The State of Western Australia v Samura
[2019] WASC 210
•20 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SAMURA [2019] WASC 210
CORAM: DERRICK J
HEARD: 17 JUNE 2019
DELIVERED : 20 JUNE 2019
FILE NO/S: INS 241 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
SANNAH JR SAMURA
Accused
Catchwords:
Nil
Legislation:
Bail Act 1982 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Prosecution | : | Ms L E Christian and Ms S M Cerqui |
| Accused | : | Mr G W Massey |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Holborn Lenhoff Massey |
Case(s) 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
Fazari v The State of Western Australia [2004] WASC 71
Heaney v The State of Western Australia [2013] WASCA 146
Hedgeland v The State of Western Australia [2011] WASC 181
Hoddy v Hawes [2003] WASCA 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
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
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 Sturgeon [2005] WASC 256 (2005) 158 A Crim R 34
YSN v The State of Western Australia [2017] WASCA 155
DERRICK J:
Introduction
Mr Sannah Samura (the accused) is charged jointly with Mr Amirali Farsijani, Mr Poria Akhbari Sadiqi and Mr William Wade Kickett with one offence of murdering Mr Dejan Dimitrovski contrary to s 279 of the Criminal Code (WA) (the Code).
The accused is currently remanded in custody. He has been in custody since his arrest on 16 November 2017.
The trial of the accused and the three co‑accused is listed to commence on 28 January 2020. The trial has been set down for approximately three months.
The accused now makes an application to be released on bail on the charge. The application is made pursuant to s 7B(3) and s 15(1) of the Bail Act 1982 (WA) (the Act).
The accused has not previously applied to be released on bail.
The accused has filed in support of the application an affidavit sworn by him on 5 June 2019.
The application is opposed by the State. In opposing the application the State has filed an affidavit affirmed by police officer Brian Connelly on 14 June 2019. The State, in opposing the application, also relies on the contents of the prosecution brief and a small amount of additional material contained in a Book of Materials dated 14 June 2019 (the Book of Materials).
The alleged facts of the charged offence
The alleged facts of the charged offence, briefly stated, are as follows.
In August 2017 the accused and the three co‑accused were known to Mr Dimitrovski.
Between around 8.00 pm and 8.30 pm on Friday 4 August 2017, Mr Dimitrovski was at his home address of 43 Dallington Crescent in Balga.
On the evening of Friday 4 August 2017 the accused drove to Dallington Crescent in his 2007 white Mercedes SUV, model ML280cdi, registration 1 CNS 104. He arrived in Dallington Crescent at approximately 7.55 pm. He parked his vehicle close to Mr Dimitrovski's house. Also in the vehicle with the accused was Mr Farsijani.
Mr Kickett may also have been in the vehicle with the accused and Mr Farsijani at the time that the accused drove to Dallington Crescent.
The accused drove his vehicle to Dallington Crescent in convoy with another vehicle, a white Lexus sedan, registration 1 DZM 236. The Lexus was being driven by Mr Akhbari Sadiqi. Mr Akhbari Sadiqi also parked his vehicle close to Mr Dimitrovski's house.
On arriving in Dallington Crescent the accused, Mr Farsijani, Mr Akhbari Sadiqi and perhaps also Mr Kickett walked to and entered Mr Dimitrovski's house. At the time that they arrived at the house another male, Mr Saied Akbar Hussaini, was already with Mr Dimitrovski in the house.
If Mr Kickett did not travel to Dallington Crescent with the accused in the accused’s vehicle, he arrived at Mr Dimitrovski’s house earlier that evening with Mr Akbar Hussaini.
At some point the accused, Mr Farsijani, Mr Akhbari Sadiqi, Mr Kickett, Mr Akbar Hussaini and Mr Dimitrovski were in the theatre room on the second floor of Mr Dimitrovski’s house. While in the theatre room one or more of the accused, Mr Farsijani, Mr Akhbari Sadiqi, Mr Kickett and Mr Akbar Hussaini assaulted Mr Dimitrovski.[1] The assault caused significant injuries to Mr Dimitrovski.
[1] Mr Akbar Hussaini has left the country. He had not been charged at the time that he left the country.
At approximately 8.28 pm the accused, Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett left Mr Dimitrovski's house. The accused drove away in his vehicle at speed. Mr Akbar Hussaini remained at the house.
At approximately 8.29 pm Mr Akbar Hussaini made a triple‑0 call which resulted in the police attending Mr Dimitrovski's house. When the police arrived at Mr Dimitrovski's house Mr Akbar Hussaini was present and was performing CPR on Mr Dimitrovski.
At the time of the arrival of the police Mr Dimitrovski was lying on the floor in the theatre room. He was lying on his back. He was wearing underpants, grey tracksuit pants and socks. He had visible significant injuries to his body. He was wet.
Underneath and near to Mr Dimitrovski were lengths of rope and duct tape. A pillow next to Mr Dimitrovski's head was significantly soiled with blood. Numerous empty 600 ml plastic water bottles were scattered near Mr Dimitrovski.
There was a large amount of blood near Mr Dimitrovski and on two couches that were close to where he was lying.
An ambulance attended Mr Dimitrovski's address. At about 8.45 pm the ambulance officers declared Mr Dimitrovski deceased.
The cause of Mr Dimitrovski's death
On 8 August 2017 forensic pathologist, Dr C T Cooke, performed a post‑mortem examination on Mr Dimitrovski. On the post‑mortem examination Dr Cooke found Mr Dimitrovski to be suffering from widespread injuries to the surface of his body, particularly to the central part of his face. The injuries identified by Dr Cooke included fractures to the nose and both of the cheeks, a penetrating stab type injury to the right side of the torso, a penetrating stab type injury to the top of the right foot, bruising to the muscle at the top of the neck, a thin fracture of the main throat cartilage (fractured right superior horn of the thyroid cartilage), and fractured ribs at the front of the chest (most likely the result of CPR). Dr Cooke also found that Mr Dimitrovski had congested lungs with aspiration into the airways as well as early arteriosclerotic hardening of the arteries.
On 29 November 2017 Dr Cooke, following the receipt of results of further investigations, formed the opinion that the cause of Mr Dimitrovski's death was 'injuries to the face and neck in a man with focal coronary arteriosclerosis and amphetamines effect'.
The accused's interview
On 16 November 2017 the accused, following his arrest, participated in an interview with the police (the interview). During the interview the accused asserted that he had loaned his car to Mr Akbar Hussaini on the evening in question. He denied being at Mr Dimitrovski's house at the time that Mr Dimitrovski was killed. He denied being in any way involved in the killing of Mr Dimitrovski.
The legal basis for the State's case against the accused
As is apparent from my above brief statement of the alleged facts of the charged offence, the State's case is that the accused, the three co‑accused and Mr Akbar Hussaini were all present when Mr Dimitrovski was assaulted and killed, and that it was one or more of the accused, the three co‑accused and Mr Akbar Hussaini who assaulted Mr Dimitrovski and inflicted the various injuries to him. Therefore, the State's case against the accused will be put on three alternative bases. First, that he was a principal offender within the meaning of s 7(a) of the Code. Second, that if he was not a principal offender he aided in the commission of the offence within the meaning of s 7(c) of the Code. Third, if he was neither a principal offender nor an aider, he was criminally responsible for the murder by reason of s 8 of the Code in that he formed a common intention with the three co‑accused and Mr Akbar Hussaini to prosecute an unlawful purpose, namely unlawfully assault Mr Dimitrovski, and that in the prosecution of that unlawful purpose an offence was committed, namely the murder of Mr Dimitrovski, that was of such a nature that its commission was a probable consequence of the prosecution of the unlawful purpose.
The accused's defence
The accused's currently disclosed defence to the allegations made against him, consistently with what he said to the police during the interview, is that he was not one of the offenders.
The procedural history to the application
On 31 August 2017 two of the accused's co‑accused, Mr Farsijani and Mr Akhbari Sadiqi, were charged with the offence of murdering Mr Dimitrovski.
On 17 November 2017, the day after his arrest, the accused was charged with the offence of murdering Mr Dimitrovski.
On 3 October 2018 the accused, after a number of appearances in the Magistrates Court, was committed together with Mr Farsijani and Mr Akhbari Sadiqi to appear in this court on the murder charge.
On 18 January 2019 the State filed an indictment charging the accused, Mr Farsijani and Mr Akhbari Sadiqi with the offence of murdering Mr Dimitrovski.
On 21 January 2019 the accused, Mr Farsijani and Mr Akhbari Sadiqi appeared for the first time in this court. On that date the court informed the parties that trial dates of 13 May 2019 to 24 June 2019 were being held on a provisional basis.
On 8 February 2019 the accused, Mr Farsijani and Mr Akhbari Sadiqi appeared at a status conference. They were arraigned on an indictment dated 18 January 2019 containing the charge that they had murdered Mr Dimitrovski. They all pleaded not guilty to the charge.
On 12 March 2019 Mr Kickett was charged by the police with the offence of murdering Mr Dimitrovski.
On 13 March 2019 the accused, Mr Farsijani and Mr Akhbari Sadiqi appeared at a status conference.
On 21 March 2019 the accused, Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett appeared at a status conference (although Mr Kickett had not at this time actually been committed by the Magistrates Court to appear in this court). At the status conference the provisional May to June 2019 trial dates were vacated and the above referred to January to April 2020 trial dates were allocated on a provisional basis. The provisional May to June 2019 trial dates were vacated due to the inability of Mr Kickett's legal representatives to properly prepare for a trial in May 2019.
On 27 March 2019 Mr Kickett was committed to appear in this court on the murder charge.
On 30 April 2019 the accused, Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett appeared at a further status conference. At this hearing the State discontinued the prosecution on the indictment dated 18 January 2019 and presented a fresh indictment dated 29 April 2019 jointly charging the accused, Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett with the murder of Mr Dimitrovski.
On 28 May 2019 the accused, Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett appeared at a directions hearing. At the directions hearing the matter was listed for a further four day directions hearing commencing on 17 June 2019 so that the accused's foreshadowed application for bail, as well as any applications for bail by Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett, could be heard and dealt with.
None of Mr Farsijani, Mr Akhbari Sadiqi and Mr Kickett have made an application for bail.
The applicable statutory provisions and legal principles
Section 13 of the 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 Act.
Of particular relevance in the present context is cl 3C of pt C of sch 1 of the Act which relevantly 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...
The Act does not define the term 'exceptional reasons'. Moreover, the courts have refrained from attempting to provide any sort of list of 'exceptional reasons'. Rather, the term bears its ordinary meaning: something which is unusual, out of the ordinary, in some way special or an exception to the general trend of cases.[2]
[2] Shrivastava v The State of Western Australia [2010] WASCA 96 [28] ‑ [32]; De Faria v The Queen [2012] WASCA 256 [13]; Heaney v The State of Western Australia [2013] WASCA 146 [8]; James v The State of Western Australia [2013] WASC 235 [25]; Emile‑Bruning v The State of Western Australia [2016] WASC 211 [5].
What constitutes exceptional reasons will depend upon the facts in each particular case. A single matter or a combination of matters may constitute exceptional reasons.[3]
[3] Broad v Haas [2002] WASC 155; Hoddy v Hawes [2003] WASCA 22; Bertolami v The State of Western Australia [2009] WASC 269 [9]; Mansell v The State of Western Australia [2011] WASC 170 [3].
The rationale for the requirement that bail should only be granted in murder cases if there are exceptional reasons for not keeping an accused 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.[4]
[4] Fazari 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 in custody. 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 there will be exceptional reasons for granting bail.[5] 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. However, to suggest that the prosecution case is merely not strong or not an overwhelming one is unlikely to meet the criteria of exceptional reasons.[6]
[5] Bertolami v The State of Western Australia [16]; Emile‑Bruning v The State of Western Australia [8].
[6] 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.[7] The strength of the prosecution case will be relevant to the determination of whether an unusually long delay before an accused charged with murder can be tried amounts, either by itself or in combination with other factors, to an exceptional reason for not keeping an accused in custody pending his or her trial.[8]
[7] 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.
[8] Mikhail v The State of Western Australia [10] ‑ [11];
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.[9]
[9] James v The State of Western Australia [23].
Clause 3C(c): Are there exceptional reasons for not keeping the accused in custody?
The accused submits that there are four exceptional reasons which, considered individually or in combination with each other, justify the conclusion that he should not be kept in custody. The exceptional reasons that the accused asserts exists as follows:
1.The strength (or lack thereof) of the prosecution case;
2.His remand in custody is causing his family to experience significant hardship, including financial and emotional hardship;
3.His remand in custody is prejudicing his ability to adequately prepare his defence; and
4.By the time of the estimated completion date of his trial he will have been in custody on remand for almost two and a half years.
I will deal with each of the asserted exceptional reasons in turn.
Strength of the prosecution case
In relation to the issue of the strength of the State's case, it is important to recognise at the outset that it is simply not, on the basis of the material before the court and given the nature of the application before the court, either possible or appropriate for me to attempt to engage in some form of highly refined analysis of the evidence and the various strengths and weaknesses thereof. Having made this point I turn to the submissions of the parties on the issue.
The State submits that its case against the accused is a 'strong' circumstantial case. The evidence that has been disclosed by the State and which the State points to in support of its submission that its case against the accused is a strong case is in summary as follows:
1.Evidence that more than one person was present at the time that Mr Dimitrovski was assaulted;[10]
[10] The evidence is comprised in part of evidence relating to Mr Dimitrovski’s size, the nature of the assault inflicted on Mr Dimitrovski, and shoe impressions found at the scene.
2.Evidence that the accused and the co‑accused knew Mr Dimitrovski and were trusted by him;
3.Evidence that the accused had been to Mr Dimitrovski's house on prior occasions;
4.Evidence that Mr Dimitrovski was in a relationship with a female who was the former girlfriend of one of the accused's close friends (which the State asserts may be viewed by the jury as providing a motive for the accused to have been involved in the assault on Mr Dimitrovski);
5.Evidence that a 2006 to 2009 white Mercedes SUV ML model was driven along Dallington Crescent in the direction of Mr Dimitrovski's house at 7.55 pm on 4 August 2017 and was driven along Dallington Crescent from the direction of Mr Dimitrovski's house at approximately 8.30 pm;[11]
[11] The evidence consists of closed circuit television (CCTV) footage obtained from three houses on Dallington Crescent and evidence of a Mr Hsu Yi Tan, the Brand Manager at Westpoint Star Mercedes, identifying the vehicle shown in the CCTV footage as a 2006 to 2009 white Mercedes SUV ML model. The CCTV footage is contained on a USB that has been provided to the court as part of the Book of Materials. I have viewed the footage.
6.Evidence from all other registered owners of 2006 to 2013 white Mercedes SUV ML models (of which there were 251) to the effect that their vehicles were not in Dallington Crescent in Balga on 4 August 2017;
7.Evidence that the accused was, in August 2017, making use of a mobile phone with the number 0406 868 108 (the phone);
8.Evidence that between 6.57 pm and 8.46 pm on 4 August 2017 the phone was communicating with two cell towers situated in Princess Road in Balga, although no calls were made from the phone during this time;
9.Evidence that although Mr Dimitrovski's house was located just outside the most likely geographical regions served by the two cell towers in Princess Road, it was within about 250 m of those geographical regions;
10.Evidence in the form of call charge records and subscriber details that the accused used the phone to make calls on 4 August 2017 before and after the period referred to in par 8 above;
11.Evidence that the accused's right middle finger print was found in Mr Dimitrovski's house on the underside of the balustrade hand rail;
12.Evidence that on the evening of 4 August 2017 Mr Kickett buried in a bush location in Hamersley various items which were recovered by the police on 5 February 2019, including a grey long sleeve jumper, a pair of white or light grey shoes, two black Cheetah brand gloves, a Goodlife gym towel, a Telstra modem and a Panasonic telephone base (the modem and phone base being connected by a telephone cable);
13.Evidence comprised of closed circuit television (CCTV) footage showing that on the afternoon of 4 August 2017 the accused was wearing a grey long sleeve top and a pair of light coloured sports shoes (which items the State asserts are similar in appearance to the grey long sleeve jumper and white or light grey shoes found buried in the bush location);
14.Evidence that on 17 May 2017 a roadside search of the accused's vehicle was conducted during which a pair of black Cheetah brand gloves similar to those found buried in the bush location were located in the back seat of the vehicle;
15.Evidence in the form of an admission made by the accused during the interview that his gym was the Goodlife gym in Cannington;
16.Evidence that the top, pants and shoes that the accused was wearing on the afternoon of 4 August 2017 were not located by the police during a search that they conducted on 10 April 2018 of the address at which the accused was living at the time of his arrest or during a search that they conducted on 11 April 2018 of the address at which his partner Ms Kjerstin Hickey was living;
17.Evidence that the Telstra modem and Panasonic telephone base found buried in the bush location were taken from Mr Dimitrovski's house on 4 August 2017 sometime after he had arrived home on that day;
18.Evidence comprised of statements made by the accused during the interview which the State contends are lies constituting evidence of the accused’s guilt (as opposed to lies going merely to credibility). The statements made by the accused include the following:
(1)On the evening of 4 August 2017 he lent his vehicle to Mr Akbar Hussaini (the State will adduce evidence that Mr Akbar Hussaini drove to Mr Dimitrovski's house at about 7.19 pm in his brother's vehicle, a Camaro, and that the Camaro remained at Mr Dimitrovski's house until the police arrived);
(2)On the evening of 4 August 2017 at the time that Mr Dimitrovski was killed he was with a friend, Mr Crispin Fahnbulleh (Mr Fahnbulleh, although he has refused to provide a statement, has previously provided information to the police that does not support the accused's alibi);[12]
(3)The number of the phone was not his number, he did not recognise the number, and he did not think that he was using the phone on 4 August 2017; and
(4)The grey long sleeve top and the grey track pants that he was wearing on 4 August 2017 were still at his house (the house searched by the police on 10 April 2018).
[12] Mr Fahnbulleh has been summonsed to give evidence at a depositions hearing (that is, a hearing conducted under s 158 and cl 5 of sch 3 of the Criminal Procedure Act 2004 (WA)) on 21 June 2019.
In response to the State's submission as to the strength of its case against him, the accused points out that the admissibility of some of the significant evidence upon which the State is intending to rely is going to be the subject of a challenge at a directions hearing that is to take place later this year. Specifically, the accused intends to challenge the admissibility of the following evidence:
1.Evidence that the State intends to adduce from a witness that it asserts is an expert witness, namely Mr Hsu Yi Tan, the Brand Manager at Westpoint Star Mercedes, to the effect that the vehicle shown by CCTV footage obtained from three houses in Dallington Crescent at the time that Mr Dimitrovski was killed was the same make and model as the accused's vehicle (the accused does not accept the vehicle was the same model as his, or that if it was the same model that it was his vehicle);
2.Evidence that the State intends to adduce in relation to the location of the phone at material times, including the time that Mr Dimitrovski was killed; and
3.The interview.
Further, the accused advances a number of contentions in response to some of the aspects of the evidence that the State points to as justifying the conclusion that its case against him is a strong one. The contentions, briefly stated, include the following:
1.The CCTV footage obtained from the three houses on Dallington Crescent shows the white SUV vehicle only very briefly and does not show the number plate of the vehicle or any brand logo. Therefore, the reliability of the evidence to be given by Mr Tan, even if it is not ruled inadmissible, is open to question. Mr Tan's evidence may ultimately not be accepted by the jury;
2.The evidence of the location of the accused's fingerprint on the underside of the balustrade handrail is of little significance given that the accused had been to Mr Dimistrovski's house on occasions prior to 4 August 2017;
3.The clothing that the accused is shown by the CCTV footage to be wearing on the afternoon of 4 August 2017 is not particularly distinctive and is 'not necessarily a match' for the clothing found buried in the bush location;[13]
4.The evidence of the location of the black Cheetah brand gloves in the accused’s vehicle on 17 May 2017 is of little significance given that they ‘seem to be generic type gloves with that particular brand’;[14]
5.The evidence of the location of the Goodlife gym towel buried in the bush location is of little significance given that there are 14 outlets for Goodlife gyms in Perth; and
6.Even if the interview is held to be admissible, the jury may not be satisfied that the statements made by the accused during the interview which the State alleges are lies were in fact lies, and the interview may in any event be ruled inadmissible.
[13] ts 106, 17 June 2019. During the hearing of the application I was informed by the accused’s counsel, without dissent from counsel for the State, that no DNA has been recovered from the items found buried in the bush location.
[14] ts 106, 17 June 2019.
Despite the accused's submission that the strength of the State's case in itself amounts to an exceptional reason for not keeping him in custody, his counsel did not at the hearing of the application attempt to argue that the prosecution case, taken at its highest and on the assumption that the above identified foreshadowed objections to the admissibility of evidence are overruled, is not a strong case. Rather, the accused's counsel argued that the prosecution case, taken at its highest, cannot be described as compelling and that the accused does have a realistic prospect of being acquitted.
Obviously, I cannot at this point in the proceedings make any assessment as to the likelihood or otherwise of the accused successfully objecting to the admissibility of the evidence that is apparently to be the subject of challenge. I must necessarily proceed on the basis that the evidence that the State is intending to adduce at trial will be able to be adduced.
It is not, on the available material and taking into account the competing contentions, possible for me to make any precise or final assessment of the strength of the prosecution case. Nor is it necessary or appropriate for me to do so on a bail application.
There may be merit in some of the points made by the accused in relation to individual pieces of the evidence that the State is intending to adduce and rely upon in its case against the accused. However, in making an assessment of the strength of the State's case I must consider the evidence to be adduced as a whole and not on a piecemeal basis.
Doing the best I can on the material before me and considering the evidence that the State is intending to adduce as a whole, I am satisfied that the State's case against the accused is a strong circumstantial case. If all of the evidence that the State intends to adduce and rely upon is put before the jury, the case presented will, in my view, be a reasonably compelling one. Nonetheless, when I allow for the possibility that the jury may decide not to place weight on certain aspects of the evidence to be adduced, I would not go so far as to say that the State's case against the accused is an overwhelmingly strong one or that the accused does not have a realistic prospect of being found not guilty. I think that there is some prospect, albeit not a strong prospect, of the accused being acquitted.
In light of my conclusion that the State's case against the accused is a strong circumstantial case it necessarily follows that I do not accept the accused’s submission that the strength of the State's case constitutes an exceptional reason for not keeping him in custody pending his trial. This does not, however, mean that the strength of the State's case is of no further relevance to the application. As I have already pointed out, the strength of the State's case is relevant to the determination of whether the extent of the delay in this case amounts to an exceptional reason for not keeping the accused in custody. This is an issue I will turn to later in these reasons.
Family hardship
It is not necessary for me to recite in detail the assertions of fact made by the accused in his affidavit and by the writers of the annexures thereto in relation to the issue of the hardship being experienced by his family due to his remand in custody. Rather, it suffices for me to say that the assertions of fact are to the following effect:
1.The accused is engaged to Ms Kjerstin Hickey and has been in a relationship with her since 2009;
2.The accused and Ms Hickey have two children together, a daughter who is 8 years old and a son who is 6 years old (the children);
3.At the time of the accused's arrest he shared with Ms Hickey the care of the children;
4.At the time of the accused's arrest he earned an income through his tattoo business 'Unrivalled Ink';
5.At the time of the accused's arrest it was his income which supported his family;
6.As a result of the accused's incarceration Unrivalled Ink had to cease trading with the result that since his incarceration he has not had a source of income that he can use to help support his family;
7.If the accused is released on bail he will assist Ms Hickey in the care of the children and will endeavour to obtain some form of employment so that he can contribute to the financial support of his family;
8.Ms Hickey, without having the benefit of any income earned by the accused, is struggling to earn enough money to support herself and the children. She has three evening jobs. She has to work during the evenings because this is the only time that her mother or other persons are available to look after the children;
9.Ms Hickey estimates that four to five nights a week she is working and the children are, rather than being in their own home, in the care of other people, predominantly her mother;
10.Ms Hickey is not, as a result of the accused's incarceration and the consequential need for her to work during evenings, able to obtain a job in the field in which she has obtained her educational qualifications. She has had to put her career on hold;
11.If the accused is released on bail it is Ms Hickey's intention to obtain a regular full‑time day job in the field in which she has obtained educational qualifications and by doing so earn more money for her family;
12.Ms Hickey has had to rely heavily on her mother, other parents at the children's school, friends, relatives and After School Care to collect and care for the children after school because her work is over an hour away from the children's school and she often has difficulty collecting them from school;
13.The children have had to give up or miss out on sport and social opportunities because Ms Hickey cannot by herself transport them to such commitments and/or meet the cost of such commitments;
14.The children have a number of medical conditions which require specialist treatment. Ms Hickey's inability to work full‑time exacerbates the difficulties that she has paying for the children's specialist consultations;
15.In January 2019 the accused's and Ms Hickey's daughter was diagnosed with attention deficit hyperactivity disorder. This presents an additional challenge for Ms Hickey as it is very hard for her, in the absence of the accused, to provide their daughter with a consistent routine which would assist in the management of their daughter's condition;
16.Due to the need for her to work long hours, Ms Hickey's relationship with the children has suffered because she is not able to spend as much time with them as she previously did;
17.The children have suffered emotionally since the accused has been remanded in custody. In the absence of the accused's presence and emotional support their focus on their schoolwork has suffered and their behavioural patterns have been impacted upon negatively;
18.Ms Hickey and the children had to move house when the accused was remanded in custody so that they could be closer to family and friends who could assist in looking after the children; and
19.The accused's mother has suffered financially, physically and emotionally as a result of the accused's incarceration in that he has not been able to assist her financially to pay her rent and other bills, assist her to obtain and take her medication, transport her to medical appointments, and care for her generally. In the absence of the accused's financial support his mother has had to move to a house with a lower rent.
The accused's affidavit and the annexures thereto do not provide details of the frequency of the children's specialist medical appointments. The accused does not, in his affidavit, provide any explanation as to why one or more of his eight siblings, all of whom are living in Perth, cannot provide the required financial and other assistance to his mother.
The State did not seek to challenge by way of cross‑examination of the accused the assertions made by him in his affidavit or the assertions made by the writers of the annexures to the affidavit. Despite this, the State submits that I should exercise 'some caution' before finding that the accused was, prior to his incarceration, financially supporting his family to any substantial degree or heavily involved in the care of his children. The State points in this regard to a draft statement prepared for Ms Hickey following an interview conducted with her by the police on 12 September 2017 to which she subsequently made a number of handwritten amendments but did not sign, notes made by the police of an interview conducted with Ms Hannah Caravella on 13 September 2017, and certain statements made by the accused during the interview.[15] The State submits on the basis of this material that it is apparent that the accused was not living with Ms Hickey at the time of his arrest, that for the four years or so prior to his arrest his relationship with Ms Hickey was an 'on/off' type relationship, that he did not have regular and consistent contact with the children prior to his arrest, that for a period of about six months prior to his arrest he had a girlfriend, namely Ms Caravella, and that at the time of his arrest he was unemployed.
[15] The unsigned amended statement prepared for Ms Hickey and the police notes of the interview conducted with Ms Caravella are contained in the Book of Materials.
The accused does not accept that the content of the amended statement prepared for Ms Hickey but ultimately not signed by her does provide a basis for inferring that he was not in regular and consistent contact with the children at the time of his arrest. Further, I was informed by his counsel from the bar table, without objection from counsel for the State, that the accused's relationship with Ms Caravella has come to an end since he has been in custody, and that he became engaged to Ms Hickey in January this year while he was in custody.
It is not in dispute that the accused's relationship with Ms Hickey over the years has not been constant, and that he was in a relationship with Ms Caravella at the time of his arrest. Accordingly, the accused’s unqualified assertion in his affidavit that he had been in a relationship with Ms Hickey since 2009 does not accurately reflect the true situation. Further, the material pointed to by the State to which I have just referred does, in my view, cast doubt on the unqualified assertion made by the accused in his affidavit that it was his income which supported his family. The material also, in my view, does suggest that the accused's involvement with the children in the immediate period leading up to the time of his arrest, while certainly not non‑existent, was perhaps not quite as regular and consistent as is suggested by not only the accused's assertion in his affidavit that he and Ms Hickey 'used to share the care of the children' but also by some of the statements made by Ms Hickey in the annexure to the affidavit written by her.
Ultimately, however, I do not consider that I need to make definitive findings of fact in relation to the extent to which the accused was, in the period leading up to his arrest, providing financial support to his family and involved in the care of the children. I say this because even if all of the assertions of fact made by the accused in his affidavit and by the writers of the annexures thereto are accepted at face value, the degree of emotional, financial and social hardship being suffered by Ms Hickey and the children, while obviously very regrettable is, in my view, the type of hardship that is to be expected when the father and contributing income earner within a family unit is incarcerated. The hardship, while undoubtedly significant, is not particularly unusual or out of the ordinary. Similarly, the degree of hardship that the accused's mother is said to be experiencing by reason of him being in custody is not particularly unusual or out of the ordinary.
I note further in this context that the accused's expressed intention to attempt to obtain employment if he is released on bail does not, in my view, provide much of a basis for thinking that he will, if released on bail, in fact be able to contribute financially to the family unit to any significant extent.
In summary, even if all of the factual assertions made by the accused in his affidavit and by the writers of the annexures thereto are accepted as true, it is my opinion that the hardship being experienced by the accused's close family members as a result of him being in custody, although significant, is not sufficiently out of the ordinary or unusual as to constitute, either by itself or in combination with other matters, an exceptional reason for not keeping him in custody.
Prejudice to preparation of defence
I turn to the third of the asserted exceptional reasons, namely that the accused's remand in custody is prejudicing his ability to adequately prepare his defence. In relation to this issue the accused in his affidavit deposes to the following:
1.The prosecution brief consists of a large amount of material that is on disc and USB. Some of this material consists of CCTV footage. The amount of material is too voluminous to print;
2.He has been provided with a computer in prison which has the disclosed material loaded onto it. This has assisted him to be able to review the disclosed material;
3.His opportunities to consult with his counsel, Mr Massey, are limited given the limited official visiting hours at the prison and Mr Massey's availability to visit him at the prison;
4.If he wishes to view the disclosed material with Mr Massey, Mr Massey needs to bring a laptop computer to the prison with him so that they can view the material together;
5.He is not permitted to bring his computer or any material on a disc from his cell to any meeting with Mr Massey. This means that if he wants to bring something on a disc to the attention of Mr Massey during one of Mr Massey's visits he needs to identify the correct disc, locate the material on the disc and then draw it to Mr Massey's attention;
6.Lawyers are unable to bring USBs into the prison. Given that all of the disclosed material has been put directly onto his computer, he is not aware which material is on a USB and which material is on a disc. This means that even if he has something on his computer that he wants to show Mr Massey, Mr Massey may not have it in a format that he can bring into the prison;
7.He believes that it would be of considerable advantage to his defence if he was released and was able to communicate with Mr Massey on a more regular basis and to consult Mr Massey in Mr Massey's office;
8.Mr Massey is not able to telephone him directly. Rather, Mr Massey has to telephone the prison and leave a message for him to call. Often by the time he receives the message and is in a position to telephone Mr Massey, Mr Massey is no longer available to take the call; and
9.He believes that his defence will be prejudiced if he remains in custody until his trial.
During the hearing of the application the accused’s counsel further explained and elaborated upon a number of the matters deposed to by the accused. In particular counsel informed me of, among other things, the following:
1.The hard copy prosecution brief runs to 2310 pages, although within these pages there are copies of some exhibits that have also been disclosed in electronic format;
2.The material disclosed by the State includes approximately 227 discs and 27 USBs;
3.The Unified Physical Material List (UPML), which identifies everything that has been disclosed and everything that has not been disclosed and over which privilege is claimed, runs to 428 pages; and
4.The prison's official visiting hours are from 9.00 am to 11.30 am and from 1.00 pm to 3.30 pm, although there is the option of staying through from 9.00 am to 3.30 pm.
In the course of his submissions I asked the accused's counsel why some of the difficulties identified by the accused in his affidavit could not be overcome, or at least ameliorated:
1.by the accused identifying in advance of any meeting with his lawyers any disclosed material that he wants to discuss with them so that they can locate it prior to any scheduled meeting; and
2.by the accused's lawyers, if necessary, downloading material disclosed on a USB onto the computer that they are proposing to take into the prison for use during any scheduled meeting with the accused.
In response to my question counsel conceded that it is possible to download the material disclosed by way of a USB onto a computer that can be taken into the prison for use during meetings with the accused. Counsel also conceded that it is possible for the accused to notify his lawyers in advance of any scheduled meeting of any item of disclosed material that he wants to discuss with them. However, counsel asserted that even if the accused does give prior notification to his lawyers of the items of disclosed material that he wants to discuss with them, it will still be necessary for his lawyers to undertake the time consuming process of attempting to locate the disclosed material as described and identified by the accused. As counsel put the point, it is 'certainly much more time efficient if [the accused] is able to have the material, bring it in, show his lawyers, rather than do it the other way around'. [16]
[16] ts 93, 17 June 2019.
Ultimately, the submission made by the accused is that the difficulties faced by him in preparing for his trial as a result of him being in custody go beyond mere inconvenience and have the potential to hamper his defence in a significant way.
The State accepts that the prosecution brief is large and that it contains a lot of material that has been disclosed on discs and USBs.
The State submits that the accused has access to all disclosed materials and that the difficulties described by him in his affidavit are no different to those faced by many accused persons who are remanded in custody pending their trial, particularly given the large volume of material that is now routinely disclosed electronically due to its nature and/or size. The State submits that the inconvenience that has been and will be experienced by the accused does not amount to an exceptional reason for not keeping him in custody. The State further submits that although there is a large amount of disclosed material, much of the material does not relate to the case against the accused and is therefore not material that he will need to review in any event.
In response to some of the specific difficulties identified by the accused the State points out – and this is not disputed by the accused – that all of the disclosed items contained on the computer provided to the accused are identified by a unique number known as a Viper action number (VAN). The VAN also appears on the UPML. Therefore, the State contends, if the accused wishes to discuss with his lawyers a particular item of the disclosed material he is able to identify the item by reference to the VAN. If the accused does this in advance of any scheduled meeting with his lawyers his lawyers will, the State asserts, be in a position to locate the disclosed item without any real difficulty and ensure that it is on the computer to be taken into the prison by them so that they can view it with the accused.
Even taking into account the valid point made by the State in relation to the accused’s ability to use the VAN to identify items of disclosed material that he wants to discuss with his lawyers I have no doubt, given the size and nature of the prosecution brief, that the accused's incarceration makes the process of preparing for his trial significantly more difficult than would be the case if he was not in custody. I accept that it would be more efficient and convenient for the accused to be able to show to his lawyers any item of disclosed material that he wants to discuss with them rather than have to go through the process of identifying the item for his lawyers so that they can then locate the item and ensure that it is in a format that can be shown to him during a prison meeting. I also accept that it would be far more convenient for both the accused and his lawyers if they were not required to organise for their meetings to occur during limited official prison visiting hours. However, given the time that remains between now and the allocated trial dates for the accused and his lawyers to meet, consult and complete their preparations for trial, I do not consider that these difficulties are such as to prejudice the accused's ability to properly and fully prepare his defence to the charge.[17] More specifically, I do not consider that if the accused is kept in custody pending his trial he will not be able to properly assess the disclosed material or give proper instructions to his lawyers about the material.[18] Therefore, I do not consider that the difficulties that will be faced by the accused in preparing for trial while in custody of themselves constitute an exceptional reason for not keeping him in custody.
Delay
[17] Rayney v The State of Western Australia [9].
[18] Mansell v The State of Western Australia [21].
I turn finally to the issue of delay.
By the time of the commencement of the accused's trial he will have been in custody for a little over 26 months. By the end of the trial he will, in light of the current estimate of its length, have been in custody for approximately 29 months.
The delay between the time that the accused was charged and the date of his trial is not due to the fault of the State. However, nor is it in any way due to the fault of the accused. It has come about by reason of Mr Kickett having been charged in March of this year.
As I have already acknowledged, accused persons charged in this court with the offence of murder will commonly spend relatively significant amounts of time in custody as an unconvicted person prior to their trial. This is of course not something that is in any way desirable. It is simply an unavoidable consequence of the time that it takes to prepare a murder case for trial and the competing demands on the court's resources. However, in my opinion a period of 29 months is on any view of the matter an inordinately lengthy period of time for an accused charged with murder to be remanded in custody prior to the completion of his trial. It is a length of time that is unusually long compared to most cases involving a charge of murder. Indeed, it is a length of time that is greater than the periods of time that have, in some of the cases to which I have referred earlier in these reasons, been accepted, either alone or in combination with other factors, as constituting an exceptional reason for granting bail.
If the accused is kept in custody until the completion of his trial but is ultimately acquitted he will, by reason of having spent such a long time in custody, suffer a significant injustice. Moreover, and as I have already stated, the prospect of the accused being acquitted, while not strong, cannot be discounted. It cannot be said that there is no realistic prospect of this occurring.
Ultimately, I have come to the conclusion that the time that the accused will spend in custody in this case as an unconvicted person prior to the completion of his trial if he is not granted bail, when viewed in light of the strength of the State's case and the accused's prospects of acquittal, does constitute an exceptional reason for not keeping him in custody within the meaning of cl 3C(1)(c).
If contrary to my above expressed conclusion the time that the accused will spend in custody as an unconvicted person prior to the completion of his trial does not, when viewed in light of the strength of the State's case, by itself constitute an exceptional reason for not keeping him in custody, then in my opinion this factor, taken in combination with the difficulties that the accused will experience in preparing his defence by reason of being in custody, constitute exceptional reasons for not keeping him in custody.
Clause 3C(d): Should bail be granted having regard to cl 1 and cl 3?
The fact that I have found that there is an exceptional reason, or are exceptional reasons, 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 Act.
By cl 1 I am required, in deciding whether to exercise my discretion to grant the accused bail, to have regard to the questions specified in the clause and also any other matters that I consider to be relevant. I propose to deal with each of the questions specified in cl 1 in turn. In dealing with the questions I will apply the relevant statements of principle made by the Court of Appeal in Milenkovski v The State of Western Australia[19] and YSN v The State of Western Australia.[20]
[19] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [39] ‑ [44].
[20] YSN v The State of Western Australia [2017] WASCA 155.
I note that the State does not positively contend that if, contrary to its position, I am satisfied that there are exceptional reasons for not keeping the accused in custody I should nonetheless find that bail on stringent conditions cannot properly be granted having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Act.
First question - cl 1(a)
The first question specified in cl 1(a) of pt C 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. Further, 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 or 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; and
4.The strength of the evidence against him.
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.
I turn to the second and third of the matters specified in cl 3.
I have already, in dealing with the exceptional reasons requirement, referred to some of the accused’s personal circumstances. However, in addition to the matters to which I have already referred I note the following.
The accused was born on 17 November 1987 in Sierra Leone. He is 31 years old.
The accused came to Australia with his step‑mother, father and other family members in 2001 (when he was 13 or 14 years old) on a humanitarian resettlement program. Since coming to Australia the accused has become an Australian citizen together with other members of his family.
The accused's father, mother and step‑mother all live in Perth. He has five brothers and three sisters all of whom live in Perth.
Ms Hickey and the children live at an address in Stoneville. If the accused is released on bail he will live with Ms Hickey and the children at the Stoneville address.
The accused has a relatively minor criminal record comprised of three driving related offences and two drug related offences.
In September 2007 when he was 19 years old the accused was convicted of an offence of driving contrary to a learner's permit and an offence of providing a false name. In January 2010 he was convicted of an offence of driving without authority. On 30 May 2017 he was convicted of one offence of possessing cannabis and one offence of possessing cocaine. The accused was fined relatively modest amounts for all five of his offences.
The last of the matters specified in cl 3 is the strength of evidence against the accused. I have dealt with this issue earlier in these reasons.
So that deals with the four matters specified in cl 3 which I am required, to the extent that I am able, to take into account in determining the question posed by cl 1(a).
I come back then, in light of the observations that I have made in relation to the matters specified in cl 3, to the question posed by cl 1(a) for determination.
Given what I have said about the strength of the State's case it necessarily follows that there is, in my view, a likelihood of the accused being convicted of the charged offence. The likelihood that the accused will be convicted of the charged offence, and the inevitable outcome of the imposition on him of a very lengthy term of imprisonment if he is convicted, is of itself sufficient to warrant the conclusion that there is a risk that the accused will flee the jurisdiction and/or fail to appear in court if he is not kept in custody. On the other hand, in considering the likelihood of this risk eventuating it does need to be borne in mind that the accused has lived most of his teenage years and all of his adult life in this State, and that he does have some relatively extensive family ties to this State in the form of his mother, father, stepmother, siblings, fiancé and young children. Also relevant in this context is the fact that the accused did not leave the jurisdiction during the approximate two and a half month period between the date of Mr Dimitrovski's murder and the date on which he was charged with the murder.
Ultimately, taking into account the competing considerations, I am satisfied that there is some risk of the accused fleeing the jurisdiction and/or failing to appear in court in answer to his bail if he is not kept in custody. However, in my opinion the risk of this occurring is relatively low.
As to the risk that the accused, if not kept in custody, will commit further offences (which for present purposes I treat as encompassing endangering the safety, welfare or property of any person), I do not consider that it can, when one takes account of his most recent convictions, be said that there is no risk of him committing further offences if he is not kept in custody. I am satisfied that there is some risk of the accused committing further offences. However, given the accused’s relatively minor criminal record overall and his personal circumstances, the risk of this occurring is, in my view, once again relatively low.
There is no basis in the evidence before me for concluding that if the accused is not kept in custody there will be an appreciable risk of him interfering with witnesses or otherwise obstructing the course of justice in relation to himself or any other person.
That deals with the question posed in cl 1(a).
The question specified in cl 1(b) is whether the accused needs to be held in custody for his own protection. There is nothing before me which provides a basis for concluding that the accused does need to be held in custody for his own protection.
The third question that I must consider, specified in cl 1(c), is whether the prosecutor has put forward grounds for opposing the grant of bail. Apart from contending that there are no exceptional reasons for granting the accused bail within the meaning of cl 3C(c), the State has not put forward grounds for opposing a grant of bail.
The fourth question that I must consider, specified in cl 1(d), is whether, as regards to the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial might be prejudiced. On the material before me there are no grounds for holding such a belief.
The fifth question for my consideration, specified in cl 1(e), is, so far as is relevant in the present context, whether there is any condition which could reasonably be imposed under pt D of schedule 1 which would sufficiently remove the possibilities of the accused failing to appear in answer to his bail and committing any further offence or offences. I will return to this question shortly.
The final relevant question, specified in cl 1(g), is whether the alleged circumstances of the offence with which the accused is charged amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Clearly, and as I have already stated, the accused is alleged to have committed a very serious offence. However, if the fact that a person is charged with murder was of itself sufficient to justify the conclusion that the alleged circumstances of the offence amounted to a wrongdoing of such a serious nature as to make a grant of bail inappropriate, no person charged with murder could ever be granted bail. In this respect it is, I think, fair to say that while the alleged circumstances of the accused’s commission of the charged offence are self‑evidently very serious, they are not such as to elevate the level of seriousness of the alleged conduct to something above and beyond the level of seriousness ordinarily associated with a charge of murder. Moreover, whether the alleged circumstances of the charged offence amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate 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.
I come back now to the question whether there are any conditions that can reasonably be imposed which will sufficiently remove what I have found to be the relatively low risk of the accused fleeing the jurisdiction and/or failing to appear in court if he is not kept in custody, and the relatively low risk of the accused committing further offences if he is not kept in custody. I note that the question is not whether the imposition of conditions will completely remove the possibilities in question, but whether they will sufficiently remove these possibilities.
The possibility or risk of the accused, if he is not kept in custody, fleeing the jurisdiction and/or failing to appear in court, and the possibility or risk of the accused committing further offences if he is not kept in custody will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail in order to secure the integrity of the criminal justice process and to protect the community.[21] Whether the remaining risk no longer constitutes a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period.[22] As was stated by the court in YSN v The State of Western Australia[23] this construction of cl 1(e) recognises that before bail is refused the nature and extent of the risk which the judicial officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
[21] YSN v The State of Western Australia [20].
[22] YSN v The State of Western Australia [20].
[23] YSN v The State of Western Australia [20].
The accused has indicated that he is willing to abide by any conditions of bail including the following:
1.Conditions requiring the provision of a personal undertaking in the sum of $100,000 and a surety of a similar amount;
2.A residential condition;
3.A condition requiring him to surrender his passport and not to apply for any further passport;
4.A reporting condition;
5.A curfew condition;
6.A condition that he is not to leave the State and is to stay away from any points of departure;
7.A condition that he is not to contact any prosecution witnesses; and
8.A non‑association condition.
The accused has further indicated that if the court does not consider that the conditions outlined above will sufficiently remove the relevant risks, he is willing to abide by a home detention condition.
The State, for its part, supports the imposition of the conditions proposed by the accused in the event that bail is granted. It also seeks the imposition of a condition that the accused is not to acquire more than one mobile phone while on bail and is to provide to the police the number of the phone, if any, that he does acquire. The State seeks the imposition of this condition as a supplement to the proposed non-contact conditions. The accused does not object to the imposition of such a condition.
Conditions of the type proposed are on any view of the matter very stringent. The provision of a surety in the amount of $100,000, particularly if it is required to be provided by a family member, will be a very strong deterrent to the accused failing to appear in court in accordance with his undertaking.
Based on the material before me, and bearing in mind the time that the accused will spend in custody as an unconvicted person prior to being dealt with for the charge if he is not released on bail, I am satisfied, despite the seriousness of the charge faced by him, that it is appropriate to grant the application for bail on conditions substantially as proposed by the parties, but with additional conditions that Ms Hickey surrender her passport and that the accused not possess or use illicit substances.
In relation to a condition requiring Ms Hickey to surrender her passport, if Ms Hickey, and consequently the children also, are able to leave the country and in fact do so, one of the accused's principal ties to this jurisdiction will be removed and the temptation for him to attempt to flee the jurisdiction will on the face of it be increased. It is for this reason that I consider it appropriate to impose a condition that will in effect prevent Ms Hickey and the children from leaving the country while the accused is on bail. In my view a condition in these terms can properly be imposed pursuant to cl 1(1) of pt D of sch 1 of the Act.
With respect to a condition prohibiting the accused from using illicit substances, I consider that such a condition is, bearing in mind the accused’s recent convictions for the two drug related offences, warranted to further reduce the risk of him committing further offences.
In short, I am satisfied that the imposition of the proposed stringent conditions as part of the accused's bail, together with the additional conditions to which I have referred, will sufficiently remove the risks that I have identified to the extent that they exist. To put the matter another way, when I take into account how long the accused may be required to spend in custody as a unconvicted person prior to being dealt with for the charge if he is not granted bail, I am of the view that the possibility of the accused engaging in the conduct to which I have referred will be sufficiently removed by conditions such that the remaining risk no longer constitutes a proper ground for refusing bail.
Decision
For the reasons I have stated I allow the application.
I will hear from the parties as to the precise terms of the conditions of bail. However, the conditions that I intend to impose will be to the following effect:
1.The accused is to give a personal undertaking in the amount of $100,000;
2.A surety in an amount of $100,000 is to be provided by a nominated family member;
3.The accused is to reside at 2460 Stoneville Road in Stoneville;
4.The accused is to remain at 2460 Stoneville Road in Stoneville between the hours of 6.00 pm and 7.00 am each day and is to present to the front door of this address upon demand of the Western Australian police during these hours;
5.The accused is to report every day to the officer in charge of a specified police station between the hours of 7.00 am and 6.00 pm;
6.The accused is to surrender his passport to the Principal Registrar of the Supreme Court and is not to apply for any further passport;
7.The accused is not to leave the State of Western Australia or approach within 500 m of any international or domestic point of departure;
8.The accused is not to contact or attempt to contact, directly or indirectly, any prosecution witness named on the indictment or any other person who has provided a statement to the police which has been disclosed to him;
9.The accused is not to contact or attempt to contact, directly or indirectly, Amirali Farsijani, Poria Akhbari Sadiqi, William Wade Kickett or Saied Akbar Hussaini;
10.The accused is not to possess and make use of more than one mobile telephone and is, on acquiring possession of the phone, to immediately notify the officer in charge of the investigation, either verbally or in writing, of the phone's service number;
11.The accused is not to possess or use illicit substances;
12.The accused is to attend urinalysis testing as directed by a community corrections officer and is to provide a valid sample for urinalysis, with a positive result to an illicit substance being a breach of bail; and
13.Ms Kjerstin Hickey is to surrender her passport to the Principal Registrar of the Supreme Court and is not to apply for any further passport.
Suppression order
In order to protect the integrity of the accused's trial I propose, subject to hearing from counsel, to make an order that the publication of these reasons to any person other than a judicial officer, a legal officer employed by the Director of Public Prosecutions for Western Australia (the DPP), any counsel briefed by the DPP to appear in relation to the prosecution of the accused and the accused's legal representatives is prohibited until the prosecution of the accused for the offence the subject of the indictment dated 29 April 2019 is completed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
24 JUNE 2019
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