Winter v The State of Western Australia
[2011] WASC 279
•7 OCTOBER 2011
WINTER -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 279
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 279 | |
| Case No: | MCS:16/2011 | 7 OCTOBER 2011 | |
| Coram: | McKECHNIE J | 7/10/11 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Bail revoked and regranted | ||
| B | |||
| PDF Version |
| Parties: | DYLAN GERALD WAYNE WINTER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Breach of no contact provisions Whether grant of fresh bail appropriate |
Legislation: | Bail Act 1982 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Breach of no contact provisions - Whether grant of fresh bail appropriate
Legislation:
Bail Act 1982 (WA)
Result:
Bail revoked and regranted
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr D D Brunello
Respondent : Ms A L Forrester
Solicitors:
Applicant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J: On 2 May 2011 the accused was arrested and charged with an offence of grievous bodily harm.
2 On 19 May 2011 Jenkins J granted the accused bail on strict conditions. The State did not oppose bail on those conditions.
3 One of the conditions was 'not to contact or attempt to contact either directly or indirectly by any means the complainant, Luke Adams, or the following witnesses'. They included Benjamin John Bramwell, Jake Ward, Liam Lawson Cambage, Kara Leanne Hagen.
4 Before being admitted to bail the accused signed an undertaking which included the following:
I, the abovenamed accused, undertake to appear at the time and place and to comply with the conditions set out above.
5 This undertaking was entered into after it had been read to him by a Deputy Superintendent at prison.
6 On 1 October 2011 the accused was seen at Rockingham Shopping Centre in company with Ward, Bramwell and Cambage. Police investigation subsequently retrieved closed-circuit television footage confirming the contact. On the afternoon of 4 October the accused was arrested and has been brought to this court on the basis that there are reasonable grounds for believing that he has breached condition of his bail.
7 In an affidavit sworn 6 October 2011, the accused has admitted breaching that bail. The breach is very serious and the bail granted by Jenkins J is revoked.
8 It is now necessary to consider whether there should be a grant of new bail.
9 The accused has sworn that he understood the conditions of his bail, including the effect of the no contact condition. He admits that over the course of the last three or four weeks he has knowingly breached the no contact bail condition between five and ten other occasions by having contact on the weekend with Ward, Hagen, Bramwell and Cambage. Most of the contact has been at the Rockingham Shopping Centre but he has also visited Ward at his home on three or four occasions and has met the men at Outback Jack's Restaurant in Rockingham.
(Page 4)
10 Moreover, he has attended marshal arts training at Dragon Muay Thai, Rockingham nearly every day. Ward also trains there and, on a number of occasions in the last two months, Ward has been present at that time and they have trained together and spoken together.
11 He does not seek to excuse his breaches of bail. He understood them and knowingly breached them and expresses that he is very sorry for this.
12 His explanation is that the three males are his best friends and as time has passed while he has been on bail he has felt increasingly socially isolated.
13 The significance of the breach is that Ward, Cambage and Bramwell are alleged to have been present at the time of the alleged offence and are likely to be witnesses.
14 The accused swears:
16. At no time during the occurrences of prohibited contact have I discussed with Jake, Kara, Ben and Liam the incident giving rise to the offence charged against me. At no time have we discussed what each of us did, saw and heard that night, the substance of our respective statements to police nor the evidence we may give in court. At no time have I requested any of them to say, do or refrain from saying or doing anything relevant to my case.
15 I have to say that this strains credulity, human behaviour being what it is. However, what damage might be done, if any, has been done.
16 The factors which caused Jenkins J to grant bail originally are still present. The accused is only 18. The prosecution did not oppose bail before Jenkins J and do not oppose the grant of new bail today.
17 The accused's employer has written to me. He says that since being granted bail Dylan's work attendance and performance has been exemplary.
18 Dylan is an apprentice and the employer cannot keep an apprentice position unoccupied and reserved for the time it may take until trial.
19 He concludes:
In the event Dylan's bail is reinstated I can assure the court that myself and his other workmates will be doing everything we can to support Dylan including by impressing upon him the importance of strict compliance with the conditions of his bail.
(Page 5)
20 The length of time between charge and trial is always a matter of concern, particularly when that time is protracted and a person who is presumed to be innocent is kept in custody. That is something to be avoided if possible.
21 The accused has made some amends for his behaviour by a frank and complete confession of the extent of his breach of bail conditions. I am prepared to accept his candour as a tangible indication of his regret for intentionally breaching the conditions.
22 That said, it is only by the merest of margins that I am satisfied it is appropriate to grant bail again on the same terms and conditions as previously applied together with a further condition forbidding attendance at Dragon Muay Thai.
23 Ms Forrester, for the prosecution, indicated it may be a case where the court is prepared to extend the accused some mercy. I do not regard my decision as merciful as the occasion for mercy does not arise. The accused deliberately flouted the conditions and knew he was doing so. It is a decision made by applying the provisions of the Bail Act and being reasonably satisfied that a further breach of conditions will not occur. If any further breach occurs I confidently predict the accused will remain in custody until trial.
24 Bail is therefore granted on the following terms and conditions:
1. Personal undertaking of $10,000 and a surety of $50,000 JP approved;
2. to report each Monday, Wednesday and Friday, at times directed by the Officer-in-Charge of Mandurah Police Station;
3. to reside at [address suppressed] and to be at that address between the hours of 9.30 pm and 4.30 am each day and to present himself at the front door of his residence between those hours when called upon by a police officer;
4. to notify the OIC of the Perth City Detectives of any intended change of residential address and to obtain prior approval of this court to change his residential address;
5. not to apply for a passport;
6. not to enter any licensed premises, save for licensed restaurants or the Warnbro Swans Football Club;
(Page 6)
- 7. not to leave Western Australia;
8. not to contact or attempt to contact either directly or indirectly by any means the complainant, Luke Adams, or the following witnesses: Benjamin John Bramwell, Sarah Elizabeth Bridger, Edana Kathleen Day, Neil Martin William Turner, Matthew Wayne Stubbs, Liam Lawson Cambage, Kara Leanne Hagen, Jessie Randal, Jake Ward, Christopher Thompson, Travis Gray, Cailin Clarke;
9. not to attend Dragon Muay Thai, for any purpose whatsoever.
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