Zuideveld v The State of Western Australia
[2009] WASC 270
•16 SEPTEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ZUIDEVELD -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 270
CORAM: McKECHNIE J
HEARD: 13 AUGUST 2009
DELIVERED : 16 SEPTEMBER 2009
FILE NO/S: MCS 62 of 2009
BETWEEN: BEN ZUIDEVELD
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Attempted murder - Whether exceptional circumstances - No new principles
Legislation:
Nil
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr T F Percy QC
Respondent: Ms J D Whitbread
Solicitors:
Applicant: Nigam & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Rauch v The State of Western Australia [2005] WASC 241
WCVB v The Queen (1989) 1 WAR 279
McKECHNIE J: The applicant is charged with attempted murder and applies for bail. Although some of the submissions on the applicant's behalf are framed in terms of an appeal from the decision of the Stirling Gardens Magistrate refusing bail, I am considering bail afresh pursuant to the powers under the Bail Act 1982 (WA) s 14(1)(a).
Accordingly, I approach the issue of bail anew without any predisposition for or against the grant of bail owing to its previous refusal by the magistrate nor with the applicant having to satisfy me that the magistrate's discretion miscarried or that there were errors of law in the decision.
The applicant must show exceptional circumstances
Mr Percy QC accepted that there was a burden on the applicant to show there were exceptional reasons justifying the grant of bail because of the nature of the offence.
I consider the concession to be well made. In Rauch v The State of Western Australia [2005] WASC 241, I expressed a different view. However, that view has not been adopted by other judges of this court, nor by the Court of Appeal, and I proceed on the basis that the law is as stated in WCVB v The Queen (1989) 1 WAR 279. In any event, the Bail Act requires consideration of the matters set out in sch 1, pt C, cl 3 of the Bail Act which are:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The manner in which jurisdiction is to be exercised is set out in sch 1, pt C, cl 1 although that clause does not, of itself, spell out the need for exceptional circumstances.
The maximum penalty for attempted murder is a sentence of life imprisonment which, of itself, places it in the most serious category of offences.
The exceptional reasons why bail should be granted may be found in a number of circumstances including, for relevant purposes, the strength or otherwise of the prosecution case, the strength or otherwise of the defence and the length of delay before trial. Other matters, such as the possible flight risk and possible interference with witnesses, are matters to be weighed in the event that exceptional circumstances are established. Those factors might mean that even though an accused has established exceptional circumstances why bail might be granted, other factors under cl 1 necessitate the refusal of the grant of bail.
Although this might suggest a structured and staged approach to the grant of bail, it should be borne in mind that ultimately the grant or refusal of bail is an exercise in judicial discretion taking into account the common law principles and the statutory guidelines.
In the exercise of that discretion it should be remembered that, in the case of an adult, the right to bail is not automatic; rather, a person charged with an offence has a right to have the question of bail considered. The Bail Act in its terms does not show a disposition in favour of or against the grant of bail in circumstances such as the present. However, the principal purpose of bail should always be borne in mind. That purpose is to secure an accused's attendance in court to answer the charge. It is also timely to remember that when bail is being considered the applicant is presumed to be innocent of the charges alleged.
The exceptional circumstances asserted: Strength of the prosecution case
This case is unusual, though with the rise of surveillance cameras into all aspects of life, public and private, is likely to become less so. It is unusual because the events which give rise to this charge and charges against other persons were largely recorded on a closed‑circuit television camera mounted at the applicant's residence.
The prosecution case in essence is that the applicant was in dispute with the brothers Vo over the sale of a quantity of methylamphetamine that turned out to be of low grade. The brothers Vo attended the applicant's house at about 3.00 am on 18 May 2009 and, after endeavouring to attract the attention of the applicant and his partner, who were inside the house, for some seven minutes, smashed a security door. The applicant and the brothers Vo thereafter had a lengthy discussion, it apparently being agreed that the Vos would return later in the day.
When they returned, the applicant was not alone but had other persons there for support. There was some interchange between the two groups following which the applicant gave a packet to one of the Vo brothers. There was then an attempt by some people, in particular Lennard Kirby, to bundle the brothers Vo into the house. The attempt was only partly successful. Steven Vo entered the house and was assaulted, while Khai Vo resisted attempts to force him into the house. Shortly thereafter Khai Vo drew a pistol and shot Kirby. Khai Vo then ran into the house, firing as he went and in the process injuring a man called Scilio. Khai retrieved Steven and the two of them left the house and headed towards their motor vehicle. Waiting inside the motor vehicle were two young women. Meanwhile the applicant had armed himself with a pistol. He says he picked up the firearm dropped by a Vo. This firearm has not been recovered. The applicant fired several times out of the house hitting Khai Vo in the rear. The Vo brothers drove off. It became apparent that Kirby was seriously injured. The applicant rang 000 for an ambulance but then decided to drive Kirby to hospital at Murdoch. Before leaving the house he passed the firearm to one Gizzarone. On the way the applicant was contacted by emergency services and advised them that the 000 call had been made by his children and was made in error.
During the course of submissions, both Mr Percy QC on behalf of the applicant, and Ms Whitbread on behalf of the prosecution, gave their interpretation of the events caught on camera. Obviously it will be a matter for a jury to assess in due course. For present purposes I make the following findings.
The prosecution case for attempted murder is objectively a strong case in that it shows an apparent deliberate shooting at a man who is leaving the scene in circumstances where there are young women not immediately involved in the event sitting in the car.
The defence however is also one of some strength. This includes issues as to whether the applicant had any specific intent in what may be seen as returning fire, whether the applicant was acting in self‑defence or aiding another in self‑defence. It is not my role to examine further the strength of the prosecution case or the strength of the defence case, those being matters which must be played out in due course before a jury. For present purposes, however, having regard to the possible strength of the prosecution case and the possible strength of the defence case (and in saying that I do not misunderstand or misapply the burden or standard of proof), I am unable to conclude that the prosecution case is so weak as to constitute an exceptional circumstance for the grant of bail either at common law or under the Bail Act.
Exceptional circumstance: delay
The applicant is one of seven people charged with various offences arising from this short but violent encounter. The committal mention date is 17 October 2009. Ms Whitbread, who appears to have the carriage of the matter for the prosecution, says that she is in close contact with the investigating officers and there are good reasons to believe that the forensic work is proceeding apace and will be ready before the committal mention date. I am heartened by her confidence but on the other hand this court's experience, unhappily, is more in the nature as described by Mr Percy QC whereby the court is ready to give trial dates at a relatively early stage but the case is often delayed by lack of forensic results.
It is obvious that the trial will be of some complexity however the prosecution ultimately frames its indictment. The complexity is caused in part by the fact that most of the participants can be characterised as, at one stroke, witness, victim, and accused. Complexity of itself does not make for an exceptional circumstance but it is relevant to the question of delay. At this stage I am unable to make any finding about delay one way or the other, and in particular am unable to make a finding that delay of itself or in combination with the lack of strength of the prosecution case, constitutes an exceptional circumstance. The case has not progressed sufficiently. However, after 17 October 2009 the length of time to trial may have crystallised and may constitute changed circumstances under the Bail Act s 14(2)(a).
Conclusion on exceptional circumstances
The applicant is required to establish exceptional circumstances in order for a grant of bail to be entertained. He has failed to demonstrate exceptional circumstances and therefore bail should be refused.
The Bail Act
However, in case that conclusion should be wrong I will nevertheless consider the question of bail in the light of the discretion to be exercised directly under the Bail Act. Attempted murder is a scheduled serious offence under the Bail Act. The applicant is not a person who comes within the Bail Act sch 1, pt C, cl 3A but one whose bail is to be considered as I have previously outlined. The principal matters for consideration are as follows.
Whether, if the applicant is not kept in custody, he may fail to appear in court in accordance with his bail undertaking
The applicant has a place of residence to go and his family are prepared to advance a significant surety on his behalf and are said to own sufficient property to back the surety. I take Ms Whitbread's point about the need to avoid a two‑tier environment and the fact that for some persons $10,000 will be a significant impost while for others a million dollars may be a trifle. However, a judge should not refuse to grant bail simply because one person may more easily be able to post a significant surety than another. Surety is set partly on capacity to pay but also set in an amount sufficient to secure the attendance of a person at trial by making it financially disadvantageous to a surety if the applicant takes flight. I am satisfied that the applicant would be able to post a sufficient surety to cover the seriousness of the offence.
Flight
Whether the applicant will appear in court is a more complex issue. The applicant and his partner left Perth a short time after the event and travelled through the north of the State ultimately arriving in Darwin. While there was sporadic contact with the chief investigating officer, they did not tell him they had left the State nor indeed where they were at any given time. The officer located them. When arrested in the Northern Territory, the applicant was armed with an unlicensed firearm and ammunition. The passports of both the applicant and his partner are said to be in Perth. They did not have the passports when the applicant was arrested. There may have been good reasons for the applicant to flee other than the wish to evade detection for this offence. He had reason to be worried about possible retributive action by other persons. These persons would not have been the brothers Vo directly as they were in custody.
Nevertheless, at the time the applicant left the jurisdiction he knew, even if the police did not, that he had fired a handgun at other people in the course of a dispute, apparently over drugs, and that the handgun had been handed to another person presumably so that it would disappear, which in fact it did. All this was within knowledge of the applicant though not the police until they unlocked the secret of the applicant's computer hard drive and viewed the surveillance footage. These circumstances do not inspire confidence in applicant necessarily surrendering himself to trial. Any risk to him from others remains and may constitute, in his mind, a sufficient reason to flee again if only for preservation. Also, of course, he faces a serious charge. The impetus for flight might vary but the effect on the judicial system is the same.
Whether, if the applicant is not kept in custody, he may endanger the safety, welfare or property of any person
The prosecutor characterised this as gang warfare and there are certainly aspects of that present although I do not know enough to completely agree with the assertion. The brothers Vo, as I have said, are in custody and therefore would be out of reach of any responsive attack but there were two girls in the car. On the other hand there is no evidence that the applicant is or might engage in retribution and I do not attribute any weight to this ground.
Whether the applicant needs to be held in custody for his own protection
It will usually be difficult to refuse bail to an applicant on this ground if the applicant is in command of their mental faculties and advised by lawyers. Ordinarily this provision would give grounds for refusal of bail to a person who is in such a state of mental distress or illness that there is a duty to provide some protection for them. In a case such as the present, the applicant is better able to appreciate the risk to himself than anyone else and if he chooses to run that risk as an adult, his own protection is not a reason to keep him in custody.
Other matters
His actions in telephoning and then cancelling an ambulance for Kirby and the disposal of the handgun show an apparent willingness to interfere with the course of justice. If the applicant is released there is a risk of further interference.
Home Detention Assessment
The applicant proposed that he would reside with his partner's mother. To this end, I commissioned a home detention bail assessment which was received on 9 September 2009. The report does not recommend home detention. While I do not place weight on the safety and welfare of other persons given in the report, I find the other reasons justifying the recommendation valid.
Conclusion
Bail is refused. This judgment will be suppressed until after trial or further order by a judge.
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