Tyson v The State of Western Australia
[2009] WASC 328
•13 NOVEMBER 2009
TYSON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 328
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 328 | |
| 13/11/2009 | |||
| Case No: | INS:116/2008 | 31 MARCH 2009 | |
| Coram: | MARTIN CJ | 31/03/09 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | GILES LAWRENCE TYSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending trial Charge of murder Adjournment of trial due to delays in completion of pathology reports 'exceptional reasons why accused should not be kept in custody' |
Legislation: | Bail Act 1982 (WA), sch 1 pt C cl 3C Criminal Code (WA), s 304(2)(b) |
Case References: | King v The State of Western Australia [2008] WASC 89 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Application for bail pending trial - Charge of murder - Adjournment of trial due to delays in completion of pathology reports - 'exceptional reasons why accused should not be kept in custody'
Legislation:
Bail Act 1982 (WA), sch 1 pt C cl 3C
Criminal Code (WA), s 304(2)(b)
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr T R Hall
Respondent : Mr R G Wilson
Solicitors:
Applicant : Hall & Hall Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
King v The State of Western Australia [2008] WASC 89
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- MARTIN CJ: (This judgment was delivered extemporaneously on 31 March 2009 and has been edited from the transcript.)
1 The applicant, Mr Giles Tyson, applies for bail. Mr Tyson is in custody awaiting trial on a charge of murder. That means that under s 15 of the Bail Act 1982 (WA), only a judge of this court can grant bail. Although an application for bail was previously made to and refused by a magistrate in January of 2008, that occurred before the charge against Mr Tyson was upgraded to murder in August of 2008. This is the first occasion upon which a judge of this court has considered the question of whether or not Mr Tyson should be granted bail on the charge of murder, and that brings this application within s 7B(3) of the Bail Act.
2 Because Mr Tyson is charged with murder, cl 3C of pt C of sch 1 of the Bail Act applies. That provides that:
Notwithstanding clause 1, 2 or 4 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 [in the case of an adult accused].
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4 The first limb of the two questions required to be addressed under cl 3C of pt C is, of course, significant where the charge is that of murder. Its satisfaction is a prerequisite to the consideration of the second limb. But if that prerequisite is met, then all the considerations that arise under the second limb - being all the factors relevant to the exercise of the discretion with respect to the grant of bail - will also be important in themselves.
5 In order to address the question of whether the first requirement is satisfied, - that is to say, the threshold question of whether there are exceptional reasons why the accused should not be kept in custody - it is necessary to set out the history of these proceedings. The accused was arrested on 9 November 2007. He was originally charged with an unlawful act with intent to harm, contrary to s 304(2)(b) of the Criminal Code. That charge was upgraded on 4 August 2008 when an indictment for murder was presented in this court.
6 On 18 September 2008, a new indictment was presented, dated 17 September 2008, and the matter was listed for a 20-day trial commencing on 16 February 2009. On 11 February 2009, the legal representatives of Mr Tyson were advised that the state would be seeking an adjournment of the trial on the basis that due to an oversight, the clothing and shoes of the accused had not been sent to PathWest for forensic examination.
7 The application for adjournment by the state came before McKechnie J on the first day of trial, which was 16 February 2009. His Honour granted an adjournment of the case in terms which were critical of the agencies of the state who had been involved in the preparation of the case for the state. It appears that his Honour may have been inadvertently misinformed in relation to some of the observations that he had made, as it transpires that there was in fact no disclosure problem in relation to witness statements. However, there were nevertheless significant difficulties in the preparation of the State's case.
8 It seems that PathWest did not meet the time standards set under a protocol into which it entered for the provision of reports within three months of formal request by the Office of the Director of Public Prosecutions. It also seems that the police investigation officer responsible for the processing of the exhibits did not send shoes and clothing to PathWest for DNA testing after they had been returned from blood splatter analysis, and she did not apprehend that oversight until shortly before the trial was due. It also seems that the Office of the DPP
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- failed to identify and note each of these omissions on the part of the other agencies until it was too late.
9 It seems that through a combination of errors on the part of agencies of the state, an adjournment of the trial listed for 16 February became inevitable. The extent to which such an adjournment will constitute exceptional reasons, obviously depends significantly upon the likely length of the adjournment.
10 I have expressed the view during the course of argument to both counsel that in the circumstances of this case and in particular the circumstances giving rise to the adjournment, it behoves all agencies of the state and the court to use their best endeavours to ensure that this trial can be commenced and completed as soon as possible.
11 I have been advised by counsel for the state that it appears that the state would be ready and all state witnesses reasonably available for a trial commencing in mid-August. As a result of inquiries conducted with the list clerk of the court, I am in a position to advise that a judge could be made available for such a trial. However, we still await formal confirmation from the state to the effect that its witnesses would be available for such a trial, and of course the availability of counsel and witnesses for the various accused is another factor that needs to be taken into consideration. I will, at the completion of these reasons, give directions that will address those matters.
12 However, having regard to the terms of s 7B of the Bail Act, it is important that I emphasise and make abundantly clear that I am proceeding to determine this application for bail on the assumption that there will be a trial of this case commencing in mid-August. It follows that if that assumption does not come to pass so that it is for one reason or another impracticable to conduct a trial on that date, it would be my firm view that in that event there would be a circumstance falling within s 7B(6) of the Bail Act. That is, that a new circumstance would have arisen which would make it appropriate for the question of bail to be reconsidered.
13 In relation to the commencement of a trial in mid-August, I have been advised by counsel for the State that PathWest would anticipate being in a position to provide a final report in relation to the testing of the clothing and shoes of the accused within four to six weeks - that is, by early to mid-May - or perhaps late April. Assuming that timetable is met, that would seem to provide a sufficient opportunity for those advising the
(Page 6)
- accused to obtain their own expert advice in relation to the matters covered by the report from PathWest and thus make a trial commencing in mid-August practicable. That is of course a matter that will be reviewed at the next status conference which is to be held on 21 May.
14 The consequence of all this is that through no fault of the accused the trial is likely to be adjourned for a period of about six months from a date in mid-February to a date in mid-August. That will mean the trial will be commencing about three months short of two years after the arrest of the accused. In the context of the presumption of innocence which underpins the criminal justice system, delay of that magnitude is in my view a powerful consideration that points in favour of the conclusion that there are exceptional reasons why the accused should not be kept in custody in this case.
15 Delays of this magnitude are of a kind which should not be countenanced by any justice system which is appropriately described as such. It seems to me that for those reasons there are facts in this case that could give rise to the conclusion that there are exceptional reasons why the accused should be granted bail. As I have emphasised however, that is only the first of the two questions that have to be answered under cl 3C of pt C of sch 1 of the Bail Act.
16 I turn then to consider the second question, which is whether the normal factors properly taken into account under cls 1 and 3 of pt C of the first schedule to the Act would in this case lead to the conclusion that the grant of bail is appropriate. Those factors include the question of whether if the accused is not kept in custody he may fail to appear in court in accordance with his bail undertaking, commit an offence or interfere with witnesses.
17 In relation to those matters, this accused has an extensive criminal record. It commenced in about 1980 when the accused was 12 years of age, and proceeded regularly and without significant break up until 2005 when Mr Tyson was convicted of the offence of aggravated assault occasioning bodily harm, for which he was sentenced to a term of imprisonment. That was relatively proximate in time to the circumstances that have given rise to the charge which he currently faces.
18 His record includes offences for escaping legal custody, breach of bail and breach of probation, although it has to be said that those offences were committed many years ago. Nevertheless, they are not matters that give rise to significant confidence to the effect that bail conditions would
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- be complied with. There are also significant criminal offences in the history of the accused, including the offence to which I have referred of which the accused was convicted in 2005, and an earlier offence of grievous bodily harm of which the accused was convicted in August of 1990 for which Mr Tyson was sentenced to a term of imprisonment.
19 It therefore seems to me that there is an appreciable risk of offending whilst on trial, and given the seriousness of the offence which Mr Tyson faces and his lack of employment, his lack of commitment to a particular relationship or permanent residence, that this is not one of those cases in which it could be said that the risk of flight is minimal. Clause 1(g) also requires that a factor to be taken into account is whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate. The charge of murder and the circumstances that gave rise to that charge are of a very serious nature. That impacts upon the sentence that Mr Tyson could expect to receive if convicted, which in turn impacts upon the assessment of the likelihood of risk of flight.
20 In this case there is also a prospect of interference with witnesses, because some of the witnesses the state proposes to call are relatives of Mr Tyson. Counsel for Mr Tyson points to the fact that there is presently no impediment on communication between Mr Tyson and those witnesses during his period of imprisonment, and further that a condition requiring Mr Tyson to reside in Moora would minimise the risk of contact with those witnesses who reside in Perth. However, it must be said that even if Mr Tyson were to reside in Moora, the prospect of some interference with those witnesses could certainly not be eliminated.
21 Under cl 3 of pt C of the first schedule of the Bail Act, I am required to have regard to the nature and seriousness of the offence or offences, and the probable method of dealing with the accused if he is convicted. If the accused is convicted of this offence, a substantial sentence of immediate imprisonment is inevitable. I am also required by cl 3 of pt C of the first schedule to have regard to the 'character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused'. These are matters to which I have referred. None of those matters lead to a confident conclusion that the level of risk associated with the grant of bail would make such a grant appropriate.
22 I am also required to take account of the history of any previous grants of bail to Mr Tyson. As I have mentioned, Mr Tyson has breached
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- bail in the past, although that was a very long time ago, so I would not be inclined to place too much weight on that factor. The final factor I am required to consider is the strength of the evidence against him. It seems to me that this is not a case that could be said to be overwhelming, at least not at this stage, although of course one never knows what the DNA testing will reveal. Nevertheless, the State case is reasonably cogent and coherent, relying to some extent upon admissions made in the video record of interview in which Mr Tyson participated. So, it seems to me that this is neither a case which could be said to be overwhelming nor a case which could be said to be weak.
23 Doing the best I can to balance all those factors together and having regard to the assumption I have made that the trial will commence in mid-August - that is to say, a period of some four months or so from now - it seems to me that in those circumstances the balance is currently weighted against the grant of bail. However, as I have indicated, should the assumption upon which I am proceeding with respect to the trial date alter, then that balance may also alter as time extends.
24 For those reasons, I will on this occasion dismiss Mr Tyson's application for bail, but as I have indicated earlier, if the assumption upon which that decision is made changes, then the accused and his representatives should approach the court again.
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