Held v The Queen
[2012] VSC 648
•4 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2012 0141
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by MARCUS AARON HELD
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2012 | |
DATE OF JUDGMENT: | 4 December 2012 | |
CASE MAY BE CITED AS: | Held v R | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 648 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Alexander | Paul Vale Criminal Law |
| For the Respondent | Mr Trapnell SC | Office of Public Prosecutions |
HER HONOUR:
Marcus Held applies for bail. He has been charged with attempted rape, indecent assault, intentionally causing serious injury contravening a family violence intervention order and other offences arising from an incident occurring at the home of the complainant, Meaghan Shaw, on 12 October 2012.
As he is charged with an offence against s 123 of the Family Violence Protection Act 2008, and on at least two separate occasions has used or threatened violence against the person the subject of the order and has been convicted of the same, and as he has been charged with an indictable offence and it is alleged that he has used an offensive weapon in the course of committing that offence, the applicant is in a “show cause” situation.[1]
[1] Section 4(4)(ba)(i) and (ii), s 4(4)(c).
The Crown opposes the application and submits that even if Mr Held has shown cause why his detention in custody is not justified, he is nonetheless an unacceptable risk of committing further offences and interfering with witnesses.
On Friday 12 October 2012, Mr Held went to Ms Shaw’s home in breach of a family violence intervention order. They spent the day together, where they consumed a quantity of both illicit and licit drugs and alcohol. They then watched a movie and had dinner together before Ms Shaw went to bed. Ms Shaw alleges that throughout the day, Mr Held pressured her to retract her statement in relation to charges pending against him for a previous breach of an intervention order. She stated that the applicant had threatened her and she was in fear of him. She had gone to bed and, a short time later, Mr Held came into the room and verbally abused her. He then picked up a glass bong and hit her to the left side of her head and then smashed a number of photo frames. A scuffle broke out in which it is alleged that Mr Held punched Ms Shaw to the head a number of times. When the scuffle stopped, Ms Shaw went into the loungeroom and, as she was leaning over a couch, Mr Held then grabbed her by the head and punched her numerous times. Ms Shaw tried to get away and, as she did, she alleges that Mr Held tripped her, causing her to fall face down to the ground and, as she fell, a shard of glass penetrated her upper left thigh.
It is alleged that Mr Held then straddled Ms Shaw while she was on the ground and, in these circumstances, attempted to rape her. Ms Shaw fought him off and punched him to the head. Ms Shaw then called “triple-0” and tried to leave the house. She alleges that Mr Held then chased her and pulled her back into the house, punching her numerous times to the head and body. She broke free from Mr Held and ran outside, falling to the ground. Mr Held left the house prior to the police attendance.
As a result of the incident, Ms Shaw suffered a number of injuries, which are said to include a broken nose, swelling and tenderness to the left upper cheek bone and nose, an abrasion, bruising and swelling to the lower lip, abrasions to the forehead and various other bruisings and abrasions and tenderness.
On 15 October, Mr Held was arrested and in an interview with the police admitted being at Ms Shaw’s home in breach of the intervention order. Indeed, he maintained that Ms Shaw had contacted him and he had been at her home on a number of occasions during the week prior. He admitted punching Ms Shaw once in self-defence as she had grabbed him around the neck, and denied any further allegations of assault, including sexual assault. At the conclusion of the interview, Mr Held was charged and remanded in custody.
An application for bail before Magistrate Lamble at the Melbourne Magistrates’ Court on 23 October 2012 was made and refused.
Mr Alexander, who appeared on behalf of Mr Held, relied upon the following in combination to show cause why Mr Held’s custody is not justified. They are:
1.the strength of the Crown case, which he describes as weak;
2.the delay in the matter going to trial;
3.the applicant is his grandmother’s carer; and
4.the applicant’s drug treatment is available to him in the community.
As to the strength of the Crown case, Mr Alexander submitted that these offences occurred in the context of a tumultuous, erratic and violent relationship, where there was a history of complaints having been made by Ms Shaw and subsequently withdrawn, and in circumstances where both parties had mutually breached the intervention orders in the past.
Mr Alexander submitted that there were sufficient inconsistencies in Ms Shaw’s account: she has a history of making complaints and withdrawing them; she has prior convictions for offences of dishonesty and violence; her credibility and reliability will be in issue; and in these circumstances, where Mr Held says he acted in self-defence and denies the assaults, there is a real prospect that the jury will acquit, therefore the Crown case is a weak one.
Mr Alexander submitted that the delay in the matter coming to trial was up to eight months; the duration of the committal could not be assessed with any certainty. Accordingly, it could not be said when the committal would occur and therefore neither could it be said when a trial might be held.
Mr Held was the principal carer of his grandmother, whom he regards as his mother. She is 82 years old and is currently being assisted by Mr Ben Griffin, a friend of the family. He gave evidence that in Mr Held’s absence he has been attending to Mrs Held three days a week; doing her shopping, purchasing her medication, walking the dog and cleaning the gutters. He is not able to continue doing this because of his own family commitments.
In cross-examination, Mr Griffin conceded that Mrs Held has a son living in Narre Warren, but he only sees her twice a year. She has a cleaner once a fortnight and cooks her own meals.
Mr Alexander submitted that Mr Held is able to access his methadone through his general practitioner, as he has done so previously and, as detailed in Exhibit A4 to the affidavit of Gorica Milakovic sworn 7 November 2011, Mr Held has available to him various community supports in respect of his drug and alcohol issues.
Mr Trapnell SC, who appeared on behalf of the Respondent, submitted the following:
1.The Crown case is not word against word. The complainant’s evidence is supported by the injuries she received. There is no deficiency in the evidence. If Ms Shaw is believed, the case is a strong one.
2.The matter is listed for a committal mention on 18 December 2012. The hand-up brief has been served. Presumably, it is a one witness committal and therefore of short duration, and a trial would also be of short duration. The provisions of the Criminal Procedure Act 2009 (Vic) require that a trial commence within three months of the committal.
3.As to the care of Mr Held’s grandmother, others in the community are able to render her assistance.
4.Mr Held is currently receiving his methadone and anti-alcohol abuse medication while on remand; the authorities being well able to manage persons in his situation.
Mr Trapnell SC also submitted that Mr Held was on bail for breach of an intervention order when he attended Ms Shaw’s home and that, in itself, was a breach of his bail conditions. Further, he has four convictions for breaching intervention orders, two of which precede these events, and he pleaded guilty to all of them. In these circumstances, as I understand the submission, there is a real risk that he would commit further offences while on bail and interfere with witnesses, being the complainant. Finally, the complainant has instructed the informant that she does not wish Mr Held to be granted bail, as she is in fear of him; a relevant consideration under the s 4(3)(e) of the Bail Act 1977 (Vic).
I am not satisfied that Mr Held has shown cause why his detention is not justified. As to the strength of the Crown case, no doubt the complainant’s account will be challenged and there may be inconsistencies in her account. Her history of withdrawing complaints, her prior criminal history and her own drug use are all matters which will go to her reliability and credibility, but that does not translate to the assertion that Mr Held has a real prospect of being acquitted, or that the Crown case is a weak one. If Ms Shaw is believed, that is, if her reliability, truthfulness and accuracy are such that a jury come to the view that they can act on her evidence to their satisfaction beyond reasonable doubt, having given her evidence careful scrutiny and, in particular, if her evidence is supported in a material way, then Mr Held will be convicted. That is, if Ms Shaw is believed, the case is a strong one; if she is not, then Mr Held will be acquitted. It is not for the Court on a bail application to determine issues of reliability and credibility of a witness, beyond accepting that a witness’s testimony may be subject to challenge.
As to the delay, a committal mention has been listed for 18 December 2012. The hand-up brief has been served. There are no outstanding issues. As the principal issue is a challenge to the complainant’s veracity, the committal should be short, as would a trial. Pursuant to s 212(a) of the Criminal Procedure Act2009 (Vic), a trial must be held within three months after the day in which an accused is committed for trial. While one cannot determine when that will be, there is no reason why the time limits imposed cannot be honoured. So far, the matter is proceeding expeditiously and presumably a short trial is more easily placed in the list than a long one.
Although the applicant is presumed innocent and indeed maintains his innocence and therefore every day on remand is no comfort to him, nonetheless, the delay is not at this stage inordinate and, either of itself or in combination with other factors is not sufficient to establish a show cause.
As to Mr Held’s role as his grandmother’s carer, although it is regrettable that an elderly woman has been placed in this situation, Mrs Held nonetheless has been able to live in her home while Mr Held has been on remand. She cooks her own meals and is able to care for herself at least in the four days of the week that Mr Griffin is not in attendance, so to that extent, Mrs Held is able to live independently and without assistance. No doubt, it is of great assistance that Mr Griffin does her shopping, but he seemed otherwise engaged in non-essential tasks, and Mrs Held does have a son whose obligation it would be to care for her, even if she only sees him twice a year. Further, Mr Griffin did not categorically state that he would cease providing assistance to Mrs Held as he has done so in the past. Again, of its own or in combination with other considerations, this is not sufficient to show cause.
As to Mr Held’s drug treatment, the evidence discloses that Mr Held is receiving his methadone and anti-alcohol abuse medications while in custody, and it is not contended that he is not appropriately managed while on remand.
Even if I am wrong in my conclusion that these factors do not, either individually or in combination, establish the show cause, I would nonetheless refuse bail. This is so because I am satisfied that the applicant is an unacceptable risk of re-offending and interfering with witnesses. This is so because Mr Held has four convictions for breaching intervention orders, two of which preceded these current offences and, indeed, these offences occurred while he was on bail in respect of a charge of breaching an intervention order.
Further, it is submitted that Mr Held pleaded guilty to all four charges of breaching an intervention order, and Ms Shaw has alleged that on the day of these offences, he was pressuring her to retract her statements alleging his breaching conduct. Further, he has a prior conviction for failing to comply with a community-based order.
All of these matters suggest an inability to comply with the imposition of lawful authority and, in particular, the obligations imposed under family violence intervention orders, so it is that previous constraints have failed to bind him. Despite Mr Alexander’s submission that having endured 50 days on remand Mr Held has learned his lesson, the fact is that previous dispositions have failed to stop Mr Held from re-offending and, in particular, re-offending insofar as it relates to breaches of intervention orders in a like manner. It is not to the point that both parties have ignored the terms of the family violence intervention orders in the past; the applicant has been bound by them, irrespective of the attitude of the complainant. It is his obligation to comply with them and he has failed to do so on four occasions. He has also failed to comply with his bail condition not to contact the witnesses, and in these circumstances the applicant’s history suggests that he is an unacceptable risk of re-offending and interfering with the witnesses.
In these circumstances, I could not be satisfied that Mr Held would not re-offend or interfere with the witnesses which in this case directly relates to Ms Shaw, because indeed that is what it is alleged he has done on this present occasion, and I could not be satisfied that Mr Held would abide by any conditions which would convert those risks to acceptable risks. Accordingly, bail is refused.
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