DJH v The State of Western Australia
[2014] WASC 322
•29 AUGUST 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DJH -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 322
CORAM: SIMMONDS J
HEARD: 27 & 29 AUGUST 2014
DELIVERED : 29 AUGUST 2014
FILE NO/S: MBA 33 of 2014
BETWEEN: DJH
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Application for bail pending trial - Exceptional reasons
Legislation:
Bail Act 1982 (WA), sch 1 pt C, cl 1, cl 3A
Criminal Code (WA)
Result:
Bail granted on conditions
Category: B
Representation:
Counsel:
Applicant: Ms J Fordham
Respondent: Mr E A McClintock
Solicitors:
Applicant: Fordham & Roast
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
EAGD v The State of Western Australia [2013] WASCA 81
Hedgeland v The State of Western Australia [2011] WASC 181
Lai v The State of Western Australia [2010] WASC 334
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
SIMMONDS J:
(These remarks were delivered extemporaneously and have been edited from the transcript.)
Introduction
This hearing is a continuation of that on 27 August 2014 for the purpose of delivering my determination in this matter. This is an application for bail in relation to two charges pending in the Magistrates Court in Perth. I call that the present application. A previous application to a magistrate was unsuccessful. As I will explain, the application for bail is one in respect of which I must be satisfied there are 'exceptional reasons' why Mr DJH should not be kept in custody.
I first set out the background of the present application in more detail. I next describe the present application and the information before me. I then describe what I consider to be the well understood approach to the decision as to bail I am called on to make. I then apply that approach. The final section of these reasons is my conclusion and call for submissions. I should indicate at this point that I have decided to grant bail on conditions of the kind I will describe, subject to submissions from counsel as to those conditions.
Background
The two charges in relation to which the present application is made, with their respective statements of material facts, are as follows. It is, of course, important to remind myself that the allegations in those statements are simply that, allegations which have not yet been tested at trial.
The two charges are of aggravated sexual penetration without consent, contrary to Criminal Code (WA) (Code) s 326, both committed on 13 May 2014, within a very short time of one another.
Mr DJH and the victim, Ms DKH, had been married for two years and separated not long before the incident in question. They had a 2 ‑year‑old son together.
Mr DJH was 37 years of age, 183 cm tall and of medium build. The victim was 22 years of age, 165 cm tall and of small build.
The victim had returned not long previously from a two month stay in Tasmania with her child. On her return to Perth she contacted Mr DJH to arrange an access visit with his child.
On 13 May 2014, a Tuesday, Mr DJH went to the residence of the victim in South Lake to return their son after the access visit.
Mr DJH confronted the victim about an allegation of infidelity committed while she was in Tasmania. He ordered her to have a pregnancy test. Mr DJH was enraged at the victim and proceeded to look through messages on her mobile phone. Mr DJH found a message from a friend to the victim in which there was an offer to her of financial assistance for a return flight to Perth.
Mr DJH became further enraged at this and demanded to know what clothing the victim had been wearing when she had sex with the other person. Mr DJH instructed the victim to put on the clothing, which she did and went outside to the rear of the house.
Mr DJH instructed the victim to undress, at which she asked the reason. Mr DJH replied 'Just fuckin do it'. The victim removed her pyjama top and pants, leaving her standing in her bra and underwear. Mr DJH glared at the victim and said 'Naked'. The victim began to cry and was scared of Mr DJH. Accordingly, she removed her underwear and bra, leaving her naked in the backyard in view of the houses of neighbours.
Mr DJH instructed the victim to kneel down in front of him. The victim said 'Why?' and began to cry. Mr DJH said 'You're going to suck my cock'. The victim said 'I don't want to' and continued to cry.
Mr DJH placed his hands on the victim's shoulders pushing her down to kneel in front of him and said 'Just fuckin do it, you have to prove you're sorry'.
The victim attempted to perform fellatio on Mr DJH. He became annoyed at her for not doing it properly. Mr DJH grabbed the victim by her hair and forced to head towards his crotch area as he penetrated her mouth with his penis. Mr DJH continued this for two or three thrusts during which the victim was gagging.
This was the first offence.
The victim was crying and distressed. Mr DJH told her to stand and turn around. He had his hand on her thigh to turn her around. The victim asked the reason for this and Mr DJH stated 'This is going up your fuckin arse.' The victim said 'No please don't' and continued to cry.
Mr DJH continued, bending the victim over to lean on the garden planter box. He penetrated her anus with his penis. He continued for two or three thrusts then withdrew his penis and ejaculated in his own hand. Mr DJH showed this to the victim and said 'That's all you're worth, that's it'.
This was the second offence.
Mr DJH left the premises shortly afterwards and the police were subsequently notified.
While police were attending to the victim Mr DJH returned to the address and was subsequently arrested. He was conveyed to the Sex Assault Squad in Perth.
Mr DJH participated in an electronically recorded interview where he stated the sex with the victim was consensual.
Mr DJH was charged with the offences.
On 14 May 2014 bail was refused in the Fremantle Magistrates Court. I was not provided with any account of the reasons for that refusal. As I will indicate that is not in my view a barrier to my consideration of the present application, as that consideration is not on an appeal from that refusal.
I call the matters so described the sex offending matters.
On 13 May 2014, Mr DJH was on prior bail, granted by Corboy J of this court on 24 December 2013 in relation to offences of a burglary kind, contrary to Code s 401 - I call those the burglary matters - as well as offences of a driving kind apparently related to one of the burglary matters. None of those alleged offences are related to the sex offending matters.
Offences of burglary, contrary to Code s 401, and of aggravated sexual penetration without consent, contrary to s 326, are 'serious offences' within the Bail Act 1982 (WA), s 3(1) and sch 2. Mr DJH has been remanded in custody on sex offending matters. His bail on the burglary matters has not been revoked. I am told his next listed hearing on the sex offending matters is in the Magistrates Court in Perth on 1 October 2014 for committal mention.
I turn to the present application and the information before me.
The present application
The present application is expressed to be made pursuant to Bail Act, s 14(2), and is dated 21 August 2014. The solicitor for Mr DJH, who was counsel before me, has sworn an affidavit in support of the application, with attachments, of 21 August 2014. I call that the supporting affidavit of the solicitor for Mr DJH. Those attachments include the criminal history of Mr DJH, compiled on 25 June 2014, at 14:14:12 hours. Mr DJH's criminal record is what I will call that.
There is also an affidavit in support of the present application of a Ms RP, with attachments, sworn 15 August 2014. I call that the affidavit of Ms RP. Ms RP is a former partner of Mr DJH who had been in a de facto relationship with him for 11 years, and with whom she had had three children, twins, being a girl and a boy, both aged 6 years, as well as another boy, aged 11 years. The solicitor for Mr DJH has also provided submissions in support of the application in writing, as I have indicated.
Shortly before the hearing before me, the state provided a bundle of papers relating to the burglary matters. They comprise statements of material facts for the burglary matters, showing them to be for aggravated burglaries as well as other matters charged; transcripts of two hearings on bail applications in relation to those matters before Magistrate Randazzo in the Magistrates Court in Perth on 29 October 2013, where the magistrate's decision also appears, and 1 November 2013; the affidavit of Police Constable Amanda Karrarup, sworn 23 December 2013 (the Karrarup affidavit) with Officer Karrarup being the investigating officer in the burglary matters; and transcript of a hearing on a bail application before Corboy J on 23 December 2013, apparently the first day of at least two, not including in the transcript the decision of his Honour granting bail or any second day.
At the hearing before me on 27 August, I was provided with a copy of the transcript of the second day of the hearing of the bail application before Corboy J, including his Honour's reasons for his decision to grant Mr DJH bail on the burglary matters and the other matters charged with them.
Following the hearing before me on 27 August 2014, counsel for Mr DJH sent an email to the court, describing three additional matters Mr DJH wished placed before me for my consideration.
I turn then to my approach to the decision as to bail.
The applicable principles
There can be no contest as to the principles applicable to the present application. The Bail Act regulates it. By s 14, my jurisdiction to grant bail is an original one. I am not engaged in a review of the decision of the magistrate to refuse bail I have previously referred to. Indeed, I did not have access to the transcript of the hearing before that magistrate or that magistrate's decision.
The general approach for the grant of bail is determined by Bail Act, sch 1, pt C, cl 3A. That clause applies because the alleged offences the subject of the two charges are serious offences, being the sex offending matters, are alleged to have been committed while Mr DJH was on bail for the alleged burglary offences, which are also serious offences.
Bail Act, sch 1, pt C, cl 3A requires me in this case to refuse bail unless I am satisfied as to both of the two matters in cl 3A(1)(c) and (d). They are, respectively:
(c)... that there are exceptional reasons why the accused should not be kept in custody ...; and
(d)... bail may properly be granted having regard to the provisions of clauses 1 and 3 ... .
It was not put to me, and it is not apparent to me, that any question arises under Bail Act, sch 1, pt C, cl 3B which deals with exceptional reasons for the purposes of cl 3A.
The effect of the requirements under Bail Act, sch 1, pt C, cl 3A without cl 3B is described in Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 as follows:
Only cls 3A, 3C and 4A of pt C sch 1 of the Bail Act provide for a (rebuttable) statutory presumption against the grant of bail. That is indicated by the statutory expression that the judicial officer 'shall refuse to grant bail for the offence' unless satisfied of the specified matters.
The statutory presumptions against the grant of bail in cls 3A, 3C and 4A require that the judicial officer be satisfied of two matters. The jurisdiction to grant bail does not arise unless and until the judicial officer is satisfied that bail may properly be granted having regard to the provisions of cl 1 and cl 3. In addition the judicial officer must be satisfied that there are exceptional reasons why the accused should not be kept in custody. If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are relevant exceptional reasons. This structure reflects the possibility that the exceptional reasons may not be relevant to or inform the answers to the mandatory questions in cl 1(a) to (g). There is no scope for the application of an exceptional reasons or circumstances test beyond those statutorily specified in cls 3A, 3C and 4A [36] ‑ [37].
It follows I should begin by considering Bail Act, sch 1, pt C, cl 1 read with cl 3. Further, it will be seen there was no contest over the other requirement, for exceptional reasons.
Bail Act, sch 1, pt C, cl 1, when read with cl 3, is to be approached as has been stated in Milenkovski [34], [39] ‑ [43] (McLure P, Pullin JA & Hall J agreeing). In Hedgeland v The State of Western Australia [2011] WASC 181 [16], I extract 10 principles which I will not repeat here, that I take from Milenkovski.
I also note in Hedgeland [15], by reference to Milenkovski [34] read with [35], that the Bail Act is to be approached as a comprehensive code on the subject of bail. Authorities, including Court of Appeal authorities, that might be read to a different effect prior to Milenkovski should not be so relied upon.
In this application there is also the further matter of exceptional reasons. I consider the approach I should take to exceptional reasons is that stated in EAGD v The State of Western Australia [2013] WASCA 81 by Mazza JA on exceptional reasons in Bail Act, sch 1, pt C, cl 4A as follows:
The use of the word 'exceptional' denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the facts in each particular case [8].
I note that, in determining the present application for the purpose of either requirement, I may receive and take into account such 'information' as I see fit 'whether or not the same would normally be admissible in a court of law': Bail Act s 22.
The weight of such information is a distinct consideration. This allows for me to receive and take into account material in but also going beyond material in the supporting affidavit of the solicitor for Mr DJH: see Lai v The State of Western Australia [2010] WASC 334 [20] ‑ [25] (EM Heenan J).
I consider that such material may include material put before Magistrate Randazzo and Corboy J as referred to, including as stated by them in the transcripts of the hearings before them as well as the Karrarup affidavit and the email of 27 August 2014, subject, of course, to any submissions of counsel.
The basis for the present application appears to be that, on the information which I may take into account, the answers to the applicable questions in Bail Act, sch 1, pt C, cl 1, read with cl 3, all either point towards the grant of bail or do not sufficiently point away from it. Further, that basis is also that there are exceptional reasons why bail should be granted. I turn now to consider those matters in that order.
The matters for consideration
The question in cl 3A(1)(d)
These are the questions whether, if Mr DJH is not kept in custody, he may fail to appear (see cl 1(1)(a)(i)); or may commit an offence (see (ii));or may endanger the safety, welfare or property of any person (see (iii)); or may interfere with witnesses or otherwise obstruct the course of justice (see (iv)) - in each case, when I have had regard to the matters referred to in cl 3.
Bail Act sch 1, pt C, cl 3 directs me in considering whether Mr DJH may do any of the things mentioned in cl 1(a) to have regard to the matters listed in cl 3(a) to cl 3(d).
The state did not contend before me that there was a significant possibility that Mr DJH would fail to appear and thus not answer his bail within cl 1(a)(i). The state acknowledge that, by reason of the health issues of two of the three children of Mr DJH by Ms RP and the role Mr DJH has taken and, if released from custody, may be expected to take in relation to the management of those issues, he has ties to the jurisdiction which support the conclusion there was no significant possibility of that kind. I agree.
I return to those issues and that role when I reach the matter of exceptional reasons in due course. Thus, this is a case where those exceptional reasons are relevant to and inform the answer to the question in cl 1(a)(i).
Rather, before me the state submitted that the questions in cl 1(a)(ii), (iii) and, as I understand it, (iv) were applicable, that is, there was a significant possibility of the event described in each of those roman sub subclauses occurring.
The state so submitted, as I understood their submissions for all three questions, by reference to three matters. One matter was the strengths of the state's cases in respect of both the burglary matters and the sex offending matters, where the latter were alleged to have been committed while Mr DJH was on bail on the former. This, it was said, pointed to a possibility of offending while on bail that call for attention. I accept that such a possibility might be so made out.
Another matter was the nature and seriousness of the sex offending matters and the probable method of dealing with Mr DJH for them when viewed with the matters of the strength of the state's case in relation to the sex offending matters; of the extent of the reliance in the state's case on the evidence of Ms DKH, of the fact Mr DJH had contacted her on two occasions after the incidents in question, including an occasion very shortly thereafter, when he told her to 'undo this'; and the criminal record of Mr DJH when closely considered.
All of those matters taken together, as I understood the state's submissions, pointed to the possibility of interference, including offending against Ms DHK. I accept that such a possibility might be so made out.
The remaining matter was, the state submitted, the relationship between Mr DJH and Ms DKH in the period leading up to the incidents in question, which had included violence and Ms DKH going to Tasmania to escape the relationship. This matter, as I understood the state's submissions, pointed to a heightened possibility of such interference and offending. I accept that such a possibility might be so made out.
The state also submitted, as I understood their submissions, that in assessing the significance for the determination I have to make of the possibilities of the events referred to, I should note the condition of Ms DKH since the incident in question. Two weeks after that incident she had been admitted for treatment arising out of concern she was contemplating suicide. I accept that a concern of the latter kind is a relevant consideration in assessing the significance of the possibilities described.
I turn now to examine each of the three matters put forward by the state.
I assess the state's cases with respect to the burglary matters and the sex offending matters as both strong, with the first case appearing to me to be stronger than the second.
However, these assessments of mine are both of a preliminary kind. I note that full and formal disclosure in respect of the burglary matters appears not to have occurred yet. I further note that the prosecution in respect of the sex offending matters is at an early stage.
I elaborate on both assessments so qualified.
The state's case with respect to the burglary matters is described and outlined in the bail decision of Corboy J, 24 December 2013: ts 19 ‑ 20. This description is borne out by the other material before me. I adopt that description.
In addition, at the hearing before me the state indicated there was also material of the kind used in the burglary offences found in the vehicle registered to Mr DJH as well as fingerprint and DNA evidence linking Mr DJH to one of the matters. I am of the view that all of that represents a strong case. However, the lack of full and formal disclosure makes this a preliminary assessment.
The state's case with respect to the sex offending matters relies, to a very large extent at least, on the evidence of Ms DKH.
Counsel for Mr DJH confirmed that the issue in relation to those matters was one of consent as Mr DJH was not expected to deny the sexual contact alleged or at least some of it. However, I am also of the view that the trial will not be, so far as can now be determined, be one simply of oath against oath. The state indicated to me that there was evidence that Ms DKH had made a speedy complaint. There was also evidence of the relationship between Mr DJH and Ms DKH in the period leading up to the incidents in question, as I have indicated.
Further, there was evidence from a neighbour of Ms DKH that the neighbour had heard crying from the area and at the time of the incidents in question. There was also evidence of the contact by Mr DJH with Ms DKH very soon after those incidents in which he had told her 'undo this'. Lastly, there was evidence Mr DJH had sent a text message in which he indicated he had engaged in anal sex with Ms DKH, where in his video recorded interview he said he had only engaged in oral sex.
I am of the view that that represents in sum a strong case but one that may be dependent upon, in the case of the relationship evidence, admissibility issues yet to be determined - see the Evidence Act 1906 (WA), s 31A - and that will be dependent upon the terms of evidence not yet formally disclosed. Further, the state did not suggest that there was physical evidence which was likely to play a significant role in that trial.
As to the nature and seriousness of the sex offending matters and the probable method of dealing with Mr DJH for them, it was not in contest, as I understood it, that those matters when viewed as I have indicated were serious examples of a serious offence. I consider that the probable method of dealing with them following any conviction would be a significant term of immediate imprisonment. I so consider in view of the circumstances of the offending I have described when viewed against the criminal record of Mr DJH.
The record of his convictions in 2004 is usefully summarised in the bail decision of Corboy J: see 24 December 2013, ts 20. I adopt that summary. I agree with his Honour that to that date - that is to say to his last conviction in 2004 - it was a very bad record. However, as his Honour's decision indicates and the state acknowledged, there were no convictions after 2004 until 2012 for an offence committed in 2011; and 2013; for an offence committed in 2012, and with no convictions since that last conviction.
Both of those offences appear to have been of a relatively minor character so far as their penalties - respectively a 9 month community based order and a fine of $400 - indicate. At the same time I note that the offence for which Mr DJH received the community based order, as described to me by the state without objection from counsel for Mr DJH, was of an assault in circumstances of aggravation involving a domestic dispute with Ms RP, in which Mr DJH took hold of her daughter and pushed Ms RP over. That offence, at least viewed against the backdrop of the relationship evidence to which the state pointed, was not of a very different character from the sex offending matters here.
When the probable method of dealing with sex offending matters of Mr DJH as convicted is assessed with the strength of the state's case in relation to them, the extent of the reliance of that case on the evidence of Ms DKH and the evidence that Mr DJH had contacted her on two occasions including the one very shortly after the incident in question to which I have referred, I accept that it may be seen that there is a significant possibility Mr DJH might interfere with Ms DKH, including offending against her.
At the same time I note that I was told Mr DJH had made no attempt to communicate with Ms DKH after the second occasion referred to, when I was told he inquired about condition and she told him she did not wish to hear from him. I further note what I was told: that he previously had been the subject of two violence restraining orders, both of which had expired without breach; and Ms DKH had taken out or may well take out a violence restraining order against him.
As to the remaining matter, of the relationship between Mr DJH and Ms DKH in the period leading up to the incident in question, as that relationship was described to me by counsel for the state, this is undoubtedly a matter of concern. However, I note again the matter of Mr DJH's compliance with previous violence restraining orders and the fact that Ms DKH had taken out or may well take out a violence restraining order against him.
In sum I consider there is indeed a set of answers to the questions in Bail Act, sch 1, pt C, cl 1(a)(ii), (iii) and (iv), pointing to the possibilities of the events those subclauses describe of which I should take account. Those possibilities are in the nature of positive grounds for refusing bail before cl 1(e) is considered. At the time same time account should also be taken of the qualifying matters that I have referred to.
That takes me to the question in cl 1(c): this is the question whether the prosecutor has put forward grounds for opposing the grant of bail.
The question in cl 1(c)
I have already rehearsed and considered counsel for the state's grounds for opposing the grant of bail. That rehearsal and consideration takes me to the question in Bail Act sch 1, pt C, cl 1(e).
The question in cl 1(e)
This is the question in this case whether there is any condition or set of conditions which could reasonably be imposed under Bail Act sch 1, pt D, which would sufficiently remove the possibilities referred to in cl 1(a) or remove the grounds for opposition referred to in cl 1(c).
Counsel for Mr DJH, as I understood it, put to me that suitable bail conditions that would neutralise wholly or sufficiently the positive grounds for refusing bail referred to are ones that would follow the conditions on the bail already granted for the burglary matters, with modifications for the present case.
Those conditions so modified would at least be the following:
•Mr DJH's personal undertaking in a significant amount;
•Mr DJH's father as surety in a significant amount;
•residence with Mr DJH's father at his home address in [suppressed];
•a curfew, reporting to the officer in charge of a suitable police station at least three times a week;
•not to go or be within 100 m of any point of departure from Western Australia;
•to surrender any valid passport;
•not to contact in any way directly or indirectly the complainant Ms DKH or any other person who is a witness proposed to be called by the state in connection with the sex offending matters - except perhaps for contact with Ms DKH on the advice of and supervised by Mr DJH's legal representatives and in connection with and solely for the purposes of any Family Court proceedings involving Ms DKH and Mr DJH as parties.
The last qualification for Family Court proceedings might be necessary as there were such proceedings on foot or such proceedings were expected soon to be commenced, as I understood the matter, arising out of the end of the marriage between Ms DKH and Mr DJH. That qualification, assuming it is appropriate, may require further elaboration to ensure that it sufficiently protects against an exchange going beyond Family Court proceedings.
It was not in contest that Mr DJH had complied fully with the conditions of his bail in relation to the burglary matters.
I was also informed Mr DJH had successfully completed a period of two years parole; and in relation to the matters to which he was sentenced in 2004 he had spent approximately three years on bail 'reasonably successfully'.
Finally, his father had taken an active role in relation to Mr DJH's compliance with his bail conditions in relation to the burglary matters and could be expected to do so in this case.
As I understood the position of the state, it was that conditions of those kinds would not sufficiently remove the possibilities in cl 1(a).
In my view, however, while the matter is a close one, I conclude that they do sufficiently remove those possibilities when regard is had to the qualifications of those possibilities I have referred to, the history of Mr DJH of compliance with his bail in connection with the burglary offences, the bail conditions at a minimum indicated here and what I was told as to Mr DJH's father.
Other relevant questions
As to other questions allowed for by Bail Act sch 1, pt C, cl 1, as I understood the submissions of the parties before me, no other questions were relevant.
Conclusion on question in cl 3A(1)(d)
In my view, having regard to the conditions I have considered under Bail Act sch 1, pt C, cl 1(e), I am satisfied in the terms of Bail Act sch 1, pt C, cl 3A(1)(d) that bail may be properly granted having regard to the provisions of cl 1 and cl 3, pursuant to the weighing or balancing process referred to in Milenkovski.
I turn now to the matter of exceptional reasons.
The question of exceptional reasons
Before I can grant bail in the present application I previously indicated, I must also be satisfied that there are exceptional reasons within the meaning of Bail Act sch 1, pt C, cl 3A(1)(c) why Mr DJH should not be kept in custody. For Mr DJH his counsel put forward as exceptional reasons, three matters.
One was issues going to the health of two of his children with Ms RP.
Another was the current mental health issues for Mr DJH.
The third was the delay in the progress of the prosecution of the burglary matters and the related driving matters, particularly the provision of full and formal disclosure.
Counsel for Mr DJH emphasised the first and third. Counsel for the state, for his part, accepted that the first matter on its own was a sufficient set of exceptional reasons within Bail Act sch 1, pt C, cl 3A(c).
I agree. I indicate now why I am of that view. That view also informs the answer to the question in cl 1(a)(i) as I have indicated.
As to the issues going to the health of two of Mr DJH's children, I was directed to the evidence in the affidavit of Ms RP and its attachments. That evidence shows the following. The twin boy has been diagnosed with autism and global development delay. He requires a high level of day to day attention requiring the care of people who are familiar with him and with whom he is familiar.
Both Ms RP and Mr DJH have been trained in how to deal with his condition. The care he requires includes enabling him to attend a specially equipped school located some distance from the home of Ms RP. The older boy was diagnosed in 2013 with a form of septicaemia that caused a severe bone infection resulting in respiratory failure and kidney injury. He requires ongoing physiotherapy and rehabilitation at three different locations which is meant to occur at least three times each month.
Prior to his going into custody, Mr DJH was able to provide transport to school for the twin boy and the other children and assistance with medical and therapy appointments. He was also able to provide maintenance payments to pay for the fuel required for school trips. He has an offer of casual employment which would enable him to resume those payments were he not kept in custody. With the additional burden represented by the 16‑year‑old daughter of a cousin of Ms RP that she has had to take in, because the daughter's mother was not able adequately to care for the daughter, Ms RP has been unable to deliver her own children and the 16‑year‑old girl to their respective schools on time each day while she has been without the assistance of Mr DJH.
This has created a problem for maintaining the status quo and routine that is a very important part of caring for a severely autistic child. These burdens may also force the older boy to miss some of his appointments and therapy sessions for his condition. This situation has placed Ms RP under considerable stress. Her doctor has advised her to seek therapy for post traumatic stress disorder, which she has not been able to find the time to do.
On the basis of this information and without regard to the other matters referred to by counsel for Mr DJH, I am satisfied there are exceptional reasons why Mr DJH should not be kept in custody.
I turn to my conclusions.
Disposition of the present application
I have concluded that as I am satisfied as to the matters in each of Bail Act, sch 1, pt C, cl 3A(d), and (c), I should grant bail on the present application.
It would then be a matter of turning to hear from the parties as to the bail conditions. I should add in that regard that shortly before the hearing today, I received a minute of proposed conditions. This followed a communication I asked my Associate to make with counsel for Mr DJH and counsel for the state yesterday afternoon when I indicated there was a significant possibility I would arrive at a decision of the kind I have just described.
Counsel for Mr DJH was, as I was aware, unable either herself or through anyone else directly in her office to attend the hearing today. I am grateful to both counsel for a set of proposed bail conditions which my decision would incorporate. It is my understanding that those proposed bail conditions have been agreed between the parties should Mr DJH receive a grant of bail. I would grant bail on the conditions agreed in the minute.
The minute reads as follows:
(1)personal undertaking $50,000;
(2)surety, $70,000;
(3)reside at [suppressed];
(4)to be at [suppressed] between the hours of 7.00 pm and 7.00 am daily and to present himself to police at that residence upon request between those hours;
(5)report to the officer in charge of Fremantle Police Station every Monday, Tuesday, Wednesday, Thursday and Friday
All five days:
Not to attend within 100 m of any point of departure from Western Australia; to surrender any valid passport.
Protective conditions:
(a)not to contact [suppressed] either directly or indirectly;
(b)not to be within 10 m of [suppressed];
(c)not to contact [suppressed] either directly or indirectly;
(d)not to contact [suppressed] either directly or indirectly;
(e)not to be within 10 m of [suppressed];
(f)not to contact [suppressed], either directly or indirectly;
(g)not to be within 250 m of [suppressed];
(h)not to store any phone number of [suppressed] in any electronic device in his possession.
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