McKAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 196 (28 September 2007)

McKAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 196 (28 September 2007) - WASCA 2007 case summary — Zoe

[25]

"So what happened as a result of that?---I dropped to the ground, you know, and then they just laid the boots in.

After that had happened, did any of them leave that immediate area where you were?---Yeah, Doc walked back to - in his ute, and grabbed a big pick handle and come back with that and they made me sit up on the log, you know, and started hitting me with that.

What parts of you was he hitting you with that?---Everywhere.

Did Martin Seroka do anything after that began?---Yeah, he picked up a big log of wood like this out of the bush and come back with that and - - -

...

Okay, and did he do anything with that?---Yeah, he just laid into me from the other side, you know. I just had one on each side, hooking in.

Did that stop at some stage?---Once I was pretty busted up, you know what I mean, yeah.

You mentioned there you were 'pretty busted up'. Were there any parts of your body in particular?---Yeah, because I had to keep my guard up like that and - - -

I see. You are just demonstrating there with your clenched fist up over your face?---Yeah, trying to keep it from - so I didn't get hit in the head, you know, and, yeah, they've smashed this arm; compound-fractured it, forced a bone out through the flesh and everything, you know.

You are indicating your right arm there?---Yep.

You are indicating your forearm as to where the bone was protruding?---Yeah, in here.

So it was actually sticking out of your arm?---Yeah, poking out about two inches; yeah.

Can you recall how it was that that happened? When that happened or what caused that?---Just from the blows from the timber and that, you know, yeah.

Was there any other part of your body that you were experiencing sensations from?---Yeah, you know, they - a broken right leg and - - -

Well, at the time, if you can explain what part of your leg you were feeling - - -?---My whole leg.

I will ask you this. Were you feeling pain from your right leg - from your leg?---Yeah, from my right leg - the knee.

Your right leg, all right, and where was that?---My knee was blown up like a footy.

What part of your leg though?---Just above my knee.

Again, any idea how that occurred?---The same - - -

When that occurred?---From a belting from the timber.

So you have indicated those two injuries. What about elsewhere on your body?---Just about half a dozen ribs. Put this shoulder out - out of its socket."

[66]

"Detective Sergeant Kelly, just before that break I was asking you questions about offers made to Mr Bailey with respect to the Police Service providing letters of comfort or information to a sentencing court that Mr Bailey had cooperated with the police?---Yes.

Okay. Now, have you had any discussions with Mr Bailey with respect to that topic? That is, offers from the police to give letters of comfort to a sentencing judge?---Yes, in relation to the manufacturing charges; yes.

Yes, and did you have a conversation with Mr Bailey along those lines on 6 August 2004?---Yes.

Did you tell him, that is Mr Bailey, that if he gave evidence against Mr McKay the West Australian Police Service would provide some sort of a letter of comfort or something to a sentencing judge telling the judge that he had assisted the police?---Yes.

URQUHART, MR: In relation to what?

LEVY, MR: In relation to the manufacture of methylamphetamine charges?---Yes, it was - specifically in relation to McKay or any other co-offender involved in manufacturing amphetamine.

Right. Obviously specifically in relation to Mr McKay. Yes?---McKay and whoever else might have been involved.

Did Mr Bailey tell you that he would contemplate the offer?---He did.

...

... a few days before this trial, some 10 days or so before this trial started, you went out to Casuarina Prison and spoke to Mr Bailey?---I did, yes.

You again reiterated to Mr Bailey that if he gave evidence in relation to the manufacturing charges that the Police Service would provide some letter of comfort to a sentencing judge or something along those lines?---Not in those terms.

Well, you tell the jury what you discussed?---He mentioned that he was being represented by a solicitor from Legal Aid and that that solicitor may want to speak to me at some point of time about a letter of comfort over the manufacturing charges, yes.

In your discussions with Mr Bailey about this topic I suggest you explained to him that when people cooperated with the police they generally got a discount in sentence?---Yes.

Obviously it was a matter for the judge but to your - I'd suggest to you that this is what you explained to him; to the best of your knowledge people got a reduction in their sentence for cooperation?---Yes. Yes.

Did you tell him that you got a significant discount if you gave evidence against somebody?---Not the term 'significant'. I said you were entitled to a discount but that wasn't automatic because it also was subject to whether or not that was indeed a case against any other co-offender and they were in fact charged."

[71]

"Mr Bailey was asked by Mr Levy, and perhaps other counsel, as to whether he had been made any offers by police in relation to evidence in this matters in the sense that he would get some form of support or consideration when he came to be sentenced for his various charges by reason of the fact that he had given evidence against Mr McKay and Mr Seroka in relation to the charges that are before you. Mr Bailey replied to that by saying that there had been no offer of a reduction of sentence and no pressure from police to give evidence in this matter.

...

Detective Sergeant Kelly told Mr Levy a couple of days ago, 28 September, that there had been discussions with Mr Bailey on or about 6 August 2004 about giving evidence against Mr McKay and anyone else who might be involved in relation to the manufacture of methylamphetamine charges. Of course, discussions on 6 August 2004 were before the events of 31 October 2004 and 5 and 6 November 2004. They predated the events giving rise to these charges.

Detective Sergeant Kelly said that more recently, as recently as 9 September 2005 he visited Mr Bailey in Casuarina Prison and had spoken with him about giving evidence in relation to the manufacture of methylamphetamine and also about whether he was going to give evidence in respect to the matters that are before you. The detective, in his evidence, said that Mr Bailey mentioned his solicitor's name, Mr David McKenzie, in relation to methylamphetamine charges.

The detective said that any discussions with Mr Bailey concerning a reduction in sentence were in respect of the methylamphetamine charges not the matters before this court...

...

... It might well be the case that Mr Bailey will get some support from police when he comes to be sentenced for the manufacture of methylamphetamine matters if it is the case that he has assisted police in the prosecution of others with respect to those matters.

You are not in a position, of course, to speculate about what might happen but it is reasonably well known that people who do assist police might be given some reduction in sentence by reason of that assistance. The matters before you, of course, are somewhat different in character to charges of the manufacture of methylamphetamine."

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Judgment (128 paragraphs)

McKAY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 196 (28 September 2007)

Cases Cited (1)