In the Matter of A Bail Application BY Steven Wayne Hillier
[2003] ACTSC 50
IN THE MATTER OF A BAIL APPLICATION BY STEVEN WAYNE HILLIER [2003] ACTSC 50 (25 June 2003)
CRIMINAL LAW – bail – applicant charged with murder and arson – statutory presumption that bail should be granted – relevant principles – evidence of “profiler” suggesting applicant might harm others – whether admissible and probative – psychiatric assessment suggesting no evidence of such risk – relevance of other evidence – bail granted.
Bail Act1992 (ACT), ss 8, 22, 43
Dunstan v Director of Public Prosecutions (1999) 92 FCR 168
No SCC 80 of 2003
Judge: Crispin J
Supreme Court of the ACT
Date: 25 June 2003
IN THE SUPREME COURT OF THE )
) No. SCC 80 of 2003
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF A BAIL APPLICATION BY STEVEN WAYNE HILLIER
REASONS FOR JUDGMENT
Judge: Crispin J
Date: 25 June 2003
Place: Canberra
On 13 June 2003 I heard an application to review a decision of the Magistrates Court refusing to grant the applicant bail. Having considered the evidence adduced by both parties and the competing arguments of counsel I ordered that the applicant be admitted to bail on strict conditions. I gave a brief statement of my reasons for this decision but indicated that I would provide a more detailed statement when time permitted.
The applicant was charged with two offences; one of murdering his former partner, Ms Ana Louise Hardwick, and the other of arson. Following his arrest he appeared before the Magistrates Court on Saturday, 7 June 2003 when bail was refused. It was that decision which I was required to review.
The evidence revealed that Ms Hardwick’s body was found on the floor of her bedroom in her home at 20 Marengo Place, Isabella Plains on 2 October 2002. The mattress of her bed had been extensively damaged by fire and the room had been damaged by smoke. A Fire Brigade investigator suggested that the fire had commenced in a pillow on the floor near the window. Two smoke detectors were found to be inoperable because the batteries had been dislodged. There was no sign of forced entry. A post mortem examination revealed significant bruising around the throat of the deceased and further bruises on the wrists. No soot had been ingested and there was no evidence to suggest that she had been breathing at the time of the fire. It appeared that the cause of death was “neck compression”. In short, the evidence suggested that she had been murdered and that there may have been some attempt to obliterate tell-tale signs of violence by setting fire to the premises.
It was not suggested that there were any eye witnesses to the events in question or that the applicant had made any admissions in relation to their occurrence. The prosecution case that it was the applicant who committed the offences was entirely dependent upon circumstantial evidence.
For present purposes it is unnecessary to provide a comprehensive account of all of the material upon which the respondent relied, much of which consisted of hearsay or other assertions of a kind that would be inadmissible at the applicant’s trial. The most potentially incriminating evidence was that relating to what was described as a “tape lift of DNA” taken from the collar of the deceased’s pyjamas. Detective Sergeant Innes said that the material had been analysed and had been found to contain mixed male and female profiles and added:
Using the frequencies obtained from the ACT population database, the statistical calculation of the DNA located on the collar of the deceased’s pyjamas show that it is 93 million times more likely that the mixture has come from two individuals with the same DNA profile as the deceased and [the applicant] than from an individual with the same DNA profile as [the deceased] and an individual chosen at random from the population. The probability of the [applicant’s] DNA profile being transferred to the deceased’s pyjamas by means other than through direct physical contact with the deceased are extremely remote.
There was, regrettably, no report from the analyst who tested the sample or apparently expressed these opinions. Whilst hearsay evidence is admissible in proceedings related to bail, the course followed inevitably gave rise to some risk of confusion or over-simplification and excluded any opportunity for cross-examination about the bases for these conclusions. At least the last proposition seemed inherently dubious. DNA can be found in bodily fluids, including saliva and nasal secretions, and small quantities of such fluids can be conveyed in airborne particles due to coughs and sneezes. Fluids can also be transmitted from one surface to another. There may have been particular circumstances which justified such a conclusion in the present case but, if there was, I was not informed of them. Furthermore, there was no evidence as to the likely age of the sample which was, of course, potentially significant only if placed on the pyjamas at the time of the murder.
These issues together with the possibility of alternative hypotheses consistent with innocence will presumably be canvassed at the applicant’s trial but, for the purposes of determining the bail review, I was prepared to assume that there was a reasonable prima facie case against the applicant in relation to each charge.
The learned Magistrate indicated that she was unable to form any real impression of the likely strength of the case against the applicant but refused bail due to concerns expressed by the respondent that, if released, the applicant might not appear in court when required and that he might pose a threat to the safety of others.
Section 43 of the Bail Act1992 (ACT) (“the Act”) provides that the Supreme Court may review any decision of, inter alia, the Magistrates Court in relation to bail. In doing so, it is of course, bound by the provisions of the Act including those contained in s. 8. Section 8 provides that, subject to certain other provisions of no relevance to the present case, a person charged with any serious offence is entitled to be granted bail in accordance with the Act unless the Court is satisfied that refusal is justified having regard to certain factors.
In the case of an adult those factors are set out in s 22 of the Act which provides as follows:
(1)In making a determination regarding the grant of bail to an accused person who is not a child, a court or an authorised officer shall have regard to the following matters, so far as they are ascertainable:
(a)the probability of the person appearing in court in respect of the offence for which bail is being considered, having regard only to -
(i)the background and community ties of the person, having regard to the nature of his or her home environment and employment and to his or her criminal record; and
(ii)the circumstances in which the offence is alleged to have been committed, the nature and seriousness of the alleged offence, the strength of the evidence against the person and any other information relevant to the likelihood of the person absconding;
(b)the interests of the person charged, having regard only to -
(i)the period that the person may be held in custody if bail is refused and the conditions under which he or she would be held in custody; and
(ii)the need of the person to be free for the purposes of preparing for his or her appearance before a court and obtaining legal advice and for other purposes; and
(iii)the need of the person for physical protection, whether the need arises because the person is incapacitated by intoxication, injury or use of drugs or arises from other causes;
(c)the protection of the community, having regard only to –
(i)the likelihood of the person interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice whether in relation to himself or herself or any other person; and
(ii)the likelihood of the person committing an offence while released on bail; and
(iii)the likelihood of the person harassing a victim or other persons while released on bail.
(2)In subsection (1)(c)(ii), a reference to an offence includes a reference to an offence against a law in force in the ACT and a law of the Commonwealth, a State or another Territory (including an external Territory).
It may be noted that s 22 requires consideration of only three issues: the probability of the applicant appearing in court, the interests of the applicant and the protection of the community. All other considerations, including the apparent strength of the case against the applicant, are relevant only insofar as they impinge upon these issues. Furthermore, the question that must ultimately be addressed is whether, having regard to these issues, grounds have been established which justify displacing the prima facie entitlement to bail provided by s 8.
In the present case, the evidence concerning the first of these three issues did not reveal any such grounds. The applicant has lived in the ACT for about eighteen years and has owned a house in Canberra for about fifteen years. He has family in Canberra and, perhaps most importantly, his children have grown up in and continue to live in Canberra. He has no previous convictions. There was no suggestion that he had threatened to flee the jurisdiction or that he had attempted to sell his house or do anything else in apparent preparation for such a course. Apart from the gravity of the charges, there was no reason to suppose that he would be unlikely to answer his bail. Whilst it is true that he would face a lengthy period of imprisonment if convicted, that is also true of others charged with murder and the prima facie entitlement to bail nonetheless applies to people facing such charges. It was incumbent upon the respondent to demonstrate that there was a real likelihood of flight and speculation based upon nothing more concrete than the gravity of the offences charged was not sufficient.
So far as the second issue was concerned, the evidence suggested that the interests of the applicant would be substantially affected by the refusal of bail. Committal proceedings had not commenced and it was unlikely that they would commence for some time. Further DNA tests had been requested but since a backlog had apparently accumulated due to the diversion of resources to the investigation of the Bali bombing it was not known when the results would be available. It seemed likely that the applicant would need to engage further scientific experts to review the procedures undertaken at the request of the police and prosecutors and to provide appropriate advice. If bail had been refused the applicant would have been remanded in custody for at least several months and possibly for more than a year prior to trial.
The final issue, and the only one which caused me any real concern, was the protection of the community. In addressing this issue, the Court is permitted to have regard to only three factors: the likelihood of the applicant interfering with evidence or otherwise obstructing the course of justice; the likelihood of him committing an offence whilst on bail; and the likelihood of him harassing a victim or some other person whilst on bail.
It was not suggested that the applicant had threatened any potential witnesses and there appeared to be little real potential for him to interfere with evidence or obstruct the course of justice in this case. The case against him appeared to be almost entirely dependent upon evidence found by the attending police officers at this crime scene, expert opinions of forensic scientists, evidence of the observations of medical practitioners during the post-mortem examination of the deceased, and other observations made by police officers, such as the location of keys. It was not suggested that there was any real likelihood of the applicant attempting to interfere with any of this evidence. The primary concern raised by the respondent was that the applicant might exert continuing influence over his son, Daniel, whom the respondent suspected might have given his father keys to his mother’s house prior to her death. However, Daniel had never said that he had done so and the suggestion that he might give evidence to that effect if it were not for his father’s influence was based substantially upon speculation. Some fears had been expressed by other potential witnesses but I could not be satisfied that these fears were well founded. Having examined the relevant statements it appeared that the bulk of the evidence, which it was hoped that these witnesses could give, would either be inadmissible at the applicant’s trial or relatively uncontentious.
The crucial question was whether there was a real risk that, if released on bail, the applicant might commit further offences and, in particular, whether there were any substantial grounds to fear that he might harm one or both of his children.
This was a most disturbing allegation and one that plainly required serious consideration. However, the mere fact that someone has expressed concern that a person may commit further offences, even those involving risks to the safety of others, cannot be uncritically accepted as a basis for refusing bail. The basis for such concerns must be examined and, if there are grounds for finding that there is a real risk of further offences, the gravity of that risk and the likelihood of occurrence must be weighed against the prima facie entitlement to bail provided by s. 8. In Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 the Full Court of the Federal Court of Australia upheld a decision to grant bail to a person accused of sending letter bombs through the mail, stressing that the Act does not provide a legislative warrant for preventative detention based on mere suspicion or speculation that further offences might be committed. Madgwick J explained, at par 21, that “(t)he question posed by the Bail Act is whether the Court is satisfied that any risk is sufficient to justify the Court denying the accused person a legal right, the right to bail established by section 8”. Giles J added, at par 55, that if there was a “real likelihood” of the applicant committing an offence whilst on bail, rather than mere suspicion or speculation about such a possibility, then that likelihood could be taken into account as a factor in the general weighing process to be undertaken in determining whether the application should be refused notwithstanding the presumption in favour of bail provided by s 8.
The fears expressed by the respondent in the present case fell to be assessed in the context of these principles.
I accepted that Detective Sergeant Innes had some concern for the safety of the applicant’s son, Daniel, but noted that his evidence concerning this issue appeared to have reflected some measure of ambivalence as to whether the applicant posed any real threat to him. Both in the proceedings before the Magistrate and in evidence before me, he agreed that the applicant loved his son and that Daniel loved his father. During the proceedings before the Magistrates Court he had also said: “I’m not suggesting that he’ll do something to his son, what I’m suggesting is that he’ll try and influence what his son says, that’s what I’m suggesting” T37-40. When asked whether anything had occurred since giving evidence on that occasion to change his opinion he said “no”. Nonetheless, he proceeded to maintain that he believed the applicant posed a threat to the safety of his children because he believed he had used Daniel to obtain keys to the deceased’s house and might kill him to silence him. As previously mentioned, there was no evidence to suggest that Daniel had obtained the keys for his father or, if he had, that he was likely to give evidence against him. I formed the impression that Detective Sergeant Innes had been torn between speculation that a man believed to have already committed murder might kill again to silence a potential witness and, on the other hand, the more intuitive feeling that a man who so obviously loved his children would be unlikely to want to harm them.
The respondent also adduced evidence from Mr Longford, who described himself as a “behavioural consultant”. Mr Longford was a former police officer who had studied “criminal profiling” in the USA. He held an Arts degree with a major in psychology, though he agreed he was not qualified to practise as a psychologist. He purported to give expert evidence based on photographs of the crime scene and other evidence coupled with his experience in investigating other offences, including murder, and insights which he had gained during his training as a profiler. Like Detective Sergeant Innes, he expressed concern that the applicant might attempt to kill his children, but his view was based upon the proposition that the applicant had an egocentric nature. He conceded that he had never met the applicant, but maintained that that was unnecessary and volunteered the startling proposition that to have done so might have caused bias in the way that he considered what he regarded as relevant behaviour.
The suggestion that a person who is not qualified as a psychiatrist or psychologist may express an expert opinion as to the personality, character and likely future behaviour of a man he has never met was one which I had not previously encountered in a court of law. I accept that a person with Mr Longford’s qualifications and experience may be able to make visual observations of a crime scene and identify signs of pre-meditation and planning, deduce that the crime was the produce of an outburst of rage and even draw tentative conclusions as to the type of person likely to have committed it. Opinions of this kind may enable the police to identify the most likely range of suspects and to sharpen the focus of their enquiries accordingly. However, the fact that profiling may sometimes prove to be a valid investigative tool does not justify a conclusion that its exponents may leap majestically over the limitations of modern psychology and psychiatry and give expert evidence as to the personality and conduct of a particular person. I doubt that even the most eminent psychiatrist or psychologist would attempt to venture a professional opinion as to the underlying personality of a person whom he or she had neither met nor seen interviewed, even if informed of what had been found at a particular crime scene and invited to infer that the person had been the offender. Yet in the present case, Mr Longford, who conceded that he was qualified as neither, was not only willing to venture such an opinion but to assert that, more than eight months after the incident which formed the primary basis for his assessment, the applicant’s egocentric personality continued to pose a risk to his children.
It is true that he also relied upon a videotape said to show the applicant “controlling” someone, whom Mr Longford thought was Daniel, by turning the boy’s head towards him. However, the videotape was not tendered and Mr Longford’s description of the incident did not seem to provide any further support for his contentions. Even parents who are not egocentric sometimes seek to control children for their own protection. Furthermore, a more objective observer might have considered the possibility that a father who loved his son may have turned the son’s head towards him merely because the boy was grieving and he wanted to speak words of comfort or reassurance to him.
During the past few decades the whole field of forensic science has burgeoned and courts have become increasingly reliant upon expert witnesses. The trend has generally been of great public benefit. New techniques have often ensured the conviction of the guilty, the acquittal of the innocent and cast light on situations, the truth of which, would otherwise have remained undiscovered. However, even well qualified experts are not infallible and their evidence will sometimes reflect the fact that they have the same human frailties as other mortals. Hence, courts must exercise constant vigilance to ensure that they are not unwittingly misled. Amongst the many factors which may lead an expert witness into error is a malady which, if encountered in a new car salesperson, might be described as gross product enthusiasm. Some witnesses seem to become so fervid about the potential of their chosen discipline that they lose sight of its limitations and are borne by their enthusiasm into making claims that could not be supported by a more sober and objective assessment of the available evidence. Regrettably, Mr Longford’s opinions seemed to have been influenced by this phenomenon. I have no doubt that he gave his evidence honestly but, in my opinion, he was plainly not qualified to express the opinions that he did. They were at best adventurous excursions into areas well outside the field of his expertise. The bulk of his evidence was clearly inadmissible and whilst no objection was taken to it, presumably because it was thought that a voir dire examination might cause undue delay, I was obliged to conclude that it could be given no real weight.
On the other hand, there was persuasive expert evidence from Dr Knox, a consultant psychiatrist, who expressed the following opinion:
I conclude that there is no evidence suggesting impaired mental health on Mr Hillier’s part.
From my assessment of this man I find no evidence in his present mental status, the content of his discussions with me, and my appraisal of his integrity, that he is other than a fit parent.
Whilst I understand the uncertain circumstances arising out of the death of Ms Hardwick, I believe that it would be in the best interests of the children for them to be returned to their father’s care.
My impression of Mr Hillier is that he is genuinely concerned for the care of his children. While there have been allegations made about certain of his behaviour in the past, this has reportedly not been substantiated, and I do not believe it is the case that there is evidence that the children had been psychologically harmed in the past by the behaviour of either Mr Hillier or Ms Hardwick.
The Hillier children’s circumstances are traumatic enough at this time without them being separated from their father.
I judge it most unlikely that Mr Hillier would behave in any significantly inappropriate way towards his children, although no person can give absolute reassurances in this respect about anyone.
Evidence was also given by Ms Mundy who had been responsible for overseeing supervised contact between the applicant and his children since orders for their care were made in October 2002. Ms Mundy seems to have been a most suitable person to be entrusted with this role because she was a social worker whose extensive experience included work as a parole and probation officer and work as a crisis worker with the Domestic Violence Crisis Service. She had also been trained in investigative interviewing of abused children. Ms Mundy indicated that in May 2003 she had told police that the applicant appeared depressed and that she had been worried about his well being. Despite this concern, however, she gave evidence that he had a strong and loving relationship with his children and that she feared neither for her safety nor for the safety of Daniel and Elle in his presence. Annexed to her affidavit were reports prepared in November 2002 and February 2003 in which she referred to comments made by the children suggesting that they wished to return to live with their father and to the fact that the applicant had always behaved appropriately and lovingly towards them during periods of contact.
The only other evidence in relation to this issue was that of Ms Harmer, a clinical psychologist, who had assessed the relationship between the applicant and his children for the purpose of the custody proceedings in the Family Court of Australia. When subsequently approached about the matter she expressed some concern that if they were left in the full time care of the applicant there may be a risk to their psychological well being and explained that she thought they might grieve more readily if in the full time care of their grandparents. Ms Harmer was clearly qualified to express these opinions, though the judge who determined the custody proceedings found that she had harboured some antipathy towards the applicant and her view that the children seemed to be anxious and fearful of their father was clearly inconsistent with Ms Mundy’s observations of the manner in which they responded to him. In any event, Ms Harmer did not suggest that there was any reason to fear that the applicant might attempt to harm them.
Having considered the evidence carefully, I was obliged to conclude that the expressed concerns for the safety of the applicant’s children were based substantially upon speculation and, as the Full Court held in Dunstan v Director of Public Prosecutions, speculation is not enough. Furthermore, as I have mentioned, there was not only convincing evidence that he loved his children but substantially unchallenged by an experienced psychiatrist which suggested that there was no discernable reason to fear that he might harm them.
In these circumstances I was unable to find that the respondent had established any grounds justifying a denial of the legal right to bail provided to the applicant by s 8 of the Act. Accordingly, I ordered that he be admitted to bail but imposed strict conditions including requirements that any contact with his children occur only in the presence of officers of the Department of Family Services.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 25 June 2003
Counsel for the applicant: Mr J Purnell SC
Solicitor for the applicant: Pamela Coward & Associates
Counsel for the respondent: Ms P De Veau
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 13 June 2003
Date of judgment: 25 June 2003
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