Bail Act 1982, s 13, s 14, s 22, cl 1 Pt C Sch 1, cl 3A Pt C Sch 1

1 HASLUCK J: This is an application for bail dated 19 December 2002 made by the applicant, Sylvia May McGibbon. The application is made pending the hearing of various charges under the Criminal Code.

2 The application comes before me pursuant to s 14 of the Bail Act 1982 which provides that a Judge of the Supreme Court may exercise the power to grant bail which is conferred on any other judicial officer and to revoke or vary any bail previously granted.

3 The applicant has filed an affidavit in support of the application for bail sworn by her solicitor, Robert David Young, on 19 December 2002. This affidavit has exhibited to it medical reports concerning the applicant's father and a report of a Dr Tan dated 15 November 2002 concerning a heart condition affecting the applicant's daughter.

"1. I am the solicitor for the Applicant herein.

2. On the 20th day of February 2002 the Applicant was charged with attempted murder. Annexed hereto and marked with the letter "A" is a copy of the statement of material facts for that charge.

3. In relation to this matter, the Applicant was released on bail of $10,000.00 x $10,000.00, not to contact Crown witnesses, not to attend within 10 kilometres of Midvale and to residents at 468 Crawford Road, Dianella.

4. On the 10th day of November 2002 the Applicant was further charged with aggravated burglary and assault occasioning bodily harm. Annexed hereto and marked with the letter "B" is a copy of the statement of material facts.

5. The Applicant was refused bail in Joondalup Court of Petty Sessions for this charge by virtue of the provision of Schedule 2 of the Bail Act.

6. The material that was put forward before the learned Magistrate was in the form of medical reports pertaining to Ms McGibbon's father and daughter. It was submitted that these medical conditions particularly of her daughter, amounted to an exceptional circumstance. Annexed hereto and marked with the letter "C" are copies of those reports.

7. The Applicant denies the attempted murder charge and has trial dates set in relation to it in May 2003.

8. The Applicant denies the allegations in the aggravated burglary charge and will adduce alibi evidence.

9. The Applicant does not have an extensive criminal history. She has never been tried on indictment and has never been sentenced to a term of imprisonment. In addition, she does not have a history of failing to comply with her obligations of bail."

5 I pause to say that the statement of material facts concerning the attempted murder charge describes a situation in which it is alleged that the accused was involved in what might be broadly described as a domestic fracas. It is alleged that in the course of the relevant events the accused drew a knife across the throat of the complainant, causing a 4-centimetre laceration to his throat, and severing his jugular vein.

6 The medical reports exhibited to the affidavit include that of Dr Tan dated 15 November 2002. That report reads as follows:

"This woman's 24 years old daughter, Sacha McGibbon, has a severe heart condition with pulmonary hypertension which is bordering on her requiring a heart transplant. Sacha McGibbon needs Mrs Sylvia McGibbon's support at this time when she is critically ill with her cardiac disease."

7 The applicant relies also on a further medical report of Dr Tan dated 3 December 2002. This report was handed up to me in the course of argument. That report reads as follows:

"This forty year old woman's family is not coping well without her at home.

Her eldest daughter, Sacha McGibbon, is trying her best to care for the family, two brothers aged 17 and 14. Sacha is also looking her own eleven months baby boy. Sacha is not medically fit herself because of a cardiopulmonary condition (pulmonary hypertension) which may require a combined heart-lung transplant should her condition continue to deteriorate.

I suggest that Sylvia McGibbon be released ie not put into jail."

8 The Crown has handed up a copy of the accused's criminal record in the course of argument, but does not otherwise rely upon an affidavit or written evidentiary materials. Section 22 of the Bail Act allows a judicial officer to receive and take into account such information as he thinks fit, whether or not the same would be normally admissible in a court of law. It is on this basis that I received further information at the hearing from both sides, and heard from the accused herself.

9 More particularly, I received information as to the likely time before trial in the event of the applicant being remanded in custody. I note that the trial date in May 2003 for the attempted murder charge I referred to a moment ago has been set and that trial is to proceed, it seems, on 22 May 2003.

10 Both sides seem to agree that the November charges, that is to say, the charges to which this application for bail relates, being the charge of aggravated burglary, and assault occasioning bodily harm, are in respect of serious offences and are likely to be heard towards the end of this year.

11 It emerges then that the applicant was charged on 20 February 2002 with attempted murder. She came before the Court of Petty Sessions and was released on bail on the basis I have described. She was later charged, on 10 November 2002, with the offences referred to in the affidavit, namely aggravated burglary and assault occasioning bodily harm (the "November charges"). In other words, she was charged with these offences while on bail in respect of the earlier charge of attempted murder.

12 It is clear that she will be defending the attempted murder charge. I understand that she will plead not guilty to the November charges also. She contends that she has an arguable case in her defence in respect of those charges.

13 The Crown case is, broadly described, that the accused's daughter, Sacha, was living with Aaron Fitzgerald. It is alleged that as a consequence of disagreements on Saturday, 9 November 2002, the accused and other members of her family attended at the premises occupied by Aaron Fitzgerald and were involved in an altercation with Aaron Fitzgerald and his sister, Racheal. This altercation gave rise to the allegations the subject of the charges.

14 In seeking to understand the issues associated with the November charges, I must refer again to par 8 of the affidavit of Mr Young in which it is said that the applicant will adduce alibi evidence. In the course of submissions at the hearing before me this morning, Mr Young has foreshadowed also that the Crown case will be challenged on an identification issue.

15 Counsel for the applicant submits that the Crown case is not strong because the Crown relies upon the evidence of two witnesses, namely, Aaron Fitzgerald and his sister Racheal, and it is said that there is a risk, having regard to the likely evidence of those witnesses, that there was a confusion of identity.

16 As I have already noted, it appears from the affidavit of Mr Young that the application for bail in respect of the November charges was brought before the Court of Petty Sessions at Joondalup and was opposed by the Crown. Bail was refused.

17 I understand that the applicant was refused bail by virtue of the provisions of the Bail Act set out in cl 3A of Pt C of Sch 1 concerning serious offences which are alleged to have been committed while the applicant was on bail for another serious offence. In circumstances of that kind, bail should be refused unless there are exceptional reasons why the applicant should not be kept in custody and bail should be granted in accordance with the criteria set out in cl 1 and cl 3 of the relevant Schedule.

18 I understand that the applicant has complied with all the conditions of the bail originally granted in respect of the attempted murder charge.

19 In dealing with the application for bail the Court is obviously called upon to balance the interests of the accused and the public interest in the trial proceedings. The Court must weigh up the presumption of innocence of an accused person against the need to ensure that the accused will be present at the hearing of charges and that the integrity of the trial process is preserved.

20 The balance of these competing considerations is never easy. Section 13 of the Bail Act provides that jurisdiction to grant bail should be exercised subject to and in accordance with related provisions and the factors set out in Pt C of Sch 1 of the Act. Clause 1 and cl 3 of Pt C deal with other applications for bail before conviction. The criteria are well known and I will not repeat them in full.

21 However, by cl 1(a) the questions to be considered include whether the defendant may fail to appear, commit an offence, endanger the welfare of others or interfere with witnesses. In addressing these questions the judicial officer shall have regard to the nature and seriousness of the offences, the probable method of dealing with the defendant if he or she is convicted, the antecedents and previous convictions of the defendant, the history of any previous grants of bail and the strength of the evidence against him or her.

22 The judicial officer is also obliged to take account of the prosecutor's position and whether the circumstances of the offence are of such a serious nature that a grant of bail would be inappropriate.

23 Different considerations apply in regard to bail in respect of offences committed while a defendant is on bail for another serious offence, as I have already indicated. Such an application is dealt with in accordance with the criteria set out in cl 3A of Sch 1. The relevant provision requires the applicant to demonstrate that there are exceptional reasons justifying the grant of bail in addition to the usual considerations.

24 The decided cases show that common law principles may be considered in conjunction with the principles reflected in the Bail Act. Prima facie, an accused person should be allowed her liberty pursuant to the presumption of innocence and in order to prepare the defence case provided there is a reasonable likelihood that the accused will appear at the hearing of the charge. The three main tests of probability of the accused appearing can be summarised as the nature of the crime charged, the probability of a conviction and the severity of the punishment which may be imposed.

25 The onus is usually on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, will fail to answer it. It seems, however, that under the Bail Act all matters referred to in cl 1 of Pt C in the Schedule are to be taken into account before the court exercises its discretion. In cases where the charges fall within cl 3A, as I have noted, the applicant must show exceptional reasons to justify a grant of bail because the gravity of the crime is thought to increase the risk of a failure to appear.

26 It appears from this review of the Bail Act and related legal principles that I am obliged to give consideration to the factors mentioned in Pt C of Sch 1 of the Bail Act with particular reference to cl 3A. It follows that the applicant bears the onus of demonstrating that there are exceptional reasons which will justify the grant of bail in circumstances where a serious offence such as assault occasioning bodily harm was allegedly committed while the applicant was on bail.

27 I turn now to the personal circumstances of the applicant. I understand that she is 40 years of age. She tells me she has been living at 468 Crawford Road, Dianella. I understand that she has been living there and will continue to do so with her de facto husband. She has with her in the household her son aged 17 and her son aged 14. These are the children mentioned in Dr Tan's reports.

28 In comparatively recent times the situation at 468 Crawford Road has changed. The applicant's daughter Sacha, who it seems has become estranged from her de facto husband, has come to 468 Crawford Road bringing with her to her mother's household Sacha's 12-month-old son.

29 The medical condition of Sacha at the present time is that described in the reports of Dr Tan that I quoted a moment ago. I understand from what the applicant has told me in person that Sacha is on a waiting list for heart surgery to deal with her condition.

30 The evidentiary materials show that the applicant has a fairly lengthy record of criminal convictions. However, as indicated in the affidavit submitted to the Court on her behalf, it is said that the applicant has not previously been in prison. Counsel for the applicant seeks to characterise the applicant's record as disclosing not an "extensive criminal history". The point is made that she does not have a history of failing to comply with her obligations of bail.

31 The applicant submits in support of her application for bail that when these various factors are drawn together, there is a family situation in existence which can properly be described as exceptional reasons and which justifies a grant of bail. The applicant refers to the medical reports concerning her father and daughter and says that her assistance is required in providing support to them both.

32 In essence, the applicant says that when the domestic and medical factors are considered in conjunction with what is said to be not a strong Crown case concerning the November charges, exceptional reasons have been demonstrated.

33 As to the strength of the Crown case, as I have indicated, it is said in particular that there is an issue to be considered as to whether the Crown witnesses will be able to identify the accused. It is said that she has alibi evidence referable to certain friends and family members who will say that she was not at the Fitzgerald premises on the night in question.

34 The Crown accepts that exceptional reasons can be constituted by considering a combination of factors or considerations in the manner contended for by counsel for the applicant. The Crown position is, however, that even when the so-called deficiencies in the Crown case are considered in conjunction with the domestic matters relied upon, these considerations do not amount to exceptional reasons in the manner required by the relevant provision of the Bail Act.

35 I note also that, by implication, the applicant is placing reliance upon the prima facie position at common law that bail should be allowed to an accused person pursuant to the presumption of innocence so that she can prepare her defence.

36 I have indicated in my review of the relevant statutory provisions that careful consideration must be given to whether the prosecutor has put forward grounds for opposing the grant of bail. I have noted that the Crown opposed the grant of bail at the hearing before the Court of Petty Sessions at Joondalup and continues to oppose the grant of bail in respect of the application before me.

37 The Crown contends that the charges in question are extremely serious and accompanied by circumstances of violence. It is said the applicant has failed to discharge the onus upon her of demonstrating that there are exceptional reasons justifying a grant of bail.

38 It seems from the materials before me, and the submissions made this morning, that the Crown is in a position to place evidence before the Court that will substantiate the Crown case. The Crown will rely upon identification of the accused as someone present at the scene by reliance upon the evidence of Aaron Fitzgerald and his sister.

39 I pause there to say that in the course of discussion counsel for the applicant referred to a recently made and signed written statement by Aaron Fitzgerald in which he says that his identification of the accused was referable not to having seen her at the scene of the relevant events but because he had heard her voice. Accordingly, his evidence must be considered in that light.

40 Nonetheless, even if the Crown case be considered in the way proposed by the defence, it emerged in the course of debate that Aaron Fitzgerald, because of his association with the accused's daughter, is someone who knows the accused well. That factor must be taken into account in estimating the weight that might or should be accorded to his testimony in regard to the issue of identification.

41 It is said that Aaron Fitzgerald's sister, Racheal, knew the accused less well. Nonetheless, it seems to be accepted that the sister had some knowledge of the applicant and that too must be brought to account when one considers the identification issue.

42 The Crown seeks to discount the weight that might be given to the proposed alibi defence on the basis that the alibi witnesses are likely to be partisan and friendly to the accused. It is said by the Crown that this must be brought to account in weighing up that evidence.

43 If bail is not allowed to the applicant, with the result that she is remanded in custody until trial, there will undoubtedly be a period of many months before the November charges are brought to trial. I have already noted the assumption on both sides that the November charges would not be heard until later in this year.

44 Counsel for the Crown submitted, however, that if the accused is convicted at her trial for attempted murder in May 2003 - that is to say in a few months' time - she is likely to be imprisoned for a conviction in respect of such an offence. Thus, in that event, irrespective of whether bail is allowed in respect of this application, as from May 2003, she will be in custody pursuant to a lawfully imposed sentence. On this scenario, a decision to refuse the present application for bail will have a limited impact, as it will operate for a few months only.

45 On the other hand, if the applicant is acquitted, counsel submits that the matter of bail can be reviewed in the light of the fresh circumstances that have then materialised. Hence, it is said that, in a pragmatic sense, the application before me concerns the next 4 months or so prior to the trial in May 2003.

46 I pause to say that in a case of this kind, where the applicant may possibly on the Crown's case have had dealings and associations with prospective witnesses and other interested parties, the Court is usually required to consider whether a release on bail is likely to have an adverse effect upon the integrity of the trial process and the evidence to be given by the witnesses. However, at the hearing before me, counsel for the respective parties were not inclined to give any particular emphasis to this aspect of the matter. Accordingly, I do not intend to explore this point in detail.

47 Counsel for the Crown did place some emphasis upon the fact that the matters in issue appear to arise out of family disputation and there is some prospect of that disputation continuing. I am persuaded that I should bring that matter to account as I weigh up the various factors.

48 These are extremely serious charges. The relevant provisions of the Bail Act and the decided cases show that where a serious offence is allegedly committed while the applicant is on bail the applicant is obliged to demonstrate exceptional reasons in order to justify a grant of bail in addition to the usual considerations.

49 I am not persuaded that the Crown case can be characterised as not a strong case. There will undoubtedly be an issue as to identity and argument concerning the identification of the accused. However, it seems that the Crown has two principal witnesses capable of providing evidence sufficient to convince a jury that the accused was at the scene of the relevant events. It will be for the jury to weigh up whether that evidence is thought to be sufficiently convincing, and for the jury to weigh up the evidence concerning alibi. However, I do not consider that the Crown case can be characterised in the way contended for by counsel for the applicant.

50 I do not consider that the accused's concern for her father can be characterised as in the nature of exceptional reasons. The father appears to have been leading an independent life. The accused's concern for her father is understandable, but nonetheless it does not seem that there are circumstances of acute concern concerning his position.

51 The applicant's concern for her daughter Sacha is entirely understandable also. I am satisfied on the medical evidence before me that Sacha has the condition described by Dr Tan. However, I have to say that it does not appear from the materials before me that the heart condition is in an acute phase.

52 Sacha is over 20 years of age and she too, it seems, until recently, has been living away from her mother and leading a comparatively independent life. She is not a minor or someone who is unable to look after herself entirely. Those at the Dianella address are an adult and two teenage boys, and are in a position to provide assistance.

53 The situation concerning the applicant is perhaps succinctly summarised by Dr Tan at the commencement of his second report dated 3 December 2002, in which he says:

"This 40 year old woman's family is not coping well without her at home."

54 Having regard to what the applicant has told me, and from the other evidence, I accept that this is the position. Nonetheless, I am not persuaded that the fact that the family is not coping well without the accused at home can be sufficiently characterised as exceptional reasons why the applicant should not be kept in custody within the language of the Bail Act. These circumstances, considered either alone or in conjunction with the supposed lack of strength in the crown case, do not appear to amount to exceptional reasons.

55 Further, and in any event, it follows from my review of the provisions of the Bail Act, that I am obliged to take account of other factors, including the serious nature of the offences and the safety of other persons in the community.

56 There are indications that there is an ongoing family dispute which may erupt again. I am told that a restraining order has been taken out by Sacha. These factors, in the circumstances of the present case, weigh against the applicant and, although not decisive if taken alone, they tend to underline the conclusion that this is not a case of exceptional reasons in regard to which bail should be granted.

57 I take account also of the matter I mentioned earlier, that the position concerning bail in respect of these November charges can be reviewed after the May trial, in the light of whatever verdict emerges from that trial. It seems to me that the matter under consideration essentially concerns a comparatively brief period of 4 months or so. At the expiration of that period there may indeed be further material before the Court concerning the medical condition of the two persons who have been singled out in support of the application for bail.

58 It follows then that I am not persuaded that the applicant has discharged the onus upon her in regard to exceptional reasons. Accordingly I consider that the grant of bail applied for should be refused.