Supreme Court of WA|2005-03-01|Before: Ipp J, Nicholson J, McKechnie J, Simmonds J

Dabag v The State of Western Australia [2005] WASC 22 (1 March 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DABAG -v- THE STATE OF WESTERN AUSTRALIA [2005] WASC 22

MATTER : Section 14 of the Bail Act 1982

Criminal law and procedure - Bail - Offence of unlawfully doing grievous bodily harm - Seriousness of offence - Application made at early stage of proceedings - Balance of factors

Everett v The Queen, unreported, SCt of WA (Ipp J); Library No 9010; 24 July 1991

Jemielita v The Queen (1995) 12 WAR 362

KM v The Queen, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988

Lim v Gregson [1989] 1 WAR 1

Musarri v The Queen [2000] WASC 268

Saka v The Queen [2001] WASC 92

Gillis v Gawned (1992) 8 WAR 211

Marotta v The Queen [1999] HCA 4

Mullally v The Queen [2000] WASCA 26

Oates v The Queen [2003] WASC 180

Pinkstone v The Queen [2000] WASC 199

R v Robertson [2001] WASC 120

WVCB v The Queen (1989) 1 WAR 279

1 This is an application for bail before committal on a charge under Criminal Code 1913 (WA) s 297 of unlawfully doing grievous bodily harm. The charge arose out of an alleged incident involving a violent physical altercation, in the course of which the accused caused the alleged victim several bleeding lacerations, followed shortly by the alleged victim shooting the accused. The prosecution alleges that the wounds to the alleged victim were of such life-threatening severity that he had to be taken for urgent medical treatment to Royal Perth Hospital, where he received treatment and from where he discharged himself the following day, against medical advice. The accused was also taken to Royal Perth Hospital where he was treated for gun shot wounds. The incident attracted considerable media interest.

2 At this early stage in the proceedings, the police investigations are very much still ongoing, and the prosecution appear to have only limited evidentiary material. The prosecution strongly resist the grant of bail because of what they say is the seriousness of the incident, and because of their concern for the integrity of the process of investigation and the protection of witnesses, and for the safety both of the alleged victim and the accused, as well as their concern about the possibility that the accused might flee. The accused, the applicant for bail, while conceding the seriousness of what is alleged against him, strongly contests the strength of the prosecution's case, and whether its concerns have any foundation. To the extent any foundation exists, the applicant says, it can be addressed through suitable bail conditions.

3 The present bail application raises in particularly acute form what has been called the "tension", common to many bail applications, between "the presumption of innocence of an accused person in respect of the charge which has been brought, and the need to ensure the integrity of the trial process" (Saka v The Queen [2001] WASC 92, at [1], McKechnie J). The particular acuteness derives from the seriousness of the charge considered with its circumstances, and the early stage of the criminal proceedings at which this application is brought. These in my view are the issues central to this application. I have derived considerable assistance in dealing with them from Saka, although as will become apparent that case involved the second, but not the first, issue.

4 It is necessary to provide some detail, not only about the proceedings in this matter to date, but also about its allegations, to permit an understanding, both of the seriousness of the incident the subject of the charge, and the prosecution's concerns. These details emerge in part from the record of the proceedings on an earlier bail application by the accused before the Court of Petty Sessions, as well as other material before me, principally a Statement of Material Facts in respect of the incident, and the testimony of a police officer, Detective Rex Francis Tunks, who has been involved with the case since the early morning of 23 January 2005 and is presently the acting case officer for the investigation. I will shortly describe more fully the material I had available to me for the purposes of deciding this application.

5 On the evening of 22 January and the early morning of 23 January 2005 it is alleged the accused was at the Metro City Nightclub in Northbridge. He is alleged to have met with associates and friends in the bar area. Shortly thereafter, the accused and the alleged victim left that area and arrived at a rear corridor of the Club's basement. There, between 1.30 am and 2.00 am on 23 January 2005, the two, it is alleged, became involved in a violent physical altercation. In the course of this, the accused allegedly struck the alleged victim with a knife in the neck and chest area. It is further alleged that other persons present at this time attempted to separate the parties, although the accused continued his attack "until he was physically restrained".

6 It is also alleged that at or about this time the accused was shot several times by the alleged victim, who has been separately charged in respect of that shooting.

7 It is also said that the accused left the Club soon after the incident in question, and was picked up by friends and taken to Royal Perth Hospital, where he received treatment for his wounds.

8 It further appears that some of those others present at the time of the incident have been charged as accessorily liable in respect of the shooting.

9 On 25 January 2005 the accused was charged on one count of unlawfully wounding the alleged victim contrary to Code s 301(1). The complaint was by a police officer, a Detective Bowers, not by the alleged victim. By a complaint dated 31 January 2005 and presented, I was told, on 1 February 2005, the charge was upgraded to unlawfully doing grievous bodily harm contrary to Code s 297. The complainant for that charge was again not the alleged victim: this time it was Detective Tunks.

10 On 31 January 2005 the accused's application for bail on the unlawful wounding charge was heard and determined at the Court of Petty Sessions in Perth before Magistrate Cicchini. The learned Magistrate was informed of the intention to upgrade the charge, and the parties agreed to treat the application as if it were one on that charge. In the event, the learned Magistrate refused bail.

11 Before me, counsel for the applicant called into question the propriety of the learned Magistrate so proceeding; however, in view of the way the matter so arose, and the position taken by the solicitor for the applicant on that occasion, I do not consider that manner of proceeding objectionable given that the charge was indeed upgraded and presented the following day. In any event, in my view, given my original jurisdiction on the present application, the matter is of no moment. No objection was taken to my considering for the purposes of this application the transcript of those proceedings, and the written submissions for the applicant made extensive reference to it. I note too the breadth of my discretion to inform myself for the purposes of this application under Bail Act 1982 (WA), s 22.

12 My jurisdiction to hear and determine this application arises, it appears to have been agreed, under Act s 14, which is of course original not appellate jurisdiction.

13 The general approach to the grant of bail under the Act, except to the extent it expressly modifies that approach, is set out in a frequently cited passage from the judgment of Nicholson J in KM v The Queen, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988 (on applications for bail under the Code s 573): see Saka (supra), [16] and [17]. His Honour said:

"It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The Court is therefore called upon to balance the interests of the accused and the public interest in the trial proceeding. The onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it. This position is well established; R v Fraser (1892) 13 LR (NSW) 150; R v Lythgoe (1950) QSR 5; R v Watson (1947) 24 WN (NSW) 100; R v Light [1954] VicLawRp 25; [1954] VLR 152; R v Fisher [1964] Tas SR NC 7; R v Appleby 83 WN (PT1) (NSW) 300; Reg v Wakefield [(1969) 89 WN (Pt 1) (NSW) 325] and Burton v R (1974) 3 ACTR 77. Those decisions discuss factors which are relevant to the exercise of the Court's discretion, attention to which is directed in the sub-headings which follow in these reasons."

14 The Act Sch 1 Pt C Item 1 directs me to exercise my discretion whether to grant bail "having regard" to a list of factors, "as well as any others" I consider "relevant". All of the listed factors in their terms capable of application to this case were addressed before me, namely,

"(a) whether, if the defendant is not kept in custody, he may -

(i) fail to appear in court in accordance with his bail undertaking;

(ii) commit an offence;

(iii) endanger the safety, welfare, or property of any person; or

(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b) whether the defendant needs to be held in custody for his own protection;

(c) whether the prosecutor has put forward grounds for opposing the grant of bail;

...

(e) whether there is any condition which could reasonably be imposed under Part D which would -

(i) sufficiently remove the possibility referred to in paragraphs (a) and (d);

(ii) obviate the need referred to in paragraph (b); or

(iii) remove the grounds for opposition referred to in paragraph (c);

...;

(g) 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."

15 In considering whether the applicant may do any of the things referred to in Item 1(a), Item 3 directs me to "have regard" to certain matters, for all of which I had at least some relevant material before me, as "as well as any others" I consider "relevant". The listed matters 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 defendant 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 defendant;

(c) the history of any previous grants of bail to him; and

(d) the strength of the evidence against him."

16 Of particular relevance to this application is a further aspect of the law, concerning the approach to be followed for extremely serious charges. I consider that approach in relation to the nature and seriousness of the offence and its circumstances below.

17 Before considering the factors I must address, I need to refer in more detail to what material and other evidence I had for the purposes of this decision.

18 The material and other evidence before me were limited. They included the original and upgraded complaints, and the affidavit of Gary William Massey, the current solicitor for the applicant, sworn 18 February 2005, in support of the present application for bail and annexing the Statement of Material Facts to which I have referred, which was for the unlawful wounding charge, and annexing as well a Substance of Conversation on 25 January 2005 with the accused while he was in Royal Perth Hospital over the name of the complainant on that charge, Detective Bowers. Certain other material to which I will refer shortly was also annexed to that affidavit.

19 I had the transcript of the proceedings before Magistrate Cicchini already referred to, and a copy of a letter from the Director of Public Prosecutions to Mr Massey's firm dated 22 February 2005. The letter annexed certain materials relating to the criminal record of the applicant to which I will refer below.

20 I also had before me a copy of the criminal record of the applicant. At the hearing I was also provided with a copy of what said to be the criminal record of the alleged victim, to which as I will explain I do not need to make any detailed reference.

21 Before me Detective Tunks testified under oath as to the incident and the investigations that ensued. In the course of his testimony, at the request of counsel for the applicant and on my request he provided me with a sealed envelope containing the name of a person with whom it is alleged the accused had a telephone conversation while he was in Royal Perth Hospital.

22 I also was addressed by counsel for both parties, and had the benefit of written submissions from counsel for the applicant.

23 As I will explain, there is other evidence in this matter some details of which were described in the testimony of Detective Tunks. He indicated he would or could not provide further detail or the evidence itself for operational reasons having to do with the conduct of the ongoing investigations. In my view there was nothing sinister in this. For at least some of that evidence it is a consequence of the incompleteness of its assessment, and, for the balance, of the concerns about the integrity of the investigation and the protection of witnesses to which I have referred, and to which I will return.

24 As I will explain, an aspect of this matter that is important to these reasons is the early stage of the proceedings in this case, before the time for the provision of details about the State's case preceding the committal mention. That stage goes a considerable distance to explaining the limited materials made available to me.

The nature and seriousness of the offence and its circumstances

25 The injuries allegedly suffered by the alleged victim were, I was told, sufficient so that in the ambulance that took him to hospital he was found to have no pulse. At the hospital he needed at least 90 staples. He received medical advice not to leave, which as I have said he did not follow.

26 These injuries were alleged to have been suffered at the hand of the accused whom the alleged victim is alleged to have shot several times as part of the circumstances of the incident in question. The shooting I was told required the hospitalisation of the accused, who was operated on, and was sufficiently affected that police refrained from interviewing him until two days after the alleged shooting.

27 All of this occurred in a space associated with a nightclub where there were others present, at least some of whom intervened, and some of whom have been charged in respect of this incident.

28 The original charge had been upgraded to one that falls into the category of a charge for a serious offence within Act, Sch 2.

29 As will become apparent shortly, there may be concerns, arising out of the suggested associations of the accused and of the alleged victim, of a dimension of street gang interest in this incident. That dimension, so far as it concerns possible threats or actual violence to witnesses, is discussed below. Beyond that, it may have been suggested there is the possibility of other threats of actual violence, presumably of a generalised retributive character. However, if there was such a suggestion, it was not spelled out in any way, and, altogether apart from any question as to its relevance, its highly speculative character means that I do not further pursue it, for this or any other purpose, although I return below to the question whether the incident had any gang-related origins. It may be that the media interest in this incident derives at least in part from the dimension I have described. Any such interest, whether so derived or otherwise, does not in my view have any contribution to make to my deliberations in this case.

30 There is authority, concerning bail otherwise than under the Act as well as bail under it, that goes to a special onus and standard of proof in relation to bail in cases of "very serious crimes", different from the general position under KM (supra). In the leading authority of Jemielita v The Queen (1995) 12 WAR 362, at 367 per Pidgeon J, Owen and White JJ agreeing, his Honour discussed Act, Sch 1 Pt C Item 3(a) as reflecting:

"the two principles referred to by Mansfield SPJ in R v Lythgoe [supra] and in the cases to which he referred namely the nature of the crime charged and the severity of the punishment which may be imposed. In the case of murder and other very serious crimes the gravity of the crime and the nature of the penalty on conviction increases the risk of a failure to appear in court to the extent that special or unusual circumstances must be shown. The principles which have been evolved when considering these factors under the earlier statutes are based on logic, experience and common sense and as alluded to by Anderson J, in the present case, are principles the community would expect in cases of this nature. I do not consider that there has been an intention in the Bail Act to exclude them."

31 Counsel for the applicant put his submissions to me and counsel for the respondent responded in terms that this approach or something like it was applicable in this case. It would on the face of it place the onus on the applicant to show that bail should be granted because of the presence of special or unusual circumstances, or what the authorities call exceptional circumstances (see Jemielita (supra), at 367, per Pidgeon J, referring to Lim v Gregson [1989] 1 WAR 1, at 13 per Malcolm CJ).

32 Counsel for the respondent also indicated to me I needed to note that this application fell to be considered before the preparation and presentation to the defence of the prosecution's brief that is required by the committal mention process. The committal mention in this case is, I was told, scheduled for 13 April 2005, although there was some uncertainty on that account. The deadline for that provision of that brief would be 14 days before the relevant date: Code s 103. I was referred to the discussion in Lim, at 13, per Malcolm CJ, where his Honour noted, in relation to the matter of assessing the strength of the evidence against the accused, that

"as a matter of logic, therefore, all other things being equal, it ought to be easier for an accused to obtain bail after his arrest but before committal. As a matter of practicality, however, this is not the case. In R v Ladd (1958) 75 WN (NSW) 431 at 433 Sugerman J held that it was 'almost impossible' in an application for bail in a serious case for a judge to be satisfied that it is a proper case to grant bail when he knows nothing of the evidence that is to be tendered against the accused at his trial."

33 His Honour went on to indicate that these considerations indicated that it would be "very rare" in such cases that bail would be granted. The court would need to be satisfied it was unlikely the applicant would fail to appear (Lim, at 14). It is the likelihood of the applicant failing to appear that is the "prime question" in the consideration of bail applications, whether under the Act or otherwise: Jemielita (supra), at 367, per Pidgeon J (referring to Sch 1 Pt C Item 1(a)(i)), Owen and White JJ agreeing.

34 Further, it is part of the justification for the special approach for "extremely serious" offences that there is an inference in such cases that the applicant is likely to abscond, so that when the evidence against that person is "so weak that it is unlikely that the applicant would be found guilty that inference virtually disappears": Everett v The Queen, unreported, SCt of WA (Ipp J); Library No 9010; 24 July 1991. In applications for bail before committal as referred to by the learned Chief Justice in Lim (supra) it would seem to follow that it would be very difficult to show that the case was weak in the Everett sense.

35 While I do not doubt that this is a serious case within Act Sch 1 Pt C Item 1(g), I have some doubt as to whether it falls within the special approach to which I have referred to. The penalty for the offence charged against Code s 297 is a maximum of 10 years imprisonment, or 14 years if committed in circumstances of aggravation. This is significantly less than the penalties, of 20 years or more, for offences that have been characterised as "very serious": see for example Musarri v The Queen [2000] WASC 268, at [18], Heenan J. There is of course a more serious form of offence of causing grievous bodily harm: it is unlawfully doing grievous bodily harm with intent contrary to Code s 294, for which the penalty is 20 years imprisonment. The accused was not facing that charge.

36 I also note that the submissions of the previous solicitor for the applicant to the learned Magistrate in support of bail, on what was assumed for that purpose to be the upgraded charge of doing grievous bodily harm, that the offence and its circumstances, while "serious", did not of themselves "require any exceptional circumstances" to be shown for bail of the sort required for "some far more serious allegations" (TS6).

37 However, it seems to me that it is appropriate in light of Act Sch 1 Pt C Item 1(g) to regard the onus as being on the applicant to show that there are circumstances which would justify the award of bail. In that sense the case is an "exceptional" one for bail purposes. Whether the circumstances that have to be shown must be judged to the standard for charges for "extremely serious offences" is a different matter. I do not need to decide this, as I consider that this case may be decided on a lesser standard.

38 At the same time it is a relevant consideration that the proceedings are at the early stage on which I have placed emphasis, as counsel for the respondent submitted. I note that the relevance of this consideration appears to have been acknowledged in a much less serious case than this one: see the initial decision of Scott J to refuse bail in Saka (supra), referred to by McKechnie J at [8].

39 The early stage of the proceedings is, as I have explained, particularly relevant to this matter.

40 It is evident from the material before me that the primary basis for the prosecution's case against the accused at present is the vision captured by black and white digital recording equipment operated by the nightclub in a position which I was told was near to where the altercation in question occurred. This vision was described by Detective Tunks as of variable quality, being clearest when one of the persons in the vision is seen in profile, and at least at one stage during the incident clear enough to permit police to identify that person as the accused. This equipment did not record sound.

41 What the vision showed, I was told, was the altercation, as part of which the alleged victim is seen to fall back, and then lunge forward again. During this exchange, it is alleged that the accused's left arm is partially seen, moving up and then across in the direction of the alleged victim. Actual contact with the alleged victim is not seen, nor is anything to be seen in the hand of the person alleged to be the accused. Detective Tunks said that the alleged victim's position caused him to obscure a view that might have shown either. Following the exchange between the accused and the alleged victim, glistening, shown in black and white as a lighter shade and it was said suggesting blood, is said to be visible on the alleged victim's black shirt.

42 This vision, I was told, also showed the accused being taken away from the scene to places in a direction or directions which take him out of view. I was further told that, following the removal of the accused out of camera range, and what appears to be a discussion between the alleged victim and two others at the scene, the alleged victim is seen moving in the direction in which the accused had been taken, reaching into a "bum bag" he was wearing, although the vision does not show him pulling his hand out of it. Later the alleged victim and one of the men who had removed the accused re-appear in the vision of the camera that captured the altercation or that of another camera. The other man appears to be bearing a firearm. The vision later shows staff of the club engaged in cleaning the floor area of what appeared to be blood, and clearing away broken broom handles from the scene. A staff member is also seen carrying the accused's shirt away to an undercover area outside the club.

43 As I have indicated, there was other vision recording equipment, some with colour, in the nightclub. None of it picked up the altercation, I was told. But it was said this other equipment recorded the accused leaving the scene without the shirt he had been wearing during the altercation, and hobbling, one camera showing him leaving the nightclub, the other, an outside camera, showing him going away from the club towards Roe Street.

44 I was also told of statements obtained from associates of the accused who had picked him up from Roe Street and taken him to Royal Perth Hospital for treatment of what turned out to be gunshot wounds. I was told that those statements included a report or reports of him having told the makers he had been shot at the nightclub.

45 The Substance of Conversation annexed to the Massey affidavit refers to certain admissions said to have been made to police by the applicant at the hospital. These included that he had gone to the nightclub on the evening in question and that he knew the alleged victim, but also that he had no recollection of what occurred after arriving at the club's bar. Detective Tunks was cross-examined on whether the accused was under guard or shackled during this interview, and he maintained that he was not placed under guard until after it. He also rejected suggestions that he had threatened the accused with being locked up if he did not cooperate.

46 Counsel for the accused placed heavy emphasis on the fact there was no "forensic evidence" the police had at this time. In fact Detective Tunks indicated that the police had recovered bullets taken from the accused while he was at Royal Perth Hospital, and also had recovered a knife from an area in the nightclub close to the scene of the incident. Detective Tunks does not yet know whether the knife carries any traces of blood. There was also reference to a piece of a watch found at the scene that an associate of the accused had identified to police, and which was also being analysed.

47 What counsel apparently meant to put was that the police had not referred to any other materials than these, and what materials the police had were still undergoing analysis, including for the knife fingerprint analysis, with further analysis, such as for any DNA, not yet started. Undoubtedly any results of this analysis would be of considerable relevance to the strength of the prosecution's case. I am in no position to speculate on the likely results for the purposes of adding to or taking away from that strength, but equally, given the early stage of the evidence gathering and analysis process, cannot read anything into the absence of any results.

48 The same point may be made in respect of the other matter on which counsel for the applicant placed heavy emphasis, that, as Detective Tunks acknowledged, although a number of "eye-witnesses" had provided accounts or statements, none of the persons so far interviewed had made a statement that the accused as a person they knew or had identified from a photo board or similar was involved in the incident. Undoubtedly if such statements had been made, that would add strength to the prosecution's case. Their absence is, however, consistent with the relatively early stage of the investigatory process.

49 I also note that the police have not yet obtained medical reports on the accused or the alleged victim, although in both cases these are being sought, and apparently statements had been obtained from some at the hospital. None of those involved in the transportation or the reception or treatment of the accused or the alleged victim appeared before me, Detective Tunks in some cases referring to his conversations with a number of them, and in others referring to information from other police officers about what they had been told by such persons.

50 I had pressed on me that the alleged victim had not laid either the original or the upgraded complaint. In light of the alleged circumstances making up the incident out of which charges against both the accused and the alleged victim arose, I do not consider any significance can be attached to that fact.

51 Counsel for the accused laid heavy emphasis on the fact that the police had not produced to his representatives or the Court any of the vision to which I have referred, except for some stills taken from the vision which had blacked out or "pixillated" the images of others than those said to be the accused and the alleged victim. Counsel for the applicant told me that such stills had been shown to the previous solicitor for the applicant, who had not been permitted to remove them, with the result they were not available for the proceedings before me. That solicitor, counsel reported, said the images were not clear enough to permit identification of the accused. Detective Tunks also said that the accused had been shown images taken from the vision without any pixillation.

52 Counsel for the accused produced to me a subpoena served the previous day on the Commissioner of Police to produce both the criminal record of the accused (produced to me at the hearing) and a "copy of the surveillance tape", by which the parties understood was meant the digital images recorded on the hard drives at the nightclub and downloaded by the police constituting at least the vision of the altercation to which I have referred. Those images were not produced to me at the hearing, because, counsel for the respondent told me, senior counsel had not in the time available been able to prepare advice for the Commissioner on whether there was a basis for non-production. Counsel for the respondent said, and Detective Tunks confirmed, that the resistance to production of the vision had to do with the way it permitted identification of others present at the incident, which might cause them, and therefore the investigating team, concern. In the circumstances, I ordered consideration of the return of the subpoena be listed for March 4, 2005, at 3:00 pm, to permit advice to be taken and a representative of the Commissioner to appear before the Court. At the hearing I indicated that the unavailability of the images for review in the hearing before me, which I noted could be held in camera if need be (see Act s 20), would reduce the weight I could assign to that evidence. I also rejected the suggestion that the relevant material might be played in my chambers for me to view without the assistance of counsel.

53 In my view the case for the prosecution that emerges at this stage of the proceedings, if it had not been added to in one or more respects by the conclusion of the committal mention process, could indeed be considered relatively weak. However, judged at this stage of the proceedings, it is of sufficient strength such that the concerns as to the appropriateness of bail engaged by the seriousness of the offence and its alleged circumstances are not dissolved.

The applicant, his background and antecedents

54 The applicant is stated to be 18 in the Massey affidavit, but that is evidently a typographical or computational error, as his birth date, also shown on his criminal record, shows him to have been 28 years old at the time of the incident in question. I would not consider his age to count in favour of or against bail.

55 The transcript of proceedings before Magistrate Cicchini records submissions of counsel for the accused stating that the accused is of Kurdish origin, and came to Australia with his family in 1997. He apparently became an Australian citizen in 1999, and holds no other passports. Those submissions further refer to his parents as Perth residents, as are all of his siblings, the exact number of whom is not altogether clear from those submissions, but I was told by his counsel is eight, five brothers and three sisters. I was further told he has no other family in Australia.

56 The Massey affidavit says the deponent was told by counsel for the applicant that the accused has the support of his immediate family and friends, as well as a close female acquaintance, a letter from whom is annexed to the affidavit attesting to that support and the close relationship the accused has with that author's young son. The affidavit says that if released to bail the accused could live with one of his sisters. The affidavit and that letter also indicate that a brother of the accused, who has a business in Perth, is prepared to offer the accused employment in the business during any release to bail, which a letter from the brother also annexed to the affidavit confirms. The submissions to the learned Magistrate refer to the accused as being on social security benefits arising out of a medical condition that had been resolved. The letter from his female acquaintance also refers to the good character of the accused, and to the charge which he faces being "completely out of character" for him.

57 All of these matters as to the accused's character, home environment, background, residence and at least his prospective financial position, appear to me to count in favour of granting bail.

58 The matters of his previous convictions, antecedents and associations raise somewhat different considerations. The accused's criminal record is of only two offences of any possible significance for present purposes, for neither of which was a custodial sentence imposed. The more serious of the two was burglary with intent in circumstances of aggravation. I was told by his counsel that the incident occurred close to his home. The form P18 annexed to the letter from the DPP referred to the fact the accused was in company, and that one of the group used a knife on a person found at the premises entered. However, it was conceded that the accused was not known to be the person who used the knife, and that the incident was not known to involve the gang with which it was alleged the accused was associated as explained below. The other offence, of hindering police, is said in the Statement of Material Facts also annexed to that letter to have arisen out of the accused's involvement in making vigorous threats against American sailors who were involved in an altercation with a group of Iraqi men outside a Northbridge nightclub in October 2004. Again, the accused was not said to have committed any acts of physical violence, nor was the gang referred to said to have been involved, although it was one that counsel for the respondent represented recent behaviour pointing to a "violent tendency".

59 However, on balance this record does not seem to me to be one that counts against the grant of bail. The incident of October 2004 appears to me, as counsel for the applicant submitted, needs to be put in the context of the applicant's personal history.

60 During the course of proceedings, the criminal record of the alleged victim was tendered to me. The alleged victim is the subject of a charge arising out of the present incident, and I was told will also be seeking bail. At this point, it does not seem to me that that record has sufficient bearing on my decision, either for or against the grant of bail, to warrant further reference. The matter of that sort that is important for my purposes is that there was a charge laid against the alleged victim for allegedly shooting the accused. This is a matter of significance, going to the seriousness of the circumstances that surrounded the alleged offence by the accused, whose bearing on my decision I will further develop.

61 There was considerable emphasis on the accused's and the alleged victim's alleged associations in the hearing before me.

62 Detective Tunks referred to "significant police intelligence" that he said showed the accused was "associated" with a street gang called the Scorpion Boys, at a "reasonably high" level in their hierarchy, although he could not be more specific than that, for operational reasons. The Scorpion Boys was a break away unit from another street gang called the Sword Boys. Both gangs were said to be involved in drug dealing and other criminal activities including ones of a violent retributive kind, and, while not working in unison, they were not enemies. The accused was further said to have associations with extensions into New South Wales of one or other of these gangs, although links to individual persons there had not to Detective Tunks' knowledge been established to this point.

63 Detective Tunks also referred to "police intelligence" that he said showed that the alleged victim was a "patched member" of the Coffin Cheaters gang, a matter which the applicant did not dispute. Detective Tunks also said, which for the applicant was disputed, that gang had a significant history of criminal activity including violent criminal activity of a retributive kind. This history included that the Coffin Cheaters and the other two gangs used one another to "apply their trade".

64 Finally, I was told that the others charged in respect of the incident also had associations with at least one of these gangs.

65 It was put to me by counsel for the respondent that these associations were an important part of what gave cause for concern in the respects I will reach below. The evidence for the associations is of course of a highly equivocal and derivative nature. It was put to me that this is of the essence of much of the evidence of gang associations. While I do not doubt that this is so, the state of the evidence as I will explain makes its significance difficult to assess for the purposes for which it was brought forward, and therefore for whether it tells against the grant of bail.

66 I was told that inquiries undertaken by the accused's legal representatives with the District Court indicate that a trial in this matter would be unlikely until the middle of next year at the earliest. A delay of over a year would indeed be a significant concern, in my view, to be weighed in favour of granting bail, for the reasons given in Saka (supra), [34] to [40], although in that case, when it was weighed with the other factors there, it was not sufficient to prevent the refusal of bail.

67 However, counsel for the respondent pointed out that at this early stage of the process the success of an application for an expedited trial of a person in custody could not be ruled out. In Saka the proceedings had moved past the preliminary hearing one.

68 On balance, I am of the view that the length of time to trial, while tending towards the grant of bail, does not do so to the same extent as it did in Saka because of the early stage of the proceedings here.

The integrity of the investigation and the protection of witnesses

69 The foundation for the concern of the prosecution in respect of these lies, it will now be evident, in the character of the incident that produced the charges not only against the accused and the alleged victim, but also against a number of others, against the backdrop of the gang associations referred to. Detective Tunks also referred to the fact that some of the persons shown in the vision of the incident as witnesses to it had been known to him prior to the incident, although it was not clear what I was to infer from this.

70 It seems to me that the alleged violent character of the incident is a rather less equivocal basis for the concern referred to than the alleged gang associations. As counsel for the respondent agreed, the evidence of those associations and the results of the police investigation thus far do not suggest that the incident was the result of any gang association the parties had, or that the gangs or groups have taken a particular interest in the incident. Detective Tunks admitted there was no evidence of any visits the accused had received in hospital or subsequently in prison on remand from gang members, nor of any contact with them, by telephone or otherwise, with a possible exception I reach next. At most the gang associations provide a reason, of a very limited sort, to consider that the accused, and the alleged victim, might have had some prior exposure to the violent resolution of disputes.

71 However, Detective Tunks testified to a telephone conversation involving the accused and the person who reported it to Detective Tunks. The accused at the time was at Royal Perth Hospital where he was being treated after the incident in question. In the conversation the accused is reported to have said that the other person should take steps to "make things right", which, on what appears to be the view of Detective Tunks, was taken by that person to be a reference to the incident in question and the accused's interest in reprisals against the alleged victim, presumably for the shooting, as well as an interest in having those arranged through persons in the east associated with the Scorpion Boys or the Sword Boys. Detective Tunks refused to name the source of his information, but did as I have indicated earlier write that person's name down on an envelope and provide the envelope to me, on the basis the note, after being inspected by me, would be kept in a sealed envelope not be opened except on further order. After the hearing, I inspected the note sufficiently to verify that there was a name written on it, although I did not note what that name was. I then placed the note in a fresh envelope and sealed it in the way indicated.

72 Of course, on that state of the evidence before me, it is not possible for me to determine the basis for Detective Tunks' view of his source's construction of the telephone conversation in question, which on the face of the words referred to by Detective Tunks appears to be a highly equivocal one.

73 However, it is clear that there is some if limited evidence of threats from the accused to the safety of an important witness in this matter, the alleged victim. However, the evidence is of a rather less cogent sort than that which persuaded McKechnie J in Saka (supra) to refuse bail, evidence that was also before Scott J when he refused bail at an earlier stage of those proceedings: see [41] to [49]. At the same time the incident in this case was significantly more serious than the one in that case, which involved an alleged extortion demand.

74 On balance, I am convinced that there is some basis for concern for the integrity of the investigation and the protection of witnesses which points away from granting bail.

75 Further, the possibility of the sort of interference of concern is one which in my view bail conditions, of the sort possible at this stage of the proceedings, would not sufficiently remove. It was put to me that prohibitions on contact with others charged in this incident and those known to the accused to be present at the club on the night and witnesses to the incident, as well as others known to be members of the gangs or groups referred to, and being in the Northbridge area, coupled with substantial surety from a family member, would sufficiently address any such concern. Reference was also made to bracelet monitoring devices that would facilitate regular phone check-ins by an accused on bail. However, it was also conceded that it would be difficult to devise conditions that would adequately specify those who might likely be of interest to the police at this early stage of the investigation, particularly in view of the variety of ways individuals might be associated with the gangs or groups in question. The violent character of the incident raises as well concerns about the efficacy of the conditions, at least in what is still the aftermath of the incident. It was put to me that the police could and might be expected for investigatory purposes to put the accused under constant surveillance while he was on bail. However, Detective Tunks indicated that this was likely to be impossible as a matter of allocation of police resources, and he could not comment on other, more limited, surveillance for operational reasons; nor is it a matter that I could see being imposed as a bail condition, even indirectly through a home detention condition.

The protection of the accused and the alleged victim

76 Detective Tunks testified that the accused is presently in protective custody at Casuarina Prison, following his release from its infirmary. However, counsel for the applicant informed me he had recently been told by the accused he was in the general prison population, and it was not evident to the accused he was under any special protection. Further, there was no information counsel or Detective Tunks had that the accused had fears for his safety if he were released to bail.

77 I have no information of any concerns felt by the alleged victim. I note, however, that he departed Royal Perth Hospital shortly after treatment for very serious injuries, and against medical advice. Whether this indicated concern for his safety, or about the shooting incident, or some other concern, is unclear to me.

78 On balance, it seems to me matters of protection of the accused and of the alleged victim are best approached as an aspect of the previous matters. There is a common basis for the concerns for the safety of the accused and the alleged victim with the ones for the integrity of the investigation and the protection of witnesses, namely, the allegedly violent and retaliatory character of what occurred, and the reported telephone conversation.

79 It was put to me that the concern here related to the possibility of the accused leaving for eastern Australia, and possibly from there for overseas. This concern was apparently rested on the eastern Australian connections of the Scorpion Boys or the Sword Boys, as well as on the seriousness of the charge which the applicant faces.

80 Counsel for the applicant pointed out that there was no evidence of any plans or even intention of the accused to flee, nor did the accused have any family elsewhere in Australia to whom he might resort. The eastern Australian connections of the Scorpion Boys or the Sword Boys were even less clearly established than the nature of the accused's associations with the former gang. Again, reference was made to the possibility of stipulating for substantial surety from a family member.

81 It seems to me that there is some basis for the concern referred to that lies in the seriousness of the charge the accused faces, as well as in the allegedly violent and retaliatory character of the incident out of which the charge arose. In the aftermath of that incident, there seems to me to be a reason to think that there might be a significant risk of the accused removing himself from the possibility of personal involvement in further violence. Such a risk would not of its nature readily be addressed by bail conditions with place of residence, reporting schedule and passport surrender features, or substantial surety from a family member.

82 It follows that on balance I do not consider that it is appropriate to grant this application for bail. This balance is particularly the result of the seriousness of the alleged circumstances of the offence charged and the early stage of the criminal proceedings at which this application falls for decision, as I have explained. I have weighed the case for bail against those factors, but not according to the standard for bail before committal for "extremely serious" cases. Had I used that standard, a decision against bail would have been much more easily arrived at.

83 It also follows that the completion of the committal mention process may well mark the discovery of new facts, the arising of new circumstances or the changing of circumstances such that the jurisdiction of the court to grant bail might be further invoked, as was recognised in Saka (supra), [12] and [13]. Further, it is possible that the release of the vision of the incident might also mark such matter.

Dabag v The State of Western Australia [2005] WASC 22

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (115 paragraphs)

Dabag v The State of Western Australia [2005] WASC 22 (1 March 2005)

Parties

Cases Cited (3)