The State of Western Australia v Pye [No 3]
[2025] WASC 442
•17 OCTOBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PYE [No 3] [2025] WASC 442
CORAM: MCGRATH J
HEARD: 13 OCTOBER 2025
DELIVERED : 14 OCTOBER 2025
PUBLISHED : 17 OCTOBER 2025
FILE NO/S: INS 6 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DAVID JAMES PYE
Accused
Catchwords:
Criminal law - Accused charged with murder - Application for bail - Section 7B(3) and s 15(1) of the Bail Act 1982 (WA) - Whether exceptional reasons for not keeping accused in custody - Whether bail may be properly granted having regard to questions posed in cl 1 of pt C of sch 1 of the Bail Act 1982 (WA)
Legislation:
Bail Act 1982 (WA) s 7B(3), s 15(1)
Result:
Home detention bail granted on strict conditions
Bail to be revoked immediately at conclusion of evidence and closing addresses
Category: B
Representation:
Counsel:
| Prosecution | : | Mr J Whalley SC and Ms A Tully |
| Accused | : | Mr P Holmes |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Holmes Criminal Lawyers |
Cases referred to in decision(s):
Bertolami v The State of Western Australia [2009] WASC 269
Broad v Haas [2002] WASC 155
De Faria v The Queen [2012] WASCA 256
Emile‑Bruning v The State of Western Australia [2016] WASC 211
Fazzari v The State of Western Australia [2004] WASC 71
Hedgeland v The State of Western Australia [2011] WASC 181
Hoddy v Hawes [2003] WASC 22
James v The State of Western Australia [2013] WASC 235
Mansell v The State of Western Australia [2011] WASC 170
Mikhail v The State of Western Australia [2010] WASC 238
Rayney v The State of Western Australia [2011] WASC 3
Shrivastava v The State of Western Australia [2010] WASCA 96
The State of Western Australia v Pye [No 2] [2025] WASC 402
The State of Western Australia v Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34
YSN v The State of Western Australia [2017] WASCA 155
MCGRATH J:
The accused, Mr Pye, has been indicted on six counts to which he has pleaded not guilty. Mr Pye is proceeding to trial by judge alone commencing on 15 October 2025.
The accused was charged on 8 November 2021 and has remained in custody since that date.
The accused now makes an application to be released on bail pursuant to s 7B(3) and s 15(1) of the Bail Act 1982 (WA). The accused has not previously applied to be released on bail.
In support of the application for bail, the accused has filed the affidavit of Mr Holmes, legal practitioner, sworn 7 October 2025, annexing relevant documents and further, the supplementary affidavit of Mr Holmes sworn 12 October 2025. In addition, Mr Holmes summarised the accused's grounds for the application in email correspondence received 7 October 2025.
The State confirmed that it does not oppose the grant of bail to the accused in email correspondence received 8 October 2025. Further, the State, by way of email correspondence received 9 October 2025, outlined the proposed conditions that the State submits would satisfactorily permit the accused to be released on bail.
The State's position is that the accused, for his previous court appearances, was given prescribed medication that satisfactorily addressed his underlying mental health issues. The mental health issues have been diagnosed. Regrettably, the accused is now being denied the previously prescribed medication that he was given during previous court appearances, whilst incarcerated. The consequence is that there is real prospect that the accused will be unable to properly engage in his own trial with the result that an issue of the fitness to stand trial will arise.
Counsel for the State put it in terms that if, in the absence of the medication, the accused is unable to follow the trial and give proper instructions, then undoubtedly his senior counsel will raise the prospect that there will be a miscarriage of justice. If the trial was to proceed, the consequence is that the trial will be adjourned or aborted. That is because expert evidence would be required to consider the question as to whether, the accused, in the absence of the prescribed medication, is fit to stand trial.
A significant period has lapsed since the arrest of the accused in 2021. A previous trial listing was vacated. It is now necessary that the trial be held. On the State's submission, that requires bail to be granted on strict conditions, to ensure the commencement and completion of the trial.
I am satisfied that the State's submission is properly made and that very strict conditions will be imposed, which conditions will permit the prescribed medication to be received whilst in the community. It is deeply regrettable that the very medication that was previously prescribed to the accused in a custodial setting, for court appearances, will not be given to him during this most important trial, if he was to remain in custody. The Court must ensure that those who are accused of committing criminal offences are brought to justice. That can only happen if the accused is given a trial.
For the following reasons, I have determined that bail may be granted on strict conditions including home detention.
The indictment
The accused has been indicted on the following six counts:
(1)On a date unknown between 1 August 2020 and 30 September 2020 at Baldivis David James Pye intending that an indictable offence be committed, incited [BLJ] to commit the offence of murder.
(2)On 12 December 2020 at Kwinana Beach David James Pye murdered Nickolas Thomas Martin.
(3)On the same date and at the same place as count (2) David James Pye with intent to harm Nickolas Thomas Martin unlawfully did an act as a result of which bodily harm was caused to Ricky Chapman.
(4)On a date or dates unknown between 1 January 2021 and 15 March 2021 at Baldivis David James Pye intending that an indictable offence be committed, incited [BLJ] to commit the offence of murder.
(5)On 15 February 2021 at Baldivis David James Pye dealt with money that was intended to be used in connection with an offence, namely murder.
(6)On 26 February 2021 at Baldivis David James Pye dealt with money that was intended to be used in connection with an offence, namely murder.
Alleged facts of the charged offences
The State has filed an amended statement of material facts dated 8 May 2023, which outlines the State case against the accused. I need not provide any further particularisation of the State case at trial.
The defence submits the central issue at trial is whether the accused incited BLJ to kill another (referred to as EKS) and Mr Raymond Cilli and, further, whether the accused paid BLJ to kill Mr Nick Martin.
The defence accepts there is no issue that Mr Martin was fatally shot by BLJ at the Perth Motorplex. BLJ has pleaded guilty to one count of murder and has been sentenced.
Applicable statutory provisions and legal principles
Section 13 of the Bail Act provides that the jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Act and pt B, pt C and pt D of sch 1 of the BailAct.
Relevantly, concerning the charge of murder, cl 3C of pt C of sch 1 of the Bail Act provides as follows:
Notwithstanding clause 1 … or any other provision of this Act, where an accused is in custody ‑
(a)awaiting an appearance in court before conviction for an offence of murder; or
(b)waiting to be sentenced or otherwise dealt with for an offence of murder of which the accused has been convicted,
the judicial officer in whom jurisdiction is vested shall refuse to grant bail for the offence unless the judicial officer is satisfied that ‑
(c)there are exceptional reasons why the accused should not be kept in custody; and
(d)bail may properly be granted having regard to the provisions of clauses 1 and 3 ...
A common approach to take to cl 3C is to first consider whether there are exceptional reasons why an accused should not be kept in custody and then, if exceptional reasons are established, to consider if bail may properly be granted having regard to the provisions of cl 1 and cl 3.[1] I will outline the relevant legal principles concerning exceptional circumstances and cl 1 and cl 3 of pt C of sch 1 of the Bail Act.
Exceptional reasons
[1] James v The State of Western Australia [2013] WASC 235 [23].
The Bail Act does not define the term 'exceptional reasons'. Moreover, the courts have refrained from attempting to provide any sort of list of 'exceptional reasons'. In Shrivastava v The State of Western Australia,[2] Mazza J stated that the use of the word 'exceptional' denotes something which is unusual, out of the ordinary, in some way special or an exception to the general trend of cases. Mazza J stated that what might constitute exceptional reasons would depend upon the facts in each particular case.
[2] Shrivastava v The State of Western Australia [2010] WASCA 96 [28] ‑ [32].
Mazza J's recital of legal principles was confirmed in De Faria v The Queen.[3]
[3] De Faria v The Queen [2012] WASCA 256 [13].
A single matter or a combination of matters may constitute exceptional reasons.[4]
[4] Broad v Haas [2002] WASC 155 [15]; Hoddy v Hawes [2003] WASC 22 [61]; Bertolami v The State of Western Australia [2009] WASC 269 [9]; Mansell v The State of Western Australia [2011] WASC 170 [3]; Emile-Bruning v The State of Western Australia [2016] WASC 211 [6].
The rationale for the requirement that bail should only be granted in murder cases if there are exceptional reasons for not keeping an accused person in custody, is that there is a strong inference that a person facing a murder charge is likely to abscond or fail to appear in accordance with his bail undertaking given the severity of the sentence of imprisonment likely to be imposed if guilt is proven.[5]
[5] Fazzari v The State of Western Australia [2004] WASC 71; Emile‑Bruning v The State of Western Australia [7].
The strength of the prosecution case may be a relevant consideration in determining if there are exceptional reasons for not keeping an accused person in custody.[6] If the prosecution case is a particularly weak one or it can be said that there is a high probability of acquittal, it may be that exceptional reasons for granting bail will exist.[7] In such a case, the inference that there is a strong incentive for an accused to abscond may not be able to be so readily drawn. A contention that the State case is merely not strong or not an overwhelming one is unlikely to meet the criteria of exceptional reasons.[8]
[6] Mikhail v The State of Western Australia [10] ‑ [11].
[7] Bertolami v The State of Western Australia [16]; Emile‑Bruning v The State of Western Australia [8].
[8] Emile‑Bruning v The State of Western Australia [8].
In cases involving a charge of murder, a lengthy delay in proceeding to trial is a regrettable common experience for accused persons. Nonetheless, an unusually long delay before an accused charged with murder can be tried may, in some circumstances, either by itself or in combination with other factors (such as the degree of strength of the prosecution case), amount to an exceptional reason for not keeping an accused in custody.[9]
[9] The State of Western Australia v Sturgeon [2005] WASC 256 (2005); 158 A Crim R 34 [50]; Mikhail v The State of Western Australia [2010] WASC 238; Rayney v The State of Western Australia [2011] WASC 3; Hedgeland v The State of Western Australia [2011] WASC 181.
Finding that there is an exceptional reason for not keeping the accused in custody is not, of course, the end of the matter. As I have already pointed out, by cl 3C(d) I must also be satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act. This requires me to have regard to the questions specified in cl 1 and also any other matters that I consider to be relevant.
Cl 1 and cl 3 of pt C of sch 1 of the Bail Act
The first question specified in cl 1(a) of pt C of sch 1 is whether, if the accused is not kept in custody, he may fail to appear in court in accordance with his bail undertaking, or commit an offence, or endanger the safety, welfare or property of any person, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. Clause 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with the offence with which the accused is charged. Rather, the risk or possibility must be actual or real, as distinct from theoretical and hypothetical.[10]
[10] YSN v The State of Western Australia [2017] WASCA 155 (YSN v The State of Western Australia) [17].
By cl 3 of pt C, I am required, in considering whether the accused may do any of the things mentioned in cl 1(a), to have regard to a number of matters as well as to any other matters which I consider to be relevant. The matters that I am required by cl 3 to have regard to are as follows:
1.The nature and seriousness of the offence and the probable method of dealing with the accused for the offence if he is convicted.
2.The character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the accused.
3.The history of any previous grants of bail to the accused.
4.The strength of the evidence against him.
In undertaking the assessment of the questions, I will apply the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia[11] and YSN v The State of Western Australia.[12]
[11] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [44].
[12] YSN v The State of Western Australia [16] - [21].
Exceptional reasons
I now turn to whether there are exceptional reasons.
The exceptional reasons relied upon are outlined in the affidavit of Mr Holmes sworn 7 October 2025 and email correspondence received 7 October 2025.
Mr Holmes deposes that prior to the accused's arrest, he was being treated by a psychiatrist. The accused was prescribed Diazepam.
Mr Holmes deposes that the accused has been medicated with Diazepam in a custodial environment for a significant period of time and that at all times he was told by his treating psychiatrist that he would be medicated for his trial and any other court proceedings. The accused contends that in the absence of the medication, he will not be able to follow the trial, will not be able to follow proper directions and will not be able to instruct his counsel. Therefore, his level of anxiety would be so great that his lack of ability to follow the trial would give rise to a miscarriage of justice. Mr Holmes produces relevant medical records attesting to the fact that the accused has been prescribed the medication for the underlying health issues.
The accused has now been informed by medical practitioners attending on behalf of Corrective Services that he will not be given the medication. This forms the basis of the exceptional circumstances. If granted bail, on strict conditions, the accused would be able to receive the medication and thereby he would be in a position to make informed decisions concerning the trial. The prospect of an application to adjourn or abort the trial is thereby averted.
The health staff at his prison have previously prescribed Diazepam and then, subsequently, reduced the use of Diazepam on an ongoing basis to the point of cessation. Mr Holmes submits that the accused was weaned off the medication but permitted to use the medication during stressful court appearances.
In early 2025, the accused met with Dr Wynn Owen, psychiatrist, to discuss the use of Diazepam. Mr Holmes deposes that at that consultation, Dr Wynn Owen confirmed that the accused would be medicated for his trial with Diazepam the same as the accused was in other court proceedings. Therefore, at the directions hearing that was heard in this court on 27 and 28 April 2025, the accused was so medicated.
Mr Holmes deposes as to his subsequent correspondence and endeavours to liaise with Corrective Services to secure the medication for his client.
Mr Holmes deposes that he has observed a real shift in the accused's demeanour since he was informed that he would not be medicated for his trial. His level of anxiety is such that in the absence of being properly medicated, he will not be able to focus, will be unable to sleep well or at all during the trial, and will be unable to properly attend, follow or give instructions at his trial.
The State has produced, in the affidavit of Mr Whalley, an outline of the reasoning for the cessation of the medication to the accused. The clinical decision was two‑fold. First, the addictive effect of Diazepam in respect to which an addiction can develop after two weeks of daily usage and in light of the high risk of addiction if taken over the anticipated length of the accused's trial. Second, the restricted nature of the drug Diazepam in prisons, given that the drug is a schedule 4 drug of the poison's standard. Therefore, Corrective Services stated that they would not permit the use of the drug. This contention appears to be wholly contradictory to the fact that Corrective Services have previously permitted Diazepam to be prescribed to the accused.
Mr Whalley deposes that he was informed that the accused reacted angrily to this information because he understood that the drug would be made available as it was prescribed in April 2025.
Mr Whalley further deposes that two psychiatrists who were not part of the original health team, were consulted and supported the decision of the health team not to prescribe Diazepam. Mr Whalley deposes that the accused was offered an alternative medication, Propranolol, which is a beta blocker used as an alternative to Diazepam, and it was recommended that he take this on a trial basis. The accused has not, it appears, communicated whether he is willing to do so. The position of the defence is that that particular drug would not address the underlying medical issues and has been untested on the accused.
The State did not oppose a finding that exceptional reasons has been established. The State submitted that should the trial commence without the accused having access to his medication there is a real prospect that the accused may contend that he is unable to continue to follow the trial and give instructions. Counsel for the State observed that, should counsel for the accused make the submission, after the trial has commenced, that the accused is not fit to stand trial, then the trial would be adjourned or vacated for a significant period whilst evidence from psychiatrists is received at a substantial hearing. I accept that submission.
I accept that exceptional reasons have been established.
Clause 3C(d): Should bail be granted having regard to cl 1 and cl 3 of the Act?
I now turn to the question whether bail be properly granted having regard to the provisions in cl 1 and cl 3 of pt C of sch 1 of the Act.
Nature and seriousness of offence and probable outcome
As to the first of the matters specified in cl 3, the accused is obviously charged with a very serious offence, the maximum penalty for which is life imprisonment. Accordingly, and taking into account the alleged circumstances of the offence, if the accused is convicted of the charged offence, he will inevitably be sentenced to a very lengthy term of imprisonment.
In respect to the strength of the evidence against the accused, the State case is largely based on the proposed testimony of BLJ. That evidence remains untested. On the basis of the evidence disclosed in the State brief of evidence, and in the absence of the defence case, the State case is reasonably strong.
Current circumstances, antecedents and history of grants of bail
The accused was born on 14 June 1982 and is therefore 43 years of age.
It is not contested that the accused has a long history and association with an outlaw motorcycle gang (OMCG).
In respect to his criminal record, he has not previously been convicted of an offence for which he has been incarcerated. However, the accused has been convicted of driving offences, possessing unlicensed ammunition and a controlled weapon, assault occasioning bodily harm, and making a false statement to customs officers. Relevantly, in 2024, the accused was convicted of breaching protective bail conditions. The relevant factual background was that the accused, while subject to a protective bail condition, associated with members of an OMCG. In respect to that offending, a fine was imposed.
State submissions
The State submits that there are risks in respect to the accused being released on bail being first, the risk that the accused, if not kept in custody, may abscond and/or fail to appear in court. Second, the accused should be kept in custody for his own protection.
By way of correspondence received on 8 October 2025, Mr Whalley confirmed that after having 'consulted with the police to determine what we consider to be an appropriate position in relation to the application', the State did not oppose the grant of bail on strict conditions, which were outlined.
Subsequently, in his affidavit, Mr Whalley produces a letter from the Assistant Commissioner (State Crime) dated 10 October 2025. The Assistant Commissioner's letter is addressed to the Director of Public Prosecutions, Mr Owen. The Assistant Commissioner outlines the basis for the police opposing the grant of bail to the accused. The risk as outlined by the Assistant Commissioner is that, given the links of the accused to OMCGs, there is a risk of flight or retaliatory violence from other aggrieved OMCGs, posing a threat to the accused and thereby indirectly to the community. The Assistant Commissioner says that the accused's public presentation at court on a daily basis would reveal his bail status and create a risk to the community in and around the court precinct. The Assistant Commissioner says that whilst the WA Police remain committed to supporting the Office of the Director of Public Prosecutions in the fair and secure conduct of the trial, community safety remains paramount to the WA Police.
Counsel for the State submitted that conditions may sufficiently remove the possibility of the risk to the point that the remaining risk no longer constitutes a proper ground for refusing bail. I have outlined the reasoning of counsel for the State. As I have outlined, the State consider that given that the accused will not receive his medication, he will have difficulty in properly understanding and following the trial and may be unable to give instructions. If that point arises, then the trial is aborted because to continue would amount to a miscarriage of justice.
The accused would then stay in custody and the community would be denied the proper and just resolution of the most serious of allegations. That can only occur by a trial.
The risks
I must first consider the questions posed by cl 1 pt C of sch 1 of the Bail Act.
In respect to the question of whether the alleged circumstances of the charged offences amount to a wrongdoing of such a serious nature as to make a grant of bail inappropriate, this cannot be considered in a vacuum. The question must be considered in light of all of the other circumstances bearing on the exercise of the discretion as to whether or not to grant bail.
On the material before the court, there does not appear to be grounds for holding a belief that, if the accused is not kept in custody, the proper conduct of the trial may be prejudiced.
The risks that arise in this case are first, the risk that the accused, if not kept in custody, may abscond and/or fail to appear in court. Second, that if the accused is not kept in custody, his personal protection is in jeopardy. The contention is that the accused, given the nature of the offence allegations, is susceptible to being the subject of reprisals. The reprisals, in turn, may endanger members of the community, though it is the accused who would be the target of the reprisals.
Proposed conditions
I now turn to the question specified in cl 1(e) being whether there are any conditions that can reasonably be imposed which will sufficiently remove the possibility of the accused, if he is not kept in custody, absconding and/or failing to appear in court or being at personal risk and thereby putting the community at risk.
The possible risks will be sufficiently removed by conditions where the remaining risk of the accused engaging in such conduct no longer constitutes a proper ground for refusing him bail.
The State has proposed a number of conditions in correspondence. Counsel for the accused submitted that the accused is willing to be subject to the proposed conditions.
I am satisfied that conditions may be imposed that sufficiently manage the risk of flight and personal protection and community harm.
In making this ruling, I wish to observe that it is deeply regrettable that the medication, which has previously been prescribed for court appearances, will not be given to the accused in a custodial setting during the limited trial period.
I am satisfied that bail may be granted on strict conditions. The conditions ensure that the accused is subject to detention at a residence and will be subject to surveillance and electronic monitoring. Security measures will be taken to transport the accused to and from the court. At the conclusion of the closing addresses, the accused's bail will be immediately revoked and he will return to prison awaiting the verdict.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CEM
Associate to the Hon Justice McGrath
17 OCTOBER 2025
0
14
1