Supreme Court of WA|2002-11-29|Before: Scott J, Smith J

Fawcett v The Queen [2002] WASC 285 (29 November 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FAWCETT -v- THE QUEEN [2002] WASC 285

Criminal law - Bail - Pending trial - One count of deprivation of liberty and three counts of attempted murder - Alternate counts of attempting to strike person with projectile (bullet) with intent to cause grievous bodily harm - Whether offences in "extremely serious" category as to require applicant to show exceptional circumstances to justify bail - Meaning of - Whether exceptional circumstances shown - Time in custody on remand before trial - "Weak" prosecution case - Additional conditions - Violence restraining order under Restraining Orders Act 1997 (WA)

Bail Act 1982 (WA), Schedule 1, Part C, cl 1 and cl 3

1 ROBERTS-SMITH J: This is an application for bail.

2 The applicant stands charged on a Supreme Court indictment dated 1 October 2002 with one count of deprivation of liberty and three counts of attempted murder. In respect of each of the attempted murder charges, there is an alternative charge of attempting to strike a person with a bullet, with intent to cause grievous bodily harm.

4 An offence of deprivation of liberty carries a statutory maximum penalty of 10 years imprisonment (s 333 of the Criminal Code). Attempted murder carries a statutory maximum of imprisonment for life (s 283 of the Code). The statutory maximum penalty for unlawfully attempting to strike any person with a projectile, with intent to do grievous bodily harm, is imprisonment for 20 years (s 294(2) of the Code).

5 The deprivation of liberty charge is that on 21 November 2001 at Marangaroo, the applicant unlawfully detained Melissa Yvette D'Amico by confining her in a house against her will.

6 The attempted murder charges allege that on 25 November 2001 the applicant unlawfully attempted to kill Giovanni Paul Ruiz, Stevan Michael Merenda and Michael James Flower respectively.

7 I shall return to the circumstances later but for the moment, I note that the events the subject of these charges arise out of an argument between the applicant and his ex-girlfriend, D'Amico, at her house on Wednesday 21 November 2001 and an altercation in the early hours of Sunday 25 November 2001 between the applicant and some of his friends and D'Amico's new boyfriend and some of his friends outside a nightclub generally in the area of the corner of William and Pier Streets in Perth city.

8 The applicant was not interviewed by police following the events of 25 November and apparently shortly thereafter travelled interstate. However, he returned to Perth in early 2002 and on 17 January presented himself to the City Detectives' Office where he handed them a pistol and gave them a prepared signed statement, giving his account of what had occurred on 25 November. He was thereupon charged with a number of offences and was remanded in custody. On 18 January 2002, he made an application for bail before a Magistrate in the Perth Court of Petty Sessions. He was remanded in custody pending the handing down of that decision.

9 On 21 January 2002 the learned Magistrate gave reasons denying the applicant bail.

10 In her affidavit sworn 13 November 2002 in support of the present application for bail, Danielle Jane Davies, a solicitor of D G Price & Co, deposes that the applicant did not thereafter make a further bail application to the Supreme Court as a result of concerns he held for his own safety.

11 There was a preliminary hearing of these matters in the Perth Court of Petty Sessions on 14 and 15 August 2002. The applicant was committed for trial in this Court on the charges of deprivation of liberty and attempted murder.

12 The applicant was arraigned on 1 October 2002 before Scott J and entered pleas of not guilty. On the same date he appeared in the Perth Court of Petty Sessions and pleaded guilty to a summary charge of stealing D'Amico's mobile phone and one count of unlawful possession of a firearm.

13 At a status conference on 11 November 2002 the applicant's trial was listed for 14 to 18 July 2003.

14 This is the applicant's first application for bail in this Court. It therefore falls to be determined in accordance with the principles set out in cl 1 and cl 3 of the Bail Act 1982 (WA).

15 The Bail Act creates no right nor presumption of entitlement to bail, nor does it say anything about the onus or burden of proof. In WCVB v The Queen (1989) 1 WAR 279, Ipp J held that the common law position continued to apply. Thus, if the Crown seeks to rely upon a particular factual circumstance as militating against bail, the onus is on the Crown to establish it. Ipp J canvassed the pre-Bail Act authorities and particularly those which indicated that on a charge of murder, the circumstances would have to be "extremely exceptional" before bail would be granted and the onus would be on the applicant in such a case to show that the circumstances were such that he should be released on bail (see eg WCVB v The Queen at 291). From there, his Honour concluded, there should not be in his view a substantial difference between the Court's approach in cases of murder and cases of serious crime, at least those which fall into a class which could be described as "extremely serious" (ibid 282).

16 The point is, of course, the extent to which that bears upon the likelihood that the accused will stand his bail. Ipp J quoted the following passage from the judgment of Malcolm CJ in Lim v Gregson [1989] WAR 1:

"When wilful murder was a capital offence, the task of showing exceptional circumstances would have been more difficult because of the strength of the inference that a person charged with a capital offence would be likely to abscond. Speaking generally, one would expect that the severity of a sentence of imprisonment which must now be imposed would ordinarily give rise to a strong inference to the same effect, although not necessarily as strong as previously."

17 Ipp J observed that in cases of extremely serious crime, the "strong inference" referred to by the Chief Justice was also likely to be drawn. He accepted that in recent times in many, if not most cases of what could be termed serious crime, the courts have adopted a more liberal approach than in the past, but that will not inflexibly be so. As his Honour said (ibid 283):

"There are cases involving charges so serious, or so many or a combination of both - to which, in my view, the principles applicable to charges of murder apply."

18 His Honour concluded that the Act did not alter the common law in this regard, nor in regard to the onus of proof. He pointed out that under the Bail Act, no particular factor is given primacy. All matters referred to in cl 1 of Pt C to the Schedule are to be taken into account. The circumstances of each particular case will determine the weight to be attributed to each factor.

19 With respect, I agree with this approach. I do so on the basis that the proposition that in cases properly characterised as "extremely serious" (whether because of the nature of the charges, or the number or combination of them) bail would not be granted other than in exceptional circumstances, is a recognition that in such cases it would only be in exceptional circumstances that the inference that the accused would abscond could be overcome to such an extent as to justify bail being granted. That is to say, the exceptional circumstances to be shown would ordinarily go to the prospect of the accused attending for his trial - although there may be cases (likely to be rare) in which the interests of justice might for other reasons require a grant of bail. Inordinate delay would fall into the latter category.

20 The first question in the present case therefore, is whether or not the offences charged are such as to bring it within that category of extremely serious cases which require the applicant to show exceptional circumstances (in the sense I have described) to justify a grant of bail.

21 In his submissions, Mr Percy QC for the applicant effectively considered this was such a serious case and was prepared to shoulder the burden of demonstrating that a grant of bail was still justified. However, in her submissions, Ms Sweeney, who represents the Crown, said the Crown did not contend that exceptional circumstances had to be shown but argued that bail should be refused on the application of the ordinary statutory principles.

22 On the face of it, the offences with which the applicant is charged on this indictment would certainly seem to fall into the category of extremely serious offences. The circumstances and the nature of the Crown case may be gleaned from the prosecution opening for the Court of Petty Sessions on the preliminary hearing. According to that, the applicant and D'Amico had been in a relationship which ended about August 2001. It appears that although the relationship had ended, there was no enmity between them and so it came about that on 21 November she telephoned him to have a talk. Unfortunately, in the course of that conversation, the applicant learned that D'Amico was seeing another male, or had a new boyfriend, and the conversation ended in an argument.

23 Shortly afterwards D'Amico realised she had made a mistake and telephoned the applicant again to apologise. When she spoke to the applicant, he abused her. She then went to her bedroom to have a nap, but shortly afterwards was awakened by someone at the door. It was the applicant. He began threatening her, talking about killing her and asking her questions about her new boyfriend and wanting to know his telephone number. He came into the house, went into her room looking for photographs and personal items and when she attempted to telephone the police, he grabbed the telephone from her and terminated the call. She yelled at him to leave and there was a struggle between them, during the course of which he put his arm around her neck in a stranglehold and began dragging her around the premises. He eventually left the house, having poured a bottle of mineral water over her and taking her mobile telephone.

24 It appears to be the applicant's account that he was subsequently threatened by D'Amico's boyfriend, Merenda and that he was in real fear for his personal safety. He told the police that as a consequence of that, he obtained a .22 calibre revolver together with a quantity of ammunition. He said he did that for his personal protection. He had no licence for the firearm; he obtained it illegally. The serial number had been ground off.

25 In the late hours of Saturday evening, 24 November 2001, or the early hours of the Sunday morning, D'Amico went to Northbridge and then to her boyfriend's house somewhere in the northern suburbs. They met up with a number of friends and all decided to go to a bar and night club at the Sheraton Hotel which they did. From there they went to another night club in Murray Street. As they pulled up near there, so did a car with about four male occupants, one of whom was the applicant.

26 There was some interaction between members of the two groups for a few minutes and on the Crown case the applicant then pulled out his revolver, pointed it at the other group and fired a shot which struck Ruiz in the neck. It is the case that at or about that time the applicant was threatening to kill them, using expressions such as "you're all dead; I'll kill you all".

27 Again, on the prosecution's case, he then repeatedly discharged the gun in the direction of D'Amico and several of the other people who were with her, including Merenda. It is alleged he fired at least four or five shots - some witnesses at the preliminary hearing said there were more than twice that number fired.

28 The Crown case will be that given the short distance between the applicant and Ruiz when the first shot was fired, the fact that on the ballistics evidence deliberate pressure of between 1.56 and 2.36 kg would be required to cause the pistol to discharge, together with the statements being made by him at the time, there is an irresistible inference that he fired the shot intending to kill. A similar inference, it is said, should be drawn in respect of the subsequent discharges, a time when the group had scattered and self-defence could not be an issue.

29 On the case to be put by the Crown the applicant then approached a car in which D'Amico and other girls were. He still had the gun. He was in a rage and was yelling out to her, saying words to the effect "See what you've done". He was punching and kicking the roof and side panels of the car. He smashed a window. He was out of control. The girls fled. Others in his own group grabbed the applicant and got him back into their own car. Some witnesses say one or more shots were fired after that.

30 There were some independent witnesses. One of them describes having heard six gunshots and another one shortly afterwards.

31 Another witness (Stern) describes the man with the gun pointing it "homey" style, that is, on its side, at another man and yelling "You're dead, cunt" and then being hustled into a 4-wheel drive vehicle which then drives off, after which he heard two or three more shots. That witness says the man with the gun was the same one whom he saw punching and kicking the car the girls were in.

32 Another independent witness, a crowd controller, describes four to six shots, people running, people jumping into a car and then a volley of six or seven more shots.

33 Expressed very briefly, the applicant's position at trial, I am told, and as I gather from his statement to the police as read during his video record of interview, will be as follows. On the Thursday prior to the shooting he received a call from D'Amico on his mobile phone. They had an argument. She said she had a new boyfriend and that he would run through the applicant's house and kill the applicant and his dog.

34 The applicant went to D'Amico's house. She made further threats to him. He said he wanted to talk to Merenda and asked for his telephone number. D'Amico refused to give it to him. He took her mobile phone (presumably thinking the number would be on it).

35 Over the next few days (according to the applicant's account) he received threatening text messages on his mobile phone. Friends also told him threats had been made against him. He was frightened. He moved to live in a different residence and purchased a small loaded gun.

36 On the night of the shooting, he and his friends were going to a night club in Murray Street. There was a confrontation with Merenda's group. It became threatening. Merenda said to them "Wait here. You're all fucked. I'm going to kill you." He went to his car to get something. He came back. Another one of his group had something behind his back. The applicant thought Merenda had a gun. He was frightened. He took his own gun from his pocket to fire a warning shot. The gun discharged prematurely. He fired two more warning shots into the air as he went back towards his car. At that stage he saw D'Amico in the other car. He "went a bit mad" then and kicked the window in. His friends dragged him back to their car and they drove off. He has since received threats that he would be killed or have his back broken.

37 The defences at trial are therefore likely to include accident, self-defence and lack of intent to kill or cause grievous bodily harm.

38 In my view, and notwithstanding the position taken by the Crown, the nature of these offences and the circumstances of their alleged commission, are such as to put them into the category of extremely serious offences. If the applicant were to be convicted, he could anticipate a substantial sentence of imprisonment. Even were he to be convicted of attempting to kill Ruiz (either on the basis that it was Ruiz he intended to kill, or alternatively, that he shot Ruiz by accident, intending to kill Merenda) he could anticipate a sentence somewhere in the region of 5 to 10 years imprisonment (see Bell (1992) 62 A Crim R 66). Were he to be convicted of the other offences also, one would anticipate some significant addition to that, even allowing for the principles applicable to cumulation of sentences and totality. These considerations bear upon the seriousness of the offences charged in the relevant sense - that is, they give rise to the inference that the applicant would have a very strong incentive not to attend for his trial. I accordingly conclude this is a case in which exceptional circumstances would need to be shown for bail to be granted.

39 The applicant is 25 years old, having been born on 26 June 1977. He was born in Perth and has lived in Perth all of his life. He, his mother and his sister all live in Perth. Sadly, his father committed suicide when he was eight years old.

40 Until being remanded in custody in respect of these charges, the applicant was self-employed in a lawn mowing and garden cleaning business which earned him approximately $500 per week. He was also involved in a landscape design and turf management course at Murdoch TAFE. There is one breach of bail on his criminal history. That was 11 February 1991. He was then aged 14. The explanation was that he was confused about the day he was to attend court and attended the day after he was required to be there. He was placed on 2 months probation in respect of that.

41 Significantly, he has no prior record for offences of violence.

42 The applicant's mother is prepared to be surety for him. If he were granted bail, he would live with her at her home at Burswood. His mother owns the home and has lived in it for 34 years. It is valued at approximately $300,000. She recently took out a mortgage over the property for $150,000 in order to build new premises at the rear of it, but has not yet drawn down that loan. The applicant's mother lives alone and has regular employment.

43 If the applicant is granted bail, he is prepared to comply with a condition he report daily to a local police station and any other conditions which may be imposed.

44 The primary submission made on behalf of the applicant as things stood at the end of the hearing, is that the offences are not so serious as to require that exceptional circumstances be shown. I have already indicated that I have come to a contrary conclusion about that.

45 The alternative submission advanced on the applicant's behalf is that exceptional circumstances are shown by virtue of the length of time before trial, the availability of "an excellent surety" and a weak prosecution case.

46 As I have intimated above, it must be accepted that there can be a point at which delay in bringing an accused to trial might itself be an exceptional circumstance justifying a grant of bail (see Saka v The Queen [2001] WASC 92 and Outman v The Queen [2001] WASC 162).

47 Mr Percy QC submits that the period of pre-trial detention is of particular concern in this case as it is conceivable that the applicant, if found guilty, might receive a sentence of imprisonment which (taking into account remission, parole and work release) he may already have served by the time of his trial - or at least, the bulk of which may have been served.

48 The applicant has been in custody since 17 January 2002. The trial is listed for hearing in mid-July next year. By then he will have been in custody for some 16 months. That would equate to a sentence of about 4 years imprisonment in the aggregate if made eligible for parole.

49 As I have indicated, if the applicant were to be convicted and the case advanced by the Crown as to the circumstances of these offences is accepted, I would think it likely that any total sentence of imprisonment would be substantially greater than 4 years. Put the other way, if convicted, it is not likely the applicant would have served the custodial part (or a significant proportion of it) of any term of imprisonment which might be imposed upon him, by the time of his trial and sentence.

50 I am not satisfied that in the way it is put on behalf of the applicant, the time the applicant would spend in custody prior to trial itself, constitutes an exceptional circumstance.

51 I accept that the availability of the applicant's mother as surety in the circumstances is a significant consideration. One would certainly hope that the prospect that her home would be put in peril were he not to attend for his trial would afford the applicant a most cogent reason for standing his bail.

52 Senior counsel for the applicant argues that the prosecution case is weak; the Crown contends that although in important respects it is a case based on inference (specifically the inference of intent to kill) the case is in fact quite strong.

53 I do not propose to canvass in any detail the accounts given by the witnesses in their statements or depositions. Both counsel referred me to numerous specific aspects of the evidence and I am indebted to them for that. It is appropriate, I think, that I deal with them only in a general way.

54 Mr Percy QC points to what he says are inconsistencies in and conflicts between the Crown witnesses, as well as a certain recalcitrance on their part.

55 Ms Sweeney frankly concedes that there are "some difficulties" with the Crown witnesses. As I understood it, she was there referring to the members of the group which included Ruiz, Merenda and Flower and to what may be some unwillingness on their part to be completely forthcoming, as well as certain inconsistencies in or conflicts between their respective accounts.

56 Mr Percy QC made much of the fact that Crown witnesses speak of as many as 13 shots being fired by the applicant, whereas the pistol holds only five rounds and there is no evidence of the applicant reloading (whether of witnesses seeing him do so or physical evidence such as spent cartridge cases). He emphasises that if the applicant was shooting directly at persons standing in inner-city streets (rather than shooting in the air, as he claims) one would expect evidence of bullet holes or impact damage to shop windows, buildings or the like - and there is none. On the face of it, that submission has some merit, but the cogency of it in the end will obviously depend upon the evidence as it stands at the end of the trial.

57 I note in passing too, that there is some suggestion in the material that the firearm the applicant handed to the police may not have been the one he actually used, but certainly at this stage that is no more than a suggestion.

58 I am not persuaded that the Crown case is as weak as senior counsel for the applicant submits. Having considered the material and what has been put to me in this regard, it seems to me the Crown case is quite strong.

59 Ms Sweeney puts the Crown opposition to this application on three bases in terms of relevant factors set out in cl 1 of Part C of Schedule 1. They are the risk that if not kept in custody the applicant may commit an offence (cl 1(a)(ii)) or that he may endanger the safety of a person (cl 1(a)(iii)); and that the alleged circumstances of the offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate (cl 1(g)).

60 It seems to me the first two bases reflect essentially the same concern, which is for the safety of D'Amico and other Crown witnesses whom the applicant may attempt to harm. This arises, the Crown says, because of the seriousness of the incidents on both 21 and 25 November 2001, the deliberate introduction by the applicant of a loaded firearm, the firing by him of multiple shots and the display by the applicant of uncontrolled rage directed against D'Amico in particular. Ms Sweeney submits the material shows the applicant to be a volatile person, not accepting the breakdown of his relationship nor the fact that D'Amico has formed a relationship with another and given to displaying uncontrolled rage directed against those he considers to have wronged him. She submits he is quite likely to blame others for the very fact that he now stands charged with the present offences.

61 Finally, Ms Sweeney points out that although the applicant has no prior convictions for offences involving violence, he has admitted to being a person who is able to illegally obtain a firearm with its serial number obliterated, together with ammunition.

62 Against those considerations must be weighed the fact that time has passed since these events. The applicant has had the last twelve months on remand to reflect upon his situation. The several references handed to me show he has the strong support of family and friends, including a member of State Parliament, and has at least part-time employment open to him. Whilst on remand he has continued a TAFE Business Studies course and wishes to combine that with part-time work if released to bail.

63 I am specifically required by cl 1(e) of Part C of Schedule 1 to consider whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility that he may commit an offence or endanger the safety of any person, if not kept in custody. However, before imposing a condition for such a purpose I must first consider whether that purpose would be better served, or could be better assisted, by a restraining order made under the Restraining Orders Act 1997 (WA).

64 I have come to the conclusion there are conditions which can be imposed which would sufficiently remove the risks which are the concern of the Crown and which I share. Those conditions are that:

(1) The applicant give a personal undertaking to stand his bail in the sum of $75,000.

(2) There be a surety, his mother, Mrs Janice May Fawcett, in the same amount.

(3) The applicant reside at his mother's residence.

(4) The applicant report daily to the Officer in Charge of the Victoria Park Police Station.

(5) The applicant surrender his passport and not approach within 2 km of points of interstate or international departure.

(6) The applicant not contact, directly or indirectly, any of the civilian witnesses named on the indictment.

65 I am further of the view that those conditions would be better assisted by the making of a violence restraining order under s 63 and s 11(a)(2) of the Restraining Orders Act. The terms of the order I am presently contemplating are:

(a) There be a violence restraining order against the applicant in respect of each of Melissa Yvette D'Amico, Giovanni Paul Ruiz, Steven Michael Merenda and Michael James Flower ("the protected persons");

(i) approaching within 50 metres of a protected person; and

(ii) communicating, or attempting to communicate (by whatever means) with a protected person.

66 I note that by virtue of s 14 of the Restraining Orders Act, every violence restraining order includes a restraint prohibiting a person bound by it, from being in possession of a firearm.

67 Section 63(4)(c) of the Restraining Orders Act stipulates that a restraining order cannot be made under that section unless the person to be restrained is present and has been given an opportunity to be heard on the matter. As the applicant has not yet been heard on the possibility of such an order, I shall give him that opportunity.

68 A bring-up order had been issued for the attendance of the applicant at this Court on 26 November 2002, but he was not brought up because an industrial dispute at the prison interfered with the movement of prisoners (including remand prisoners). I accordingly caused arrangements to be made for today's proceedings to be conducted by video-link. The applicant's presence before the Court within the meaning of s 63(4)(c) of the Restraining Orders Act is thus achieved because the place from which the applicant appears by video-link is, for that purpose, part of the Court (s 121(3) of the Evidence Act 1906 (WA); cf r 9(2) of the Criminal Procedure Rules 2000 which, by virtue of s 9(4), does not apply to s 120 to s 132 of the Evidence Act) and the purpose or object of s 63(4)(c) is met. The section is intended to ensure that a person against whom such an order may be made not only has the opportunity to be heard (which perhaps otherwise could be afforded by way of affidavit or written submission) but to see and hear the proceedings and be part of them contemporaneously.

69 Subject to that, I am satisfied that the personal undertaking and surety requirements combined with the residential, passport and reporting conditions will sufficiently ensure the applicant will attend for his trial and that the other conditions to which I have referred (including a violence restraining order) would sufficiently overcome the concerns arising under cl 1(a)(ii) and cl 1(a)(iii) of Part C of Schedule 1 to the Bail Act.

70 Whilst the offences charged are undoubtedly extremely serious (for the purposes of cl 1(g)) they do arise out of only two incidents and the second was the result of an accidental confrontation (although the applicant was armed). Although I consider it marginal, I have come to the conclusion that bail should not be refused on that account.

71 The result is, that subject to the matter of the violence restraining order, I am satisfied the circumstances of this case are such as to make it one of those exceptional cases in which a grant of bail is justified, notwithstanding the extremely serious nature of the offences charged.

72 I will hear counsel on the restraining order aspect and on the detail of the proposed conditions.

Procedure Rules 2000

Fawcett v The Queen [2002] WASC 285

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Fawcett v The Queen [2002] WASC 285 (29 November 2002)

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