Zwerus v The State of Western Australia
[2009] WASC 119
•28 APRIL 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ZWERUS -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 119
CORAM: HASLUCK J
HEARD: 28 APRIL 2009
DELIVERED : 28 APRIL 2009
FILE NO/S: MCS 10 of 2009
BETWEEN: DANIEL LUKE ZWERUS
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for bail - Review of magistrate's decision on bail - Whether applicant has demonstrated exceptional reasons justifying a grant of bail - Bail not opposed by the prosecution if certain conditions complied with - Turns upon own facts - Bail granted
Legislation:
Bail Act 1982 (WA), s 13, s 14, sch C cl 1 and cl 3
Result:
Bail granted
Category: B
Representation:
Counsel:
Applicant: Ms A S Rogers
Respondent: Mr D Davidson
Solicitors:
Applicant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
HASLUCK J:
Introduction
The applicant has applied for bail pending the hearing of various charges against him; namely, two charges of common assault and assault occasioning bodily harm. These charges are listed for hearing at Mandurah Magistrates Court on 8 June 2009.
I understand from what has been put to me by counsel that the applicant has been in custody since his arrest on 7 February 2009. It follows that he has been in custody for a significant period already.
It appears from the application form dated 28 March 2009 that the applicant comes before me pursuant to s 14 of the Bail Act 1982 (WA). An order is sought that bail be set on such terms and conditions as are deemed appropriate.
By s 14 the jurisdiction may be invoked notwithstanding that bail has been previously granted or refused save that if the application came before a judge it cannot be invoked unless the facts and circumstances have changed.
Procedural steps
Rule 25 of the Criminal Procedure Rules requires that the application be supported by an affidavit unless the court otherwise orders. The application in the present case is supported by the affidavit of the applicant sworn 2 April 2009 and the further affidavit of his solicitor sworn 24 April 2009. It is supported also by submissions made at the hearing.
I note from the subject affidavits that on 7 February 2009 the applicant was charged with the offences mentioned earlier. He entered pleas of not guilty and has indicated by counsel that he intends to maintain those pleas and defend the subject charges at trial. It appears from the transcript exhibited to the second affidavit that the applicant will rely upon a plea of self‑defence.
I note in passing that on 19 February 2009 at the Magistrates Court in Mandurah counsel on behalf of the applicant applied for bail but this was refused. It appears from the transcript that the magistrate was not satisfied that there were exceptional reasons justifying a grant of bail.
The circumstances
On the evidentiary materials before me the central circumstances of the case are as follows. The facts and matters underlying the subject charges allegedly occurred whilst the applicant was on parole in respect of another offence that can be characterised as a serious offence.
It is alleged, in summary, that at about 10.50 pm on Saturday evening, 7 February 2009 the applicant was at the Slug and Hare Tavern in Mandurah when he is alleged to have assaulted a female bar attendant by squeezing her buttocks. This led to a confrontation with the female complainant's boyfriend but there was no further encounter at that time.
Later on the same evening the first male complainant and his brother (the second male complainant) were approached by the applicant in a dark area near the Brighton Hotel.
It is alleged that the first male complainant was punched by the applicant to the left side of his head and the second male complainant was punched in the jaw area. The applicant allegedly continued swinging punches at both complainants as they were trying to get away from him.
It is said that when police officers appeared the applicant ran away and began to struggle violently as the police tried to speak to him. This lead to charges being laid at the Mandurah police station. The applicant refused to participate in a video record of interview.
As I mentioned earlier, it appears from the transcript that the applicant will rely on a plea of self-defence at the trial of the matter.
The statutory provisions
In dealing with an application for bail of this kind the court is called upon to balance the interests of the accused and the public interest in the trial proceedings. The court must weigh up the presumption of innocence of an accused person against the need to ensure that the accused will be present at the hearing of the charges and that the integrity of the trial process is preserved.
Section 13 of the Bail Act provides that the jurisdiction to grant bail should be exercised subject to and in accordance with the related provisions and the factors set out in pt C of sch 1 of the Act. Clause 1 and cl 3 of pt C cover applications for bail before conviction.
The questions to be considered include whether the applicant may fail to appear, commit an offence, endanger the welfare of others or interfere with witnesses. In addressing these questions the judicial officer shall have regard to the nature and seriousness of the offences, the probable method of dealing with the applicant if he is convicted, the antecedents and previous convictions of the applicant, the history of any previous grants of bail to him and the strength of the evidence against him.
The judicial officer is also obliged to take account of the prosecutor's position and where the circumstances of the offence are of such a serious nature that a grant of bail would be inappropriate.
Further provisions
It was common ground at the hearing before me that cl 3A applied to the circumstances of the present case in that a serious offence is alleged to have been committed while the applicant was at liberty under an early release order for another serious offence.
In these circumstances clause 3A requires the judicial officer to refuse bail to an applicant in custody unless there are exceptional reasons why the applicant should not be kept in custody and the judicial officer considers that he may properly grant bail having regard to the provisions of cl 1 and cl 3.
The requirements of cl 3A are a clear recognition that, notwithstanding the presumption of innocence, an application for bail in the circumstances envisaged by that clause stands in a special category.
I note in passing that an inordinate delay in bringing an accused to trial can be an exceptional reason for granting bail and special factors bearing upon the domestic circumstances of an applicant can also come within the category of exceptional reasons in certain cases.
Normally, the onus is on the prosecution to show that the accused will not answer bail, however, where cl 3A applies the applicant must show exceptional reasons before he can be granted bail in addition to satisfying the court about the other criteria; that is, the general criteria referred to in cl 1 and cl 3.
The present case
I understand that in the present case the applicant places reliance upon the prima facie position at common law that bail should be allowed to an accused person pursuant to the presumption of innocence in circumstances such as the present where he is maintaining his not guilty plea and contends that he has a basis for defending the charges.
In addition to the matters I have mentioned the applicant relies upon his personal circumstances, namely, that he is living with his partner who is currently caring for two children, being a newborn and a five‑year‑old. The newborn is a child arising from the relationship between the applicant and his partner.
The applicant has said in his affidavit that he is very concerned in relation to the mental and physical wellbeing of his partner. In the event that he is granted bail he would propose residing at a certain address in Mandurah with his partner.
The applicant has said also that he is able to obtain a surety in such sum as the court considers appropriate. He is able to report as necessary to the officer in charge of the Mandurah police station and is able to observe such curfew as the court considers necessary.
Exhibited to the affidavit of the applicant is a letter from Dr James Lau dated 23 March 2009 referring to the matters mentioned earlier.
Dr Lau asserts that the applicant's partner is struggling to cope with her day‑to‑day parenting and self‑care. She is diagnosed to have early postnatal depression and is seeing Dr Lau for counselling. She is said to be stressed with parenting, self‑care, emotional and financial issues. Dr Lau goes on to say that the applicant has been a great support both emotionally and financially and is the sole provider.
It is said by Dr Lau that it would be in the best interests of the family if the applicant could be available to provide support to his partner and her children as soon as possible in the circumstances that are described by Dr Lau as exceptional.
For the sake of completeness I must refer also to the affidavit of the applicant's solicitor mentioned earlier. Exhibited to that affidavit is a medical report from Dr Austin Byrne dated 6 April 2009. That report in its terms is broadly consistent with Dr Lau's report.
Having described the present circumstances of the applicant's partner as sole carer of the children on the subject premises, Dr Byrne goes on to say of the applicant's partner:
[She] attended on me today in a genuinely distressed state. She has no other immediate support in caring and financing for her family other than that provided by her partner. She is finding it increasingly difficult to manage alone. I am concerned at her emotional and financial burden and the potential for deleterious effects on her wellbeing.
Dr Byrne said that the best course would be for assistance to be provided to the family in their current situation.
Stance of the prosecution
To the limited extent that it is necessary for me to form an opinion as to the strength of the prosecution case, I must keep in mind that according to counsel the prosecution has access to the three complainants associated with the charges.
However, importantly, counsel for the prosecution has indicated that the prosecution case is being reviewed. It seems that this has a bearing upon the stance of the prosecution in regard to a grant of bail.
As I indicated in earlier discussion, in reviewing the broad principles bearing on an application of this kind, it is necessary for the court to ascertain the stance of the prosecution. It emerges from what I have just said that at this stage the prosecution does not object to a grant of bail if certain conditions (being the conditions the subject of a minute dated 28 April 2009) are put in place.
Conclusion
It is against this background that I return to the question of whether the applicant has made out a sufficient case for a grant of bail, bearing in mind that I must be satisfied pursuant to the provisions I have mentioned that there are exceptional reasons justifying a grant of bail.
In this case I am persuaded that there are exceptional reasons. I am conscious, of course, that the magistrate gave close attention to that very issue when he dealt with the application for the bail initially. However, as I perceive it on the materials before me, the learned magistrate did not have the advantage of the medical reports I have just referred to. His Honour was aware that the applicant's partner was pregnant but, in February, when an application for bail was being considered the infant had not yet been born. Thus, the impact of that significant event upon the applicant's partner could not then be assessed.
Moreover, in February, it was not said on behalf of the prosecution that bail would not be opposed if certain conditions were complied with.
I am persuaded by the medical reports that there is a significant issue to be addressed concerning the welfare of the applicant's partner. I must also take account of the fact that the applicant has now been in custody for several months and there are still some months to go before the hearing will take place.
The prosecution has not opposed the application for bail. The prosecution is of the view that, subject to suitable conditions of the kind reflected in its minute, a grant of bail is appropriate.
When all these matters are considered in combination, I am satisfied that exceptional reasons for a grant of bail have been made out. I am persuaded that bail should be granted in terms of the agreed minute that has been considered and approved by both counsel.
Let me now come to the proposed terms and conditions.
Terms and conditions
In my view, the conditions settled by the parties are sufficient and suitable to secure the attendance of the applicant on the hearing date.
The conditions are that on the personal undertaking of the applicant to attend before the Mandurah Magistrates Court on the prescribed date, namely, 8 June 2009, (1) that there is to be a $5,000 personal undertaking; (2) there is to be a $5,000 surety; (3) the applicant is to reside at the address specified on the court file; (4) the applicant is not to approach the Slug and Hare within 100 metres; (5) the applicant pursuant to a protective bail condition is not to contact or attempt to contact directly or indirectly any of the three complainants; (6) the applicant is to report to the Mandurah police station every Monday, Wednesday and Friday commencing Wednesday, 29 April 2009.
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