Director of Public Prosecutions v Chesterman (a pseudonym)
[2020] VSC 255
•5 May 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0085
| IN THE MATTER of s 18A of the Bail Act 1977 |
| and |
| IN THE MATTER of an appeal by the Director of Public Prosecutions against an order granting bail to Daniel Chesterman (a pseudonym)[1] |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 May 2020 |
DATE OF JUDGMENT: | 5 May 2020 |
DATE OF REASONS | 8 May 2020 |
CASE MAY BE CITED AS: | DPP v Chesterman (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 255 |
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CRIMINAL LAW – Bail – Director’s appeal against magistrate’s grant of bail – Respondent charged with incest and other offences against his three daughters – Whether reasonably open to magistrate to be satisfied of a compelling reason in justification of bail – Error to have granted bail – Appeal allowed – Order granting bail set aside – Fresh application for bail on new material – No compelling reason - Application refused – Bail Act 1977 ss 3AAA, 4, 4AA, 4C, 4E, 12A, 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecution |
| For the Respondent | Mr S Moglia | Greg Thomas Barrister and Solicitor |
HIS HONOUR:
Introduction
On 5 May 2020, I heard an appeal by the Director of Public Prosecutions (‘the Director’) pursuant to s 18A of the Bail Act 1977 (‘the Act’) against an order made in the Melbourne Magistrates’ Court on 2 April 2020 granting bail to Daniel Chesterman[2] (‘the respondent’) in respect of a large number of charges he faces.
[2]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
I granted the appeal and set aside the order of the magistrate granting bail. I then heard a fresh application for bail. That application was refused. I indicated at the time that I would publish detailed reasons for my decisions allowing the appeal and refusing bail. These are those reasons.
The charges and procedural history
The respondent was arrested, interviewed and charged on 14 January 2020 with a large number of offences concerning allegations of a sexual nature made by his three daughters. There are charges of:
· Sexual penetration of a child or lineal descendent (10 charges)
· Sexual penetration of a child under 12 (7 charges)
· Sexual penetration of a child under 16 (3 charges)
· Sexual assault
· Common law assault
The respondent applied for bail before a magistrate at Melbourne Magistrates’ Court on 19 February 2020. Bail was refused on the basis that the respondent had failed to establish a compelling reason, and in addition, there was an unacceptable risk.
On 2 April 2020, a further bail application was brought before a different magistrate at the same court. Bail was opposed on the basis that the respondent had failed to establish a compelling reason in favour of a grant of bail, and on the further basis that even if a compelling reason was found to exist, there was an unacceptable risk that the respondent would endanger the welfare of any person, commit an offence while on bail, or interfere with witnesses or otherwise obstruct the course of justice.
For reasons which were not specifically set out during the hearing, and which were set out in the certified extract in relation to the court hearing as:
The occurrence of a likely delay
Treatment available to the applicant
The applicant’s family support
his Honour granted bail to the respondent on conditions that required him to live at his sister’s address in Rye, to comply with an intervention order which had been taken out, not to attend either Bairnsdale or the Greater Melbourne area save for court visits, and ‘to engage in mental health treatment’.[3]
[3]Amongst other conditions.
Whilst the learned magistrate did not specifically say so, it is apparent from the transcript of the proceeding and the fact of bail being granted by him that he must have been satisfied that a compelling reason existed that justified the grant of bail and further, that the prosecution had not established that the respondent posed an unacceptable risk.
Grounds of appeal
The Director asserted in the Notice of Application to Appeal that the decision of the learned magistrate to grant bail contravened the Act in that on the material before the Magistrates’ Court the respondent had failed to discharge the onus of satisfying the court that a compelling reason existed, and further that on that material, his Honour should have found that there was an unacceptable risk pursuant to s 4E(1) of the Act that if released on bail, the applicant would endanger the welfare of any person, commit an offence while on bail, or interfere with witnesses or otherwise obstruct the course of justice.
The law
The appeal is brought by the Director under s 18A of the Act, which reads in part:
(1)If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if –
(a) the Director is satisfied that -
(i) the conditions of bail are insufficient; or
(ii) the decision to grant bail contravenes this Act; and
(b) the Director is satisfied that it is in the public interest to do so.
…
(6)On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
In Director of Public Prosecutions v Molinaro (‘Molinaro’),[4] Weinberg JA stated:
The principles that govern an appeal of this kind are discussed in a number of authorities, including in particular, Beljajev v Director of Public Prosecutions (Vic) and Director of Public Prosecutions (Cth)[5], and Director of Public Prosecutions v Johnstone,[6] but most usefully, I think, in Director of Public Prosecutions (Cth) v Barbaro.[7] It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.
[4][2017] VSC 624.
[5](Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crocket and Ashley JJ, 8 August 1991), 29-30.
[6][2017] VSC 116.
[7](2009) 20 VR 717.
In Molinaro, the respondent asserted, and the Director did not challenge, that the test was whether the impugned finding of the magistrate was ‘reasonably open’. Weinberg JA expressed doubt that the words of s 18A(6) should be so construed, but decided the case in accordance with the test propounded.
Before me, both Mr Dickie for the Director and Mr Moglia for the respondent, submitted that that was, indeed, the correct test. I therefore proceeded on that basis.
Summary of alleged offending
The respondent married Maryanne Chesterman[8] on 27 December 2005. They have four children together:
[8]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the complainants and other witnesses.
· Penelope Chesterman[9] (DOB 26/6/2011)
[9]Ibid.
· Sarah Chesterman[10] (DOB 20/03/2009)
· Maree Chesterman[11] (DOB 24/04/2007)
· Jeremy Chesterman[12] (DOB 11/02/2006)
[10]Ibid.
[11]Ibid.
[12]Ibid.
On 13 January 2020, Penelope and Sarah Chesterman disclosed to their mother that the respondent had been sexually abusing them both and their sister, Maree, when their mother was absent from the home.
On 14 January 2020, Maryanne Chesterman attended the Sunshine Police Station with her four children and they were introduced to investigators from the Brimbank Sexual Offences and Child Abuse Investigation Team (SOCIT).
Penelope disclosed to investigators, inter alia, that on an occasion in December 2019, the respondent introduced his penis into her mouth and rubbed his penis on her vagina; that over a period of two years the respondent made her massage his body and placed his penis into her hand and mouth at the end of these massages; that on a number of occasions between 2017 and 2020 the respondent placed a liquid on his penis and rubbed it against her vagina; that she had witnessed her sisters giving a massage to the respondent; and that on an occasion in January 2020 she witnessed the respondent place his penis into the mouth of her sister, Maree.
Sarah Chesterman disclosed to investigators, inter alia, that on an occasion in 2019, the respondent called her into his bedroom after dinner, made her sit on top of him and introduced his penis into her vagina; that on two occasions between January and November 2019, the respondent introduced his penis into her mouth while he held her head; that on another occasion during this period the respondent called her into his bedroom to massage his body and introduced his penis into her vagina; that the respondent had been sexually abusing her from a young age when her mother was not home; that her sister Maree was made to sleep with the respondent when their mother was away; and that she could hear Maree ‘squealing’ from the respondent’s bedroom in the mornings.
Maree Chesterman disclosed to investigators, inter alia, that on 5 January 2020, she awoke in the respondent’s bed and he held her by her throat and introduced his penis into her vagina and anus while he did so; that on an occasion in November 2019, the respondent sat on top of her, forcefully held her mouth open and introduced his penis into her mouth and told her that she ‘used to love doing it when she was little’; that she cannot recall the number of times the respondent had introduced his penis into her mouth; that on an occasion between January and December 2018 the respondent called her over to the couch when he and the children were watching television in the lounge room, put her under a blanket lying on top of him and inserted his penis into her vagina while the other children watched television; that on another occasion during this period the respondent rubbed her breasts while she was in the shower; that on another occasion during this period the respondent photographed her in the shower playing with bubbles; that on an occasion between January 2016 and December 2018 the respondent called her into his office, she fell asleep on a single bed and awoke to the respondent’s penis inside her vagina; that she had lost count of the number of times the respondent had sexually abused her; and that she had witnessed the respondent sexually abusing her sister, Sarah, on several occasions.
Jeremy Chesterman disclosed to investigators, inter alia, that on an occasion between June and December 2019, the respondent pulled his ears, smacked him and choked him because he did not listen; that on numerous occasions between 2014 and 2017 the respondent choked him, causing bruising to his neck and on several occasions he was required to stay home due to the bruising; that he had heard his sister Maree, crying from the respondent’s bedroom when their mother was away.
On 14 January 2020, the respondent was arrested and participated in a police interview. He stated that his daughters regularly massaged his knee or back and that this occurred either in his bedroom or on the couch in the lounge room; that he regularly poked Maree’s breasts and bottom and that he was of the belief that this was a regular thing to do in the household; that he filmed and photographed Maree taking a bubble bath; and he otherwise denied the allegations that were put to him.
The bail application the subject of this appeal
The bail application before his Honour occurred in the context of an earlier unsuccessful application before a different magistrate who was unavailable to hear the second application. Greg Thomas, solicitor, appeared for the respondent. Ryan Hartshorne of counsel appeared for the Director.
At the commencement of the hearing, Mr Thomas indicated that although bail had been refused by the first magistrate, he had stated that his view on bail might change if there was a psychological report provided. Mr Thomas relied upon the then availability of a report by a psychologist Gina Cidoni and the expected increased delay due to the COVID-19 pandemic as amounting to new facts and circumstances justifying the second bail application. Mr Thomas noted that the prosecution brief had now been served. He asserted that this fact did not strengthen the prosecution case from that considered in the first application. Indeed, he submitted that medical evidence contained in the brief weakened the prosecution case.
The learned magistrate accepted that new facts and circumstances were established, and proceeded to hear the application.
At an early point, his Honour asked the prosecutor what test applied, and was informed that it was the compelling reason test. That was the one and only mention of that test during the entirety of the application.
His Honour asked for Senior Constable Catherine Madden, the informant, to be called. She then read the remand summary into evidence. Following that, his Honour asked her to confirm that the respondent had no prior convictions, and then confirmed with Mr Thomas that it was proposed that the respondent would live with his sister.
His Honour asked the informant what her concerns were about the respondent being granted bail, and she indicated a concern for his mental health in light of previous threats he had made to his wife to kill himself. His Honour then invited the informant to read the report of Ms Cidoni, and make some comments should she wish to do so. She indicated that she continued to be concerned about the suicidal state of the respondent.
This then seemingly prompted his Honour to give Mr Thomas the time to attend to that concern. He described the charges as ‘horrendous’, and noted that without some treatment in place, ‘there is a concern’. The matter was briefly adjourned. On the resumption, Mr Thomas indicated that an appointment had been made for the respondent to contact Ms Cidoni by telephone on 7 April at 11.00am. It was indicated that the respondent would obtain a mental health care plan from a general practitioner, but that in the meantime, he would have the telephone appointment with Ms Cidoni, and his care would likely be transferred to another psychologist Bernard Healey. His Honour then asked Mr Thomas to confirm that if there was a condition of bail that he engage in treatment, the applicant would do so. Mr Thomas provided that confirmation.
His Honour then took up the issue of the proposed treatment with the informant, who stated, ‘Your Honour, I completely oppose bail’. The following exchange then occurred:
His Honour: I understand that but it’s my decision, the bail is?---Yes.
His Honour: The problem here is he’s got no prior convictions. You understand?---I do understand.
His Honour: They are very serious charges. There’s no doubt about that. He denies them. He’s going to be in custody for an awful long time before he’s brought to trial. That has to be the situation in what we’re in at the moment. So those are the things that I have to consider. Why are you opposing bail?---I’m opposing bail because of: the allegations made; the evidence we have is very strong; he’s looking at a long sentence.
His Honour: You’ve just repeated everything I said?---Sorry. And I don’t believe that – if he’s released on bail, I believe he will harm himself and the ripple effect that will have on his children that do still love him ---
His Honour: That’s my concern and that’s why I stood the matter down. That’s completely my – my only concern, really, because he’s entitled – he’s innocent until proven guilty. He’s spent three months in custody to think about this. My concern is entirely your concern: without the right treatment he could possibly harm himself?---And, your Honour, I know his sister has said he can live there but there’s no way after caring for her parents that need 24-hour care that someone can keep 24-hour watch on this man to make sure that he isn’t harming himself.
His Honour: Anything else?---No, your Honour.
His Honour: (Directed to Mr Thomas) Do you wish to ---
Mr Thomas: Your Honour, other than repeating what you’ve already mentioned, in regards to delay, the contest mention is still going ahead on the 9th and obviously child sex offence trials would be prioritised once the courts are up and running again (indistinct)
His Honour: They have special hearings, don’t they?
Mr Thomas: Yes, they do.
His Honour: And then there’s going to be a trial and ---
Mr Thomas: My submission is that it would be prioritised being a child sex offence. It wouldn’t probably be pushed back (indistinct).
His Honour: Thank you. Anything you wish to ---
Mr Thomas: No, your Honour.
(THE WITNESS REVIEW)
His Honour: (Directed to the prosecutor) Is there anything you wish to say why I shouldn’t grant bail in these circumstances?
The prosecutor then made brief submissions pointing out the seriousness of the charges, the fact that a long term of imprisonment would be imposed if the respondent was found guilty, the fact that the prosecution case was strong, the presence of corroboration, and the high risk of self-harm by the respondent which would have a catastrophic effect on the complainants were it to eventuate. In respect of delay, he submitted that the COVID-19 issues should be considered along with all of the other evidence. The case would be prioritised once the court resumed hearing trials. Bail, he submitted, should be refused.
Shortly after this, without hearing any further submissions, and without stating any reasons, his Honour said:
Mr Chesterman, stand up, please. I am going to grant you bail. Do you understand? You have heard everything I’ve said. These are serious matters. It’s very important that you do not breach any of your conditions of bail.
Following further brief discussion, his Honour released the respondent on the conditions mentioned above.
The Director’s submissions
The main thrust of Mr Dickie’s submissions was that the learned magistrate, in reaching his decision, paid insufficient regard to the seriousness of the offending, the strength of the prosecution case, and the likelihood that upon conviction, the applicant would receive a substantial term of imprisonment.
Commencing with a consideration of the surrounding circumstances as they were before his Honour, Mr Dickie, submitted that the alleged offending is very serious, with the incest offences attracting a sentence of 25 years, and the respondent facing multiple charges concerning his three daughters, each of them very young, with the charges spanning years. In light of the manner and number of penetrations alleged and the overall circumstances, the offending represented serious examples of serious crimes.
Mr Dickie submitted that the accounts by the complainants are clear and consistent, with no apparent contamination. There is complaint evidence. Sexual conduct against each complainant was independently observed by at least one other complainant. On its face, the prosecution case appears strong.
Mr Dickie noted that Gina Cidoni described the respondent as having disturbed personality function, symptoms of depression and maladaptive coping with traumatic events. He is separated from his wife and children, and has previously threatened suicide.
The complainants fear for their safety should the respondent be released on bail, a fear shared by their mother, who has seen fit to move the family to country Victoria, well away from the respondent.
In respect of the likely period on remand, there will be no committal hearing because of the nature of the charges. Once the matter proceeds to the County Court, it is not apparent what, if any delay, will occur, as this matter would be prioritised. The most that the material before his Honour indicated was that the trial might not proceed until 2021.
In the event of the applicant being found guilty, a substantial term of imprisonment would undoubtedly be imposed which would far outweigh any period on remand.
As for the fact of the onerous conditions in custody at the moment due to the COVID-19 pandemic, that should be viewed as simply part of the surrounding circumstances required to be considered.
Mr Dickie submitted that having regard to the above circumstances, and in particular, the serious nature of the alleged offending, the strength of the prosecution case, the likely sentence to be imposed if the respondent is found guilty, and risks posed by the applicant, it was not reasonably open to the learned magistrate to find that there was a compelling reason justifying the grant of bail.
Mr Dickie further submitted that it was unclear from a consideration of the transcript of the hearing whether his Honour appreciated that the onus was on the respondent to prove a compelling reason, or if he found such a reason, on what basis he did so, other than the reasons for granting bail indicated in the certified extract. In fact, his Honour sought submissions from the prosecutor as to why he shouldn’t grant bail in the circumstances, something which tends to support the assertion that he paid no, or no sufficient regard to the applicable test. When it came to announcing his decision, without at any time referring to the onus upon the respondent, or the reasons underlying his decision, his Honour simply indicated that bail would be granted.
It was submitted by Mr Dickie that in doing so, his Honour did not address the compelling reason test and failed to give sufficient weight to the seriousness of the allegations, the strength of the case, and other circumstances. He placed undue weight on the respondent’s mental health and the need for him to receive treatment. There was, in fact, no compelling reason in justification for a grant of bail.
Furthermore, it was submitted that his Honour failed to address the real risks involved in a grant of bail. It was not open to his Honour to find that, even with the conditions imposed, such risks were acceptable.
Mr Dickie made some submissions as to his Honour’s statements during the application as to his concern being the mental health of the respondent. Mr Dickie submitted that in reality, the bail application deviated at an early stage into a consideration of what was seemingly his Honour’s primary concern, namely, the mental health of the applicant, the risk of self-harm, and the need for something to be put in place to address those issues.
Mr Dickie pointed out that his Honour at no point addressed the question of the strength of the prosecution case, a very important matter which he was required to consider.
As for his Honour’s reasons, these fell short of the type of reasons contemplated by s 12A of the Act. Mr Dickie did not rely on this as an error of law, but rather, as one of a number of things in support of the central argument that his Honour did not turn his mind to the applicable test, or if he did, that he did not sufficiently do so.
Mr Dickie submitted that the reasons for the grant of bail set out in the certified extract, along with the matters seemingly relied upon by the respondent during the application, were simply not sufficient to establish a compelling reason in support of the grant of bail.
He further submitted that there was nothing in the transcript of the application which was indicative of his Honour having paid proper, if any, regard to the matters of concern outlined by the informant.
On the question of unacceptable risk, Mr Dickie maintained that in light of the serious nature of the charges, the number and age of the complainants, the strength of the case, and the fragile mental condition of the applicant, the prospect of the applicant seeking to contact and influence his daughters was real, as was the risk of his harming himself. In the circumstances, it was submitted that it would not have been reasonably open to his Honour to consider such risk to be acceptable.
The respondent’s submissions
Mr Moglia for the respondent commenced by noting the considerable experience of the learned magistrate as a judicial officer and criminal lawyer. His decision was that of an experienced magistrate in an extremely busy jurisdiction, who had before him experienced practitioners at both ends of the bar table. He could be assumed to have taken on board all of the submissions made, in which, amongst other things, the applicable test was mentioned, and could not be expected to specifically canvas and make mention of every consideration in the course of the hearing. That did not mean that he had not properly considered all of the circumstances with which he was confronted. As for the compelling reason test, of course his Honour knew full well that that was the applicable test, and what its meaning was. There was no reason for him to focus on what other courts have said about the meaning of the term. Furthermore, there was nothing unusual about a magistrate in a busy court ‘cutting to the chase’.
His reasons, albeit brief, were adequately set out in the transcript and on the certified extract. It was obvious to his Honour at the time of the application that the offending alleged was serious, that the respondent had been in custody for a time already, and that bail had been refused by another magistrate. COVID-19 had now intervened, and it was obviously a weighty matter. His Honour was not required to go to great lengths to express that, or such other matters as were relied upon.
Insofar as his Honour did not specifically say anything about the strength of the prosecution case, Mr Moglia submitted that he did not quibble when the prosecution asserted that the case was strong. It could be inferred that his Honour accepted what was said in this regard.
In respect of the possible criticism of his Honour for having asked, of the prosecutor, ‘Is there anything you wish to say why I shouldn’t grant bail in these circumstances?’, Mr Moglia submitted that his Honour was:
doing exactly what a magistrate should do, communicating his provisional decision at that point and opening it back up for a prosecutor to say if there’s anything else. That’s why it occurs at page 14, not one.[13]
[13]Transcript 23-4.
Turning to the matters set out in s 3AAA of the Act, as they would have appeared in the court below, Mr Moglia accepted that the offending was serious. As for the strength of the case, there was some corroboration, and whilst there were issues to be contested, he did not submit that the case could be described as a weak one.
The applicant had no criminal history, which, submitted Mr Moglia, was a very substantial matter here. Also significant was the fact of there being no previous breaches of bail, and the fact that he was not on bail or any other court order at the time of his alleged offending.
Mr Moglia made mention of the intervention order now in place, which had come into existence with the consent of the respondent. The fact of this order being in place was protective. The combination of the lack of prior convictions of the applicant, which showed that he was a person of good character, and the imposition of a protective court order in the form of the intervention order, was a significant surrounding circumstance going to the proof of a compelling reason.
There was nothing of concern in the personal circumstances and home environment of the respondent. Mr Moglia submitted:
he’s just not in the category of offender that 3AAA is particularly targeted at in saying you’ve got to find something compelling: particularly look at what this person’s background is. Is he a breacher? Is he a repeat offender? Is he somebody that there have been red flags about? This man just doesn’t have any of those. That’s part of the compelling reason.[14]
[14]Transcript 13.
A little later in his submissions, Mr Moglia submitted, on the same matter:
I’d submit that that’s because an individual person’s situation and needs are of course a large factor in determining whether they ought be detained for a lengthy period, months, in custody whilst innocent. And that’s rightly so. A person who’s not demonstrated he’s a breaker of the law or antisocial in any other way is not somebody for whom it’s necessary to lock them up to ensure they don’t trouble complainants and come to court. If I can reduce the Bail Act to that pithy explanation and---[15]
[15]Transcript 32-3.
As to any special vulnerability of the respondent, as mentioned in s 3AAA(1)(h), there had been a concern of the risk of self-harm which was addressed in the material in support of the bail application.
In respect of the likely delay, Mr Moglia raised a concern about whether special hearings were continuing to be held. In any event, even if special hearings were held, the urgency of hearing the trial may be reduced, and the trial may not be heard until well into 2021, if not into 2022.
Mr Moglia submitted that abhorrent though the alleged offending was:
it’s also abhorrent to consider the remand of an innocent person without any prior convictions, without any indication of antisocial behaviour, be remanded in custody probably largely in lockdown for a period of time to await trials that goes beyond a short time. They’re different kinds of abhorrences (sic) but 3AAA does not require sole or even major focus on the abhorrence of the allegations. It quite properly balances a whole range of things. Section 3AAA came, with respect, into existence to deal with the very grave community concerns that troublemakers get too many chances. This man is just not in that category.[16]
[16]Transcript 37-8.
Mr Moglia further submitted that the purpose of bail in a case such as this was to give the court the, ‘proper power to nail down a person’s life to ensure there’s no risk’.[17]
[17]Transcript 39.
He went on to submit that in this case:
There’s just not an apparent reason for failing the 3AAA test, if you like. I know 3AAA’s not a test, but when you weigh all of those things up this is a case where a civilised society would put in place the protections and usher in the trial as soon as possible because there is no demonstrated risk to anyone. There’s real reasons to give weight to the delay that will occur. Mr Chesterman has been removed from the situation and it’s a compelling argument to say that his life because of this allegation has been upended and he’s cooperated with it.[18]
[18]Transcript 43.
Turning to the question of unacceptable risk, Mr Moglia submitted that there was simply no evidence which established that any risk posed by the respondent was unacceptable. He further submitted that the risk of self-harm was not a relevant matter where unacceptable risk was concerned. The focus of s 4E(1)(a)(i) was community safety, not the respondent’s safety.
Analysis
The starting point of the application for bail in the court below was of course the fact that this was a case where the presumption contained in s 4 of the Act in favour of bail had been displaced by a statutory requirement for bail to be refused unless the respondent discharged the onus resting on him of satisfying the court as to the existence of a compelling reason that justified the grant of bail.[19]
[19]Sections 4AA(3) and 4C.
In considering the meaning of the phrase ‘compelling reason’, it is not necessary to look beyond what was said on the matter by the Court of Appeal in Rodgers v The Queen:[20]
There was no dispute between the parties on this appeal concerning the principles to be applied when considering the compelling reason test. For present purposes, those principles may be summarised as follows:
(1)For an applicant for bail required to show a compelling reason, a synthesis or balancing of all relevant matters (including those identified in s 3AAA) must compel the conclusion that the applicant’s detention in custody is not justified.
(2)It is not, however, necessary for an applicant required to show a compelling reason, to show a reason which is irresistible or exceptional.
(3)A compelling reason is one which is forceful and therefore convincing – a reason which is difficult to resist.[21]
[20][2019] VSCA 214 (‘Rodgers’).
[21]Ibid [43].
In my view, although of course, the applicable legislation does not dictate the order in which relevant matters may be considered by a court, the sensible starting point in considering this application for bail was a consideration of the first two matters contained in s 3AAA(1) of the Act, that is the nature and seriousness of the offending, and the strength of the prosecution case.
In respect of the first matter, the offending alleged here against the respondent concerned repeated acts of sexual penetration of each of his young daughters, over a significant period of time, and sometimes accompanied by violence. Oral, vaginal and anal acts of penetration were alleged. The bulk of the sexual crimes allegedly occurred when the respondent had the sole care of his daughters when their mother, his wife, was absent from the home. The breach of trust implicit in the offending is very substantial. The offending as alleged is of an exceptionally high degree of seriousness.
As for the strength of the case against the respondent, I accept that on its face, as asserted by the Director, the case is a strong one. It most certainly cannot be described as weak, and nor did Mr Moglia submit that it could be.
Moving, for now, straight to the question of the likely sentence to be imposed should the applicant be found guilty, the inevitable result would be a very long term of imprisonment. It is instructive, on that score, that the standard sentence for incest when the victim is under the age of 18 years is ten years’ imprisonment. The applicant faces ten such charges, as well as a large number of other offences.
The likely period on remand should bail be refused, the matter for consideration under s 3AAA(1)(k), was seemingly the matter at the heart of his Honour’s reason for granting bail. It should be noted that in this case, because of the nature of the charges faced by the respondent, there will be no committal hearing[22] and at the time of the application below, the respondent would have been expected to be committed for trial in the County Court at the committal mention then listed for 9 April 2020[23]. At a time to be specified by the County Court, special hearings will then be held for the complainants, and when the trial is able to be listed, the bulk of the evidence will already have been given and recorded. There will be no need for the hearing of this matter to be delayed by the progression of the case through the Magistrates’ Court. Furthermore, once in the County Court jurisdiction, where, it is acknowledged, it is expected in the current circumstances that the listing of trials will be significantly delayed, this trial would have priority because of its subject matter.
[22]Sections 100(1A) and 123 of the Criminal Procedure Act 2009.
[23]Now listed and expected to proceed on 8 May 2020.
In the circumstances, it may not be likely that the trial will proceed this year. As to how long it might be delayed, Mr Moglia raised some concern whether the trial would necessarily proceed in 2021. Mr Dickie took issue with that and submitted that the trial would proceed next year at the latest.
The interesting thing about all of that is that the likely time for the hearing of the trial was not something which was even canvassed in the application. Mr Thomas submitted that the contest mention was still going to proceed on 9 April, and noted that , ‘child sex offence trials would be prioritised once the courts are up and running again’.
On the material before his Honour, there would have been no basis at all for him to consider that the trial would not proceed in 2021, and in all probability, in the early part of that year once trials had resumed.
Therefore, it seems to me that the likely delay which would have featured in his Honour’s thinking, albeit that he said nothing about its limits, could not have been excessive or extreme, and would not sit comfortably with his Honour’s statement that the respondent was ‘going to be in custody for an awful long time before he’s brought to trial’.
Those matters amongst the surrounding circumstances to which I have already referred would mean that his Honour was considering an application for bail by a person charged with exceedingly serious offending, in circumstances where the case was strong, the likely period on remand by no means excessive or unusual, and where the applicant for bail faced the certainty of a very lengthy sentence in the event of conviction.
Therefore, very powerful material would have to have been found amongst the other surrounding circumstances to lead to a compelling reason in justification for the grant of bail.
To my mind at least, it is perfectly plain that there was no such material.
In my view, his Honour erred in granting bail in this case. It was not reasonably open to his Honour to conclude that the material before him was sufficient to prove that a compelling reason existed that justified a grant of bail. Indeed, the material relied upon in support of bail was far from strong.
The absence of any prior convictions or any previous breaches of bail were of course significant matters to weigh in the mix, but they could not possibly warrant the significance the submissions of Mr Moglia suggested. It is not at all unusual for persons of previous good character to face prosecution for serious alleged offending. The fact of the previous good history would in no way be a guarantee of bail, or necessarily go any significant distance in proof of a compelling reason in justification for a grant of bail. It is no more than one of the circumstances to be taken into account.
Insofar as Mr Moglia submitted that it would be ‘abhorrent to consider the remand of an innocent person, without any indication of antisocial behaviour’ for anything beyond a short period awaiting trial, it cannot be forgotten that the legislature saw fit in respect of many of the crimes with which the respondent is charged to displace the presumption in favour of bail with a requirement upon him to prove the existence of a compelling reason in justification of bail before bail could be granted. It is obvious that when the analysis of the surrounding circumstances required by the legislature is carried out, the result will be that many individuals of previous good character will be held in custody pending trial.
Furthermore, insofar as Mr Moglia submitted that the rationale of the Act could be reduced to the proposition that a person who has not demonstrated himself to be a law-breaker or antisocial in any other way is not someone whom it is necessary to lock up pending trial, if there is anything in that rationale, there certainly is not in a case such as this where the burden was on the respondent to prove that a compelling reason existed in justification for his being granted bail.
As for the significance the mental condition of the respondent and the desirability of and availability of treatment for that condition seemingly assumed in the application, that is difficult to reconcile with the contents of the report of Ms Cidoni and the relatively modest nature of the condition to which she referred. This was a long way removed from a situation in which it could be submitted that since going into custody, an applicant had been diagnosed with a serious psychiatric or medical condition which could be better treated in the community rather than whilst on remand. In the scheme of things, the mental condition of the respondent in this case should not have assumed any great significance in the overall circumstances.
My conclusion that it was not reasonably open for the learned magistrate to find that there was a compelling reason justifying the grant of bail in this case would be sufficient to lead me to allow the appeal and set aside the grant of bail.
For completeness, however, I respectfully make the following observations concerning the way in which the application proceeded in the Magistrates’ Court.
It is difficult to put aside the impression from the transcript of the hearing and the outcome of the process that his Honour may have gone about things in an impermissible fashion. The application had, about it, the appearance of a bail application where the presumption of innocence was paramount and the presumption was in favour of a grant of bail, rather than one in which the burden was upon the respondent to prove a compelling reason in favour of a grant of bail.
It does seem that from an early time in the application, his Honour was preoccupied with the mental condition of the respondent, and whether some treatment could be put in place. Amongst other things, he invited the informant to read the report of Ms Cidoni and make comments should she so desire, which was hardly her place. He invited Mr Thomas to arrange some treatment for the respondent, and stood down the hearing to permit this to occur.
It seems to me that a far more important matter required to be considered by his Honour in the surrounding circumstances of this case was the strength of the prosecution case. Although the matter was clearly raised by the prosecutor, his Honour said nothing at all about it which may raise a concern whether he actually took that matter into account.
As for the viewpoint from which his Honour approached the application, he challenged the informant as to why she was opposing bail. At no time did he ever hear or invite from Mr Thomas an analysis of the matters relied upon in proof of a compelling reason. And when it came to inviting submissions from the prosecutor, his Honour asked, unusually in view of where the burden of proof rested in the application, ‘Is there anything you wish to say why I shouldn’t grant bail in these circumstances’.
As for the reasons provided by his Honour in justification of his decision, with all due respect, and acknowledging the very heavy workload of the court in which his Honour works, these were inadequate.
Schedule 2 of the Act was introduced by amendments to the Act which came into effect in 2018. Incest and sexual penetration of a child below the age of 12 were offences contained in the Schedule. From that time, there was the requirement, initially under s 4A(a) and then under s 12A of the Act for a bail decision maker granting bail to a person where the show compelling reason test applied to ‘include in the order granting bail a statement of reasons for granting bail’.
In Director of Public Prosecutions v Harika,[24] Gillard J said, of reasons provided by a magistrate in that case under the then s 4(4) of the Act:
Taken in isolation, the reasons are difficult to comprehend. Whilst one commends any judicial officer for being brief and to the point, the statement must be comprehensible to the reasonable reader and satisfy the description of ‘reasons’. The object of the requirement is to ensure that judicial officers turn their minds to the issues and determine the matter in accordance with the law. The obligation to state reasons focuses the mind on the issues. In order to determine whether the judicial officer has done so, one turns to the reasons.[25]
[24][2001] VSC 237.
[25]Ibid [30].
The requirement to state reasons would not require a detailed analysis of the reasoning processes of the decision maker. I do not consider, however, that the things said by his Honour during the application itself and the few words set out in the certified extract of the order of the court would amount to compliance with the provision.
Conclusion on appeal
For the reasons set out above, I allowed the appeal by the Director, set aside the order granting bail and revoked bail. I then conducted a fresh hearing in relation to bail as required by s 18A(6) of the Act.
Fresh application for bail
Mr Moglia relied on the material already before the Court in relation to the previous application. In addition, by way of new material there was information placed before me about the respondent’s appropriate and compliant conduct since the grant of bail and the counselling he had received in the interim from Mr Healey.
Mr Moglia relied on the following matters in combination in proof of a compelling reason:
i. The likely delay before trial. The trial was unlikely to proceed this year and may not even proceed in 2021. This was a delay ‘beyond the norm’. Mr Moglia labelled it a ‘significant abhorrence’ that a person should be expected to remain in custody for a lengthy time before trial.
ii. The current onerous conditions in custody due to the response to the COVID-19 pandemic.
iii. The respondent’s lack of criminal history, and lack of previous breaches of bail or other court orders.
iv. The fact of the respondent’s compliance with the grant of bail which was the subject of the appeal.
v. The protective effect of the intervention order that is now in place.
vi. The personal circumstances of the respondent, including the fact that he had the benefit of a supportive sister and was living in stable accommodation well away from his alleged victims.
vii. The fact that his wife and children have moved to an unknown location in country Victoria.
viii. The mental condition of the respondent as outlined in the report of Ms Cidoni, which would make his time in custody more onerous.
ix. The availability of treatment to the respondent for his vulnerabilities.
x. The assessment of the risk the respondent poses for future sexual violence as low to medium.
xi. The strength of the prosecution case. The respondent made complete denials and this will be a hotly contested trial. The complainants are young and their evidence will not be corroborated by adult evidence. On one view, their evidence may be contradicted by the medical evidence.
Mr Moglia submitted that a well-informed member of the community would be compelled to the view that it would not be justifiable to keep a person of the proven good character and previous behaviour of the respondent on remand for a significant period pending trial. To keep an innocent man in custody for that long would be unjust.
Mr Moglia further submitted that the task required by s 3AAA was:
to grapple with the whole of the man and to say am I compelled to letting him out under strict conditions or is the only answer that he must remain in custody for a long period of time before it’s even determined whether he did any of the things alleged.[26]
[26]Transcript 88-9.
On the question of unacceptable risk, Mr Moglia repeated the submission he had made on the matter during the appeal that there was no evidence that would justify a conclusion that the respondent would pose an unacceptable risk if released on bail.
Mr Dickie for the Director emphasised again the considerable seriousness of the alleged offending and the strength of the prosecution case. He downplayed the significance of the psychological material relied upon by the respondent. He urged me to take into account the fact that the complainants are said to be fearful of the respondent. As for the likely delay, measures have been put in place by Parliament to try to speed up the trial process. The delay will not be unduly lengthy in the circumstances. As for the onerous conditions in custody due to the current medical emergency, I should weigh those in the mix but they were not such as to warrant a conclusion that a compelling reason had been established.
On the question of unacceptable risk, Mr Dickie submitted that when assessing this, I should not put the nature of the offending to one side, and then, in a vacuum, assess risk based on independent factors. He submitted that in the circumstances, I should be satisfied that the risk posed by the respondent was unacceptable.
Analysis in respect of fresh bail application
The position of the respondent in this bail application was little stronger than that in which he found himself in his second application in the Magistrates’ Court. I found, in respect of that previous decision, that it was not reasonably open to the learned magistrate to be satisfied of the existence of a compelling reason in justification of the grant of bail.
Looking afresh at the material as it now appears, I do not consider that the respondent has gone close to discharging the onus resting upon him of satisfying me of the existence of a compelling reason that would justify the grant of bail.
Insofar as Mr Moglia asserted that a well-informed member of the community would be compelled to the view that it would not be justifiable to keep a person of the proven good character and behaviour of the respondent in custody for a significant period pending trial, I do not agree. For what it is worth, a well-informed member of the community would understand that the legislature has seen fit, with offending of the type alleged against the respondent, to impose upon him a burden of establishing a compelling reason in favour of a grant of bail, in place of the presumption that exists in some cases in favour of bail. The well informed member of the community would also know that the obligation on the decision maker to have regard to the surrounding circumstances as explained in s 3AAA of the Act, bearing in mind where the burden of proof lies, would have the inevitable result that sometimes, people of previous good character would, indeed, be justifiably held in custody pending trial.
Furthermore, insofar as Mr Moglia submitted that the task required by s 3AAA was ‘to grapple with the whole of the man’, that is not the case. The task required of me is to determine, on the circumstances as I find them to be, whether or not the respondent has established the existence of a compelling, that is forceful and convincing, reason that would justify a grant of bail in this case. The surrounding circumstances will always include things which having nothing to do with the character or previous history of the particular applicant for bail. It is a much more rounded and extensive process than simply looking at the characteristics and history of the applicant, as implied by Mr Moglia.
To my mind, the material fell a long way short of proving a compelling reason in this case.
For completeness, I indicate that had I been satisfied of the existence of a compelling reason which would have justified a grant of bail, I would not have been satisfied of the existence of an unacceptable risk as asserted by the Director.
Conclusion
For the reasons stated above, the fresh application for bail was refused.
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