Criminal law and procedure - Bail - Bail pending trial - Charge of unlawful wounding with intent to do grievous bodily harm - Whether change of circumstances - Turns on own facts - Need to establish jurisdictional fact

Bail Act 1982 (WA) Sch 1 Pt C cl 1, cl 3

Mercanti v The State of Western Australia [2005] WASC 28

Musarri v The Queen [2001] WASC 200

1 MCKECHNIE J: On 28 February 2005 Blaxell J refused an application for bail: Mercanti v The State of Western Australia [2005] WASC 28. This is a renewed application for bail on the basis that there has been a material change in circumstances.

2 Since 28 February 2005 matters have evolved. The investigation has now been completed. The surveillance footage that had not been made available to either Blaxell J or the applicant has now been made available. A DVD was tendered in evidence in this hearing. The DVD contains digitized images saved from a number of surveillance cameras within the nightclub. Although the actual shooting is not captured by the camera, events immediately before and after the shooting have been recorded. Additionally, further evidence has been obtained by the State. There is a statement from a registered nurse at Royal Perth Hospital outlining events that occurred when the applicant was admitted to hospital, shortly after he was stabbed, with special reference to an incident when there was an attempt to clean his hands while he was awaiting treatment. As a result the applicant has now been charged with an attempt to pervert the course of justice.

3 A particle of gunshot residue was found on one of the wipes allegedly used to clean the applicant's hands. A further particle of gunshot residue was found on a pair of black jeans said to have been worn by the applicant on the night. Previous evidence before Blaxell J indicated two particles, one highly consistent with gunshot residue and the other consistent with gunshot residue found in a bumbag said to have been worn by the applicant at the time of the shooting.

4 The applicant has not applied for bail on the charge of attempting to pervert the course of justice. By agreement, I entertained an oral application for bail for that charge as the resolution of the application would also determine the fate of bail on that further charge.

5 At the conclusion of the hearing I ordered a report to assess the applicant for home detention, reasoning that if I concluded the applicant should be released to bail on some conditions time would be saved by having such a report available. The home detention report is cautious but assesses the applicant as suitable for a home detention bail condition. The question of his proposed employment from 7 am to 8 pm might be another matter. However, I can only consider home detention if I have jurisdiction to do so.

6 Both parties accept that once an application for bail has been refused by a Judge any further application for bail can only be brought in limited circumstances. One circumstance is if the applicant demonstrates that new facts have been discovered or there has been a change in the facts or circumstances: Bail Act 1982 (WA) s 14(2a)(a); Musarri v The Queen [2001] WASC 200.

7 It is important to appreciate the limits on a judge hearing a further application for bail. Following the introduction of a statutory regime for the grant of bail, it is not possible for renewed applications for bail to be made to different judges in the hope that bail will be granted by one of them. A judge has no authority to sit in judgment over a decision of another judge to grant or refuse bail. That power is reserved to the Court of Appeal. In order to invoke a reconsideration of a bail decision, an applicant must establish, as a jurisdictional fact, new facts or a change in circumstances. Unless a judge is satisfied that the jurisdictional fact has been established there is no jurisdiction to reconsider a refusal of bail.

8 In summary, the applicant asserts that now the full brief has been disclosed, and particularly now that the Court is able to examine the DVD, the prosecution's case is significantly weaker than the case which was asserted before Blaxell J and upon which he relied for his decision. Expanding this submission, Mr Hall submitted, among other things, that an examination of the DVD shows that it is not possible to see that the applicant was taking something out of the bumbag: cf Mercanti at [13] and [27]. It is not possible to say that the knifing of the applicant occurred first in time: cf Mercanti at [12] and [29]. Mr Hall points also to the fact that the knife was found in the vicinity of the shooting incident. In view of the number of people shown moving towards the place where the shooting happened (and then out of camera), there is a reasonable possibility that any one of four other persons may have been the shooter, it being conceded that Dabag was shot. It was also submitted there is no evidence to suggest that it was the applicant who shot Dabag. Having regard to the time and what is seen in the DVD, there is no basis to draw an inference that Dabag was being held by the applicant's two associates at the time of being shot: cf Mercanti at [28].

9 The significance of the location of the knife incident is that if the prosecution cannot show that the knife incident occurred first and at a different location, then the question of self-defence is live. The motive for the shooting being retaliation for a prior stabbing is lessened. The significance of the number of people shown on the DVD to be present at or near the time of the shooting shows the weakness of the prosecution case that it was the applicant who was the shooter. In this regard, Mr Hall pointed to the dearth of material consistent with gunshot residue and the possible innocent explanation for the presence of such gunshot residue as was found being consistent with a person who was present at the shooting but not actually the shooter. The question whether the applicant was the shooter is relevant as to whether he was seen on the DVD, as asserted before Blaxell J, removing an object from the bumbag or whether the DVD does not show that action.

10 Mr Hall also points to the evidence of a "glassie", a person employed to clean away used glasses and to clean the nightclub. This person was in the vicinity of the shooting and indeed can be seen on the DVD reacting in a manner suggestive of one hearing gunshots fired at close distance. He did not see anyone holding Dabag and after hearing the shots he could see the applicant's and Kizon's backs, lessening the inference that Dabag was being held in position of the time he was shot.

11 As to the statement from the registered nurse, Mr Hall made submissions attempting to construe her statement as indicating a real possibility that the visitor was principally engaged in the hand-wiping episode with the applicant being merely passive. With all respect, I do not read the statement that way. On the contrary, it is capable of providing strong evidence of a consciousness of guilt in the applicant, the particular guilt being the handling of a firearm which had been discharged.

12 Ultimately, both sides advance their arguments principally upon what is, or is not, discerned from the DVD. I had the advantage of viewing the DVD in court and having heard each counsel making submissions about it. I reserved my decision so that I could further view the DVD and form my own impressions of its contents.

13 I have since viewed the DVD a number of times. These are my findings. The description by Detective Sergeant Tunks (Mercanti at [11] and [12]) is accurate. Mr Hall submitted that there was no sufficient evidence to show that the applicant was stabbed before any shooting took place. Therefore, self-defence is live. The camera footage commences with a picture of the applicant at 1.32 am. At that stage his T-shirt appears to be in an undamaged condition. After the altercation, the picture of the applicant, as he moves underneath the camera and out of view, shows that his shirt has a number of holes in it and also has foreign material on it, apparently shiny or liquid or nature. The floor near the base of the stairs immediately prior to the altercation appears to be relatively clean. Shortly after the altercation commences, spots appear on the floor and they remain. An inference that they are pools of blood is logical having regard to the altercation between Dabag and the applicant and the fact that the applicant was undoubtedly stabbed at sometime. In my viewing of the DVD, I am unable to see whether Dabag was at any stage holding a knife. However, the circumstances of the shirt and the marks on the floor give rise to a reasonable inference that the stabbing incident occurred in the course of the first altercation.

14 I consider that Detective Sergeant Tunks' evidence as recounted in Mercanti at [13] is also accurate. As the applicant moves down the passageway to where Dabag has been taken by Kizon and Cerrone, he appears to be opening a bumbag and taking something out of it. It is not apparent from the DVD what is in fact taken out of the bumbag. I reach the conclusion that he is removing something from the bumbag by the sequence of his movements towards the camera.

15 Mercanti at [14] is correct though the applicant and Kizon return to view at slightly different times. The applicant returns first into camera view. A little later Kizon returns into view, walking away from the camera. He is clearly carrying a firearm behind his back.

16 The applicant's actions are capable of being seen as retaliatory or motivated by revenge rather than self-defence because at the stage when the applicant proceeds down the passageway, his attacker, Dabag, has been removed by Kizon and Cerrone. Dabag no longer poses any immediate threat to the applicant.

17 There is also considerable significance in the location of the injuries received by Dabag. He appears to have been shot twice in each leg and once in the arm. In written submissions, though not advanced orally by Mr Hall, it was pointed out that the prosecution brief did not contain any medical reports relating to Mr Dabag and the other evidence was consistent with three shots being fired, not five as put forward by the prosecution to Blaxell J. However, the prosecution has now filed a medical report which indicates:

"There were ten wounds in total, four to each lower limb and two to his left forearm. His most significant injury appeared to be his left forearm with a 3mm wound on the volar aspect and a 5mm wound on the dorsal aspect of his forearm. Both legs had similar findings, with a 3mm wound on each of the anterior medial thighs and a 5mm wound on each of the posterior thighs. These injuries are consistent (as alleged) with being shot twice to each thigh and once to the left forearm."

18 In Mercanti at [28] Blaxell J drew as the only reasonable inference that the complainant [Dabag] was being held by the applicant's two associates at the time of being shot. I would not draw that inference. However, this is not a new fact or circumstance. Moreover, whether or not the inference is drawn does not negate the overall finding of a strong prosecution case. The prosecution case has now been strengthened by the particle of gunshot residue found on the wipes and the further particle on the pair of black jeans. In addition, the actions of both the applicant and his visitor in the hospital are capable of providing powerful evidence of a consciousness of guilt.

19 It follows that I reject the applicant's principal submission that a number of material facts that were put by the prosecution on the last application, and relied upon by Blaxell J in Mercanti, are now demonstrated to be either wrong or significantly weaker than Blaxell J found. Hence, I am not satisfied as a jurisdictional fact, that there has been a material change in circumstances and as a consequence this application should be dismissed. As a result bail on the charge of attempting to pervert the course of justice should be refused also. Although bail on this charge has not been previously considered, there is no point in granting bail while the applicant remains in custody on the charge of unlawful wounding with intent to do grievous bodily harm.

20 In Mercanti, Blaxell J concluded at [40]:

"I am also of the view that the alleged wrongdoing by the applicant verges on being of such a serious nature that that in itself makes the grant of bail inappropriate. That is particularly so when one has regard to the strength of the prosecution case. Be that as it may, the materials before me do not show any exceptional circumstances why bail should be granted and for those reasons the application will be refused."

21 The other matters advanced before Blaxell J remain. One exception is that the investigation has been completed. I do not regard that fact as evidencing a material change in circumstances. It is not my role to sit on appeal in any way from the decision of Blaxell J as to those matters. Clearly he was of the view that the seriousness of the offence itself, coupled with the strength of the prosecution case, made the grant of bail inappropriate. No jurisdictional fact has been established to allow me to reassess bail.