Director of Public Prosecutions v Walker (a pseudonym)
[2020] VCC 447
•6 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| IN THE MATTER of the Bail Act 1977 And IN THE MATTER of an application for bail by Steven WALKER (A PSEUDONYM) |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2020 | |
DATE OF JUDGMENT: | 6 April 2020 | |
CASE MAY BE CITED AS: | DPP v Walker (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 447 | |
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Subject: CRIMINAL LAW
Catchwords: Bail application; Applicant charged with Schedule 2 offences; Applicant required to show compelling reason; Family violence; Significant delay caused by pandemic amounting to compelling reason; Unacceptable risk; Bail refused.
Legislation Cited: Bail Act 1977; Criminal Procedure Act 2009; Evidence Act 2008
Cases Cited:Re McCann [2020] VSC 138; Re Broes [2020] VSC 128; Rakielbakhour v DPP [2020] NSWSC 323.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Nibbs | Office of Public Prosecutions |
| For the Accused | Mr J Mortley | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1 This is an application for bail by Steven Walker[1].
[1] A pseudonym
2 On 12 January 2019, Mr Walker (‘the applicant’) was charged with a series of offences against his intimate partner, who I will refer to as Margret Maguire[2], including:
[2] A pseudonym
- recklessly cause injury;
- make threat to kill;
- reckless conduct endangering life;
- false imprisonment; and
- kidnapping.
3 He was committed to stand trial on those matters on 9 December 2019.
4 The applicant’s County Court trial was due to proceed in the sittings commencing at Geelong on 29 June 2020. That trial date has been vacated and because of the COVID-19 crisis, it is not certain when the applicant’s trial will proceed. He has already been in custody for 450 days and argues that the delay in determining his case constitutes a compelling reason which justifies granting bail.
5 He further submits that if released on bail he would not pose an unacceptable risk of endangering the safety of any person, of committing an offence on bail, of interfering with witnesses or of failing to answer his bail.
The alleged family violence incident
6 In the early evening of 11 January 2019, the applicant was at a neighbour’s house drinking with his partner Ms Maguire. The complainant went home apparently to get some washing from the clothesline. The applicant followed and an argument developed in which it is alleged he became very angry. He is said to have grabbed Ms Maguire around the throat in such a way that she could not breathe, lifted her up and pressed her against a wall. He is alleged to have held the complainant in that position for six or seven seconds before releasing her. The applicant is then alleged to have said:
I’m going to kill you and they will never find your body. If you get the cops involved, you’re dead. No one will believe you, you lying bitch. I know how to turn things around.
7 In her original statement, Ms Maguire alleged that she went to go to her bedroom but the applicant grabbed both of her upper arms and threw her backwards, causing her to hit the dining room table and fall to the floor. Shortly afterwards, she showed her neighbour, Greta Norton[3], the bruises she had sustained when Ms Norton came to the front door. The applicant is alleged to have said, ‘I can’t believe you showed her the bruises you lying bitch’. Ms Maguire then said to her neighbour under her breath, ‘help me’.
[3] A pseudonym
8 The applicant is then alleged to have grabbed his partner’s car keys and phone. The complainant tried to stop him from taking her phone by getting into the passenger seat of the car and trying to grab her phone and the keys. As this happened, the applicant is alleged to have said, ‘I’ll put your head under the car and run over it’. He then reversed the vehicle and drove off with Ms Maguire still in the car. The applicant was a disqualified driver at the time.
9 It is alleged that the applicant then drove the car erratically along the Bellarine Highway at a speed of up to 170 - 180 kilometres per hour. The complainant asked him to stop the vehicle on many occasions and begged him to let her out. He refused to do so and is alleged to have punched the complainant in the throat causing her to lose her breath.
10 Eventually, the applicant stopped the car near the cemetery in Geelong and, after further threatening the complainant, ran off. Police found her locked in the vehicle in fear of her life. The applicant was arrested shortly after 12am on 12 January 2019 and was taken to Geelong police station where he was interviewed, charged and remanded in custody.
Procedural history
11 This matter has an unfortunate history. Originally, the applicant was not charged with the common law offences of kidnapping and false imprisonment, and the matter was to be heard summarily.
12 A family violence intervention order was sought by police on behalf of the complainant against the applicant. The police informant, Ms Monaghan, who gave evidence on the application, alleges that the applicant persistently breached that intervention order by initially causing others to contact his partner, and then by contacting her himself by telephone from prison. In some of these calls, it is alleged that he attempted to coerce the complainant into withdrawing her statement from police, and to get her to tell them that she lied and/or was drunk at the time and can no longer remember what occurred.
13 The applicant was discharged at committal in respect of charges of persistently breaching the family violence intervention order and attempting to pervert the course of justice. The prison telephone calls upon which these charges were based had not been transcribed and the committing magistrate was not satisfied there was a sufficient basis for those charges to proceed.
14 On this application, the prosecutor Mr Nibbs advised that the Crown intend to directly indict the applicant on the charge of perverting the course of justice and, as I understand it, the charge of persistently breaching the intervention order. The transcription of the prison telephone calls was due to be completed on 3 April 2020. A summary of the calls has recently been made available to the defence.
15 In May 2019, further charges were laid including the offence of kidnapping arising out the January incident. As a result, the matter could no longer be heard summarily and proceeded to committal which took place on 9 December 2019.
16 As I indicated, the trial was listed for 29 June 2020, but that date was vacated in the wake of the COVID-19 emergency.
The legal test
17 The applicant has been charged with offences that are caught by Schedule 2 the Bail Act 1977 (‘the Act). Those offences are kidnapping and the family violence offence of making threat to kill. Additionally, he is alleged to have committed an indictable offence during the period of a Community Correction Order. By virtue of s 4C(I)(a), I must refuse bail unless satisfied that a compelling reason exists that justifies the granting of bail. The applicant bears the burden of demonstrating the existence of the compelling reason (s 4C(2)). In considering whether a compelling reason exists, I must take into account the surrounding circumstances which include the matters set out at s 3AAA of the Act.
18 If I was to be satisfied as to the existence of a compelling reason then pursuant to s 4E, I must consider whether the prosecution/respondent has satisfied me that there is an unacceptable risk that, if released on bail, the applicant would:
(i) endanger the safety or welfare of any person; or
(ii) commit an offence while on bail; or
(iii) interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv) fail to surrender into custody in accordance with the conditions of bail.
19 In assessing whether the risk is unacceptable, I would be again required to take into account the surrounding circumstances set out in s 3AAA of the Act, together with consideration of whether any conditions of bail might be imposed which could mitigate the risk such as to render it no longer unacceptable.
20 I should also add that in applying the provisions of the Act, I am required to take into account the guiding principles set out in s 1B(1) of the Act. Those principles are as follows:
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
The applicant’s history
21 The applicant was born in May 1981 and is now 38 years of age. He has an extensive criminal history which, putting Children’s Court matters aside, commenced in 1999 and includes offences such as:
- recklessly causing serious injury;
- multiple assault police offences;
- escaping lawful custody x 3;
- damaging property;
- recklessly causing injury;
- aggravated burglary;
- intentionally cause injury x 2;
- threat to kill;
- assault with a weapon;
- reckless conduct endangering serious injury;
- robbery; and
- numerous drug and dishonesty offences.
22 The applicant has prior convictions in other jurisdictions, most notably in Western Australia, where he was convicted of a number of drug, dishonesty and assault offences between 2009 and 2016.
23 The informant, First Constable Monaghan, gave evidence that the applicant has eight warrants outstanding in other jurisdictions. Most of these relate to driving or minor matters, however, one Western Australian warrant issued in December 2016 related to not complying with bail obligations, and another concerns a South Australian matter dating back to October 2007 relating to an allegation of ‘aggravated assault with a weapon against own child or spouse’. The applicant has also been the respondent in 21 separate intervention orders throughout Australia, three of which remain active, according to the informant.
24 The applicant is further alleged to have been involved in an intimate relationship with a woman in Queensland in 2016 - 2017. It is alleged there was a family violence incident on 18 May 2017 involving that woman where she was head-butted and ‘possibly strangled’ by the applicant.
25 On the application, no evidence was led or submissions made as to any other aspects of the applicant’s personal history.
The position of the complainant
26 At the time of the incident the subject of these charges, Ms Maguire made a detailed statement to police describing what happened. She signed that statement as being true and correct. In the period 12 January 2019 to 2 April 2019, it is alleged that the applicant phoned Ms Maguire 132 times in breach of the intervention order. Police allege that these calls essentially manipulated the complainant to provide a statement of ‘no complaint’. On 7 February 2019, Ms Maguire in fact did provide such a statement to police. On 20 July 2019, she also made a statutory declaration in which she stated she was badly affected by alcohol on the night and was ‘unsure of what was fact from fiction and I shouldn’t of (sic) done a statement that night’.
27 Ms Maguire did not give evidence at the committal proceedings in December 2019, however, the applicant’s legal representatives made application under s 198B of the Criminal Procedure Act 2009 to conduct preparatory cross examination of the complainant before trial. That application was granted and proceeded before his Honour Judge Mullaly on 2 March 2020. As part of the materials considered in this application, I have read the transcript of that proceeding. Suffice to say, the prosecutor sought and was granted leave to cross examine the complainant pursuant to s 38 of the Evidence Act 2008. In essence, it was put to her that her original statement to police was true and that she was feigning a lack of memory as to what happened. Having read the transcript of the entire examination, I should indicate that I did not find the complainant’s assertions about her loss of memory particularly credible.
28 On this application, Mr Mortley, who appeared for the applicant, called Ms Maguire to give evidence. Because of the constraints imposed by COVID-19 restrictions, I heard this evidence via an audio-link to the Court. Mr Mortley sought to establish two things through the complainant. First, that the complainant was not in fear of the applicant, and second, that she was prepared to have the complainant reside with her and her children. Ms Maguire confirmed those matters in evidence and stated that she was not being coerced or threatened by the applicant.
Submissions on behalf of the applicant
29 Mr Mortley submitted that the delay attaching to this case in and of itself constitutes a compelling reason justifying release on bail. As things stand, the applicant is languishing on remand having already served 450 days with no fixed trial date in sight. The prosecution are in part responsible for the delay, and despite assurances to the contrary, the applicant still has not been charged with attempting to pervert the course of justice, and the transcripts of the telephone calls the prosecution rely upon have not been provided to the defence.
30 There are genuine, live issues to be resolved at trial and yet it is not known when that trial can take place.
31 The COVID-19 crisis is not only relevant because it causes delay, it has also restricted the applicant’s visits and the anxiety generated makes prison more onerous.
32 The complainant is willing, indeed wants, to have the applicant live with her. She states she is not fearful of him. In the current circumstances, it could not be seriously suggested that the applicant was a flight risk.
Submissions on behalf of the respondent
33 I did not understand Mr Nibbs to contend that the delay in the circumstances of this case would not amount to a compelling reason for the purposes of the Act. The focus of his submissions was directed to the question of the unacceptability of risk should the applicant be released.
34 Mr Nibbs submitted that the risk to the complainant was still very real, despite her evidence. The applicant has an extensive criminal history with numerous breaches of court orders for offending of the kind with which he is charged here. Having regard to that history, there is every prospect the applicant will re-offend if released all the more so because he seeks to return to live with her. No conditions could appropriately ameliorate the risk that he poses.
35 The charge of attempting to pervert the course of justice will be filed shortly. Despite the complainant’s attitude to the charges, there is independent evidence the prosecution will seek to rely upon at trial, including the evidence of a doctor who examined the complainant shortly after the incident and the eyewitness observations of a neighbour. In all of the circumstances, the jury is very likely to come to the conclusion that the accused did the very things the complainant set out in her original statement.
Analysis – compelling reason
36 In considering these submissions, I have had no difficulty in concluding that the delay attaching to the applicant’s matter is a compelling reason justifying a grant of bail. That is so because, even on an optimistic view as to when this trial might proceed, the delay will approach two years. That is inordinate. I also do not overlook the fact that some of that delay was caused by the prosecution delaying the charging of the common law offences that took this matter out of the jurisdiction of the Magistrates’ Court.
37 After the hearing of this application on Thursday 2 April 2020, the Crown made inquiries of Circuit Registry to ascertain what priority (if any) the applicant’s trial might have once jury trials can recommence. The advice was that the applicant’s trial:
… will have very high priority in Geelong once trials recommence. At this stage, it is likely that jury trials won’t recommence until the end of this year or start of next year… this trial will be in the first block when trials recommence.
38 Whilst that advice confirms that the applicant’s matter will receive priority, there still remains a good deal of uncertainty as to when his trial can proceed.
39 Beyond the simple fact of delay are the considerations which attach to the COVID-19 emergency. As Lasry J said in the matter of Re McCann[4] at [38]:
In order to confront the public health emergency of COVID-19, the normal operations of all levels of Victoria’s courts have been substantially delayed and interfered with. Trials and committals have been postponed indefinitely. The prospect of cases such as Mr McCann’s trial, being heard within a reasonable time are very low indeed. The effect of that delay is achieving significance in applications of this kind.
[4] [2020] VSC 138.
40 In Re Broes[5] at [35] – [38], also a decision of Lasry J, his Honour considered the prospect of the applicant being subject to lockdown within the prison for a significant time, should infection spread to the prisons. Clearly, this would be difficult to endure and likely to produce significant anxiety and hardship. Whilst there is necessarily a degree of speculation involved in taking that matter into account, I regard it as a realistic concern and I will have regard to it. As his Honour remarked, ‘this is not an ordinary application in an ordinary time’.[6]
[5] [2020] VSC 128.
[6] Ibid n 2, at [42].
41 Similar considerations were examined by Hamill J in Rakielbakhour v DPP[7] which bears some factual similarity with this case. There, as in this case, the complainant in a family violence incident will seek to give evidence at trial that assists, if not exonerates, the defendant. In those circumstances, his Honour took the view that the strength of the prosecution case was questionable. As I will explain shortly, I do not take that view with respect to these allegations.
[7] [2020] NSWSC 323.
42 Among the matters considered, his Honour referred to the following factors:
- gaols and similar institutions are particularly susceptible to the rapid spread of the COVID-19 virus;
- inmates are currently subject to more onerous conditions of incarceration, for example contact visits have been prohibited;
- the uncertainty associated with not knowing when the case will be heard; and
- the fact that in those circumstances it may be expected that inmates will have significant anxiety levels.
43 Each of those factors are important considerations which I have also taken into account in reaching the conclusion that the applicant has discharged the onus of demonstrating a compelling reason.
Unacceptability of risk
44 I must then turn to consider whether the applicant poses an unacceptable risk as contended by the respondent. In doing so, I have had regard to all the matters set out in s 3AAA of the Act.
45 In short, it seems to me that the applicant’s history is a telling consideration. It is an extensive history which shows a tendency on the part of the applicant to engage in violence, including violence directed at intimate partners. It is a history which is remarkable for the number of outstanding warrants, past intervention orders and breaches of court orders.
46 Further, the alleged persistent breach of the intervention order in this matter suggests that the applicant’s disregard for court orders is as florid as it has ever been.
47 The applicant’s previous history also contextualises the nature and seriousness of the alleged offending of 11 January 2019. Those charges are in and of themselves very serious, but all the more so when viewed in light of his past.
48 Given that history, the proposal that the applicant return to the complainant and live with her is, in my view, wholly unacceptable. Despite Ms Maguire’s evidence that she is not fearful of the applicant, I am not satisfied that there is an acceptable risk of a further incident of the kind alleged here occurring again. On the contrary, I am satisfied there would be a very real risk of a further recurrence.
49 In the current circumstances relating to the COVID-19 emergency, particularly as to the necessity for people to remain at home, I simply could not countenance allowing the applicant to live with Ms Maguire and her children in the very same house where he is alleged to have abused and assaulted her in January 2019. In other words, that proposal would constitute an unacceptable risk to the safety of Ms Maguire.
50 As to the strength of the prosecution case, I acknowledge readily there are live issues that flow from the complainant’s change of heart, but it seems to me, as Mr Nibbs contended, there is nevertheless quite a strong prospect that a jury will accept that what the complainant originally deposed, occurred.
51 Unfortunately, I do not have any real information as to the applicant’s personal circumstances, associations and other aspects of his background which might balance some of the considerations I have set out above.
52 It follows that the respondent has satisfied me that there is an unacceptable risk that if released on bail, the applicant would endanger the safety or welfare of the complainant, and/or that he would commit an offence whilst on bail.
53 In the absence of the evidence relied upon by the prosecution to establish the charge of attempting to pervert the course of justice not yet being served on the defence, I make no finding as to the unacceptability or otherwise as to the risk that the applicant might interfere with witnesses. Finally, it may be that in the current circumstances attaching to the COVID-19 crisis that flight is a less realistic concern, but I need not determine that question.
Conclusion
54 In conclusion, although I’m satisfied the applicant has established a compelling reason justifying a grant of bail, I am satisfied that he nonetheless poses an unacceptable risk that if released on bail he would endanger the safety or welfare of the complainant and/or commit an offence whilst on bail.
55 In those circumstances, Mr Walker’s application for bail will be refused.
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