Bail Act 1982 (WA), s 13, cl 1 & cl 3, Pt C, Sch 1

Outman v The Queen [2000] WASC 303

Saka v The Queen [2001] WASC 92

1 ROBERTS-SMITH J: This is an application for bail by notice dated 7 January 2004. It was supported by an affidavit of the applicant of the same date.

2 On 19 November 2003 the applicant was charged on complaint with the following offences:

1. On 11 November 2003 at Embleton Michael Andrew Diconza and Phillip Hemi Mihaka and Shane John Robinson ("the defendants"), without consent were in the place of Damien William John Spark with intent to commit an offence therein in circumstances of aggravation namely armed and in company, contrary to s 401(1)(a) of the Criminal Code.

2. On the same date and at the same place the defendants stole from Damien Spark with actual violence, electrical appliances, jewellery and clothing, the property of Damien Spark and others and that they were armed with a dangerous weapon namely a knife, hammer and metal bar and were in company with each other and did bodily harm to Benjamin Joseph Zacchigna, contrary to s 392(c) and (d) of the Criminal Code.

3. The defendants unlawfully detained Benjamin Zacchigna contrary to s 333 of the Criminal Code.

4. The defendants unlawfully assaulted Benjamin Zacchigna and thereby did him bodily harm contrary to s 317(1) of the Criminal Code.

5. The defendants by threat and demand deprived Damien Spark's personal liberty by taking him away with intent to cause detriment to Natalie June Broadhead (s 332(2)(b) of the Criminal Code).

6. By threat and demand the defendants deprived Natalie Broadhead of her personal liberty by taking her away with intent to cause detriment to her (s 332(2)(b) of the Criminal Code).

7. The defendants were without consent in the place of Natalie Broadhead with intent to commit an offence therein, in circumstances of aggravation, namely being in company with others contrary to s 401(1)(a) of the Criminal Code.

8. Stole from Natalie Broadhead with threats of violence $50.00 the property of Natalie Broadhead and that the defendants were in company with each other and that the applicant threatened to kill Natalie Broadhead contrary to s 392(d) of the Criminal Code.

9. Stealing a motor vehicle, namely a Mitsubishi sedan, the property of Natalie Broadhead contrary to s 378 and s 371A of the Criminal Code, and

10. Stealing from Natalie Broadhead with threats of violence $1,000 the property of Natalie Broadhead and that the defendants were in company with each other and that the applicant threatened to kill Natalie Broadhead contrary to s 392(d) of the Criminal Code.

3 The applicant is currently on remand at Hakea Prison.

4 According to the applicant's affidavit he is 35 years of age, having been born on 18 August 1967. He deposes that he resides at 60 Doust Street, Fremantle in Western Australia and that he has one child aged 2 years.

5 He states that he is detained in custody solely on the basis that bail has not been afforded on the present charges. He is concerned that he will remain in custody until the charges are resolved. He intends to plead not guilty and to defend the matters to trial.

6 He deposes to one prior breach of bail which he says came about through inadvertence rather than a wilful disregard of his need to attend court. He states that he did not intend to avoid attending court and was fined $100 for that offence.

7 The applicant deposes that there are substantial sureties available. His sister, Ms Ellen Mihaka, a resident of Sydney, recently won approximately $750,000 in a lottery. He states he is informed that the vast bulk of that amount remains available to support a surety. In addition, his brother John Mihaka, who lives at RD2 Te Ahu Ahu Road in Kaikohe, North Auckland, New Zealand, is the proprietor of a tourism business with significant assets and is available to post a significant surety on behalf of the applicant.

8 The applicant is willing to comply with any requirements of home detention should that be imposed as a condition of bail.

9 According to the police "Statement of Material Facts", the offences charged arose out of the following circumstances.

10 The first complainant, Damien Dayson (also known as Damien Spark) is a 22 year old male who lives with his grandmother at Embleton. The second complainant, Natalie Broadhead, is 31 years old and is a neighbour of Dayson. The third complainant, Benjamin Zacchigna, is an 18 year old who was visiting Damien Dayson, who is his cousin.

11 On Monday 10 November 2003, Robinson and Dayson entered into an agreement by which stolen property would be supplied to Dayson in return for cash and drugs. Later that day a quantity of property was delivered to Dayson by Robinson and Diconza. They agreed that Dayson would owe $300 cash and 3/4 gram of speed for the sale of the property.

12 On Tuesday 11 November, Robinson approached the applicant and recruited him to assist in the collection of his money and property from Dayson. The applicant was specifically asked to give Dayson "a couple of hits" if he did not comply with Robinson's requests. The applicant agreed to do this and accompanied Robinson and Diconza to Dayson's home.

13 Once there they knocked on doors and windows for 10 minutes and when there was no answer they agreed to force entry to the premises and remove "their" property. Robinson forced his way in the rear of the property via a glass sliding door which he jemmied open and let the applicant and Diconza inside.

14 Upon entering the rear room of the house, they were confronted by Dayson who had been woken by the sound of Robinson forcing entry to the premises. When Dayson entered the room in which they were, he was grabbed by the applicant and hit around the head a couple of times.

15 The applicant detained Dayson in the rear room whilst Robinson and Diconza removed items of property from the house. During this time the applicant continually assaulted Dayson with an open hand to the head, causing bleeding from the mouth.

16 The defendants discovered Zacchigna asleep in his bedroom and upon waking him they forced him to the dining room with Dayson where he was detained by the applicant.

17 Robinson and Diconza continued to remove property, placing it into a silver Holden Commodore in which they had driven to the premises. The Commodore is owned by Diconza.

18 At this time, Natalie Broadhead knocked on the door of the premises to return Dayson's grandmother's dog which had run loose from the yard. Whilst she was talking to Dayson at the door to the rear room, the applicant reached through, grabbed her and pulled her into the premises against her will. She was forced to sit on the floor in the rear room and was threatened that she would be harmed if she did not keep quiet and comply with the demands of the defendants.

19 Under threats of violence toward her family and that of Dayson, Broadhead agreed to withdraw $1,000 from her bank account to give to the defendants in lieu of that owed by Dayson.

20 Before leaving the premises the defendants tied Zacchigna to a chair in the dining room with electrical cord which they had cut up. He was tied up after he was given the choice of either being tied up or knocked unconscious by them.

21 The applicant forced Broadhead to drive to her own vehicle with him sitting in the front passenger seat armed with a knife. The other two defendants forced Dayson to accompany them in their vehicle to an address in Mount Lawley. At that location the applicant exchanged places with Robinson and Diconza and remained at the Mount Lawley address with Dayson whilst Broadhead and the others went to get the $1,000 cash.

22 Broadhead drove to the BP service station situated on the corner of Wellington Street and Walter Road in Morley. She entered the store with Diconza and withdrew the $1,000 from an ATM. Upon leaving the service station she handed the money to Diconza and drove back to the Mount Lawley address with Diconza and Robinson.

23 At that address the money was given to the applicant and he told her she could leave. When she asked if Dayson could come with her, the applicant told her that Dayson would be staying with them until he could provide all three defendants with drugs. Broadhead left the Mount Lawley address and drove home.

24 Dayson was driven to a different address in Northbridge with the intention of obtaining drugs. It was at that address that he escaped and took refuge with a friend. The applicant and Robinson were waiting nearby in the silver Commodore sedan. After contacting his grandmother, Dayson was collected by detectives and taken to the Inglewood's detectives' office.

25 Diconza and Robinson were arrested and charged on the evening of 11 November and appeared in the Perth Court of Petty Sessions on the morning of Wednesday 12 November 2003.

26 Also on the morning of 12 November, when the applicant returned to his home address at Wooramel Way, Nollamara, detectives attended. When they knocked on the door the applicant fled from the rear door and escaped over a rear fence of the property. He was subsequently located hiding in the driveway of premises on Manoff Road, Balcatta, approximately 500 metres from his address. He resisted violently when apprehended and was finally restrained by four officers. He was taken directly to the Perth Watch House.

27 The applicant has been remanded in the Perth Court of Petty Sessions for a committal mention. He has been refused bail in Petty Sessions. His two co-defendants have been granted home detention bail.

28 It is submitted that the applicant has a sense of grievance arising out of the fact that the co-defendants have been granted bail for these "very serious charges" whilst he was refused. He is also said to be aggrieved because in earlier appearances the prosecution has referred to him as the "primary offender", notwithstanding that the Statement of Material Facts asserts that he was approached by Robinson and recruited to assist him in the collection of Robinson's money and property from Dayson.

29 There is no evidentiary material before me as to the applicant's employment situation, nor his prospects of employment upon release, although at par 10 of the outline of submissions on behalf of the applicant it is said:

"The applicant is available to commence work immediately upon his release. In the past he has worked in full time employment both labouring and in the crayfishing industry, and labouring in particular is available to him because of his prior good record in that employment."

30 This application was heard on 5 February 2004. The applicant's submissions and affidavit were not received by the State until 4 February. Ms De Maio, who appeared on behalf of the respondent, advised that in the circumstances she had not had an opportunity to obtain an affidavit in opposition to the application. She sought leave to call the investigating officer. I granted leave and evidence was given by Detective Constable Paul Ford. Through him, the respondent tendered statements of the prosecution witnesses and other documents. They add further substance to the prosecution case against the applicant.

31 The statement of Natalie Broadhead indicates that when she went to Dayson's house to tell them their dog was out of the yard, the applicant ran at her, grabbed her and pulled her inside. He then started to threaten her and told her to sit. She states he kept telling her to "shut up" and that he knew women, and that he then threatened to cut her throat. He pushed his finger into the side of her throat and made a cutting motion against it from side to side. He then pulled a pocket knife out of his back pocket and showed her. She said he later asked her if she had a boyfriend or husband. She said she did not. He said that he would kill her in front of her family.

32 She says that although there were two other assailants present, the applicant "freaked her" the whole time he was there. He was active, demanding and threatening. At one point he came into the room holding a small pole. He threatened to break their knees with it then and there. She feared for her life. The applicant told her and Dayson that he would cut their toes off one by one if they did not do what he said. He picked up a hammer and raised it above his shoulder in a threatening manner.

33 After some conversation with Dayson about the money, the applicant demanded money from Broadhead. Broadhead's description of these and the subsequent events show the applicant playing the major physical role.

34 Her account is supported by the statements of Dayson and Zacchigna.

35 According to Dayson, it was the applicant who punched him two or three times with both hands in the head, breaking Dayson's glasses. Dayson fell to the ground and the applicant stepped on his sore knee and told him to get up or he would break his other leg. When Zacchigna was taken into the dining room and tied to the chair, it was the applicant who smashed his head against the wall two or three times. The force of those blows is apparent from photographs of the damage to the wall.

36 The respondent opposes the application, principally on the basis that the prosecution case is strong and the applicant poses a significant flight risk if released to bail or home detention.

37 The application falls to be determined under and in accordance with s 5(2), s 13(1) and cl 1 and cl 3 of Pt C of Sch 1 of the Bail Act 1982 (WA).

38 Clause 1 of Pt C of Sch 1 provides that except in cases in which bail is sought in respect of a serious offence committed whilst the applicant is on bail for another serious offence, the grant or refusal of bail is in the discretion of the judicial officer to whom the application is made.

39 By cl 1(a) that discretion is to be exercised having regard to the following questions "as well as to any others" the judicial officer considers relevant:

"(a) whether, if the defendant is not kept in custody, he may -

(i) fail to appear in court in accordance with his bail undertaking;

(ii) commit an offence;

(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).

(f) where the defendant is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the defendant to reside at a place other than the place where the child resides;

(g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.

40 Clause 3 of Pt C of Sch 1 sets out the matters relevant to a consideration of cl 1(a) as follows:

"3 In considering whether a defendant may do any of the things mentioned in clause 1(a), the judicial officer or authorized officer shall have regard to the following matters, as well as to any others which he considers relevant-

(a) the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the defendant for it or them, if he is convicted;

(b) the 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

(d) the strength of the evidence against him."

41 It may be observed that as with cl 1, these are inclusionary considerations.

42 The jurisdiction to grant bail under the Bail Act has not altered the common law with regard to the relevant factors to be taken into account when the application is made, nor in regard to the onus of proof.

43 In WCVB v The Queen (1989) 1 WAR 279, Ipp J, after considering a number of pre-Bail Act authorities, concluded there should not be a substantial difference between the courts approaching cases of murder and cases of serious crime, at least those which fall into a class that can be described as "extremely serious". That is because the strong inference that a person would be likely to abscond when facing the severity of a sentence of imprisonment likely to be imposed in a case of murder, is also likely to be drawn in other cases in which the offence charged is "extremely serious". The seriousness of the charge is relevant to the assessment of the likelihood of the applicant attending for his trial.

44 Ipp J accepted that in recent times in many, if not most cases of what could be termed serious crime, the courts have adopted a more liberal approach than hitherto, but his Honour added (at 283):

"But that is not an inflexible rule. There are cases involving charges so serious, or so many or a combination of both - to which, in my view, the principles applicable to charges of murder apply."

45 His Honour concluded that the Act does not alter the common law in this regard nor in regard to the onus of proof, and continued (283):

"... counsel for the applicant submitted that the primary question is whether the applicant would attend trial. Under the Bail Act, however, no particular factor is given primacy. All the matters referred to in cl 1 of Pt C to the Schedule are to be taken into account. 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. Often, as I have mentioned, the likelihood of the applicant standing trial will be most important.

Again, I do not think this is a departure from the common law. ..."

46 In KM v The Queen, unreported; SCt of WA; Library No 7193; 14 July 1988, Nicholson J said:

"It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case can be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charges.

The court is, therefore, called upon to balance the interests of the accused and the public interest in the trial proceedings. The onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer it. The position is well established."

47 Thus in the case of an application under cl 1 and cl 3 of Pt C of Sch 1, a number of propositions may be accepted:

1. No particular factor is given primacy under the Bail Act. All the matters adumbrated in cl 1 and cl 3 - as well as any others considered by the court to be relevant - are to be taken into account.

2. The circumstances of each case will determine the weight to be attached to each factor.

3. The onus is on the prosecution to establish there is a reasonable degree of risk the accused, if allowed bail, would fail to answer it.

4. However, in the case of "extremely serious" crime, ie where the penalty likely to be imposed is of such severity as to ordinarily give rise to a strong inference that the applicant would be likely to abscond, the onus is upon the applicant to demonstrate exceptional reasons why bail should be granted.

48 Mr Aulfrey conceded at the outset that the charges of assault, aggravated burglary, aggravated armed robbery, deprivation of liberty and assault occasioning bodily harm are "serious offences" within the meaning of that category as described by Ipp J in WCVB, such as to require the applicant to demonstrate exceptional reasons for bail to be granted. He submitted that the combination of the applicant's sense of grievance arising out of the fact that his two co-defendants have been granted home detention bail and that the applicant does not have a substantial record of previous convictions for offences of this kind, amounted to exceptional circumstances sufficient to justify a grant of bail.

49 I am compelled to say that I could not accept the submission that those do amount to exceptional circumstances for that purpose.

50 However, while it must be acknowledged that these are very serious offences, both individually and in combination, I do not consider that they are of such an extreme degree of seriousness as to put them in the category which would require exceptional reasons to be shown for a grant of bail.

51 Mr Aulfrey acknowledged that there is a matter of "delicacy" in that whilst the applicant has instructed him that his relationship with his de facto partner, Ms Kristy Robinson (sister of his co-defendant), who is the mother of his 2 year old child, is on-going, she had in fact made a formal complaint to police that he had assaulted her. Her statement in support of that complaint was subsequently tendered as exhibit "H" on this application by Ms De Maio. The applicant has not yet been charged with any offence arising out of it, but according to the evidence of Detective Ford, that is only because of lack of police resources at Inglewood Police Station, and because as there is no present threat to Ms Robinson from the applicant her complaint has been given a low priority.

52 I note there is nothing in the applicant's affidavit about this, merely the submission by Mr Aulfrey from the bar table that those are his instructions. Accordingly, all counsel for the applicant was able to advance about it was that the applicant had not yet been charged with any offence in respect of Ms Robinson, that their's was an "on and off affair" and that (at t 4):

"It perhaps is not an uncommon event that such charges sometimes do arise and sometimes simply evaporate in the mists of the Court of Petty Sessions from time to time ..."

53 Mr Aulfrey added (at t 5) that on his instructions the applicant had been in touch with the complainant over the course of his remand and it seemed that Ms Robinson was not coping particularly well with his incarceration and does require his support.

54 As to the issue of employment, Mr Aulfrey referred to the applicant's availability for work upon release. But to say the applicant would be available for work on release is not to say anything about the availability of work for the applicant - which is the more important consideration. It is submitted that the applicant has a passable, if not good, record in labouring and crayfishing, which record should "almost assure him of work on his release".

55 That is hardly an assurance of on-going employment.

56 Ms Robinson had told police the applicant was living with her for the previous six weeks because he had nowhere else to stay. On my enquiring where the applicant would reside were bail to be granted, Mr Aulfrey gave an address in Fremantle (the Doust Street address), but initially said he had no instructions about whose address that was. I allowed him to take those instructions and he was able then to inform me that the best instruction he had is that the address is of a person by the name of Sara, whose last name the applicant thought was Watts. Mr Aulfrey said he was instructed she is a friend or acquaintance of the applicant. When I asked on what basis the applicant thought he would be able to stay there, Mr Aulfrey said it was mainly because the applicant had told him she had been of some assistance to the applicant in the past and he was hopeful that he might be able to remain at that address once more.

57 According to Ms De Maio, it is likely that the applicant's trial would take five to seven days, taking into account certain forensic evidence which the prosecution is still awaiting. A trial of that length could not presently be listed in the Supreme Court before September.

58 At this point I turn to deal with what was described as the applicant's sense of grievance about being refused bail when it had been granted to his co-defendants.

59 A justifiable sense of grievance arising from markedly different sentences imposed upon co-offenders for the same or similar offences, when there is no other apparent reason for distinguishing between them, may give substance to an appeal against sentence on the ground of disparity. The same principle does not apply on an application for bail pending trial. The question of bail does not fall to be determined on some sort of parity basis. As is apparent from the principles to which I have referred above, each application is to be considered on its merits. Each of the relevant factors (including, but not limited to, those set out in cl 1 and cl 3 of Pt C of Sch 1) is to be assessed against the circumstances as they pertain to the individual applicant. Whether or not a co-defendant is released to bail would ordinarily be of marginal (or no) relevance. If all other relevant factors were equivocal in their effect, the fact that an applicant's co-defendants had been released to bail for the same offence may lead to a conclusion that bail should be granted. But where the alleged offenders play different roles, their personal circumstances and backgrounds are different, the assessment of the likelihood of their attending for trial and the availability and potential efficacy of bail conditions to them differ (or are not known), the fact that co-defendants have been granted bail cannot carry any particular weight.

60 In the present case I know very little about the criminal histories of the co-defendants and nothing about their personal circumstances nor any other factor which might have borne on their suitability for release to bail. The fact that the applicant feels aggrieved by their being released to bail when he has been refused, is not, to my mind, a reason for granting it to him.

61 As I have already observed, although obviously these are very serious offences, both in their nature and in their particular circumstances (and despite the concession by Mr Aulfrey), I do not consider they fall into that category of extremely serious offences which would require the applicant to show exceptional circumstances for bail to be granted.

62 Nonetheless, on the limited material before me, which I acknowledge has not been tested in cross-examination and does not include any evidentiary material from or on behalf of the applicant, I am satisfied the prosecution case against the applicant is strong and that if he were to be convicted the offences would attract a substantial penalty. On present indications that could well be in the area of 6 to 9 years imprisonment. Of course I am considering this from the perspective that he would not gain any reduction for a plea of guilty. That assumption must be made because the applicant himself deposes that he intends to plead not guilty and to take the matters to trial - as he is properly entitled to do.

63 The prospect of conviction and the likely substantial nature of any sentence give the applicant very powerful incentive not to attend for his trial.

64 The applicant complains that he was described in earlier proceedings as the "primary offender".

65 Although the prosecution case will be that Robinson recruited the applicant to assist Robinson and Diconza and so he is not alleged to be a principal offender in that sense, the allegation is that he was, in effect, the enforcer. The prosecution case is that it was the applicant who was the primary actor in the assaults, confinement and physical intimidation of the alleged victims. On the accounts of the witnesses it would not be inaccurate to describe the applicant as the primary offender in that sense.

66 The applicant does have previous convictions. There are several Western Australian convictions for possessing prohibited drugs in 2000, together with the breach of bail to which I have already referred. There are other convictions for drug and driving offences in 2001 and 2002. There is a conviction for assault occasioning bodily harm in September 2001. His record of convictions in New Zealand includes common assault in February 1985, September 1985, November 1986, September 1990, March 1991, September 1991 and December 1994. There is a further conviction for failing to answer bail in September 1991 in respect of which he was sentenced to imprisonment for one month.

67 An applicant's character and antecedents are relevant to an application for bail in two ways, first as to the effect on any sentence likely to be imposed upon conviction and secondly as to the extent to which they may indicate a disposition to ignore bail obligations or to flee the jurisdiction. I have already taken the first into account in my assessment of the potential sentence on conviction. So far as the second is concerned, the applicant's record shows a disposition to violence and no great inclination to comply with the law. The fact that he has breached bail on two occasions is of concern.

68 The applicant has no particular ties with Western Australia. He owns no property here. He has no family here. He has no permanent residence here and in fact is entirely uncommitted. I say that notwithstanding his relationship with Ms Robinson. He has no employment. There is no particular position to which he could go. The assertion that he could obtain gainful employment is entirely general and speculative. He has no fixed accommodation.

69 In short, there is nothing to tie him to this State. He has evinced a desire to return to New Zealand. He told the arresting police officers that he wished to return to New Zealand and face the charges there if possible. That is entirely understandable in the circumstances, but is a strong consideration inclining to the conclusion that he would do so were the opportunity to present itself.

70 Whilst a very substantial surety requirement could be imposed, that would be met only by relatives of the applicant in other States of Australia. The closeness of the applicant's relationship with them is not known and it is not possible to prognosticate whether he would feel sufficiently obligated to them to comply with his bail requirements. I am not able to have confidence that he would.

71 One of the factors to which I must have regard is the attitude of the prosecution. In this case the prosecution strongly opposes the application, primarily on the ground that there is a real risk the applicant would flee the jurisdiction. I am satisfied on the balance of probabilities that there is such a risk.

72 I have considered the possibility of allowing home detention bail or imposing conditions to ensure performance of the applicant's bail undertaking. However, it is clear home detention is not a practical possibility for the applicant and I am not satisfied that there are any conditions which could be imposed which would sufficiently remove the possibility that the applicant would fail to attend for his trial.