BDU v The State of Western Australia - [2011] WASC 9

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BDU -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 9

CORAM: EM HEENAN J

HEARD: 20 DECEMBER 2010

DELIVERED : 20 DECEMBER 2010

PUBLISHED : 11 JANUARY 2011

FILE NO/S: MCS 60 of 2010

BETWEEN: BDU
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Bail

Legislation:

Bail Act 1982 (WA), s 14

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant: Mr N J Lemmon
Respondent: Mr B E F Tooker

Solicitors:

Applicant: Nick Lemmon
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

EM HEENAN J: By an application dated 6 December 2010 BDU seeks a grant of bail by this court pursuant to s 14 of the Bail Act 1982 (WA). He is at present, and has been since 30 September 2010, in custody at Hakea Prison.
BDU was arrested on 13 September 2010 and then charged with an offence of indecent dealing with a child who is a lineal relative or de facto child contrary to s 329(4) of the Criminal Code (WA). The allegation, which BDU denies, is that he indecently dealt with the complainant on or about 9 September 2010. The details of the alleged offending are set out in the statement of facts which is contained in the affidavit of Mr Lemmon sworn in support of the proceedings.
As I say, BDU has at all times denied committing this offence and intends to defend the charge. The charge is winding its way through the preliminary procedural steps in the Magistrates Court of Western Australia and I am told that the latest development is that it is expected to be listed for committal mention in the Magistrates Court at Perth on 19 January 2011 when, possibly, that will result in an order for committal to the District Court of Western Australia indicating that, in the ordinary course of events, it is unlikely to be brought on for trial until six months or so later.
When arrested BDU sought and was granted bail. One of the terms of the bail was that he should have no communication with the alleged victim of the offence or for that matter with his wife. In compliance with the terms of bail he then went and lived at his sister's home for some time and there is no allegation that the terms of bail were beached until 26 September 2010. The evidence is, and this is accepted by the prosecution, that on or about 26 September 2010 his wife, one of the persons whom he was not permitted to contact under the terms of bail, contacted him to plead for assistance in transporting her and her two children, including the alleged victim, to a country town. It appears that at this time his wife has just undergone some medical treatment and was obliged by some demands associated with pending proceedings in the Family Court to deliver the children to their natural father, who was living in or near a country town. One way or another it was essential for her to get to a country town with the children and she approached BDU with a request for him to drive them there. That is what he did.
The journey was uneventful. There is no allegation of improper conduct between BDU and the alleged victim of his charge or of any other person and on arrival in a country town the children were delivered into the custody of their father and BDU it seems immediately returned to Perth. It is not quite clear whether he was accompanied on the return by his wife or not but that is not a significant factor.
Upon it becoming known that BDU had been in contact with the complainant and his wife and another member of the family he was arrested for breach of the terms of his bail. He came before the Magistrates Court at Armadale on 1 October 2010 unrepresented and sought bail but the bail was refused. The transcript of a subsequent set of proceedings in the Magistrates Court at Armadale before the same magistrate on 26 October 2010 indicates that the reasons for the refusal of bail on that date were the seriousness of the charge, the so‑called blatant disregard of the bail conditions and the fear that a further offence as charged might be committed.
Later on 26 October 2010, this time represented by counsel, BDU again made an application for bail in the Magistrates Court at Armadale and the matter came before the same magistrate. I have a transcript of the proceedings on that date and at pages 9 and 10 of that transcript are his Honour's reasons for refusing bail yet again. On that occasion the grant of bail had been opposed by the prosecution and his Honour confirmed his earlier refusal explaining that in his view the risk of reoffending continued to be unacceptable given BDU's 'blatant disregard' of the previous bail condition. It is from that second refusal of bail that the present application is made to this court and this court has ample powers to consider this application for bail entirely afresh.
There are a number of significant factors which have been brought to the attention of the court today which were not known to the learned magistrate or which have resulted in a change of circumstances between the time the matter was dealt with by his Honour and today.
The first matter of major significant is that there have been proceedings instituted in the Family Court between the father of the child alleged to have been assaulted, and his former wife by which the father has sought custody of the children. By orders made in the Family Court recently, on or about 23 November 2010, the father has been granted interim custody of the children including the victim and they have gone to live with him in another country town, a further distance from Perth and are expected to remain with him indefinitely or at least until the Family Court proceedings are brought to an eventual conclusion. Therefore the alleged victim and the other child are no longer in their mother's household.
The second matter of significance is that the wife of the applicant is now supporting the application for bail. She had not been heard of in the sense that no evidence had been received from her for or in opposition to the earlier grants of bail. The history, so far as she is concerned, is that on or about 11 October 2010 she obtained a restraining order against BDU prohibiting him from contacting her or approaching her or being in her vicinity and that same restraining order sought similar restraints against BDU in relation to her two children.
In a letter which is annexed to the affidavit of Mr Lemmon sent by the mother of the children to her husband's solicitors and dated 6 December 2010 she explains that this restraining order was sought and obtained by her on the advice of court officials in the expectation that it may be of assistance to her in the custody battle over the children which she was then engaged in with her former husband, the children's father. Be that as it may, the situation has been that since the grant of that restraining order she has applied to the Magistrates Court to have the restraining order cancelled insofar as it concerns her but for it to stand insofar as it concerns the children and that variation was made on or about 22 November 2010. It therefore follows that although there is a restraining order prohibiting BDU contacting or communicating with either of the two children, who as I have said are now living in [suppressed] with their father, there is no restraint against BDU contacting or communicating with or being in the presence of his wife.
In these circumstances it is obvious that any risk of reoffending is very much diminished by reason of the fact that the children are with their father and it is the case that she desires her husband to be released from custody and to resume cohabitation with her in Perth. These are very major changes and, were it necessary for me to be satisfied that exceptional circumstances existed, I would classify these as falling within that category.
The next matter of significance is that the prosecution now no longer opposes the application for bail, the reasons for not opposing being those which I have already outlined and the major change in circumstances. The proposal therefore is that BDU should be admitted to bail but on the following conditions that:
1.he provide a personal undertaking of $5,000 and a surety of $5,000 to secure his compliance with the bail terms;
2.he reside at an address given on the papers in [suppressed] which is his wife's address;
3.he should not contact the complainant - either directly or indirectly;
4.he should not approach within 100 m of the named complainant, the same young girl; and
5.he not enter the country town site where the children are living with their father.
I am satisfied that bail should be granted and granted on these terms and I am prepared to make orders accordingly.