Hart v R [1999] WASC 59

Bail Act 1982, s 14, cl 1 of Pt C

Everett v R, unreported; SCt of WA; Library No 9010; 24 July 1991

Gray v R, unreported; SCt of WA; Library No 970243; 8 May 1997

Jemelita v The Queen (1994) 12 WAR 362

KM v R, unreported; SCt of WA; Library No 7193; 14 July 1988

Teece v R, unreported; SCt of WA; Library No 930013; 6 January 1993

1 WHITE J: This is an application for the grant of bail. Clause 1 of Pt C of the Bail Act requires that in exercising my discretion whether to grant bail I am to have regard to the following questions as well as any other which I may consider relevant. The questions are:

"(a) whether, if the accused 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, 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;

(d) whether, as regards the period when the defendant is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;

(e) whether there is any condition which could reasonably be imposed under Part D of this Schedule 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 amount to wrongdoing of such a serious nature as to make the grant of bail inappropriate."

2 In considering the matters dealt with in cl 1(a), I am to have regard to the following:

(a) the nature and seriousness of the offence and the probable method of dealing with the accused for it if he is convicted;

(b) 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

3 The applicant is charged with the offence of doing grievous bodily harm. The circumstances of the offence are alleged to have been that the applicant is one of a number of persons who went to a set of units at 76 Johnson Street, Collie with the intention of stealing a motor vehicle from that location which belonged to a friend of the complainant.

4 When the complainant approached the group to investigate he was assaulted, punched, kicked in the head and body, struck on the head with a solid object, it is said by the applicant, further kicked to the head and body and then stabbed in the neck with an instrument which penetrated into his mouth and tongue.

5 The maximum penalty for the offence is imprisonment for 10 years. The repeated blows and kicks to the head and the stab wound to the throat suggest that the offence was at the upper end of the scale of violence with which s 297 of the Criminal Code is concerned. The offence is a very serious one and upon conviction the likely outcome is a substantial term of imprisonment.

6 The applicant denies that he played any part in the assault on the complainant. One prosecution witness, Clive Parfitt, has signed a statement expressly stating that the applicant struck the complainant with a log of wood. Clive Parfitt was one of the group involved in the assault. Another witness, Kenneth Kelly, has signed a statement in which he says the applicant was one of five persons, including Clive Parfitt, who assaulted the complainant.

7 Accordingly, the Crown case includes two witnesses who are acquainted with the applicant and who give direct evidence that he was one of the persons committing the offence. Obviously credibility in this matter will become important.

8 The applicant, who is only some 19 years of age, has a deplorable criminal record commencing at the age of eight years, including offences of damage, stealing, burglary, resisting arrest, assaulting a public officer, disorderly conduct, possession of a firearm without a licence, giving a false name or address, street drinking, escaping legal custody, offensive behaviour, assault occasioning bodily harm, and in addition convictions on five counts of breach of bail, together with one further count not mentioned in the list of breach of bail - I am told that each of those breaches was a failure to appear in court as required - and also one count of breach of bond and one count of failing to appear.

9 The applicant says he wishes to go to Geraldton to be away from the influence of his friends at Collie; that he has been offered transport, accommodation and the opportunity to play football for the Dongara Football Club at Geraldton. He wishes to be able to speak with his solicitor and finds it difficult to do so while in prison. The solicitor, it seems, practises at Bunbury.

10 The Crown opposes the grant of bail in this matter, pointing out the number of offences of failure to appear as required by the terms of his bail; the fact that there is a further conviction not mentioned in the list attached to the applicant's affidavit whereby he was convicted on 8 February this year of an offence of reckless driving and with an excess of alcohol, the offence being committed in October 1998.

11 The Crown points to the record and indicates there is a danger that the applicant may reoffend while on bail. There is also the danger that he might interfere with witnesses. Counsel for the applicant has mentioned that there are other matters listed for trial in the Bunbury court, the result of which is likely to be that the applicant cannot be brought to trial before the year 2000.

12 Counsel for the Crown has indicated that priority may be given by reason of the fact that the applicant is in custody if this bail application is refused. The Crown also submits there are no conditions which I could impose which would have the effect of ensuring that the applicant does appear as required.

13 I notice that the Dongara Football Club has indicated it would like to give him, that is, the applicant, the opportunity to play football for that club. In addition, there is an offer to accommodate the applicant in Geraldton by Mr Tom Quartermaine from the Greenough Regional Prison.

14 The applicant says he does not have a driver's licence and relies on other people to drive him around, but that statement does not fit well with his conviction for driving without a driver's licence.

15 I have had regard to the decision in the matter of Garces v The Queen, unreported; SCt of WA; Library No 930386; 30 June 1993, a judgment of the Chief Justice in MC38 of 1993, the circumstances of which were rather different from those which apply in the present case. On balance, it seems to me that there is a real danger, having regard to the previous convictions of the applicant, that he may well reoffend if he is allowed out on bail and also, in view of his history of violence, that he may well possibly seek to intimidate witnesses.

16 In the circumstances with some reluctance I have decided to refuse the application for bail, but I express the hope that when the matter comes for trial, some measure of priority will be given to this case in view of the fact that the applicant is in prison so that he will not have to wait until the year 2000 before his trial.