Wright v The Queen
[2002] WASC 236
WRIGHT -v- THE QUEEN [2002] WASC 236
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 236 | |
| Case No: | INS:80/2002 | 10 OCTOBER 2002 | |
| Coram: | SCOTT J | 11/10/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail allowed | ||
| B | |||
| PDF Version |
| Parties: | DAVID LAWRENCE WRIGHT THE QUEEN |
Catchwords: | Criminal law Jurisdiction, practice and procedure Bail Application for bail pending trial Bail not earlier sought for this offence alleged to have been committed whilst on bail Nolle prosequi subsequently filed in relation to earlier offence Whether Sch 1, Pt C, cl 3A of Bail Act 1982 applies Whether exceptional circumstances required under cl 3A(1)(c) |
Legislation: | Bail Act 1982 (WA), Sch 1, Pt C, cl 3A |
Case References: | Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WRIGHT -v- THE QUEEN [2002] WASC 236 CORAM : SCOTT J HEARD : 10 OCTOBER 2002 DELIVERED : 11 OCTOBER 2002 FILE NO/S : INS 80 of 2002 MATTER : An application by DAVID LAWRENCE WRIGHT pursuant to the Bail Act 1982 (as amended) BETWEEN : DAVID LAWRENCE WRIGHT
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Jurisdiction, practice and procedure - Bail - Application for bail pending trial - Bail not earlier sought for this offence alleged to have been committed whilst on bail - Nolle prosequi subsequently filed in relation to earlier offence - Whether Sch 1, Pt C, cl 3A of Bail Act 1982 applies - Whether exceptional circumstances required under cl 3A(1)(c)
Legislation:
Bail Act 1982 (WA), Sch 1, Pt C, cl 3A
Result:
Application for bail allowed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr J A Sutherland
Respondent : Ms L Petrusa
Solicitors:
Applicant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993
Case(s) also cited:
Nil
(Page 3)
1 SCOTT J: The applicant has applied for bail pending his trial in the Supreme Court on a charge of armed robbery in company with an additional circumstance of aggravation which alleges that the applicant did bodily harm to the victim.
2 The applicant was arrested on the armed robbery charge on 31 January 2002 and has been in custody since. At the time of the alleged offence the applicant was on bail on a charge of unlawfully doing grievous bodily harm. That matter was scheduled for trial in the District Court on 7 February 2002. The trial was adjourned because the whereabouts of the complainant could not be ascertained. The trial was relisted in the District Court on 9 October 2002, but again, because the Crown was unable to locate the complainant, a nolle prosequi was filed. The nolle prosequi, of course, does not prevent the Crown from proceeding with the charges at a later date if the complainant in that matter can be located.
3 A question arises on this application as to whether cl 3A of Sch 1 of the Bail Act 1982 applies in these circumstances. That clause relevantly provides:
Bail where serious offence committed while defendant on bail for another serious offence
(1) Notwithstanding clause 1 or 2 or any other provision of this Act, where ¾
(a) a defendant is in custody awaiting an appearance in court before conviction for a serious offence; and
(b) the serious offence is alleged to have been committed while the defendant was ¾
(i) on bail for; or
(ii) at liberty under an early release order made in respect of, another serious offence, the judicial officer or (if section 16A does not apply) the authorized officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless the judicial officer or authorized officer ¾
(Page 4)
- (c) is satisfied that there are exceptional reasons why the defendant should not be kept in custody and, if clause 3B applies, is so satisfied only after complying with that clause; and
- (d) is also satisfied that bail may properly be granted having regard to the provisions of clauses 1 and 3 or, in the case of a child defendant, clauses 2 and 3.
- (2) Notwithstanding section 7(1), where a defendant is refused bail under subclause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for that offence unless he satisfies the judicial officer who may order his detention that ¾
(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or
- (b) he failed to adequately present his case for bail on the occasion of that refusal.
(3) Where a child defendant is refused bail under subclause (1) he shall be dealt with in accordance with section 19(2) of the Young Offenders Act 1994."
4 On examination of that clause, in my view it is apparent that the clause does apply in these circumstances. The applicant, in terms of cl 3A, (a) is in custody awaiting appearance in Court before conviction for a serious offence; and (b) that serious offence is alleged to have been committed while the defendant was (b)(i) on bail for another serious offence. That is so notwithstanding the fact that the former offence has since been the subject of a nolle prosequi. In my view, the terms of the clause apply in these circumstances.
5 The more important issue, in my view, is whether there are exceptional reasons why the defendant should not be kept in custody, as provided for in cl 3A(1)(c). It is unusual for a complainant in a serious assault charge to be unlocatable for the purpose of a trial. On the other hand, as I have said, the nolle prosequi does not preclude the Crown from proceeding with that charge if the complainant is located.
(Page 5)
6 The applicant also relies upon the fact that a witness who he contends is important to his defence to the armed robbery charge cannot be located. That person is known to the applicant only as "Shane". It is said that the applicant's brother, who is also a co-accused on the armed robbery charge, has been endeavouring to locate "Shane", but without success, and that the applicant is the only person who is likely to be able to find him.
7 The Crown, on the other hand, maintains that the circumstances surrounding the armed robbery charge are extremely serious and, having read the brief, in my view, that is so. The seriousness of the matter lies not in the quantity or value of property that was allegedly taken in the robbery, but in the degree of violence which was allegedly used in the commission of the offence and the circumstances surrounding it.
8 The Crown maintains that the Crown case in relation to the armed robbery is strong because of a range of circumstantial evidence, including the fact that a gold chain which was said to have been taken from the complainant in the course of the robbery was located the next day in the applicant's hotel room. In addition, the Crown is awaiting the results of a DNA test on a knife allegedly used in the course of the robbery to see if it matches the complainant's blood.
9 The Crown is unaware of the man "Shane" and so has taken no steps to secure his attendance at trial.
10 I am advised by counsel that the trial is listed in the Supreme Court on 18 November of this year, which is about five weeks away. There are two aspects to the proximity of the trial; namely:
(1) that it would only be a brief period during which bail would be applicable; and
(2) there is only a short period of time in which the applicant would have the opportunity of locating "Shane" if his whereabouts can be ascertained.
11 I have also been referred to the applicant's past criminal history and although it is very extensive and does contain some quite serious convictions, I note that there are no convictions for breach of bail and no prior convictions for armed robbery. There are, however, other very serious convictions for assault-related offences and offences of dishonesty.
(Page 6)
12 In all the circumstances of the case, I have come to the conclusion that bail should be granted in this case. The two exceptional matters which lead me to that conclusion are:
(1) that the original charge upon which the applicant was on bail has been the subject of a nolle prosequi; and
(2) the applicant may have difficulty in finding a relevant witness for the trial on 18 November unless he is at liberty so that inquiries as to that person's whereabouts can be made.
13 As Owen J said in Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993:
"I think that it is appropriate to reflect for a moment on the basic concept of bail. In R v Sefton [1917] VR 259Cussen J said at 261 - 262:
'It is of course a rule that a prisoner is not detained in custody pending trial because of his guilt or assumed guilt, but to ensure his appearance at trial. Therefore in ordinary cases if by taking recognisances that appearance can be practically ensured, bail is granted.'
I think it is appropriate to broaden that dicta slightly by saying that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt. He or she should have his or her liberty until guilt is established unless the public interest requires to the contrary. The public interestis reflected in the integrity of the trial process, both in terms of the accused person appearing at trial and there being no interference withthe course of justice pending trial."
14 I am prepared to grant bail in the sum of $5000 with a surety in like amount. There will be special conditions as follows:
(1) The applicant must report twice a week to the officer in charge of the nearest police station on days and at a time agreed with that officer.
(2) The applicant must not directly or indirectly approach or contact any Crown witness in relation to the armed robbery trial.
(Page 7)
- (3) The applicant must reside at his mother's house at 7 Faraday Street, Westfield and at no other residence.
15 It was suggested by counsel that a curfew condition be imposed, but, in my view, in all the circumstances, and bearing in mind that the applicant may need to locate the proposed defence witness, I have come to the conclusion that such a condition would be impractical.
16 I will grant bail on the terms and conditions I have indicated. The bail will be returnable at 9.15 on 18 November 2002 at this Court.
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