Gilmour v State of Western Australia - [2005] WASC 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GILMOUR -v- STATE OF WESTERN AUSTRALIA [2005] WASC 243

CORAM: SIMMONDS J

HEARD: 28 OCTOBER 2005

DELIVERED : 8 NOVEMBER 2005

FILE NO/S: MCS 31 of 2005

BETWEEN: DOUGLAS ROBERT GILMOUR
Applicant
AND
STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Multiple offences including aggravated stalking and breach of a violence restraining order - Serious offences allegedly committed whilst applicant was on bail pending trial for other serious offences - Whether exceptional reasons shown for the grant of bail - Potential adverse affect of a grant of bail on persons protected by a protective order

Legislation:

Bail Act 1982 (WA)

Result:

Bail refused

Category: B

Representation:

Counsel:

Applicant: Mr D P A Moen
Respondent: Ms A L Forrester

Solicitors:

Applicant: Legal Aid Western Australia
Respondent: State Director of Public Prosecutions

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

Director of Public Prosecutions (Vic) v Cozzi [2005] VSC 195
Goldfinch v State of Western Australia [2004] WASC 218
KM v The Queen, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988
Saka v The Queen [2001] WASC 92

Case(s) also cited:

Dabag v State of Western Australia [2005] WASC 140
Marotta v The Queen [1999] HCA 4
Mercanti v State of Western Australia [2005] WASC 28
Mokbel v DPP (No 2) (2002) 132 A Crim R 290
Outman v The Queen [2001] WASC 162
R v Tregurtha (2002) 136 A Crim R 443
State of Western Australia v Oates [2004] WASC 214

SIMMONDS J: This is an application for bail arising out of alleged events in the context of the estrangement of the applicant from his second wife. This application raises the question of whether the applicant has discharged the burden, under the Bail Act 1982 (WA), Sch 1, cl 3(a)(1), to show "exceptional reasons" why bail should be granted.
I first need to describe the background to the application, before describing the relevant law, and applying it to the application.

Background

Since September 1998 the applicant has been a public servant of the Commonwealth in Kalgoorlie. Most recently he has held the position of Senior Contract Manager in the Department of Employment Workplace Relations.
The applicant has been married twice. There is one daughter of his first marriage, now aged 9. Prior to very recent Family Court proceedings on 1 August 2005, to which I return below, he had principal custody of this daughter, while his first wife, who moved to the United States a number of years ago, also had access to the daughter, who had also visited her mother there at least once. As a result of the Family Court proceedings, the daughter I have referred to now lives in the United States with her mother.
There are two daughters by the applicant's second marriage to Diana Gilmour. One daughter is currently 4, and the other is 3. About 16 months ago the applicant became estranged from his second wife. By an interim order made in June 2004 the two daughters were to reside with their mother, but had liberal contact with the applicant.
Beginning in late February 2005 there was a series of alleged offences by the applicant having to do with Diana Gilmour, her property, a male friend of hers, Timothy Crockett or his property. Three of the charges are those on which bail is sought before me. As the nature and pattern of these and other alleged offences were matters of significance in arguments by counsel before me, I need to describe the alleged offences, on none of which has a determination by trial or otherwise yet occurred, in some small detail.
The earliest of them was the theft of mail for the second wife by the applicant, alleged to have occurred on or about 24 February 2005.
The second alleged offence was the commencement, on or about 24 February 2005, of a series of events said to constitute aggravated stalking contrary to Criminal Code, s 338E(1)(a), with that period ending on 14 June 2005. A number of the events said to constitute the aggravated stalking are also the subject of other charges. The aggravated stalking charge and those other charges are the charges in respect of which bail is sought before me.
On 10 April 2005 the applicant is alleged to have damaged a number of plants in the front yard of Timothy Crockett, on which the applicant was charged.
On 12 April 2005 a violence restraining order was obtained in respect of the applicant, naming as Mr Crockett as the protected person. This order was served on the applicant on 16 April 2005.
Also on 16 April 2005, while Mr Crockett was at the home of the second wife doing a number of jobs on the premises, he became involved in an altercation with the applicant, who he told not to come closer than the distance allowed for in the violence restraining order. This set of events resulted in a charge of breach of that violence restraining order.
On 23 April 2005, while the applicant was collecting his two young children at the residence of the second wife, it is alleged he became involved in an altercation with her, in which it is also alleged he destroyed a library book which she was attempting to retrieve for the purposes of returning to the library, at which she worked. This resulted in charges against the applicant of assault and of damage.
On 26 April 2005 a violence restraining order in respect of the applicant naming Diana Gilmour as the protected person issued. This order was served on the applicant the same day.
On 28 April 2005 it is alleged that the applicant breached the violence restraining order naming Mr Crockett as the protected person when the applicant, late at night, was found to be at the perimeter of the yard of Mr Crockett's workplace. This resulted in another charge of breach of that violence restraining order.
On 29 April 2005 orders were made under the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA), against the applicant restraining him from verbally abusing Ms Gilmour or denigrating her in the children's presence; restraining him from attending at her residence; restraining him from picking up the children from playhouse, any caregiver's home, or school; and allowing for supervised contact with the children as the order stipulates. This order was, so far as appears from the material before me, a result, at least in part, of the events of 23 April 2005, above. The order was to be urgently extracted and served on the applicant. There is some suggestion before me that this order was not so served.
On 6 June 2005 it is alleged that the applicant, late at night, stole certain items of women's clothing from the home of Ms Gilmour, taking these from her clothesline. This resulted in a charge of stealing. These matters also resulted in a charge of a breach of the violence restraining order naming her as the protected person, contrary to Restraining Orders Act 1997 (WA), s 61(1), which is the second of the three charges before me in respect of which bail is sought.
On 13 June 2005, it is alleged that, late at night, the applicant stole a digital infrared security camera from the yard in Ms Gilmour's home, where that camera had been installed by Mr Crockett, apparently in response to the prior incidents I have described. It appears that more than one camera was installed. On this occasion, unlike the previous one on 6 June 2005, the applicant was alleged to be disguised by a mask, and carrying a large knife. This resulted in a charge of stealing. These events also resulted in a further charge, of breach of the violence restraining order naming Ms Gilmour as the protected person, contrary to Restraining Orders Act, s 61(1), which is the third of the three charges before me in respect of which bail is sought.
On 14 June it is alleged that the applicant saw two of his neighbours, to ask them to support his account of where he was on the evening of 13 June, so as to show that he was not at his wife's home on that evening. This resulted in a charge of attempted perversion of the course of justice.

This Application for Bail

This application first came before me on 29 July 2005. It came before me on short notice as a matter of urgency following the denial of bail on these charges by Magistrate Sharratt in the Magistrates Court of Western Australia in Kalgoorlie on 23 June 2005. The basis for the urgent application was the imminence of Family Court proceedings in which the first wife of the applicant was seeking to secure custody of the daughter of the first marriage for the purpose of taking her to the United States.
At the hearing on 29 July 2005, I determined that I did not have sufficient material in order to make a determination, and in particular I did not have a transcript of the decision refusing bail of Magistrate Sharratt, nor did I have other information about pending proceedings against the applicant.
On 1 August 2005 the Family Court made a number of orders. These were principally to discharge earlier orders; that the applicant's daughter of the first marriage reside with the first wife, who should be responsible for her day‑to‑day and long‑term care, welfare and development; the applicant have reasonable contact with the daughter; the first wife ensure the daughter remain in contact with the applicant provided there were no bail conditions to the contrary; the first wife be permitted to obtain an Australian passport for the daughter and to relocate her residence to the United States; and the applicant be at liberty to apply in respect of contact and to re‑list the matter of interim residence in the event he were granted bail without restriction as to contact with the daughter. The Family Court's orders were on the first wife's undertaking to return the daughter to Western Australia upon being ordered to do so by the Family Court and subject to the first wife lodging with the court security for the daughter's return in the sum of $5,000.
An affidavit of Mark Binning sworn 4 August 2005 was filed in relation to this bail application. Mr Binning is a Detective Senior Constable, and his affidavit annexes substantial material about the other charges the applicant faces, as well as his criminal record, both in Western Australia and elsewhere, and a number of pieces of material from the prosecution brief.
At the hearing before me, on 28 October, I was presented with the transcript of the proceedings before Magistrate Sharratt. I indicated at the end of the hearing I needed the opportunity to consider it. I refer to it again below.
This is of course an original determination of the question of bail: Bail Act, s 14. It is therefore not necessary for the applicant to show new facts or circumstances in order to enliven my discretion.
I also note Bail Act, s 22 authorising me to receive and take into account such information as I think fit, whether or not the same would normally be admissible in a court of law.

Relevant Principles

It is common ground that the applicant, for part of the time to which the aggravated stalking charge relates, and for both of the times to which the charges for breach of the violence restraining order naming Diana Gilmour as a protected person relate, the applicant was on bail for the two charges of breaching the violence restraining order naming Mr Crockett as the protected person, as well as for the charge of assault and the charge of damage arising out of the incident at Ms Gilmour's home on 23 April 2005. Accordingly, Bail Act, Sch 1, Pt C, cl 3A(1) applies. This provision states that where an accused is in custody awaiting an appearance before conviction for a "serious offence" and the serious offence is alleged to have been committed while the accused was on bail for another "serious offence" then the authorised officer in whom jurisdiction to grant bail is vested (cl 3A(1)):
"Shall refuse to grant bail for the serious offence [for which the accused is in custody awaiting an appearance before conviction] unless the judicial officer or authorised officer –
(c)is satisfied that there are exceptional reasons why the accused should not be kept in custody and, clause 3B applies, is so satisfied only after complying with that clause."
Under Bail Act, Sch 2, both stalking contrary to Criminal Code, s 338E and breach of a violence restraining order contrary to Restraining Orders Act, s 61(1) are "serious offences".
In view of the prosecution of the applicant for, among other things, alleged breaches of the violence restraining order naming Timothy Crockett as the protected person for which bail had been granted, Bail Act, Sch 1, Pt C, cl 3B(2)(c) is engaged. That requires me to see to it that I have given:
"Each person for whose protection a protective condition or order … was imposed or made (a 'relevant person') a reasonable opportunity to give evidence by affidavit on matters relating to that protective condition or order." (cl 3B(3)).
There are two individuals in this case, each of whom is a relevant person, namely, Diana Gilmour and Timothy Crockett. At the hearing before me counsel for the respondent confirmed that both individuals had been contacted before the hearing and asked whether they wished to take the opportunity to give evidence by affidavit or otherwise on matters relating to their protective condition or order. I was told by counsel that both had declined, in view of the material annexed to and appearing in the affidavit of Mark Louis Binning sworn 4 August 2005, of which they had been aware for some time. Counsel also informed me that both Diana Gilmour and Timothy Crockett would have a "grave concern" in respect of the applicant were the applicant to be released to bail.
It also follows from the engagement of cl 3B that, in the circumstances of this case, I am required in making a decision for the purposes of cl 3A(1)(c) to:
"(a)give due weight to
…
(ii)any adverse affect that a grant of bail to the accused would have on a relevant person; and
(iii)any difficulty that a relevant person might have in proving any future breach of a protective condition or order;
…
(d)consider whether any alleged breach of a protective condition or order that has occurred shows that the purpose of the condition or order has not been achieved and the accused should be kept in custody." (cl 3B(4))
I return below to a further provision in cl 3B, namely cl 3B(4)(c), to which counsel for the respondent also drew my attention.
I was told by counsel for the applicant that the violence restraining orders here were all interim orders under the Restraining Orders Act. However, I note that, for the purposes of Bail Act, Sch 2 and Sch 1, Pt C, cl 3B, no distinction is drawn between an interim and a final violence restraining order.
With those modifications, I consider the general approach to the grant of bail under the Bail Act is that set out in the frequently cited passage from the judgment of Nicholson J in KM v The Queen, unreported; SCt of WA (Nicholson J); Library No 7193; 14 July 1988 (applications for bail under the Criminal Code, s 573): see Saka v The Queen [2001] WASC 92, McKechnie J at [16], [17]. In KM, Nicholson J said:
"It is well established that prima facie a person accused of a crime should be allowed his liberty before the hearing in order that the preparation of his case be as full and thorough and unfettered as possible. Against that prima facie position must be weighed the question whether there is a reasonable likelihood that the accused will be present at the hearing of the charge. The Court is therefore called upon to balance the interests of the accused and the public interest in the trial proceeding. The onus is on the Crown to establish that there is a reasonable degree of risk that the accused, if allowed bail, would fail to answer to it. This position is well established; R v Fraser (1892) 13 LR (NSW) 150; R v Lythgoe (1950) QSR 5; R v Watson (1947) 24 WN (NSW) 100; R v Light [1954] VLR 152; R v Fisher [1964] Tas SR NC 7; R v Appleby 83 WN (PT1) (NSW) 300; Reg v Wakefield [(1969) 89 WN (Pt 1) (NSW) 325] and Burton v R (1974) 3 ACTR 77. Those decisions discuss factors which are relevant to the exercise of the Court's discretion, attention to which is directed in the sub‑headings which follow in these reasons."
The principal modification in this case of that approach is that the burden is on the applicant to show there are "exceptional reasons" why the applicant should not be kept in custody.
The Bail Act, Sch 1 Pt C cl 1, directs me to exercise my discretion whether to grant bail "having regard" to a list of factors, "as well as any other" I consider "relevant". The list of factors, excluding the ones clearly inapplicable here are:
"(a)whether, if the defendant is not kept in custody, he may –
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
…
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
…
(e)whether there is any condition which could reasonably be imposed under Part D which would –
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
…
(iii)remove the grounds for opposition referred to in paragraph (c);
…
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate."
In this case counsel for the respondent did not press on me that there was a risk the applicant if not kept in custody might fail to appear in court in accordance with his bail undertaking.
In considering whether the applicant may do any of the things referred to in cl 1(a), cl 3 directs me to "have regard" to certain matters, "as well as any others" I consider "relevant". The list of matters are:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the defendant for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
In this case I do not have any material before me relevant to the application of (c) above.
Counsel for the applicant submitted to me that, while there was no single factor which constituted "exceptional reasons" for the grant of bail in this case, the combination of a number of factors had this result. I was referred to Director of Public Prosecutions (Vic) v Cozzi [2005] VSC 195, Coldrey J at [19]‑ [20] in support of that position. I did not understand counsel for the respondent to be suggesting otherwise. It seems to me that the position in Cozzi is correct. I approach this case accordingly.
At the same time, however, I note the particular importance in the Bail Act, Sch 1, Pt C, cl 3A(1)(c) above, read with cl 3B of the alleged contraventions of the violence restraining orders in this case. Counsel for the respondent drew my attention to cl 3B(4)(c), which reads:
"In the case of a condition imposed for a purpose mentioned in clause 2(2)(c) or (d) of Part D, treat any alleged breach of the condition as a serious matter even if the conduct alleged to amount to the breach in itself appears to be trivial; and …"
This, it was said, reinforces the serious regard which the legislature is indicating should be taken of cases within cl 3B(4). This case is, of course, one of alleged breaches of a "protective order" (see cl 3B(6)(b)), not a "protective condition". But I agree that cl 3B(4)(c) should, in light of the classification as "serious" of the offences in cl 3B(6)(b) (see Sch 2), be viewed as counsel for the respondent submits.

I approach the weighing of the relevant considerations in this case by structuring the balance of my reasons as McKechnie J did in Saka (supra).

Applicant's Personal Circumstances

Counsel for the applicant pressed strongly on me the applicant's employment position; the risks to his home in Kalgoorlie while it remained vacant; his obligations to maintain the mortgage in respect of that home; his child support obligations; and his role as a parent to his three children, especially the child of his first marriage, in respect of whom contact provisions, including one for her possible return to Australia to reside with the applicant, were made by order of the Family Court on 1 August 2005, as I have indicated. I was provided with a copy of a facsimile from his employer, the Department of Employment and Workplace Relations of the Australian government, confirming the continuation of an offer for the transfer of his employment to the Department's South Hedland office.
I note that neither of the two mothers in this case has sought to support the application for bail, and I do not readily see why, as counsel for the respondent pointed out to me, the applicant could not arrange for his Kalgoorlie home to be rented out while he was in custody. I do note, however, the indications through counsel for the applicant that the home has already been broken into, matters which might need to be attended to before the house could be rented out.
Although counsel for the applicant placed particular emphasis on the formal confirmation of the availability to the applicant of a transfer to South Hedland, I do not consider that circumstance, or the others I have grouped under this heading, to constitute, at least considered separately, "exceptional reasons" for the grant of bail. These may, however, be weighed with other circumstances, which I reach shortly, for the purposes of such a determination. Also, this is not to say, where a particular dependence for both material and emotional support on an applicant for bail may be made out (which is not this case), these would not be capable of establishing "exceptional reasons". However, I would consider such a case establishing such reasons to be a relatively unusual one: see Cozzi (supra) at [24] per Coldrey J.

Applicant's Antecedents

The only criminal record for the applicant here is one showing, apart from a traffic offence in the Australian Capital Territory, a contravention there in 1994 of a domestic violence order for which no custodial sentence was imposed. I return to this record at a number of points below.

Likely Disposition of the Accused if Convicted

On the offence of aggravated stalking, the maximum penalty is a term of imprisonment for 8 years. The circumstance of aggravation for the purpose of s 338E was, it seems, being armed with a knife on the occasion of the 13 June incident in Diana Gilmour's yard (Criminal Code, s 338D(1)(a)).
The maximum penalty for breach of a violence restraining order is under s 61(1) of the Restraining Orders Act a fine of $6,000 and imprisonment for 2 years.
At this point, the applicant has not been committed for trial. Before me, it was taken as at least a likelihood that the applicant would be indicted on the three charges and face trial in the District Court.
I have already referred to a number of the circumstances that are alleged to have been involved in the commission of these offences. Those circumstances, as counsel for the respondent put it to me, would indicate a pattern of escalating seriousness, from initial theft of mail, to carrying a knife, while in disguise, and stealing a surveillance camera. While the applicant's lack of a serious criminal record would undoubtedly count against the imposition of a custodial sentence, it is not clear to me, in circumstances where part of the aggravated stalking occurred after the service of a violence restraining order and while on bail on similar offences, that a custodial disposition in this case is unlikely, and, if one were to be imposed, it would seem to me it does not appear to me to be likely to be one that will not be significantly greater than the time likely to be spent in custody were bail to be denied. I return to that time below. At the same time, as counsel for the applicant noted, there is no tariff evident in relation to offences of this kind. In the circumstances, this factor does not in my view weigh significantly in favour of the grant of bail.

Strength of the State Case

The cases that emerged from the materials before me, being those described in and annexed to the affidavit of Mark Louis Binning, would appear to indicate a strong case. I am informed that there is video footage of the applicant, not in disguise, at the time of theft of clothing from Diana Gilmore's clothesline, and of a person answering the applicant's description, while in disguise, on the occasion of the theft of the camera in question. In addition, on 14 June 2005, a search warrant was executed on the applicant's house and motor vehicle, as a result of which clothing belonging to Diana Gilmour, a jacket with a large knife inside a pocket, a rubber animal face mask corresponding to the sort of mask shown in the surveillance footage, wire, rubber gloves and binoculars were found. In addition mail addressed to Diana Gilmour was also found.
At this stage in the development of the prosecution case, I consider it to be a strong one.

Likely Time before Trial

The applicant has been in custody on the present charges since 14 June 2005. Counsel for the respondent did not disagree with counsel for the applicant that a trial on those charges, if on indictment before the District Court, is unlikely before July or August 2006. A committal mention in the District Court is, as I understand it, scheduled for later in November. This would mean a period in custody of between 13 and 14 months. Counsel for the applicant laid heavy emphasis on this period, while also conceding that it was one short of those periods, of 18 months or more, which have engaged the concern of courts in my position with "inordinate" delay. I note for this purpose the following, from Goldfinch v State of Western Australia [2004] WASC 218, Roberts‑Smith J, at [81]:
"The interests of justice also require that persons charged with serious offences are brought to trial. Criminal trials cannot be brought on immediately and if the circumstances are such that a grant of bail is not appropriate then a delay which is not inordinate will not constitute an exceptional reason for granting bail: Firkins v Director of Public Prosecutions (2002) 132 A Crim R 321, although a delay which is inordinate may do so: Outman v R [2001] WASC 162; The State of WA v Oates [2004] WASC 214."
I interpret this passage as indicating to me that a delay which might not itself be inordinate might, in combination with other circumstances, make out exceptional reasons for the granting of bail.
I note for this purpose the expression of concern at detention in custody for a period of more than 12 months in Saka (supra), at [38] – [40], McKechnie J.
In this case, however, it would appear that there has been a delay in the committal mention the result of the applicant's wish to have his bail application determined first. The delay was in the order of six weeks. I agree with counsel for the respondent that that is a matter I should weigh in considering the weight of delay as a consideration in this case.

Integrity of the Trial Process

Counsel for the respondent emphasised two matters under this heading. One was that the State had the intention of securing pre‑recorded evidence from the applicant's daughter by his first marriage, at least in relation to the aggravated stalking charge. The Binning affidavit refers to the transcript of a video interview on two occasions with this daughter, ones that counsel for the respondent indicated to me would not be sufficient for this purpose. At the same time, as counsel for the respondent indicated, and counsel for the applicant confirmed, concerns on this account could be addressed through a suitable condition which would prohibit the applicant from seeking access to the daughter until the pre‑recording of evidence had taken place.
Counsel for the respondent also referred me to the charge against the applicant of attempting to pervert the course of justice contrary to s 143 of the Criminal Code in respect of the alleged attempts by the applicant to secure his neighbours' support for an alibi defence in respect of the events of 13 June 2005 at Diana Gilmour's home. Counsel for the applicant in submissions to me indicated his client had instructed him one of the neighbours had informed the client that the neighbour had been threatened by detectives on the day they came to search the client's home. All of these are, of course, serious matters. On the conflicting material before me, I am unable to weigh this factor heavily against the grant of bail. At the same time, I cannot eliminate the possibility of a threat to the integrity of the trial process, based on the alleged prior history of the applicant. I must note, of course, that the burden rests on the applicant to establish "exceptional reasons" for the grant of bail.

Endangering Others

I have already referred to the pattern, as it was put to me, of the applicant's behaviour in relation to Diana Gilmour, of alleged escalation in seriousness. At the same time, however, I note that there is no actual physical violence that has been alleged here, other than the altercation involving spitting the subject of the assault charge which arose prior to the protective order naming Diana Gilmour as the protected person. It seems to me on the alleged events the subject of various charges the applicant faces, including but not limited to the ones on which he seeks bail from me, that the more significant risk is of serious intimidation, rather than of endangerment, of either Ms Gilmour or of Mr Crockett.
This brings me to the factors particularly implicated by cl 3B of Sch 1 of the Bail Act.

Adverse Effect on Protected Person; no Achievement of the Purpose of Protection Order; Difficulty in Proving Future Breach

I have already referred, at two points previously, to the pattern in the alleged behaviour of the applicant of an escalating level of seriousness in relation to Diana Gilmour. This pattern occurred notwithstanding the service on the applicant of violence restraining orders both in respect of Timothy Crockett and then Diana Gilmour. I also note that his one prior conviction of relevance was the non‑compliance with an analogous order in the Australian Capital Territory, although the non‑compliance was some time ago, in 1994.
I further note the concern reported to me of Ms Gilmour and of Mr Crockett if the applicant were to be released to bail. The installation by Mr Crockett of cameras at Ms Gilmour's home would seem to be a manifestation of a prior form of that concern.
Counsel for the applicant put to me that any concerns in this respect could be addressed through the imposition of conditions on the applicant's bail. These might include removal to Perth prior to any transfer to South Hedland; once a residence in South Hedland had been identified, the imposition of residential conditions as well as reporting ones for South Hedland; and prohibitions on all forms of contact with either Diana Gilmour or Timothy Crockett. Any concern that might otherwise be felt relating to confrontation between the applicant and Ms Gilmour from handover or return of the two children of the second marriage could be addressed through orders of the Family Court, of the sort already made by Magistrate Sharratt on 29 April 2005, to which I have previously made reference. Counsel for the respondent conceded that orders of that sort could indeed be made to reduce the risk referred to.
While conditions, particularly reporting conditions, might make it difficult for the applicant to travel either from Perth or South Hedland to Kalgoorlie and a possible physical confrontation with Ms Gilmour or Mr Crockett, they would not remove the possibility altogether, given flight connections in this State, and in a context where an aspect of the pattern of escalation to which I have referred is behaviour going beyond instinctive responses to close proximity (the events of 16 and 23 April 2005) to planned and surreptitious behaviour with elements meant to frighten (the events of 6 and 13 June 2005).
It was suggested to me that Magistrate Sharratt in refusing bail might not have considered Mr Gilmour's relocation to a place distant from Kalgoorlie. While it played no part in my determination of the application before me, I note that Magistrate Sharratt concluded he was not satisfied that "the purported removal of Mr Gilmour from where he is in prison to any venue in the State" would be "sufficient" for him to be of the view Diana Gilmour would be "safe". Of course, as Magistrate Sharratt recognised, it is important to continue to bear in mind that the pattern referred to is one of allegations only. Nor is it clear he had before him the offer of employment transfer that is before me.
However, of equal or greater concern to me, when I view the context I have referred to, it does not seem to me there are conditions that would be as effectual in reducing the risk of other forms of seriously intimidatory contact, such as telephone or letter. I recognise there are no allegations of that sort of behaviour as yet. However, the context I refer to, particularly the element of surreptitiousness, gives rise to the concern, as I have said. And I note again the concern reported to me as felt by both Ms Gilmour and Mr Crockett.
I further note, as a related point, that the pattern I have referred to implicates cl 3B(4)(a)(iii), concerning "any difficulty" a relevant person "might have" in proving any future breach of a protective order.
I have concluded that, although physical confrontation between the applicant and Ms Gilmour or Mr Crockett might in the circumstances be substantially addressed by conditions on the order for any bail, serious intimidation in other ways could not be satisfactorily addressed in circumstances where, on the various forms of conduct alleged in this case, forming the subject of the present charges and of other charges, there is cause for such concern.

Overall Conclusion

In view of all of the factors I have referred, I am unable to discern that exceptional reasons have been made out by the applicant for the grant of bail in this case. Combining those circumstances that might be seen to point towards the grant of bail, namely, hardship to the applicant, the applicant's antecedents, and the likely time before trial, there is no overall character to these sufficient to establish exceptional reasons. This is particularly when they are weighed with the strength of the State case, and the adverse effects on protected persons of a release on bail, the basis for concern as to the failure of achievement of the purposes of the protection orders in this case, and possible difficulties in proving any future breach of a protective order.
Accordingly, I would dismiss the current application for bail.