Supreme Court of WA|2004-04-23|Before: Templeman J, McLure J

Fazzari v The State of Western Australia [2004] WASC 71 (23 April 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FAZZARI -v- THE STATE OF WESTERN AUSTRALIA [2004] WASC 71

Criminal procedure - Bail - Serious offence - Exceptional circumstances rule - Rationale of rule - Risk of applicant absconding - Turns on own facts

Bail Act 1982, Sch 1, Part C, cl 1 and cl 3

Broad v Haas [2002] WASC 155

R v Kleinert (1928) 49 ALT 137

Saka v The Queen [2001] WASC 92

Unchango v The Queen, unreported; SCt of WA (Templeman J); Library No 980346; 12 June 1998

1 MCLURE J: Each of the applicants apply for bail. All are charged with the wilful murder of Phillip John Walsham. Mr Walsham died on 28 February 1998. The applicants were charged on 31 March 2004, over six years after Mr Walsham's death. They are currently in custody. The State opposes the applications.

2 Mr Walsham died as a result of multiple injuries after having fallen from a pedestrian bridge across an on-ramp to the Mitchell Freeway and leading to the Stirling Railway Station.

3 Shortly before Mr Walsham's death he was assaulted by two of the applicants, Salvatore Fazzari and Jose Martinez. They were in company with the third applicant, Carlos Pereiras and another.

4 The police investigated the circumstances of Mr Walsham's death. Salvatore Fazzari was interviewed by police on two occasions, the first in March 1998 and the second in April 1998. Carlos Pereiras was interviewed by police on three occasions, the first in March 1998, the second in May 1998 and the third in September 1998.

5 A coronial inquiry into the death of Mr Walsham was held on 20-24 January 2003. The coroner reported his findings on 17 April 2003. In their report to the coroner, the police indicated there was insufficient evidence to charge any person with Mr Walsham's death. Each of the applicants gave evidence at the coronial inquiry. Without determining individual responsibility for particular acts, the coroner concluded that the applicants and another caused Mr Walsham's death. The applicants were charged nearly a year after the publication of the coroner's report.

6 Each of the applicants swore an affidavit in support of the bail application. Each applicant deposes to his awareness from an early stage after Mr Walsham's death that he was suspected by police of involvement in Mr Walsham's death. All applicants have consistently denied any involvement. Each applicant has pleaded, or intends to plead, not guilty to the charge. Applicants Martinez and Pereiras were advised by their lawyers after the publication of the coroner's report of a strong possibility that he would be charged with the wilful murder of Mr Walsham.

7 I go now to the personal circumstances of the applicants. Jose Martinez is 25. Before and after Mr Walsham's death he resided with his brother and his parents in a house in a Perth suburb. He and his brother purchased the house in 2003. He has been in a steady relationship for three years. He has completed an apprenticeship as a cabinetmaker and at all material times was employed in that capacity on a permanent full-time basis. He says in his affidavit:

"Even though I have been aware since March 1998 that I may be charged with Mr Walsham's death, I have never tried to leave the State. Even after the coronial finding in April 2003 I remained in Perth at my address ... with my parents."

8 Carlos Pereiras is 24. He resided with his parents before and after Mr Walsham's death. He completed a Diploma of Electrical Engineering and thereafter was in full-time employment. He travelled overseas for two months from November 2003.

9 Salvatore Fazzari is 24. He too resided with his parents before and after Mr Walsham's death. Since Mr Walsham's death he has been overseas on four occasions, one occasion being after the publication of the coroner's report. Salvatore Fazzari was in full-time employment in Western Australia as a furniture designer.

10 The parties are in agreement as to the legal principles governing the disposition of these applications. When a person is charged with a serious offence such as wilful murder, bail will only be granted in exceptional circumstances. Further, the onus is on the applicant for bail to demonstrate exceptional circumstances. The relevant authorities on this subject are conveniently collected in the reasons of Roberts-Smith J in Pinkstone v The Queen (2000) 119 A Crim R 462. The South Australian courts have taken a different approach: Halas (2001) 122 A Crim R 503.

11 These rules have to be applied in the context of the general principles governing the grant or refusal of bail which, for these applications, are contained in cl 1 and cl 3 of Pt C of Sch 1 to the Bail Act 1982 (WA). In summary, the factors to which the court must have regard include whether:

(a) if the applicant is not kept in custody he may:

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

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

(iv) interfere with witnesses or otherwise obstruct the course of justice;

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

(c) there are grounds for believing that if the applicant is not kept in custody, the proper conduct of the trial may be prejudiced;

(d) there is any condition which could reasonably be imposed which would sufficiently remove the possibility of any of the above occurring or removing the prosecutor's grounds of opposition.

12 In considering whether an applicant may do any of the things mentioned in (a) above, regard is to be had to, among other things:

(a) the nature and seriousness of the offence and the probable penalty if convicted;

(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant;

13 In order to correctly apply the exceptional circumstances rule, it is necessary to identify the basis or rationale for it. The authorities are clear on this point. It is that there is a strong inference that a person would be likely to abscond or fail to appear in accordance with his bail undertaking when facing the severity of the sentence of imprisonment likely to be imposed if guilt is proven: Lim v Gregson [1989] WAR 1 at 18 per Malcolm CJ and 36 per Rowland J; Mihaka v The State of Western Australia [2004] WASC 17.

14 In essence, the exceptional circumstances relied on must primarily relate to weakening the strong inference that an applicant charged with wilful murder will fail to appear in court in accordance with his bail undertaking.

15 On this point, each applicant relies on a number of matters. Each applicant has strong ties to the jurisdiction. The evidence also establishes that from the time of Mr Walsham's death over six years ago each applicant has been a suspect with the likelihood of being charged increasing after publication in April 2003 of the coroner's report. In that knowledge, each applicant has continued to reside in the jurisdiction. Two applicants have left the jurisdiction to go overseas after the publication of the coroner's report and both returned.

16 The State contends that little weight should be given to the long delay in charging the applicants on the ground that I can infer the applicants would have concluded from the delay up to the time of the coroner's inquiry that it was unlikely they would be charged. I am not persuaded that I should draw such an inference. As a result of the high public profile of the case, there was always the possibility of police investigations into Mr Walsham's death continuing or being re-activated.

17 The strength of the prosecution case may also impact on the extent of the flight risk. It is not suggested that the prosecution case is so strong as to be overwhelming and indicative of an almost inevitable conviction. The State, relying on the evidence adduced in the coronial inquiry, describes it as "relatively strong". Counsel for the State informed the Court that there had been no developments of any material significance affecting the strength of the prosecution case since the coronial inquiry. For the purposes of these applications, and without conceding its correctness, the State's characterisation with its inherent vagueness was not vigorously contested by counsel for the applicants. In my preliminary assessment, the description puts the State case at its highest. It is unnecessary to comment further on this subject. I am satisfied that the strength of the prosecution case in the circumstances of this case does not weigh heavily for or against the grant of bail.

18 Further, it is inappropriate at this early stage to place any significant weight on the potential for unacceptable delays in the matters coming to trial. An application can be renewed if and when there is any such delay.

19 It is not suggested by the State that there is a material risk (or at least one that cannot be adequately addressed by appropriate conditions) the applicants will commit an offence or endanger the safety, welfare or property of any person if released to bail. There is no history of grants of bail. There is also no suggestion that the proper conduct of the trial may be prejudiced, whether by interfering with witnesses or otherwise, if the applicants are released to bail. The State's opposition is based solely on the seriousness of the offence.

20 It is very rare, although not unknown in this jurisdiction, to grant bail to persons charged with wilful murder. The central issue is whether the strong inference of flight arising from the nature of the charge has been rebutted by the particular circumstances of this case. They include firstly, that each applicant has, to his knowledge, been a suspect from the time of Mr Walsham's death over six years ago with the likelihood of being charged increasing significantly after the publication of the coronial report in April 2003. In that knowledge, each applicant has remained in or returned to the jurisdiction. Secondly, each applicant has strong ties to the jurisdiction. They have home, family and employment in this State. Close family are able and willing to act as sureties. However, I am not satisfied that these matters are of such significance in kind or degree as to neutralise or reduce to any appreciable degree the significance of the fact that the applicants have now been charged. The change of status from suspect to accused is an additional, if not the primary, potential trigger for absconding. Having regard to all relevant matters, I am not satisfied that the risk of the applicants failing to appear in court in accordance with their bail undertaking is minimal or is one that can be suitably addressed by the imposition of conditions. Further, I am not persuaded that the combination of circumstances are sufficiently unusual as to be properly characterised as exceptional.

21 For these reasons I am not satisfied that the applicants have established exceptional circumstances. The applications are refused.

Fazzari v The State of Western Australia [2004] WASC 71

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Judgment (44 paragraphs)

Fazzari v The State of Western Australia [2004] WASC 71 (23 April 2004)

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