Criminal law and procedure - Bail - Bail pending trial - Charge of unlawful wounding with intent to do grievous bodily harm - Whether alleged offence "extremely serious" - Whether exceptional circumstances need to be shown - Whether risk of interference to witnesses - Whether risk of further retaliatory violence - Turns on own facts

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

Fawcett v The Queen [2002] WASC 285

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

WCVB v The Queen (1989) 1 WAR 279

Lim v Gregson [1989] WAR 1

R v Clark II [2001] ACTSC 39; (2001) 118 A Crim R 585

R v Kleinert (1928) 49 ALT 137

R v Ladd & Murphy (1958) 75 WN (NSW) 431

1 BLAXELL J: In this matter the applicant applies for bail pending his trial on a charge of unlawful wounding with intent to do grievous bodily harm. The alleged facts of the offence are set out in the prosecution's statement of material facts and I will quote that statement of material facts:

"On the morning of Sunday 23 January 2005 the accused attended the Metro City nightclub, situated at 146 Roe Street, Northbridge.

At that address he met with friends and associates in the main bar area.

Approximately ten minutes later, the complainant and the accused left the main bar area and went into a corridor in the building's basement. This area is not open to normal use by the public.

Once in the basement area, the accused and the complainant had a brief conversation.

Without apparent warning, the accused and the complainant became engaged in a violent physical altercation. During this struggle, the complainant took hold of a knife and slashed the accused to the neck and chest area.

Other persons present separated both parties, after which the accused approached the complainant and shot him with a firearm at least twice to the legs and once to the arm from close range ..."

I pause there to observe that it has been clarified today there were in fact five separate gunshots fired into the complainant, two into each leg and one into one of his arms. The statement of material facts continues:

"The firearm was removed from the premises by another person (also charged) and has not been located.

The complainant was conveyed to Royal Perth Hospital and received urgent medical treatment for his injuries. He later received surgery for his wounds.

The complainant refused to assist police with their inquiries and did not wish to make a complaint."

2 The alleged offence came to the attention of the police as a result of the complainant being in Royal Perth Hospital and the police officers then attended at the Metro City nightclub. They were able to seize the video surveillance disks or records from the nightclub's computer which had recorded much of the incident between the applicant and the complainant. However, the surveillance videos did not record the actual alleged shooting of the complainant because this is said to have occurred in a blind spot away from the cameras.

3 The prosecution alleges that there were also other offences committed at the scene after the shooting, but before the arrival of the police. In this regard three alleged associates of the applicant have been charged with offences of either being an accessory after the fact to an indictable offence or attempting to pervert the course of justice. These charges stem from the alleged actions of those persons, which are said to have been partially caught on camera, in removing and disposing of the firearm and in destroying evidence of what had occurred by cleaning up the scene.

4 It is relevant to note that the surveillance footage has not been produced in Court and it has not been made available to the applicant or his counsel. The reasons for this are set out in an affidavit from the officer in charge of the investigation, Acting Detective Sergeant Tunks, where in pars 10 and 11 he states:

"10. Due to the serious nature of the charges, WAPS has extreme concerns for the integrity of the ongoing investigation should the surveillance footage be viewed by the Applicant, or any of the other parties charged with related offences. Part of this concern is for the welfare of any potential witnesses, but also to ensure that potential witnesses are not intimidated in relation to the statements they may give.

11. WAPS concern is based not only upon an objective assessment of the offence alleged to have been committed by the Applicant, but the alleged actions of his associates on the night of the alleged offences, which involve the disposal, destruction and concealment of evidence at the scene."

5 I am further informed by counsel for the respondent that there are a number of people who can be seen on the video who were not directly involved in the incident and who would be potential witnesses. The investigating police are still in the process of identifying, locating and obtaining statements from these individuals.

6 There has been strong objection today to the fact that the State has not made available to the defendant or even to me as the Judge hearing this application for bail the actual surveillance video. Counsel for the State, Ms Forrester, has simply said that there have been events on Friday which make it necessary to withhold the video, and that it would be inappropriate to reveal the nature of those events in open court.

7 I note that in proceedings last week concerning one of the other alleged offenders an offer was made to Simmonds J for his Honour to view the video, which offer I understand his Honour declined. That offer has not been renewed today and counsel asserts that there are good reasons for that offer being withdrawn but those reasons cannot be stated in open court.

8 It is not for me to speculate why the respondent is unwilling to produce the video for me to view and I must simply deal with the application for bail on the materials that are before me. However, the applicant invites me to draw an inference based on the authority of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 along the lines that the State is declining to produce the video surveillance footage because the contents would not assist its case in these proceedings for bail. In deciding whether to draw that inference, it is relevant to note the evidence of Detective Sergeant Tunks before Simmonds J on 23 February 2005 when he described in some detail what he says the surveillance footage relevantly shows.

9 The view I take is that if Detective Sergeant Tunks has given any false description of what is in the video, then obviously he is going to prejudice himself and his career in a significant way. He had every incentive to be accurate in his evidence as to what the surveillance video shows because if he was not accurate in that evidence, then that would soon become apparent when the video is made available to the defence at the time that the prosecution is required to disclose its statements.

10 For that reason, I am not prepared to draw the suggested inference, and I consider that I can rely upon the evidence of Detective Sergeant Tunks as to what the video footage does in fact show. Accordingly, I refer to the transcript of Detective Sergeant Tunks' evidence before Simmonds J on 23 February at page 26 and following.

11 According to Detective Sergeant Tunks, the video shows two men having an altercation, those men being the applicant, Troy Mercanti, and the complainant, Nabil Dabag. At first they are having a discussion. It appears to be heated. Mercanti then falls back and he attempts to punch Dabag and a scuffle takes place. Mercanti throws a punch to Dabag's head. They become involved in a very close scuffle and the detective sergeant says he is unable to tell who is punching who but you can see that there is a lot of movement between the two.

12 During the course of that scuffle you can see a blood trail that falls onto the floor. The scuffle is then broken up by two other males, one of whom is John Kizon, and the other Marco Cerrone. Prior to the first incident between Dabag and Mercanti, Marco Cerrone had been talking to Mercanti. According to Detective Sergeant Tunks, the video shows that when the scuffle is broken up, Kizon and Cerrone take hold of Mr Dabag. No-one has hold of Mr Mercanti. The other two men then take Dabag elsewhere down a corridor or passageway, away from where the camera was filming and into what has been described as a blind spot.

13 As Dabag is being led away by Kizon and Cerrone, two other males approach Mercanti and they appear to have a discussion. Mercanti at that stage has his back to the passageway where Dabag has been taken. Mercanti then turns around and starts moving towards where Dabag has been taken. While he is doing that he has a bumbag, as it is described, around his waist and he appears to be opening that and taking something out of it, but it is not apparent from the vision what in fact is taken out of the bumbag. Mercanti then moves towards the blind spot and it can be seen that he has blood on his shirt and he is being followed by the other two males who had been talking to him after the scuffle.

14 Subsequent to that, and as I understand the evidence, some 10 or 15 seconds later (I might be wrong on that but in any event subsequent to that) Mercanti and Kizon return into camera view and they walk into an office area that runs off the passageway. Kizon at that time has a firearm in his hand. There is blood on the floor and staff at Metro City nightclub then start cleaning it up by hosing down and throwing detergent on the floor.

15 Then, as I understand it, from a separate surveillance camera, the video footage shows Dabag leaving a side exit of the nightclub. He is hobbling and it is hard for him to walk. He is dragging his right foot and is barely able to stand. He is not wearing the shirt that he was wearing previously. He disappears in a southerly direction along a laneway into Roe Street where he turns right and heads west. That is a summary of Detective Sergeant Tunks' evidence as to the contents of the video footage.

16 The police officers were able to seize the bumbag that the applicant was said to be wearing and from which he was seen to remove something before the shooting occurred. The State Chemistry Centre has carried out tests on the bumbag and reports that it contains traces of substances characteristic of gunshot residue. That is consistent with either the firearm being placed in the bumbag after it had been fired or alternatively the hand that fired that weapon going into the bag afterwards. Those are the essential facts asserted by the prosecution. There is nothing before me which contradicts those facts.

17 I need to firstly deal with the question of whether exceptional circumstances are necessary for a grant of bail in the circumstance of this particular case. There are a number of authorities, including WCVB v The Queen (1989) 1 WAR 279 and Fawcett v The Queen [2002] WASC 285 which establish that in cases which can be described as "extremely serious", an applicant for bail must show that there are exceptional circumstances justifying the grant of bail.

18 The categories of cases which can be described as extremely serious are not limited to what used to be called capital offences and it is necessary to look at the nature of the charge and the particular facts alleged to determine whether or not it is "extremely serious".

19 In the present instance, the applicant is charged with an offence which carries a maximum of 20 years' imprisonment, so it falls into a general category of cases that can be described as very serious. When one looks at the particular facts alleged, the applicant is said to have been in a public nightclub carrying a loaded firearm. It is then alleged that he was slashed by the complainant with a knife. In retaliation for that, the applicant shot the complainant five times, twice in each leg and once in an arm, and he did that while the complainant was physically restrained by two other men.

20 Those are the essential allegations and by any measure, notwithstanding that the applicant was the first to be wounded, the facts of this alleged offence are extremely serious. I also agree with the submission that the use of a firearm to wound someone five times in itself makes the alleged offence extremely serious. That being so, I make the finding that there is a need for exceptional circumstances before there can be a grant of bail.

21 In deciding whether to exercise my discretion to grant bail I am in any event required to have regard to particular questions posed in cl 1 of Pt C of the first schedule to the Bail Act 1982 (WA). Those questions include the following: firstly, whether if the defendant is not kept in custody he may fail to appear in court, commit an offence, endanger the safety of any person or interfere with witnesses or otherwise obstruct the course of justice.

22 Secondly, whether the defendant needs to be kept in custody for his own protection. Thirdly, whether any condition of bail could reasonably be imposed to overcome any of those concerns. Fourthly, whether the alleged circumstances of the offence amount to wrongdoing of such a serious nature as to make the grant of bail inappropriate. (Dealing with this last question, that does seem to me to overlap with the common law position that exceptional circumstances are necessary when the offence is extremely serious.)

23 The Bail Act also obliges me to take account of particular matters that are relevant to some of those questions. These matters include the nature and seriousness of the alleged offence and the probable outcome if the defendant is convicted; the factors that are personal to the defendant such as his character, previous convictions, associations and home environment; any history of previous grants of bail; and the strength of the evidence against him.

24 I will now deal with each of these matters in turn. As to the nature and seriousness of the offence, I have already observed that it is a serious one carrying a maximum term of 20 years' imprisonment. The circumstances alleged in the present case are also a particularly serious example of that type of offence involving the carrying of a loaded firearm in a nightclub and the use of it to shoot the complainant five times.

25 The fact that the complainant was the first to use a weapon to slash the applicant will be a mitigating circumstance if the applicant is convicted. Nevertheless, and notwithstanding that mitigating factor, the offence is so serious that the applicant would inevitably be sentenced to a substantial term of imprisonment if he is convicted.

26 I will next deal with the strength of the prosecution case, which of course has to be considered on the basis of the materials presently before me. It may well be that by the time of trial there will be a different set of facts for the jury to consider, but clearly on the materials I have before me there is strong circumstantial evidence linking the applicant with the shooting.

27 He is seen to take some object out of his bumbag on the video. He is then seen to go to the location where the shooting occurred. An associate of the applicant (who was last seen to be one of two men who had taken hold of the complainant) is then seen to leave that same location with a firearm. Tests of the applicant's bumbag later reveal traces of gunshot residue inside. It is also relevant that on the facts before me the applicant had a strong motive to retaliate as alleged against the complainant. It follows that there is a very strong case that it was the applicant who wounded the complainant.

28 There is also a very strong case that the applicant intended to cause grievous bodily harm. The only reasonable inference is that the complainant was being held by the applicant's two associates at the time of being shot. The placement of the wounds also supports this inference, and quite obviously it is hardly likely that the complainant would have co-operated and held himself still while being shot. The very nature of gunshot wounds is that they are likely to cause grievous bodily harm and therefore the inference can be readily drawn that that was the intent of the accused.

29 In my view, in the circumstances as alleged, there is little scope for the issue of self-defence to arise. This is because after the applicant was slashed by the knife, it is alleged that the complainant was seized hold of by two other men and taken away from where the wounding of the applicant had occurred. At that point in time, the complainant was no longer a threat to the applicant. The applicant is then said to have followed and shot the complainant five times. Those circumstances should obviously be characterised as retaliation rather than self-defence if, in fact, the offence occurred in the manner alleged.

30 I now turn to factors that are personal to the applicant. Dealing firstly with his character and previous convictions, he has a moderately long record which contains offences 10 or more years ago which are more serious than those committed more recently. Nevertheless, it is a record which has continued. It does include prior convictions for assault occasioning bodily harm, for assault and for possessing ammunition without a licence. I have been provided with the facts of some of those previous offences, but I will not refer to them now. So, there are those aspects of his character which obviously are very negative.

31 As against that, I have a book of 32 references which I must say are very impressive and are probably as good a set of references as I have ever seen. They come from some very solid and respectable members of the community and they speak very highly of the applicant as to his honesty and good character. They speak of him being a good father and a good grandson. Some of the referees, in fact most of them, have known him for many years and they describe him in glowing terms.

32 As I say, they are very impressive references and having regard to the number of them and the people who have provided the references, I have no doubt that the applicant presents himself to those referees in the manner that they describe. What is difficult to understand is how one can reconcile those references with the applicant's record of convictions. There is an inconsistency between the applicant's record and the type of person described in the references, and it is not for me to speculate why that anomaly is there, but, nevertheless, that is the position.

33 As to the applicant's home environment, the materials before me establish that he has strong family connections. With regard to his immediate home environment, he lives in a house in Duncraig with his de facto wife. He has two young sons aged three years and four years. He also has a nine-year-old daughter from a previous relationship and she spends a lot of time with his immediate family. He ordinarily works as a sports and entertainment promoter and, as I have said, he has strong family and social ties to Perth which is also demonstrated by the contents of the references.

34 With regard to his history of previous grants of bail, it is apparent that in most instances when he has been charged he has attended at court as and when required. There has been one prior breach of bail which cannot have been too serious a breach because he was fined only $100.

35 I now turn to the questions that I must consider pursuant to the first schedule of the Bail Act. In dealing with those questions, I have regard to the dictum of Ipp J in the decision of WCVB v The Queen (supra), at 283, where his Honour said:

"The court is required to consider all the factors stipulated in cl 1 before exercising its discretion. No particular factor should rigidly be given more importance than another. All relevant factors should be considered as a whole. The circumstances of each particular case will determine the weight to be attributed to each factor ... "

36 As to the question whether there is any risk of flight, there is obviously some risk of flight given the serious nature of the charge, the strength of the prosecution case and the likely outcome if there is a conviction. However, that risk could be met by appropriate conditions of bail if that was the only matter of concern.

37 More significantly, there are grounds to infer that there is a risk of interference with witnesses, as well as obstruction of the continuing police investigation. That inference arises from the fact that there have already been alleged attempts to pervert the course of justice with the removal of the firearm and the cleaning up of the crime scene. It is also relevant that the facts of at least two of the applicant's prior offences show that he has no fear of the police and that he has hindered them on a previous occasion.

38 The investigation is at a very sensitive stage in that police are still to locate witnesses who are seen to be present on video. Obviously, it is important that they should not be hindered in that aspect of their investigation.

39 Finally, I accept the prosecution's submission that there is a risk of retaliatory violence between the gangs of which the applicant and the complainant are members and in that regard I take account of the material in pars 12 to 15 inclusive of Detective Sergeant Tunks' affidavit. The likely venue for such violence would be the nightclub areas of Perth and that would pose a risk to the safety not only of the applicant and the complainant, but also to other members of the nightclubbing public. Based on the materials before me, I consider that there would be an increased risk of further violence if the applicant was to be released.

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.