since being released on bail, breached condition 1 and condition 2 by failing to provide valid samples for urinalysis, returning positive urinalysis results to methylamphetamine, and using methylamphetamine. The State submits that the accused's conduct in using methylamphetamine while on bail demonstrates that the conditions of bail that I have imposed do not sufficiently remove the risks of him using methylamphetamine and consequently do not sufficiently remove the risks of him failing to appear in court and committing further offences. The State submits that the accused's use of methylamphetamine while on bail significantly increases the risk of him failing to appear in court, committing further offences, and contravening other conditions of his bail. The State submits that there are no conditions additional to those that I have already imposed that would sufficiently remove the risks of the accused continuing to use methylamphetamine and consequently failing to appear in court and committing further offences. Therefore, the State submits, the accused's bail should be revoked.
On the accused's behalf it is not suggested that I should fail to be satisfied on the evidence before me that the accused has breached his bail conditions in the ways alleged by the State. Rather, it is submitted that the accused's existing conditions of bail can be added to by the imposition of a home detention condition, that the imposition of such a condition will sufficiently remove the risk of him continuing to use methylamphetamine, and that as a consequence the risk of him failing to appear in court and committing further offences if he is not kept in custody will be removed to a sufficient extent to enable him to again be released.
In support of this primary submission it is argued on the accused's behalf that the risk of the accused failing to appear in court is not a significant risk and that the risk, to the extent that it does exist, will be further reduced to an extremely low level by the imposition of a home detention condition.
It is also argued on the accused's behalf that when he was released from custody on bail and was allowed to return to his family, he became acutely aware of what he was, by reason of being charged with his offence, at risk of losing for a long period of time if he is convicted of the charged offence; he was always aware of the risk but his sudden release to his home environment really brought home to him what he was at risk of losing. It is argued that it was in these circumstances, and in the absence of his prescribed medication, that the accused's mental health deteriorated and he relapsed into methylamphetamine use as a form of self‑medication. It is argued that given that the accused is now on appropriate medication for his mood disorder things have changed. Specifically, it is argued that the accused's mood is more stable, that he understands the need for him to continue to take his prescribed medication, that he will not need to use methylamphetamine to self‑medicate and that given the greater stability in his mood he appreciates the need to seek and accept help for his condition. It is further argued that the regime provided by home detention will help maintain this change in circumstances.
I note that it is not disputed by the State that the accused did cease taking his prescribed medication when released on bail.
Findings
On the basis of the evidence before me I am satisfied beyond reasonable doubt of the following matters:
1.On 14 April 2020 the accused breached condition 1 by failing to provide a valid urine sample for analysis;
2.On or prior to 15 April 2020 the accused breached condition 2 by using an illicit substance, namely methylamphetamine;
3.Between providing the urine sample on 15 April 2020 and providing the urine sample on 16 April 2020 the accused again breached condition 2 by using an illicit substance, namely methylamphetamine;
4.Between 16 April 2020 and 20 April 2020 the accused breached condition 2 by using methylamphetamine on an indeterminable number of occasions;
5.On 20 April 2020 the accused breached condition 2 by returning on urinalysis two positive results to an illicit substance, namely methylamphetamine, the positive results being obtained from the two samples provided by him on 15 April 2020 and 16 April 2020;
6.On 21 April 2020 the accused breached condition 1 by failing on two occasions to provide a valid urine sample for analysis;
7.The explanation for the accused's failure to provide valid urine samples on 21 April 2020 is that the samples that he provided were not samples of his own urine, or were samples of his own urine which he had passed at some earlier point in time; and
8.The accused provided the invalid samples on 21 April 2020 in an attempt to avoid detection for having used methylamphetamine during the period between 16 April 2020 and 20 April 2020.
I state to avoid any doubt on the issue that the second, third, fourth, seventh and eighth of my stated findings are in my view, and in the absence of any evidence from the accused to the contrary, the only inferences that are reasonably available to be drawn on all of the evidence before me. I note that it is not suggested on behalf of the accused that I should not draw these inferences.
It follows from my stated findings of fact (that is, from my findings that the accused has breached conditions of his bail undertaking) that under s 55(1) of the Act there are two options that are open to me. The first option, which is provided for by s 55(1)(d), is to accede to the State's application by revoking the accused's bail and remanding him in custody until his next appearance date. The second option, which is provided for by s 55(1)(e), is to revoke the accused's bail and grant him fresh bail in accordance with the Act other than cl 2 of pt B of sch 1.
During the course of the hearing it was submitted on behalf of the accused that the use by him of his own previously excreted urine samples in an attempt to avoid detection for his use of methylamphetamine was slightly less serious than the use for this purpose of a sample of urine provided by a third party. This submission was premised on me accepting that the accused had used his own previously excreted urine in an attempt to avoid detection for his methylamphetamine use. There is, of course, no evidence from the accused that the invalid samples were samples of his own urine. In any event, I do not accept the submission made on the accused's behalf. I do not think that there is any material distinction to be drawn between the seriousness of the two courses of conduct. This is particularly so given that the provision by a person of his own previously excreted urine sample reflects a degree of forward planning; that is, the excretion of the sample at a time when he believes that he does not have methylamphetamine in his system but envisages that he may do so at some future point in time.
Decision
The accused has committed serious breaches of his bail within approximately two weeks of being released. Not only has he breached his bail by using methylamphetamine on at least three separate occasions, he has then engaged in subterfuge in an attempt to avoid detection for having used the drug.
It is apparent from the accused's criminal record to which I referred in my reasons for granting him bail that the accused has had a problem with illicit substances in the past. Further, I am satisfied that if the accused uses illicit substances while on bail, particularly methylamphetamine, the likelihood of him failing to comply with other conditions of his bail, failing to appear in court and committing further serious offences increases significantly. It is for this very reason that I imposed condition 1 and condition 2 as part of his bail.
In light of the fact that the accused has relapsed to using methylamphetamine so soon after he was released on bail, I am no longer satisfied that the stringent conditions on which I released him sufficiently remove the possibility of him, if he is not kept in custody, using methylamphetamine. Consequently, given the correlation between the accused's use of methylamphetamine and the increased risk of him failing to appear in court and committing further offences, I am also no longer satisfied that the stringent conditions on which I released the accused sufficiently remove the risks of the accused failing to appear in court and committing further offences.
The question which remains is whether the imposition of a home detention condition in addition to the conditions that he was subject to while on bail and prior to his arrest, will sufficiently remove the risk of the accused again relapsing into methylamphetamine use if he is released, and consequently will sufficiently remove the risks of him failing to appear in court and committing further offences.
The imposition of a home detention condition will not make it impossible for the accused to obtain methylamphetamine. There would no doubt be ways and means by which the accused could, if he was determined enough, arrange for methylamphetamine to be supplied to him at his home address. Having said this it is, I think, fair to say that the imposition of a home detention condition and the associated inability of the accused to leave his home address will make it substantially more difficult for him to source methylamphetamine.
Moreover, the impact of the imposition of a home detention condition on the accused cannot be considered in isolation from the other evidence before me, most particularly the evidence of Dr Brett. There is little question that the accused, if he is again released on bail, is likely to continue to experience the symptoms of his mood disorder even if he continues to take his prescribed medication. As Dr Brett opines, the accused's mood disorder is secondary to his current legal situation and is likely to persist and fluctuate until his current legal issues are concluded. Nonetheless, I think that it is fair to conclude on the basis of Dr Brett's report that if the accused continues to take his prescribed medication his mental state is unlikely to deteriorate to the extent that it apparently did in the period leading up to his arrest with the consequence that he is less likely to feel the need to resort to methylamphetamine use to deal with his depression and anxiety.
The accused apparently now has insight into his mental health and appreciates the importance of continuing to take his prescribed medication if he is released. On the basis of Ms Fenn's affidavit it appears that there is a GP who will be willing to assume responsibility for the accused's care and consequently for prescribing to him his mood stabilisation medication.
It is also the position that regardless of the impact of the imposition of a home detention condition on the likelihood of the accused again relapsing into methylamphetamine use, the imposition of such a condition will of itself further reduce the likelihood of the accused committing further offences. I say this because if the accused is subject to a home detention condition he will be subject to a form of electronic monitoring with the result that the authorities will be notified if he leaves his home without authorisation.
I am very conscious of the fact that the accused reverted to methylamphetamine use quickly after being released on bail, and that he demonstrated a willingness to act dishonestly in an attempt to avoid detection for having done so. Nonetheless, when I take into account all of the matters to which I have referred, I am satisfied that the imposition of a home detention condition (subject to obtaining the necessary report indicating the suitability of the accused and the proposed address for home detention) will sufficiently remove the risks of the accused, if he is not kept in custody, again relapsing into methylamphetamine use, failing to comply with his other bail conditions, failing to appear in court and committing further offences.
I need to make some brief additional points in light of the contents of Ms Fenn's affidavit.
As I have already pointed out, in her affidavit Ms Fenn refers to the hardship that the accused is experiencing while in custody due to the COVID‑19 pandemic restrictions. This hardship was a matter that I took into account in deciding that there were exceptional reasons for granting the accused bail. The fact that the accused is now once again experiencing this form of hardship is due to no one's fault but his own. Accordingly, although I maintain the view that I have previously expressed, namely that the hardship being experienced by the accused while in custody combines with other factors to constitute exceptional reasons for not keeping him in custody within the meaning of cl 3C(c) of pt C of sch 1 of the Act, the hardship is not something that I have placed any reliance on in deciding that the accused can, having regard to cl 1 and cl 3 of pt C of sch 1 of the Act, be released on home detention bail (subject to obtaining the necessary report indicating the suitability of the accused and the proposed address for home detention).
Similarly, I have not placed any reliance on the financial hardship that is being, and will be, caused to Ms Fenn and her children by reason of the accused being kept in custody. While I do not doubt the existence of the hardship, the fact of the hardship is due solely to the accused's conduct in breaching his bail and is not something that I consider to be of any real significance in deciding if home detention bail can be granted having regard to cl 1 and cl 3 of pt C of sch 1 of the Act.
In summary, when I take into account the risk of the accused suffering an injustice by reason of being kept in custody as an unconvicted person pending his trial, I am of the view that the risks of him failing to appear in court and committing further offences will be sufficiently removed by the imposition of a home detention condition in addition to the conditions already imposed (save for those that will be rendered nugatory by a home detention condition) such that the extent of the risks does not constitute a proper ground for refusing him bail.
As I have already indicated, I cannot impose a home detention condition in the absence of a report from a community corrections officer dealing with the suitability of the applicant for release on home detention bail and the suitability of the address that it is proposed that he be released to. I therefore order pursuant to s 24A(2) of the Act that a report be prepared dealing with the matters specified in cl 3(2) of pt D of sch 1 of the Act, the relevant address the subject of the report to be 8 Catlidge Street, Ellenbrook.
If the home detention report is favourable, I will pursuant to s 55(1)(e) revoke the accused's existing bail and grant him fresh bail on the same conditions as his current bail subject to the addition of the home detention condition and the removal of any conditions rendered nugatory by the home detention condition (for example, the curfew condition). I will expect the parties to provide me with a minute of the proposed conditions prior to the next hearing date. This will give the State the opportunity to refine the terminology of some of the existing conditions to deal with the concerns raised by Ms Christian at yesterday's hearing relating to the provision to the accused of the list of prosecution witnesses and the provision by the accused of the details of any phone to be used by him.
I adjourn the application to 9.15 am on Thursday 28 May 2020 pending the preparation of the home detention report.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Secretary
25 OCTOBER 2021