Criminal law - Bail - Murder - Intentionally causing grievous bodily harm - Remanded for retrial after jury unable to agree - Lengthy period of pre-trial imprisonment - Anticipated delay of seven months before retrial - On bail for serious offence - Exceptional reasons - Bail Act Sch 1, Pt C, cl 3 and cl 3A

Criminal Procedure Act 2004 (WA)

A matter of an application for bail by Alexopoulos, unreported; SCt of Vic; 23 February 1998

Al-Kateb v Godwin [2004] HCA 37; (2004) 28 ALJR 1099

Clarkson v Director General of Corrections [1986] VicRp 44; [1986] VR 425

Fazzari v The State of Western Australia [2004] WASC 71

Firkins v Director of Public Prosecutions [2002] WASC 203

Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23

Jemielita v The Queen (1994) 12 WAR 362

Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993

Lawrence v R [1933] AC 699

Lim v Gregson [1989] WAR 1

Mokbel v Director of Public Prosecution (No 3) [2002] VSC 393; (2002) 133 A Crim R 141

Outman v The Queen [2001] WASC 162

Pinkstone v The Queen (2000) 119 A Crim R 462

R v Diaz [1982] WAR 60

R v Hallas (2001) 122 A Crim R 503

R v Harker [2002] QSC 61; (2002) 128 A Crim R 317

R v Kantzides, unreported; SCt of Vic; 9 August 1996

R v Light [1954] VicLawRp 25; [1954] VLR 152

R v Mantasse, unreported; SCt of Vic; 21 September 2000

R v Sefton [1917] VR 259

R v Stuart & Finch [1974] Qd R 297

R v Vernell [1953] VicLawRp 79; [1953] VLR 590

R v Wallis; ex parte Employers' Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529

Rauch v The State of Western Australia [2005] WASC 241

Re Jenkin [1994] 1 Qd R 266

Ribot-Cabrera & Ors v The Queen [2004] WASCA 101

Saka v The Queen [2001] WASC 92

The State of Western Australia v Oates [2004] WASC 214

Thomas v R (No 2) [1960] WAR 129

Unchango v The Queen, unreported; SCt of WA; Library No 980346; 12 June 1998

WCVB v The Queen (1989) 1 WAR 279

Williams v The Queen [2001] WASC 308

KM v The Queen, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988

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

Musarri v The Queen [2001] WASC 200

1 EM HEENAN J: From 10 to 17 October 2005 Reece Joshua Sturgeon stood trial before a Judge and a jury in this Court on an indictment which alleged that:

(1) on 2 October 2004 at Doubleview, with intent to maim, disfigure, disable or do grievous bodily harm to Thomas Lee Cole, he did grievous bodily harm to Thomas Lee Cole (contrary to s 294(1) of the Criminal Code; and

(2) on 6 October 2004 at Perth he murdered Feng Zang Yuan contrary to s 279 and s 282 of the Criminal Code.

2 The evidence at the trial was concluded on the fourth day and this was followed by addresses to the jury by both counsel and by a detailed direction from the learned trial Judge. That began on the fifth day and was completed on the sixth day of the trial with the weekend break intervening. After a retirement of some nine hours, the jury was unable to reach a verdict upon the charges laid in the indictment or upon other offences for which a conviction was open on the indictment and which had specifically been left for consideration by the jury. The jury had been given a direction, at an appropriate time, about the possibility of reaching majority verdicts but announced, through its foreman, that it was unable to reach a majority verdict for any of the offences which had been left for deliberation. As a consequence, the learned trial Judge then discharged the jury and remanded the accused for retrial in due course.

3 Mr Sturgeon had been in custody since he was originally arrested and charged with these offences on 4 October 2004. As the discharge of the jury occurred late in the evening after hours, there was no practicable opportunity for any further applications to be dealt with and the accused was remanded in custody to a date to be fixed for a status hearing to make arrangements for the retrial. It has since been ascertained that it is most unlikely that a retrial will be possible before May 2006 at the earliest.

4 Now, by application dated 2 November 2005, the accused applies for bail on terms pending his retrial. This bail application has been listed before me as a special appointment, affidavit evidence has been filed, written submissions received and counsel have appeared and developed those submissions.

5 This bail application was brought and heard in the absence of the accused. Counsel for Mr Sturgeon submitted that he had been instructed that, if Mr Sturgeon were to be present, it would not have been possible to convene a hearing and to provide for his attendance for another week or more due to a shortage of court rooms with secure custody facilities and because of other logistical arrangements necessary to have him brought from prison. I understand that it was not possible to convene a hearing at which arrangements could be made for Mr Sturgeon to participate by video conferencing, again, because of the absence of available court rooms with video link facilities. Counsel for the applicant submitted that the matter should, and could, proceed in his client's absence and that Mr Sturgeon was willing for this to occur. There was no opposition to this course by the State.

6 The basic rule is that proceedings which relate to an accused must take place in his or her presence unless s 140 of the Criminal Procedure Act 2004 or the Sentencing Act 1995 provides otherwise - Criminal Procedure Act 2004, s 88(3). An application under the Bail Act 1982 is a proceeding for this purpose - s 88(1) of the Criminal Procedure Act. This is in accordance with the fundamental principle of the criminal law that a trial for an indictable offence be conducted in the presence of the accused and that a trial means the whole of the proceedings. If this does not occur the proceedings are totally invalid - Lawrence v R [1933] AC 699 at 708; R v Vernell [1953] VicLawRp 79; [1953] VLR 590 - unless the absence is due to the accused's own behaviour, for example, by absconding or by seriously interrupting the proceedings leading to removal - R v Stuart & Finch [1974] Qd R 297, but there may be circumstances where a minor irregularity involving a short absence of the accused which resulted in no material prejudice would not give rise to invalidity - Thomas v R (No 2) [1960] WAR 129 at 133 - 136.

7 Because of the importance of the accused being present it is essential that if it is proposed that the proceedings, or any part of them, should occur in the absence of the accused that consideration is expressly given to whether or not an order allowing the proceedings to continue should be made under s 88(4) of the Criminal Procedure Act. In the present case I was satisfied, for the reasons already stated, that Mr Sturgeon's interests would not be prejudiced by his absence from the hearing of this bail application and that to proceed in his absence would not be contrary to the interests of justice. Indeed, proceeding in this fashion would be to his advantage. An order to that effect was made during the course of the hearing - s 88(4).

8 A previous application under s 14 of the Bail Act had been made on behalf of the accused to the learned trial Judge before the commencement of his trial. This had been made by application dated 25 July 2005 and was heard by Jenkins J on 28 July and 1 August. Bail was sought because of difficulties said to have been experienced by the accused in preparing his defence for trial, in conferring with counsel and, more particularly, in obtaining and attending appointments with senior medical specialists to undergo examinations and investigations concerning injuries which he had sustained at about the time of the alleged offences and the effect of those injuries upon him. That application was adjourned by her Honour on 28 July when it became likely that the difficulties said to have been experienced in securing medical examinations might be overcome.

9 The adjourned hearing of the bail application was resumed on 1 August 2005 at which time it became apparent that suitable arrangements would be made by the prison authorities to allow Mr Sturgeon to be taken to the consulting rooms of the various specialists and for him to undergo the desired examinations. Nevertheless, the accused pressed his application to be released on bail generally, again stressing the need for him to meet with his legal advisers to give instructions in preparation for the trial. His application was refused by Jenkins J on 1 August on the grounds that exceptional circumstances had not been demonstrated to justify the grant of bail for serious offences and that, with the imminence of the trial then due to be held in October, a further period in custody would not give rise to such a degree of additional hardship as would alone, or in combination with other factors, amount to exceptional circumstances. In her reasons for decision, Jenkins J said:

"The law provides that in cases in which the charges fall into the extremely serious class, the applicant must show exceptional circumstances to justify bail being granted, WCVB v R (1989) 1 WAR 279 and Lim v Gregson [1989] WAR 1. So far as the offence of murder is concerned, it is a particularly serious offence which falls into the category of offences for which exceptional circumstances to justify bail must be shown. Exceptional circumstances are unusual or extraordinary or special, a reason not ordinarily to be seen, out of the ordinary; that is to say, the reasons must be unusual or out of the ordinary."

10 In view of the rejection of that earlier application for bail, counsel for the State in the present application submitted that this was a further application for bail under s 14 and that it could not be considered unless the accused satisfied the court that new facts had been discovered, new circumstances had arisen or the circumstances had changed since the first application - Bail Act, s 14(2)(a). However, counsel for the State conceded that, with the discharge of the jury after the first trial when it was unable to reach a verdict and the remand of the accused for a retrial which is unlikely to take place before May 2006, that new circumstances have arisen and the circumstances applying when bail was initially sought and refused have changed so that on that basis this further application for bail could be considered. However, I take the view that that restriction upon the second or subsequent applications for bail imposed by s 14(2)(a) of the Act does not apply once the trial of the accused on the charge or charges concerned has been concluded, even if, in this case, the result of the trial was inconclusive. I agree, with respect, with Roberts-Smith J in The State of Western Australia v Oates [2004] WASC 214 at [11] where his Honour said:

" ... Secondly, more to the point, a grant or refusal of bail relates to securing the appearance of the accused at a hearing, so, for example, s 14(2) of the Bail Act refers to the jurisdiction of a Judge of the Supreme Court ' ... in respect of an appearance by a defendant' whether or not any other judicial officer has previously granted or refused or varied bail ' ... in respect of that appearance'. Thus, as the learned author of 'Criminal Law in Western Australia' points out at par 40,060.5, once the defendant or accused appears at the hearing, the bail is answered and he or she is in the custody of the court. (See also Item II in the first column of Pt A of Sch 1 to the Bail Act.)

It accordingly falls within the jurisdiction of the judicial officer conducting the hearing to deal with the question of bail during or after the hearing in the ordinary way and in accordance with the ordinary principles, relevantly for present purposes, those in cl 1 and cl 3 of Pt C of Sch 1 of the Bail Act."

11 The charges of murder and intentionally doing grievous bodily harm to another, upon which Mr Sturgeon was indicted and stood trial, are both serious offences within the meaning of that term in the Bail Act - s 3(1) and Sch 2. The significance of this, in the present case, is that the provisions of Pt C, cl 3A of Sch 1 of the Bail Act have become applicable so that the judicial officer entertaining the application for bail must refuse to grant bail if the serious offence for which the applicant is charged is alleged to have been committed while the applicant was on bail for another serious offence, unless satisfied that there are exceptional reasons why the applicant should not be kept in custody. In certain such instances, but not in the present case, this determination of whether or not exceptional reasons exist must also take into account the factors identified in cl 3B of Sch 1 of the Act.

12 The two offences which are charged in the indictment against Mr Sturgeon are alleged to have been committed on 2 and 6 October 2004 respectively. By then Mr Sturgeon had been charged in the Court of Petty Sessions at Perth with the crime of serious assault, namely an assault against a public officer then performing a function of his office - s 318(1)(d) of the Criminal Code. That charge, dated 8 September 2004, is that on 8 September 2004 the accused assaulted one David Anderson, a public officer then performing a function of his office. Sturgeon had been remanded on bail and remained on bail on that charge at the time of the act of alleged grievous bodily harm with intent and the murder in October 2004. In the affidavit of William John Clements, the solicitor for the applicant, sworn 25 July 2005 in support of the July bail application, he deposed that Mr Sturgeon had entered pleas of not guilty to that charge and to other charges in the court of summary jurisdiction and that these had been adjourned for mention to 24 October 2005. Mr Clements went on to say:

"The summary charges related to an incident involving transit guards at the Perth railway station on 8th September 2004. I am instructed that the Applicant denies the summary charges and is supported by a civilian witness. The applicant was on Bail for the summary charges however when he last appeared in the court of summary jurisdiction on 16th December 2005 [2004] and did not seek a renewal of Bail as he was on remand with respect to the charges before this honourable court."

13 I was informed by counsel that this remains the position at present and that no steps have been taken to bring those charges in the Magistrate's Court to trial or other determination pending the outcome of the indictment for murder and intentionally causing grievous bodily harm. Whether the charge for that earlier serious offence, namely, assaulting a public officer, had been disposed of or not before the hearing of the present bail application would not affect the need for the applicant to establish exceptional reasons why he should not be kept in custody under cl 3A of Pt C of Sch 1 of the Bail Act - see Williams v The Queen [2001] WASC 308 at [13] and Firkins v Director of Public Prosecutions [2002] WASC 203 per Pullin J at [5].

14 It is the fact that the indictable offences are alleged to have been committed whilst the applicant was on bail on a charge for an alleged earlier serious offence. This is the only aspect of this case which invokes the statutory requirement for the establishment of exceptional reasons for the grant of bail, as distinct from any other requirement which might arise because of the gravity of the offences charged as, in the present case, arising from the charge of murder.

15 Mr Sturgeon was born on 27 January 1982 and is, therefore, now aged 23 years. He is a qualified carpenter by trade and, until the time of his arrest in October 2004, had been in steady employment earning approximately $1500 per week. He has an opportunity for immediate employment and, if released on bail, would avail of that to re-establish his income. Although not married, he has had a long-term relationship with a young woman and the couple have a 2-year-old child whom he supports. The relationship with his partner remains close. If released on bail he has the opportunity of living with his mother and step-father at an address in Fremantle and they would offer him good family support. The accused has a record of other offences dating from December 2002, but these are mostly traffic offences involving driving without a licence, giving a false name and address, driving at excessive speed and the like. However, on 26 July 2004 he was convicted of breaching the terms of bail and was fined $300. On 24 November 2004 he was convicted of escaping from legal custody and was fined $500. His explanation was that his breach of bail involved a failure to attend the Court of Petty Sessions as required on 11 May 2004 due, so he says, to forgetting to do so on the day. The charge of attempting to escape from legal custody arose from an arrest due to an outstanding bench warrant but, when being searched, he broke free from the police and ran away along a suburban street, later hiding in a rear car park of a block of units. He was chased and caught by the police.

16 In addition to the other charges pending in the Magistrates Court, Mr Sturgeon has been indicted on two further charges pending in the District Court of Western Australia. That indictment, dated 25 May 2005, alleges that:

"1. on 2 October 2004 at Scarborough he, while in the place of Matthew James Berthold without his consent committed the offence of stealing

and that immediately before the commission of the offence he knew or ought to have known that there was another person in that place

and that the place was ordinarily used for human habitation (all contrary to s 401(2) of the Criminal Code); and

2. on the same date and at the same place he stole a motor vehicle, namely Mitsubishi Pajero registration number 1AYE 873, the property of Fishing WA Pty Ltd trading as Fishing WA contrary to ss 371A and 378 of the Criminal Code."

These two charges also arise from the chain of events alleged to have occurred on the evening of 2 October 2004 which involved, or led to, the alleged commission of the offences of doing grievous bodily harm with intent and of murder which are charged on the indictment now before this Court.

17 All the charges on indictment arise from events occurring on the night of 1 and 2 October 2004, the Friday night and the early hours of the Saturday morning. A group of young people had been attending clubs or hotels on the Scarborough beachfront and, having missed the last bus, were undertaking the long walk east along Scarborough Beach Road towards the nearest train station on the northern line, namely the Stirling Station near Innaloo. They were strung out in a line over some distance but near Doubleview came across the accused who was walking along the pavement with his skateboard. A number of this group of persons then accosted the accused and took his skateboard from him but he then managed to break away. He made his way back to the home where he was living close by in Doubleview and there armed himself with a hammer from tools available. He returned to Scarborough Beach Road, hiding at a point further east until the members of the group came to that point. He then accosted them and, threatening them with the hammer, demanded the return of his skateboard. An argument ensued but the skateboard was returned to him and he made to go away. At this point other members of the group threw bricks, stones and other projectiles at him as a result of which he was hit on the head and suffered other injuries causing bleeding. However, he was able to make good his escape and made off (with his skateboard) without inflicting any harm on members of the group who had attacked him.

18 Although the accused made no statement to the police following his later arrest and did not give any evidence at his trial, this narrative of events and his involvement were not challenged at his trial. However, his case was that this was the only involvement which he had with that group of people on or near Scarborough Beach Road that night.

19 Later in the evening, as the group of stragglers was still making its way east along Scarborough Beach Road, a Mitsubishi Pajero motor vehicle drove up Scarborough Beach Road from behind them, drove onto the pavement and ran down several of the pedestrians. It was this incident which, the evidence at the trial established, caused grievous bodily harm to Thomas Lee Cole and serious injury to Feng Zang Yuan. Feng Zang Yuan died in hospital four days later from those injuries. The Mitsubishi Pajero vehicle drove away without stopping and disappeared.

20 The case for the prosecution was that the Mitsubishi Pajero vehicle had been parked that evening near the home of Matthew Berthold where a party attended by a number of young persons, in no way connected with the group walking east in Scarborough Beach Road, had been for most of the evening. The vehicle was locked and the keys were inside the house. At the October trial the State alleged that, after the second episode with the group in Scarborough Beach Road during which Mr Sturgeon had retrieved his skateboard but had been injured by the bricks and other projectiles flung by that group, he made his way back to the house where the party had been held and unlawfully gained entry to the house, stole the Pajero keys and used these to unlock the Pajero and unlawfully drive it off in search of the group which had attacked him. According to the prosecution, the accused was driving this vehicle alone and ran down the group, causing the serious injuries already described and then made away, returning the vehicle to its parking place outside the Berthold house, replacing the keys inside and leaving the vehicle in a damaged condition.

21 The evidence at trial was to the effect that another friend of the owner borrowed the keys of the vehicle and drove it for some time at about 7.30 am on the morning of 2 October, before returning to the Berthold home. At some point during the morning it was discovered that the vehicle was damaged and the attention of the police turned to whether or not it was the vehicle used in the hit and run accident on Scarborough Beach Road the previous night. Matches between paint on a pole at the accident scene and scrapings on the side of the Mitsubishi Pajero, fragments of broken headlight glass found at the accident scene and parts of a broken licence plate frame or housing discovered at the accident scene and other articles or fragments, all pointed to the Mitsubishi Pajero being the vehicle involved. At his trial, formal admissions were made on behalf of the accused Sturgeon that this was, indeed, the vehicle which had struck and injured Thomas Lee Cole and Feng Zang Yuan.

22 There was no direct evidence led at the trial which identified the applicant as the driver of the Mitsubishi Pajero at the relevant time. He had made no admissions to the police and did not give evidence at his trial. However, there was evidence of traces of blood being found in or on the surfaces of the interior of the Mitsubishi Pajero vehicle and upon a spectacles case found in the vehicle. Analysis of these blood samples and DNA testing of the applicant, Mr Sturgeon, revealed that, to a very high degree of probability, the blood from these traces was his own.

23 A major issue before the jury at the trial was whether, indeed, the prosecution had established beyond reasonable doubt that Sturgeon was the driver of the Mitsubishi Pajero at the time the group of pedestrians was run down and the two young men named in the indictment were injured. On this issue the accused, through counsel, submitted that although the DNA/blood evidence, if accepted, would show that his blood was found in the vehicle, it did not explain how the blood came to be there and, in particular, did not prove that it was him who was driving the vehicle at the time the two young men were injured. In support of this contention, counsel for Mr Sturgeon pointed out that the evidence demonstrated that, after the incident on Scarborough Beach Road happened, and much later on the morning of 2 October 2004, a third person was known to have been driving the vehicle for a short period but that when it was examined forensically and tested for traces of DNA no samples of this third person's DNA were found nor, for that matter, were samples of DNA found from anyone but the accused and the vehicle's owner. This, so the argument ran, meant that it was possible for some unknown person to have used the vehicle and not left any trace of his presence.

24 Other issues of fact remained in contention and required the jury to be satisfied that they had been proved beyond reasonable doubt in addition to the need for the prosecution to prove that it was the accused driving the vehicle at the time. These included the need to establish an intention to cause grievous bodily harm, or that the driving had involved negligence to a criminal degree, or alternatively, that the driving was dangerous in all the circumstances. In addition, the prosecution had the burden of excluding a defence of provocation or accident. Essentially, the prosecution case was that the known involvement of the accused Sturgeon in two altercations with the group of young men on Scarborough Beach Road earlier in the evening and the fact that he had been injured in the stoning that ensued during the second altercation, gave him a very strong motive to take revenge. This, in combination with the presence of his blood, unexplained, in the vehicle which caused the damage, together with other alleged connections, the State submitted amounted to a strong circumstantial case of guilt.

25 It is not possible to deduce with any certainty which issue or issues resulted in the disagreement among the jurors. Several questions had been addressed to the trial Judge after retirement dealing with the identity/blood/DNA issues and it seems probable that proof of identity may have been one of the unresolved controversies, if not the unresolved controversy. As these are all likely to be issues which will be readdressed at the retrial it is unnecessary and undesirable to attempt to evaluate their significance further. It is enough to say that although the prosecution appears to have a strong circumstantial case against the accused, it was not successful at the first trial and it is yet to be seen whether or not it will be conclusive. It is not, by any means, possible to conclude that the accused must be convicted at any retrial.

26 On this application, counsel for Mr Sturgeon submitted that there was every reason for confidence that the applicant would comply with the terms of any bail granted and would answer the obligation to attend as required for his retrial. His risk of absconding was submitted to be very small because of his connections with his small son and his mother and his stable work record. Furthermore, the proposed conditions of bail requiring him to live with his parents and report daily to the police, involved, so it was argued, a close degree of supervision which rendered absconding most unlikely.

27 With reference to his earlier convictions in the Magistrates Court for breach of bail and attempting to escape legal custody, it was submitted that the breach of bail was due to oversight and that he was readily apprehended and brought before the court when the penalty imposed was a fine of $300, suggesting that the breach had not been gross or motivated by an attempt to escape from the law. In relation to the offence of escaping from legal custody, it was submitted that this was an impulsive attempt to break away from police after an initial roadside apprehension and that it ended with him being recaptured very quickly and again with a relatively modest monetary penalty being imposed. In short, the submission was that Mr Sturgeon did not constitute a flight risk and that the terms of the proposed bail would provide adequate protection against this developing.

28 Counsel for the State accepted that the proposed terms of bail, with one addition, did give adequate protection against any risk of flight. The exception, readily agreed to by counsel for the applicant, was that there should be an obligation to deliver up any passport held and an undertaking given not to apply for any new passport or to use any lost passport which might unexpectedly later be found.

29 The real issue therefore became whether or not the court could be satisfied that there were exceptional reasons why the accused should not be kept in custody because of the application of cl 3A of Pt C of Sch 1 of the Bail Act and, also, but independently, because of the serious nature of the charge of murder still pending against him. Counsel for the applicant submitted that on this issue a further delay of six or seven months before the next trial, resulting in a pre-trial period in custody reaching up to 19 months, was a feature which could, and indeed did, amount to exceptional circumstances either alone or in combination with all other aspects of the case.

30 Reference to the history of the right to be bailed is set out in the judgment of Pidgeon J in Jemielita v The Queen (1994) 12 WAR 362 at 366, commencing with a reference to "Stephen's History of the Criminal Law of England" vol 1, pp 233 et seq. Pidgeon J said:

"Stephen makes the observation that the right to be bailed is as old as the law of England itself, and is explicitly recognised by our earliest writers. He then makes reference to the statutes governing bail. The first is the Statute of Westminster the First 1275 (Imp) (3 Edw I C 12). He says that this statute was for 550 years the main foundation of the law of bail. He refers to the subsequent statutes dealing with or affecting the right to be bailed. The author then examines the writs that issued from the High Court in its supervisory capacity to see that Sheriffs and other officers holding prisoners did their duty and this included an examination of the writ of habeas corpus which caused some of the earlier writs to fall out of use. The author concludes (at p 243):

'The power of the superior courts to bail in all cases whatever, even high treason, has no history. I did not know, indeed, that it has ever been disputed or modified. It exists in the present day precisely as it has always existed from the earliest times.' "

This antiquity of the law providing for persons held in custody, whether because they had been charged with a criminal offence or for any other reason, to be granted provisional release on bail and the close associations with the traditional liberty of the subject protected by the ancient remedy of habeas corpus is also well recognised. In a recent case dealing with challenges to the power of the Commonwealth of Australia to detain illegal non-citizens pending deportation under the Migration Act, and the power of the Federal Court to direct their temporary release from detention pending the determination of the challenge to the validity of the executive detention: Al-Kateb v Godwin [2004] HCA 37 at [26]; (2004) 28 ALJR 1099 at 1106, Gleeson CJ said:

" ... it is worth remembering that an order of bail as an interlocutory step in habeas corpus proceedings is not uncommon. Indeed, a proceeding for habeas corpus was once the normal method of applying to the King's Bench for bail: Sharpe, The Law of Habeas Corpus (2nd ed, 1989) at p 128; In Re Kray [1965] Ch 736 at 740. In R v Secretary of State for the Home Department; ex parte Turkoglu [1988] QB 398 at 399 Sir John Donaldson MR, with whom Croom-Johnson and Bingham LJJ agreed, said, in an immigration case:

'Clearly we would grant bail ancillary to or as a part of proceedings for habeas corpus.' "

31 This approach to the question of whether or not an arrested or accused person should be bailed pending trial has resulted over the intervening centuries with the development of many common law principles relating to bail which, with some exceptions, generally favour the grant of suitable bail to ensure that the person bailed does comply with his obligation to present to the court at the due time and poses no appreciable threat to the community or to the trial process. Counsel for the applicant in this case referred to the decision of Owen J in this Court in Langeveldt v The Queen, unreported; SCt of WA; Library No 930740; 23 December 1993 at 9, where his Honour said:

"I think it is appropriate to reflect for a moment on the basic concept of bail. R v Sefton [1917] VR 259 Cussen J said at 261-262:

'It is of course a rule that a prisoner is not detained in custody pending trial because of his guilt or assumed guilt, but to ensure his appearance at trial. Therefore, in ordinary cases, if by taking recognisances that appearance can be practically ensured, bail is granted.'

I think it is appropriate to broaden that dicta slightly by saying that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt. He or she should have his or her liberty until guilt is established unless the public interest requires to the contrary. The public interest is reflected in the integrity of the trial process, both in terms of the accused person appearing at trial and there being no interference with the course of justice pending trial."

32 Although the position now is that in this State and in all other States and Territories bail has been put on a statutory footing - Bail Act 1982 (WA) - the established common law principles continue to apply to the extent that they are consistent with this legislation. The interaction of the common law principles and the statutory criteria established under the Bail Act was examined by Pidgeon J in Jemielita (supra) and, after a detailed consideration and enumeration of the common law principles (at 366 - 367) and their relationship to the Western Australian statute which had then only recently come into operation, his Honour said:

"The principles which have been evolved when considering these factors under the earlier statutes are based on logic, experience and common sense and as alluded to by Anderson J, in the present case, are principles the community would expect in cases of this nature. I do not consider that there has been an intention in the Bail Act to exclude them. On the contrary, I consider that the omission of a reference to a right to have bail granted and the emphasis on the discretion to grant it with power to consider all relevant questions and matters results in the requirement that the discretion be exercised in accordance with the established principles. It results in a right to bail in the sense outlined by Nicholson J in Lim v Gregson [1989] WAR 1. I consider therefore that Ipp J was correct in WCVB v The Queen (1989) 1 WAR 279 in saying that the Bail Act has not altered these earlier principles and I consider that the principles outlined in Lim v Gregson would continue to apply."

33 It is generally observed that a person charged with the crime of wilful murder or murder will not be released on bail unless the circumstances are sufficiently exceptional to indicate that, despite such a serious charge, the applicant is not likely to abscond or to interfere with the process of trial or to constitute a danger to himself or society. Lim v Gregson [1989] WAR 1 was just such a case where, on appeal, a medical practitioner charged with the wilful murder of one of his patients through an alleged overdose of morphine was granted bail pending trial although bail had been refused by a single Judge dealing with the initial bail application: Unchango v The Queen, unreported; SCt of WA; Library No 980346; 12 June 1998, a decision of Templeman J, is another fairly recent example of bail being granted in a murder case in this State.

34 Detailed examinations of very many authorities dealing with applications for bail in like circumstances were undertaken by Malcolm CJ, Kennedy J (dissenting) and Rowland J in Lim v Gregson (supra). But all of these emphasized that even in cases where the charge was wilful murder or murder, the prime consideration was whether or not the accused would meet his bail at trial rather than abscond and that associated with this criterion was any potential for risk to the trial process or interference with witnesses. In the judgment of Malcolm CJ at 13, the learned Chief Justice said:

"In my opinion, the learned Judge rightly held that the circumstances would have to be extremely exceptional before a grant of bail could be made on a murder charge before committal. Counsel for the appellant suggested that the formulation of the test by O'Bryan J in terms of any 'special or unusual circumstances' should be preferred to any formulation in terms of 'rare cases', 'exceptional circumstances', or 'extremely exceptional' circumstances. In my opinion, there is nothing to be gained by debating the potential semantic differences between these various tests. R v Lythgoe [1950] QSR 5 was a case where an accused person had been committed for trial on a charge of wilful murder and who made an application for bail after such committal. Mansfield SPJ (at 6) held that in such a case 'bail will generally be refused ... except in rare cases where exceptional circumstances are shown to exist': see also R v Strong (1935) 52 WN (NSW) 179; R v Watson (1947) 64 WN (NSW) 100; and R v Fisher [1964] Tas SR 318. In R v Borsboom (1887) 4 WN (NSW) 14 it was held that it would require 'a very exceptional state of things to justify' admitting an accused charged with murder to bail. Exceptional circumstances have been held to exist where a child of 13 years of age was committed for trial on a charge of murder (R v McDowell [1954] QWN 47); where in a protracted trial the applicant was in ill-health (R v Street [1944] QWN 24); and where the applicant was accused of murdering an infant about four weeks old (R v Sefton [1917] VicLawRp 41; [1917] VLR 259). Exceptional circumstances were held not to exist where the applicant was of advanced age and in poor health (R v Kennedy [1941] QWN 49; and R v Jeffers [1948] VicLawRp 1; (1895) 1 ALR 71); and where the applicant was a single woman accused of the murder of a patient whom she criminally aborted (R v Turnbull [1947] QWN 34).

The grant of bail is, however, a matter of discretion and the exceptional circumstances which may be required should not be regarded as a closed list: R v Kleinert (1928) 49 ALT 137."

35 WCVB v The Queen (1989) 1 WAR 279 involved an application to a Judge of the Supreme Court for bail pending trial for a person charged with 96 offences including breaking and entering, forgery, arson, and conspiracy to commit indictable offences. The evidence presented in opposition to the application and accepted was that, if not kept in custody, the applicant may endanger the safety of persons within the community, may well obstruct the course of justice and would commit acts of violence aided in doing so by secret stores of firearms and explosives. Taking Lim v Gregson (supra) as a starting point, Ipp J referred to the rule that in cases of wilful murder or murder the circumstances would have to be extremely exceptional before bail would be granted and proceeded to extend that rule to other cases of serious crime and, after reviewing the authorities, observed (at 282):

"Nevertheless, it seems to me, with respect, that there should not be a substantial difference between the court's approach in cases of murder and cases of serious crime, at least those which fall into a class that can be described as 'extremely serious'."

36 In more recent years the decisions in Lim v Gregson (supra) and WCVB v The Queen (supra) have often been cited in support of the broad proposition that in cases involving a charge of wilful murder or murder, bail should not be granted except in exceptional circumstances. Examples of this approach can be found in Jemielita v The Queen (supra), Pinkstone v The Queen (2000) 119 A Crim R 462 and Fazzari v The State of Western Australia [2004] WASC 71 per McLure J at [10] and [13].

37 This requirement for exceptional circumstances to be demonstrated before bail should be granted on a charge of wilful murder, murder or another serious offence, finds its origin in the principles developed in the cases dealing with bail at common law and before the introduction of the Bail Act, rather than in the Act itself. The legislation is explicit (Sch 1, Pt C, cl 1) that the grant or refusal of bail to a defendant, other than a child, shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested and that this discretion shall be exercised having regard to certain specified questions as well as to any others which that officer considers relevant. Schedule 1, Pt C, cl 1 sub-pars (a) - (g) enumerates a non-exhaustive list of questions, which are to be considered and, in the present circumstances, at first glance possibly the most pertinent is sub-par (g), which says:

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

For a prescription of considerations which must be taken into account in determining whether or not the discretion to grant bail is appropriate, sub-par (g) can only be regarded as being, to a significant extent, tautologous or circular, because in effect it prescribes that bail may be refused if the magnitude of the alleged wrongdoing is such as to render it "inappropriate" to grant bail, without specifying or indicating any objective criteria by which the index of "inappropriateness" may be evaluated.

38 What is clear, however, is that bail is always at the discretion of the judicial officer or other authorised officer in whom the jurisdiction to grant bail is placed, except for cases coming within cl 3A where the need for exceptional circumstances is expressly denoted. This contrast between the requirement for exceptional circumstances in cases coming within cl 3A and those which do not must be regarded as carrying some significance for, otherwise, there would be no need for the difference - per Dixon J in R v Wallis; ex parte Employers' Association of Wool Selling Brokers [1949] HCA 30; (1949) 78 CLR 529 at 550 and (see generally, Pearce & Geddes: "Statutory Interpretation in Australia" 5th ed, Butterworths (2001) at 112).

39 The explanation appears to me to lie in the view that, generally speaking, on applications for bail not falling within Sch 1, Pt C, cl 3A of the Bail Act, the discretion to grant bail is at large and no single factor is to be regarded as conclusive or determinative in favour of or against the grant of bail. Whereas, in cases coming within the purview of cl 3A, there is a specific statutory direction that the alleged commission of a serious offence whilst on bail for another serious offence must result in the refusal of bail unless exceptional circumstances are demonstrated, so elevating the significance of the alleged commission of the offence whilst on bail for another serious offence to a prescriptively disqualifying factor for such a bail application unless exceptional circumstances be shown. It is not difficult to see a clear policy of Parliament behind such a provision which obviously rests in the concern of the legislature, responding to public anxiety, that persons who may turn out to be serious serial offenders may be permitted to remain at large when there is public concern about their ever-present threat to the community. While the common law authorities are clear that "a prisoner is not detained in custody pending trial because of his guilt or assumed guilt" - per Cussen J in R v Sefton [1917] VR 259, there is a statutory encroachment upon that principle (subject to the demonstration of exceptional circumstances to the contrary) in cases where an offender is alleged to have committed a serious offence whilst on bail for another serious offence. In other words, this is a form of statutory presumption that such an applicant for bail does constitute a threat to the safety of the community and is therefore within one of the long established categories of applicants for whom bail is refused on conventional principles - subject always to the potentiality of demonstrating exceptional circumstances to the contrary.

40 This approach, in my opinion, gives recognition to the differentiation in the treatment of applicants for bail under cl 3 and cl 3A of Pt C of Sch 1 of the Act, in a way which is consonant with long established doctrine and common law principles and which is also harmonious to the Parliamentary recognition of public apprehension about the risk of potentially serial offenders roaming free. However, it still leaves the discretion to grant bail in other cases, including applicants charged with serious offences, who are seeking bail under cl 3 of Pt C of Sch 1 of the Act at the general discretion of the judicial officer or other authority exercising the jurisdiction to consider bail.

41 None of this diminishes the long-standing disinclination of the courts to grant bail in cases of wilful murder or murder. At common law there was a presumption against bail for offences which carried the death penalty - a recognition of the probability that the incentive to escape the consequences of conviction would probably be overwhelming, but that for other offences, before conviction, there was a presumption in favour of bail: R v Light [1954] VicLawRp 25; [1954] VLR 152 per Sholl J, where the history of bail and the leading authorities to that time are very fully examined. The removal of the death penalty in all Australian jurisdictions in modern times nevertheless leaves unchanged the powerful influence and incentive towards absconding which a long sentence of imprisonment is likely to produce for an alleged offender. The essential dynamics remain the same, namely, as I observed in Ribot-Cabrera & Ors v The Queen [2004] WASCA 101 at [50], and on this aspect of the case, Steytler and Le Miere JJ agreed:

"The worse the potential consequences facing the person charged with a criminal offence, the greater is the incentive for that person to abscond so that, correspondingly, the greater is the need for a person seeking bail which would involve a risk of flight, to demonstrate that he or she will answer to the obligations of bail and attend the ultimate trial."

I note that these observations were recently cited, with agreement by McKechnie J, in Rauch v The State of Western Australia [2005] WASC 241 where his Honour applied that view and expressed doubt about the observations by Ipp J in WCVB v The Queen (supra) that an onus is cast upon an applicant to show exceptional circumstances before the grant of bail in serious cases. As noted earlier, there was a real threat of further offences being committed if bail had been granted to the applicant in WCVB v The Queen (supra). With respect, I consider that the supposed difference between the approach which I have outlined and that expressed by Ipp J in WCVB v The Queen (supra) is more a matter of emphasis than any real difference in principle. Like McKechnie J, I remain of the view that there is no statutory obligation, nor indeed any statutory indication, for a court to insist that exceptional circumstances must be shown before bail can be granted in the case of a serious offence not coming within the category of cl 3A. In such cases, the jurisdiction to grant bail must be considered and exercised without any single factor being regarded as determinative or prohibitive in the exercise of the general discretion addressing the criteria specified in the Act, but this does not mean that the powerful incentive to abscond, provided by the prospect of imprisonment for a lengthy period, can or should be ignored - quite the contrary. In my view, that powerful incentive to abscond must be specifically recognised and addressed in any application for bail for a serious offence, and in many instances it is likely to be a crucial, if not the crucial, factor in leading to the refusal of bail. But that may not always be so and, in my respectful view, it would be a fetter upon the exercise of the general discretion to assume that it must be so.

42 As already observed, there are many cases, indeed most, where applicants for bail who face charges of wilful murder or murder have had bail refused. It is not difficult to see that not only do such applicants often present a flight risk, but they may often also, or instead, pose threats to themselves, their acquaintances or family or to the community. They may also pose a threat to the integrity of the trial process because of a disposition to intimidate potential witnesses. Risks of that kind, where they are real or not insignificant, can only be regarded as powerful contra-indications to the grant of bail. It is to be expected that risks of that kind are more likely to arise when a person is charged with a serious offence than otherwise but that, of course, is a generality which must be treated with the caution and discrimination which applies to all generalities.

43 It will be for the judicial officer or other authorised officer considering the bail application to determine whether or not those are actually sufficiently material risks to deny bail in any particular case. Even when they may be regarded as a potential risk there may be an adequate way in which the risk can be countered as, for example, the grant of bail with electronic monitoring under home detention, as was ordered by Gray J in R v Hallas (2001) 122 A Crim R 503, in a case where, incidentally, his Honour acknowledged that while it was unusual for a person charged with murder to be granted bail, bail for persons on such charges had been granted in recent times in a significant proportion of cases. The approach taken in South Australia in Hallas (supra) was said by McLure J in Fazzari v The State of Western Australia (supra) to be "a different approach" (see [10]). But, with all respect, I do not agree that that is so, rather, I consider that the decision in Hallas is consistent with principle and, despite being a decision in relation to the law of another State, is equally applicable to applications under the Bail Act in this State.

44 Accordingly, I conclude that the present applicant for bail must demonstrate exceptional circumstances because his application is governed by cl 3A rather than by cl 3 of Pt C of Sch 1 of the Bail Act, by reason of the fact that the applicant was already on bail for a serious offence at the time these alleged serious offences were committed. Furthermore, the fact that bail is being sought by an applicant facing charges of murder and intentionally causing grievous bodily harm means that his application for bail must be considered in the light of the strong incentives for absconding which the consequences of conviction for either or both of those offences will inevitably entail. That is not quite the same thing as saying that, in that regard, exceptional circumstances must be proved by the applicant but, rather, that the reality of these incentives must be squarely recognised and evaluated.

45 It was these factors which led to the refusal of bail by Jenkins J on the application heard shortly before the trial in July and August last. At that point the trial was imminent and the particular problems facing the accused in securing proper medical investigation and examination had, fortunately, been overcome by the time the application was finally determined. Nevertheless, her Honour remained in effect, of the view that the risk of the applicant being released on bail was unacceptable and it seems that the prime component of this unacceptable risk was the risk of flight.

46 In the light of the failure of the jury to agree upon any verdict at his trial in October this year, Mr Sturgeon now faces the prospect, unless granted bail, of remaining in custody until at least May 2006, and possibly longer before any retrial. That will amount to a period in custody since arrest of over 17 months - a very long time indeed.

47 In this case there has been no suggestion that there is any risk posed to the integrity of the trial process or to the safety of witnesses by conduct of the applicant if released on bail. The conditions proposed for bail, in this respect, are not suggested to be inadequate by the State which, otherwise, opposes the application. Nor has it been submitted that the applicant has a history of violence which renders him a threat to the community or to any person if released from custody pending retrial. Serious, unquestionably, though the alleged offences and conduct are, there is, at least to some extent, a degree of impulsiveness and response to attacks upon him which may to some small extent possibly explain this offending, if indeed it is ever proved.

48 Because of absence of opposition on this ground and the circumstances which have been revealed by the full examination of the events that were conducted at the October trial, I do not consider that it has been established that the applicant poses a material risk to the community, himself or others, if he were to be released on bail. This conclusion addresses in part, but not entirely, his onus of establishing exceptional circumstances under cl 3A because, as outlined earlier, my view of that provision is that it gives a prescriptive presumptive effect to the potential risk to the community of a person seeking bail for a serious offence, who is alleged to have committed that offence whilst on bail for another serious offence.

49 The other serious offence alleged in this case is the assault of a public officer at the Perth railway station. The applicant has pleaded not guilty to that charge and no details of the alleged circumstances of that offence were put before the court, other than the bald assertion on behalf of the applicant that a witness was available to support his defence. There does not appear to be any similarity between the nature of the conduct alleged by the State in the present indictments against this applicant and that leading to the charge of assaulting a public officer at the Perth railway station. Despite the presumptive effect attributed to the two charges by cl 3A, there does not in reality appear to be a basis for a conclusion or apprehension that because of a charge for a second serious offence this applicant does actually pose a threat to the community. As I have already observed, none was suggested by counsel for the respondent. Positive factors in favour of the grant of bail are the opportunity of the applicant to obtain gainful and remunerative employment, his desire to support the mother of his child and to re-establish a paternal bond with his child. These, I consider, are influential factors to be given weight but are not such, by themselves, as would constitute exceptional circumstances.

50 The real factor for consideration in this case is whether or not there is a risk of the applicant absconding, a risk which has to be balanced against the long period in custody which he has already spent and will be required to serve before he can finally be tried on these charges. Long delays before an applicant for bail can be tried have, in a number of cases, been regarded as amounting, either by themselves or in combination with other favourable factors personal to the applicant, as constituting exceptional circumstances to justify the grant of bail. Examples of the effect of such delay, either alone or in combination with other factors, being determinative in favour of the grant of bail are provided by the cases of Saka v The Queen [2001] WASC 92 per McKechnie J at [38] - [40]; Outman v The Queen [2001] WASC 162; R v Kantzides, unreported; SCt of Vic; 9 August 1996; and A matter of an application for bail by Alexopoulos, unreported; SCt of Vic; 23 February 1998; Mokbel v Director of Public Prosecution (No 3) [2002] VSC 393; (2002) 133 A Crim R 141. In Pinkstone v The Queen (supra) the hardship associated with an extended delay before trial, during which the applicant was in custody, was regarded as substantial but nevertheless not sufficient to outweigh a real risk of flight in those particular circumstances.

51 These and other authorities on this point were considered fully by Roberts-Smith J in The State of Western Australia v Oates (supra), another application for bail where the applicant's trial on indictment had unexpectedly terminated without a verdict. In that case, notwithstanding some continuation of a flight risk, Roberts-Smith J was satisfied that this was more than counterbalanced by the factor of delay amounting to special circumstances justifying bail which his Honour granted. His Honour said, at [40] - [41]:

"[40] Despite that though, for the reasons I have already expressed, I consider the factor of delay before the accused's retrial with the unacceptably long period of time he would have served in custody by then to outweigh those factors militating against the grant of bail. Whilst I accept that if the flight risk is so great as to be unacceptable or is, to use Mr Hall's expression, 'real and unanswerable', delay can never prevail over it, that proposition must be considered in the context to which I have already referred as articulated in Mokbel.

[41] The proposition, baldly expressed, must be correct, but I have come to the conclusion that although I believe there to be an appreciable risk the accused might seek to return to Poland, I do not regard it as so great as to outweigh the factor of delay having regard to the stringent conditions which I am presently minded to impose."

52 The most regrettable fact that long delays before people are brought to trial on serious offences, often necessitating their imprisonment on remand pending trial, have become unfortunately common, cannot be allowed to mask the hardship and the potential injustice which this can, and very often does, cause. In Oates (supra), Roberts-Smith J quoted, with approval, from the observations of Vincent J (as he then was) in R v Mantasse, unreported; SCt of Vic; 21 September 2000:

" ... If our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of 18 months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represented the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice."

53 The long tradition of the law favouring personal liberty developed during periods when such delays before trial were seldom common. Decisions in the past where bail was refused, because of the failure to demonstrate exceptional circumstances, were mostly made at a time and in a climate where the effect of the denial of bail was to produce relatively short periods of detention before eventual trial. The dynamic of balancing the risks concerned and the protection of the community against the hardship to the accused of requiring him to remain in custody pending trial was often undertaken, having regard to much shorter periods of pre-trial detention than have already elapsed in this case or would result if bail were now to be refused. Until comparatively recently there were statutory provisions in this State, and in other Australian States, enabling an accused to apply to be brought to trial and if there was no trial within a prescribed time, in this State by the second monthly sittings of the court after his committal, the accused could apply for a discharge - Criminal Code, s 608 (now repealed). Such a discharge would not prevent the prosecution from commencing further proceedings but, if they were dilatory in doing so or abused the statutory powers to cause an unacceptable delay in the prosecution of the offence, that might lead to a permanent stay of proceedings - see R v Diaz [1982] WAR 60; Re Jenkin [1994] 1 Qd R 266; R v Harker [2002] QSC 61; (2002) 128 A Crim R 317 and Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 per Brennan J at 45, notwithstanding that there is no common law right to a prompt or speedy trial.

54 This right to a discharge under the former s 608 of the Code, for a person who had made due application but was not brought to trial by the end of the second sittings after his committal, has now been replaced by a right to apply under s 94 of the Criminal Procedure Act for an order requiring the presentment of an indictment within a period set by the court and if that does not happen the accused may be discharged from the charge. By these means the court retains the ancient power to order the release of persons charged if they are not brought to trial within an acceptable time.

55 In R v Diaz (supra), Kennedy J traced the origins of the then s 608 of the Criminal Code to the Habeas Corpus Act 1679 (31 Car 2, ch 2), s 6 and its statutory successors in England, including the Assizes Relief Act 1889. In Diaz the application was unsuccessful because it had not been initiated at the appropriate time to come within the limits of the statutory right. Another unsuccessful attempt to invoke the provisions of s 6 of the Habeas Corpus Act itself in Victoria occurred in Clarkson v Director General of Corrections [1986] VicRp 44; [1986] VR 425 where, at 430 - 435, Tadgel J, with the agreement of Young CJ and Kaye J, undertook a very detailed examination of the historical developments of the process of trial in the United Kingdom and the practice of bringing persons charged with serious criminal offences to trial in the exercise of the jurisdiction of courts of oyer and terminer and general gaol delivery. While it was concluded that this historical analysis is no longer determinative of the processes of criminal procedure in Victoria in the modern era, the case nevertheless reveals that for more than 400 years in England the expectation was that if a person charged with a serious offence was not brought to his trial before the completion of the next following criminal sessions held in the location where he was detained, he was entitled to apply to the court for release and should be released on bail unless there was good cause to the contrary.

56 This long history and it endurance in this State provides a very powerful indication of the time-scale or sense of balance accepted by the courts as constituting a tolerable period of pre-trial detention in all but special circumstances. That much longer delays are now commonplace in this State and elsewhere in Australia is no reason to relax the vigilance of the courts in ensuring that procedural delays do not cause injustice. In the present case, the prospect of this applicant being detained in custody for a further seven months before a retrial plainly transcends any tolerable limit.

57 Furthermore, the proposals that the applicant should reside with his parents, report regularly to the police at Fremantle and either give up any passport which he may hold or undertake not to use any lost passport or seek a new passport adequately meets the small risk of flight which arises in this case.

58 It is for these reasons that I granted bail after the hearing of this application on 10 November on the terms then recorded.