In the Matter of an Application for Bail by Eiginson
[2014] ACTSC 234
•5 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an Application for Bail by Roman Eiginson |
Citation: | [2014] ACTSC 234 |
Hearing Date(s): | 25 July 2014 |
DecisionDate: | 5 September 2014 |
Before: | Refshauge J |
Decision: | Bail be granted to Roman Eiginson on the following conditions: (a) that he reside at [Redacted], Carwoola, New South Wales; (b) that he report daily to the Officer-in-Charge, Queanbeyan Police Station between 8:00 am and 8:00 pm; (c) that he not enter or remain in the Australian Capital Territory except for the purposes of attending court proceedings, attending meetings with his lawyers or when required to attend meetings with Australian Federal Police Professional Standards; (d) that he surrender all passports in his possession to the Registrar, ACT Magistrates Court; (e) that he not approach any departure area of any port or airport; (f) that he not contact or approach any diplomatic mission (Embassy, High Commission or Consulate) or any member of a diplomatic mission for the purpose of obtaining a passport, visa or other travel document; (g) that he not contact directly or indirectly, including by any electronic means such as SMS or the internet, threaten, intimidate, assault or harass [Redacted]; (h) that he not contact directly or indirectly (including by any electronic means such as SMS or the internet) or threaten, intimidate, assault or harass [Redacted], save that he may contact her through a legal practitioner in respect of court proceedings; (i) that he not damage any property of [Redacted]; (j) that he not contact any member or employee of the Australian Federal Police or an employee of Geoscience Australia provided that he may make such contact with a member or employee of the Australian Federal Police for the following purposes: to report an emergency or event which reasonably requires police assistance, or to speak to a member of Australian Federal Police Professional Standards in respect of employment matters, or when required to attend a pre-arranged meeting there or to report any travel in accordance with these conditions; (k) that he not approach any Australian Federal Police building except to report an emergency or event that requires police assistance or when required or permitted to contact Australian Federal Police Professional Standards in accordance with these conditions; (l) that he report all travel when residing away from his residence overnight and when entering the Australian Capital Territory to the Australian Federal Police Professional Standards; (m) that he not be in possession of any firearm, ammunition, including spent or non-functioning ammunition or explosive material. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Jurisdiction of Supreme Court to hear application – Applicant charged with stalking and unauthorised divulging of prescribed information – Whether accused a “flight risk” – Whether accused likely to commit further offences if granted bail – Accused has ties to the jurisdiction – Accused has no criminal history – Conditional bail granted |
Legislation Cited: | Australian Federal Police Act 1979 (Cth) Criminal Code Act 1995 (Cth) |
Cases Cited: | Breen (2009) 172 ACTR 21 |
Parties: | The Queen Roman Eiginson (Applicant) |
Representation: | Counsel Mr K Archer (Applicant) Ms S McMurray (Respondent) |
| Solicitors Kamy Saeedi Lawyers (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCC 163 of 2014 |
REFSHAUGE J:
Roman Eiginson has applied for bail. On 19 April 2014 he was arrested and charged with an offence against s 35 of the Crimes Act 1900 (ACT), of stalking his former partner. He was refused bail when he first appeared in Court on 21 April 2014.
He applied for bail again on 2 May 2014 and it was again refused.
On 20 June 2014, he applied again. His Counsel described to the Court that it was “an application for bail”. Despite this inadequate description, it appears from the reference that the learned Magistrate made to s 42A of the Bail Act 1992 (ACT) that it was, in fact, a review under that section.
This is an important issue for, under s 30B of the Bail Act, this Court has no power to make a bail order where the proceedings in relation to an applicant are not in this Court unless there has, in the Magistrates Court, been a review under s 42A of that Act. Mr Eiginson’s counsel’s unhelpful description of the proceedings as “an application for bail”, if taken at its face value, and without the learned Magistrate’s reference to s 42A, would have denied this Court jurisdiction.
There is no restriction on a defendant in the Magistrates Court making multiple (third or more) bail applications, subject, of course, to s 20A of the Bail Act. Thus, a third application will not necessarily constitute a review unless that is clear from the proceedings. Having said that, the Bail Act is quite unhelpful in setting out, or even providing an inference, as to the difference between a review and a bail application.
Counsel for the respondent agreed that the proceedings on 20 June 2014 were a review of bail under s 20B of the Bail Act and this jurisdictional hurdle was met.
The facts
The facts that the prosecution alleged constituted the offence in respect of which Mr Eiginson has been refused bail may be summarised as follows.
Mr Eiginson was a member of Australian Protective Services and became an Australian Federal Police (AFP) staff member upon the integration of the Service into the AFP in 2004. He has been employed with those organisations for over thirteen years.
In 2009, Mr Eiginson commenced a relationship with the complainant. In August 2012, however, he married another woman, whom I shall refer to as his wife. Although he is said to have maintained that this was for the purposes of permitting her to reside in Australia, his wife told Sam Van Meurs, a psychologist who made an assessment of her mental condition, that she had known him for ten years and had been in a relationship since 2009.
It appears that Mr Eiginson may not have told either the complainant or his wife about his relationship with the other woman.
The complainant, however, discovered on her return from an overseas trip in early 2014 that his wife was now permanently living with Mr Eiginson and this caused the complainant’s relationship with him to deteriorate. She made alternative living arrangements. The relationship ceased on 9 March 2014 after further arguments.
Mr Eiginson, however, approached the complainant unannounced at her work on 14 March 2014 and attempted to have her go with him. She refused and Mr Eiginson desisted because of the number of people arriving for work.
A mutual friend later told the complainant that Mr Eiginson had seen the complainant with another man and was jealous. The complainant told her friend to tell Mr Eiginson to stop contacting her. The complainant was, in fact, dating another man at the time and later, having concerns for her welfare and safety, moved into his residence.
The following month, another friend told the complainant that Mr Eiginson had told him that he wanted to take his own life but would kill the complainant first.
A few days later, the complainant found that her password for her mobile phone and email account had been changed, but not by her. She suspected that this was done by Mr Eiginson because he was the only person who knew these details.
Later, another friend of the complainant told her that Mr Eiginson had said he wanted to show his love for the complainant by making her close her accounts and that the complainant’s new male companion was a terrorist, information he had obtained through his employment.
Mr Eiginson made other attempts to contact the complainant which she resisted.
There were also a number of incidents at the home of the complainant’s new partner including an incident where a car slowly driving up and down the street outside the residence and stopping beside the residence, an incident where the cars of the complainant and her new partner having a strip of silicon placed along their length, despite no other cars in the street being so damaged, and an incident where all the tyres of the car of the complainant’s new partner were punctured with a sharp object.
Later, a car registered to Mr Eiginson drove slowly past the residence of the complainant’s new partner. It was the same model car as in the earlier incident. Mr Eiginson was then seen about thirty metres from the residence and was spoken to by police but was evasive in his answers to them about his reason for being there and the circumstances of his arrival. He was directed to leave the area, which he did, but moved only a short distance away, partly hidden by some bushes. When he saw that police had noticed him, he drove away, waving to the complainant in the presence of police.
He was later arrested and charged with the stalking offence.
Mr Eiginson was subsequently also charged with an offence of breaching the secrecy provisions of the Australian Federal Police Act 1979 (Cth) by unauthorised divulging of prescribed information.
This charge, laid on 2 May 2014, was referred to in the second bail application and on the review.
On 22 July 2014, he was further charged with offences under the Criminal Code Act 1995 (Cth) of knowingly having unauthorised access to restricted data. It was contended by Mr K Archer, counsel for Mr Eiginson, and not disputed by Ms S McMurray, counsel for the respondent, that, while separate offences, the facts on which these further charges were based were the same facts as those for which he had earlier been charged, namely that the information improperly divulged had been improperly accessed.
Evidence on application
Mr Eiginson’s lawyer filed an affidavit which annexed, amongst other matters, the transcripts for two of the earlier bail hearings. The transcript for the third was subsequently made available and I was asked to read it. I assume, though it was not made entirely clear, that I was to take the facts adduced in those hearings also into account. I do so.
It also annexed a report from Dr William Knox, consultant psychiatrist. This was asserted, and accepted, to be satisfaction of the jurisdictional requirement under s 43A(b) of the Bail Act, namely fresh evidence or information relevant to the granting of bail that was unavailable when the Magistrates Court conducted its review.
Mr Eiginson is fifty-two years of age. He was born in what is now Kazakhstan, then part of the USSR and raised in an upper-class family. He taught fencing for a time.
He is married, as noted above (at [9]), and, although that was described in terms suggestive of a marriage of convenience, the evidence of his wife, to which I have referred earlier (at [9]) and also refer below, does not seem to support that.
He was, until his arrest, in full-time employment. Prior to coming to Australia in 1991, he was employed in the USSR, as it then was, in a military capacity, where he served in Afghanistan and then as a police officer.
He has no criminal record.
Evidence was given by Federal Agent Stephen Coles of the AFP. He was employed in its Professional Standards area. He was responsible for the charges under the Australian Federal Police Act and the Criminal Code Act and advised that there were ongoing investigations.
He recounted the results of the execution of a search warrant on Mr Eiginson’s premises. Two foreign passports were found in a bag that Mr Eiginson’s wife was holding, one in the name of Mr Eiginson and one in the name of his wife, though with a different surname and date of birth. Mr Eiginson, he was aware, also had an expired Kazakhstan passport and a current Australian passport. The possession of three passports, at least two of which he had not declared to his employer, was said to constitute a breach of his employment conditions.
The fact of the possession of the passports was also said to constitute him a flight risk.
Additional breaches of his employment conditions were said to have been constituted by his failure to notify his employer of the relationships with his wife, including their marriage, and with the complainant, which was said to be a de facto relationship.
During the execution of the search warrant, police also located a camera in the bag being carried by Mr Eiginson’s wife. On the camera, police located a photograph of a white Toyota van registered to the complainant’s new partner. A Telstra bill was located and written on the back were the registration numbers of motor vehicles either owned by the complainant’s new partner or people who lived with him or his neighbours.
Federal Agent Coles also said that Mr Eiginson had a history of problematic behaviour. He had exhibited angry behaviour he used to place pressure on fellow students at the police training college of the Charles Sturt University to engage in plagiarism.
I was further told by Federal Agent Coles that, on the night of his arrest, when he was in the course of the intake process at the Alexander Maconochie Centre, he told the nurse at the Centre, “I will not hurt myself in the next 30 days until I get that bitch” which the nurse understood to mean the complainant.
Federal Agent Coles also referred to an incident when Mr Eiginson was being charged and his supervisor visited him. He was a sworn AFP member but Mr Eiginson is said to have told him that he was going to try and have the case thrown out. He is said to have specifically asked whether, if the complainant withdrew her statement, the charge would be dismissed. He was warned by his supervisor that he was not to intimidate, threaten or contact any of the witnesses.
Asked about concerns that Mr Eiginson may be a flight risk, Federal Agent Coles said that his concerns were based on the documents located during the execution of the search warrant. He said that police found in his car a document relating to an application to return to Russia. He said, too, that Mr Eiginson had property in Bulgaria which he had not declared. He also relied on the seriousness of the offence which may encourage him to flee the jurisdiction.
In earlier bail proceedings there was a reference to a “retirement plan” which appeared to mean that he was going to liquidate his Australian assets, in 2017 and leave Australia to go to Bulgaria.
There was a mention of property owned by Mr Eiginson in Bulgaria. It was said that he had some business and property in that country. This was discovered when the complainant provided police with an internal link to a Bulgarian government website. The information was clearly not in any sense covert. The holding of the property was, it was said, part of his “retirement plan”, but I did not get a good sense of the detail of that.
He had little information about Mr Eiginson’s Bulgarian property interests. Nevertheless, little reliance seems ultimately to have been placed on this issue before me.
Concerns also seem to have included, as mentioned in earlier bail proceedings, that when he was arrested, Mr Eiginson had in his possession a police warrant card and a badge, neither of which items had been issued to him.
Federal Agent Coles had also spoken to the complainant who told him she was scared of Mr Eiginson, whom she sees as very controlling. She and her new partner have had to install CCTV around their house. She also expressed a concern about Mr Eiginson holding a lot of her personal property, including documentation which he has tried to use, she said, to embarrass her.
She said that Mr Eiginson had contacted her mother, who is overseas, and that this had upset her very much. Her mother had telephoned her in distress, suggesting that she, the complainant, had formed a relationship with a terrorist, apparently information she has been given by Mr Eiginson.
In cross-examination, Federal Agent Coles acknowledged that if Mr Eiginson was granted bail he would likely live at Carwoola where his wife lives and that this would put distance between him and the complainant. He also acknowledged that the AFP had an alert system which would prevent Mr Eiginson from leaving the country under a passport, even one issued from a foreign country.
He agreed that there was a dispute over the financial dealings between Mr Eiginson and the complainant and that this was being dealt with through the Federal Circuit Court.
Evidence was given at some length in earlier bail applications about weapon related material involving Mr Eiginson. This was not, however, pressed before me. The upshot seemed to be that Mr Eiginson had some open source material about weapons which was located during the execution of the search warrant but it had been downloaded in 2007. Mr Eiginson had previously held a firearms licence which expired in 2001 but there was no record of him actually having a gun at least since 2005. He did have firearms training with the AFP. The complainant said he had three guns stored with a fried but there was no further evidence of that.
While some spent ammunition (not functioning), gunpowder and a bullet press were located, no gun was found and there was no evidence, as opposed to suspicion, of Mr Eiginson having any current access to a gun nor any history of gun use. The items found were not seized as there was no illegality in his possession of them.
Nevertheless, as I noted, this issue was not pressed before me and I cannot see that the evidence rose high enough, even in a combination with other evidence, to be particularly relevant on this application.
Evidence was also given about a property at Chisholm where Mr Eiginson and his wife had been living before their move to Carwoola. The Chisholm property was owned by both Mr Eiginson and the complainant, but was mortgaged to a bank, I believe the ANZ Bank. There appeared to be a dispute over this property between Mr Eiginson and the complainant. For some reason that was being dealt with by the Federal Circuit Court.
The evidence was that the police had taken statements from the witnesses relevant to the charge. In addition, the evidence was that he had made no threats, indeed, made no contact, with any of the witnesses.
So far as concerns the other charges, referred to above (at [21]-[23]), no bail has been required for them. The alleged facts relating to those charges, as I understand them, were that he had logged into the AFP computer system, named PROMIS, and conducted a text search relating to the new partner of the complainant and later to the complainant. These produced various results which he then accessed. He used telephone numbers and later car registration details for those searches. He did this on a number of occasions on three different days.
It is said that Mr Eiginson did not have permission to conduct these searches and both his team leader and supervisor said that the searches did not relate to his role at the AFP.
Mr Eiginson has been suspended from duty without pay. He no longer has access to AFP properties.
A report of Sam Van Meurs, Clinical Psychologist, on his clinical examination of Mr Eiginson’s wife was before me. Mr Van Meurs concluded that she suffered from a moderate to severe Panic Disorder and a moderate to severe Major Depressive Disorder. He stated that “despite showing numerous resilience factors ... [she] has suffered significantly since her husband’s arrest”. Mr Van Meurs concluded that her symptoms were “entirely reactive and attributable to her current circumstances”.
As to her relationship with Mr Eiginson, she told Mr Van Meurs
I have known Roman for ten years. We have mutual friends in Russia and Kazakhstan. We have been in a relationship since 2009, and it has been ... an elated relationship. It has been romantic. But I don’t know what to say about the current situation. He did not tell me about other relationships. This woman who is causing trouble for him now, I think he loaned her money, up to $150,000, and now she won’t return it. This is a pattern for her, she has done this for other men.
When asked about her husband she said “he has never been dominant or controlling. He has never been violent to me. He is not that type of person.”
She was clearly committed to Mr Eiginson, saying, “My thoughts about Roman, my worry, keep running through my head”.
A letter from her general medical practitioner confirmed this, reporting that Mr Eiginson’s wife was “very stressed and scared. She finds it very difficult to live on her own, especially taking into account [the] language barrier”. The absence of Mr Eiginson was creating significant mental problems for her. Indeed, her general practitioner recommended “ongoing psychotherapy as well as pharmacotherapy for acute stress disorder and mixed anxiety and depression”. Her opinion was that “incarceration of Mr Eiginson has had direct and severe adverse impact upon [his wife’s] health and wellbeing.”
Mr Eiginson was examined by Dr William Knox, consultant psychiatrist, who prepared a report, which I have noted above (at [25]).
Dr Knox took a history of the relationship between Mr Eiginson and the complainant. As he commented, it was “in a significantly different terms from the information provided in the Statement of Facts”. Dr Knox reported
Mr Eiginson highlighted to me he having loaned the sum of $147,000 to [the complainant] to assist her with difficulties she was experiencing following the death of her husband who had died in the course of his duties as an Australian soldier in Afghanistan. Mr Eiginson had been pressing [the complainant] to repay this money, and he explained that this was the fundamental issue motivating his contact with [the complainant] in recent time.
Your client told me that although he had had an intimate relationship with [the complainant] over several years, and this continued until relatively recently, he said he had informed her that he was committed to his relationship with [his wife] whom he has married.
...
According to Mr Eiginson, [the complainant] was a tenant of his living in his house for some time. Mr Eiginson told me that he had asked [the complainant] to leave the premises on account of his wife coming to live with him in Australia, but she had been reluctant to do this. Eventually she did leave and moved to an address initially unknown to your client.
Mr Eiginson told me that on one occasion, not knowing [the complainant’s] new address, he had spoken to her at her workplace about the money owed. Your client also told me how he had later gone to her address once this was discovered to further press her to return the money.
Nevertheless, in the letter of instructions from Mr Eiginson’s lawyers, Dr Knox was specifically requested “to treat the allegations in the statement of facts as true, notwithstanding [his] plea of not guilty”.
Dr Knox opined that Mr Eiginson was not psychiatrically ill: he “currently does not show any such impairment constituting a diagnosable mental illness”. He concluded, however, that Mr Eiginson has “certain personality traits” which led him to act “vigorously” in the circumstances he faced. He accepted that Mr Eiginson had not always been “calm” in his interactions with the complainant, though, perhaps somewhat of concern, he did not admit to Dr Knox that he had behaved inappropriately. He appeared, according to Dr Knox, to be “driven by strong emotions which would have had the potential to impact on his thinking and behaviour”. It did not manifest, however, in impaired mental processes in the clinical examination.
Dr Knox opined that Mr Eiginson may possibly have, under the influence of his strong emotions, “behaved in a disinhibited way at times on account of his angry frustration”. He suggested treatment by way of psychotherapy, addressing Mr Eiginson’s lifestyle and manner of behaving with others, in particular when stressed. Mr Eiginson did, however, manifest a “very confident ... point of view, suggesting he would not easily accept another perspective if that was indeed the truth.”
Dr Knox was also requested to give his opinion as to whether Mr Eiginson posed any ongoing risk to the complainant. His opinion was guarded, as is probably appropriate and perhaps inevitable, and was limited by restricted visiting hours at the Alexander Maconochie Centre to a shorter examination than he wanted. It is of concern that an important matter such as Dr Knox’s examination for the purposes of a court report should be so circumscribed. I do not know whether the restrictions at the Centre were mere administrative convenience or some more acceptable basis for restricting Dr Knox’s visit, but it has meant that, regrettably, the court is denied material important to the decision-making required.
Nevertheless, Dr Knox concluded
I am not able to provide any confident opinion about the risk of [the complainant’s] life on the part of Mr Eiginson. While Mr Eiginson does not manifest any frank DSM-V mental disorder, the relatively brief interview (one hour) does not allow me to form more comprehensive views concerning the risks to [the complainant]. The conflicting versions of events further contribute to my uncertainty.
I note his expressed threat to [the complainant] soon after his admission to prison.
While Mr Eiginson may well have manifested psychological impairment warranting a diagnosis at an earlier time, his mental health is now stable, and without obvious illness. Given the unresolved matters between your client and [the complainant] and Mr Eiginson’s attitude towards [the complainant], I cannot rule out that Mr Eiginson might again at some time become distressed to the extent that he might behave irrationally and impose some threat to [the complainant] and although less likely, himself.
Any ‘treatment’ of your client is in itself not likely to provide any guarantees of resolution of the passions likely involved in this complex situation. As I say, diffusing the whole matter by a full understanding of the circumstances and appropriate settlement of the outstanding differences of the parties is the most likely course of action to guarantee safety to any of the parties.
Objections to bail
There were two objections to bail, that Mr Eiginson may not attend to take his trial, sometimes described as a flight risk, and the likelihood of committing further offences, specifically inappropriate contact with the complainant. This seemed also to encompass the possibility that Mr Eiginson may interfere with witnesses.
Both Mr Eiginson’s counsel and the respondent’s counsel relied to a significant extent on Dr Knox’s report.
Bail principles
Since there was some confusion in at least one of the prior bail hearings, it is appropriate to set out the statutory position.
Section 9A of the Bail Act sets out the position generally with regard to bail and relevantly provides:
(2)The person is entitled to be granted bail unless the court or authorised officer is satisfied that refusal is justified after considering—
(a)for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or
(b)for a child—the matters mentioned in section 23 (Criteria for granting bail to children).
This provides expressly that the court can only refuse bail if positively satisfied that a refusal to grant bail is justified. This inevitably casts an onus on the prosecution, the respondent to a bail application. I do not need to enter into the controversy about onus to which I referred in R v Rubino [2012] ACTSC 157 following my decision in ReApplication for bail by Breen (2009) 172 ACTR 21, for that latter case revolved around s 9B of the Bail Act, where there is no entitlement to bail for the offences to which that section applies.
Section 9A of the Bail Act does not apply to a number of offences. It does not apply to certain minor offences where bail is to be granted, nor does it apply where, in relation to such offences, the offender has previously failed to comply with an undertaking to appear or comply with a condition of bail in respect of the same offence, or when the person is intoxicated or otherwise in need of physical protection, including from physical injury.
Certain other offences are excluded from the operation of s 9A of the Bail Act. These include offences referred to in Div 2.4 where there are presumptions against bail and also those referred to in Div 2.3 (s 9B) where there is no presumption for bail.
The offence of stalking appears in the list of offences set out in s 9B of the Bail Act, but that section, which removes the presumption in favour of bail, only applies where the accused person has “in the previous 10 years been found guilty of an offence of violence or the threat of violence”. Since Mr Eiginson has not been found guilty of any prior offences, this provision does not apply.
Accordingly, there is a presumption in favour of bail for Mr Eiginson, unless the court is satisfied, having regard to the matters set out in s 22 of the Bail Act, that bail should be refused. The prosecution, therefore, has an onus of satisfying the court that bail should be refused. The degree of satisfaction that the court is required to apply is satisfaction on the balance of probabilities: s 55 of the Bail Act.
As noted above (at [69]), the Court is required, when considering bail for adult defendants or accused persons, to consider the matters set out in s 22 of the Bail Act which provides
22 Criteria for granting bail to adults
(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a) the likelihood of the person appearing in court in relation to the offence; and
(b) the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
2 the period that the person may be held in custody if bail is refused and the conditions under which the person would be held
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.
(3) In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including—
(a) the nature and seriousness of the offence; or
(b) the person’s character, background and community ties; or
(c) the likely effect of a refusal of bail on the person’s family or dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.
(4) The reference in subsection (1) (b) (i) to an offence includes a reference to an offence against a law of the Commonwealth, a State or another Territory (including an external territory).
Probability of appearing at trial
Bail at common law was intended to ensure the appearance of an accused at trial. As I said in Re application for bail by Merritt (No 2) [2010] ACTSC 7 at [30]:
At common law, the rule was that the decision to grant or refuse bail was primarily based on the probability of the applicant for bail appearing to take his trial or sentence. See the detailed analysis by Douglas Brown, ‘Bail: An Examination’ (1971) 45 Australian Law Journal 193. The Bail Act, however, has widened the relevant considerations to include also the interests of the applicant and the protection of witnesses as well as the protection of the community from the commission of further offences. See, In the matter of an application for bail by Kim [2009] ACTSC 129 (at [3]-[7]).
The question of whether Mr Eiginson would appear in Court in relation to the offence of stalking was not raised in the first applications for bail.
The first application focussed on the welfare of the complainant, the need for further investigation and the risk that Mr Eiginson might interfere with witnesses. On the second application, the grounds of opposition to bail were that Mr Eiginson was likely to harass or endanger the safety or welfare of the complainant or intimidate witnesses or otherwise obstruct the course of justice, and whether another offence is likely to be committed. Indeed, the learned Magistrate commented
Whether the applicant is likely to appear in court to answer the charge seems to be something which is not at issue in this matter.
On the review, the third hearing in relation to bail, however, evidence of the material found during the execution of the search warrant was adduced for the first time. Reliance was placed on the passports and travel documents to found an objection to bail that Mr Eiginson may not appear at his trial. The respondent also relied in that hearing on the risk that Mr Eiginson may re-offend and may put the complainant and her current partner at risk.
In that case, however, the learned Magistrate was not satisfied that Mr Eiginson would not appear to take his trial. Her Honour concluded that, while “there is a possibility, it’s not as high as a likelihood [of him not appearing] and I don’t think I could refuse bail on that basis, certainly alone”.
Before me the same evidence was adduced. Concern was expressed that the number of passports and travel documents located raised the question that he may have easy access to such documents and use them to leave the country.
There appeared to me to be no further material than that which was before her Honour on the review in the Magistrates Court.
In assessing this objection, I note that he AFP have a sophisticated alert system at points of international departure which are highly likely to detect any attempt to depart the country without authority.
In addition, Mr Eiginson has ties with the Territory. He has property here which, on the basis of the evidence of his “retirement plan”, he needs to liquidate in order to set up overseas, despite what he has in Bulgaria by way of property and business, the details of which were very sparse, to say the least. The property here is currently the subject of a dispute in the Federal Circuit Court and cannot be quickly and easily liquidated and would be a significant incentive not to leave Australia.
In addition, Mr Eiginson has a step mother in Canberra, though that may not be a strong tie. His wife lives here and while both might seek to leave the country, it would be more difficult for two people to leave unnoticed than one person.
He has acquired a residence at Carwoola. It is, from the description, quite rudimentary, but it is, nevertheless, his residence.
Some of the issues concerning the determination of whether an accused person will flee or appear in accordance with his or her bail undertaking are set out in R v Clarke II (2009) 118 A Crim R 585. Amongst the matters that were identified as relevant were that at an earlier hearing the court had not deemed the risk of flight to be unacceptable, evidence of preparation for flight or any statement of intention to flee, and the prior criminal history of the applicant. The charges in that case were more serious than those Mr Eiginson is facing.
It is to be noted in that case, however, that Mr Clarke II did abscond after being granted bail, though he was later arrested, sentenced and incarcerated though some ten years later. See Clarke II v Commonwealth Director of Public Prosecutions [2012] ACTCA 7.
I am not satisfied that Mr Eiginson will not appear in court in relation to the offence of stalking. Appropriate conditions can be made to limit the risk. The AFP is likely to be able to prevent unauthorised departures from Australia. He has no criminal history, he has not taken any specific steps to leave the country and has not made any statements indicating that he has such an intention. I note the findings of the learned Magistrate on review. I note that Mr Eiginson has relevant ties with the Territory, especially the interest in real property. I note also that he has been suspended without pay which limits the access he has to funds to enable him to obtain travel documents or make travel arrangements.
Risk of re-offending
This is an easy ground of objection to bail to assert but not easy to prove, even on the balance of probabilities. As Gyles J, with whom Whitlam and Madgwick JJ agreed, said in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 at 184; [55]-[56]:
In my view, it is wrong to approach the issue under s 8(2) and s 22(1)(c) on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not (see the explanation by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union(1979) 42 FLR 331 at 346-8; 27 ALR 367 at 380-382. If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.
It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.
At present, the respondent’s case on this ground consisted of the following matters. Mr Eiginson has a significant and unresolved dispute with the complainant. Dr Knox opines that he has what might be considered as an obsessive and rigid nature through which he sees the dispute, which leads to somewhat illogical thinking. He knows where the complainant and her new partner live and where the complainant works and has approached her home and workplace. Someone punctured the tyres of cars associated with the complainant and three days later Mr Eiginson was in a car near the location of these cars with a multi-tool instrument capable of puncturing the tyres of the cars found in the driver’s door console. When confronted by police and directed to leave the area, he went a short distance away and continued to observe the complainant’s resident until he was noticed by police and left, waving at the complainant in the presence of police.
He made threats towards the complainant and to an official (the nurse at the Alexander Maconochie Centre) whom, his experience with the AFP would be likely to lead to him to know that she would report him making such a statement. He also managed to harm himself. He has repeated his threat to harm the complainant to a mutual friend.
Dr Knox’s opinion does not rule out the possibility of risk to the complainant from Mr Eiginson.
Although not expressly relied on by the prosecution, I take into account that Mr Eiginson has held a gun licence and was trained in the use of guns. The complainant believes he has access to guns.
Against this must be set a number of other matters. Mr Eiginson has no criminal history and he has not perpetrated any form of violence against the complainant, unless it is accepted that he punctured the tyres of the cars outside the complainant’s house, which has not been proved. In any event, this is not personal violence.
The self-harm he committed was very superficial and unlikely to have been a serious attempt at suicide or even real self-harm.
Though the complainant expressed fear of Mr Eiginson, she did not assert that he had actually been violent to her.
Dr Knox was asked to base his opinion on an acceptance of the prosecution case. He clearly heard a different version of the facts of the offences from Mr Eiginson, but seems to have formed his opinion on the basis of the prosecution’s allegations, as instructed. He could not rule out some irrational outburst by Mr Eiginson. It was put to me that he could, of course, not provide any guarantee that he would not become distressed and act irrationally but that the report did not support a finding that this was likely. Nevertheless, he did attribute some personality traits as contributors to Mr Eiginson’s behaviour. He did recommend psychotherapy, though without suggesting a “prompt response”.
Mr Eiginson has also been in custody since 19 April 2014 and will appreciate the value of his liberty which, of course, he will lose should he breach his bail.
Mr Eiginson’s counsel did refer to the fact that Mr Eiginson would be resident of Carwoola and that would make it also less likely that he would be able to commit any further offence in respect of the complainant.
I also note that the complainant has already put in place certain protective measures which will reduce the likelihood of Mr Eiginson approaching her or her new partner. She has obtained a personal protection order (a domestic violence order) and her new partner has installed CCTV at his residence. These are, even for someone like Mr Eiginson, a significant disincentive to him further approaching the complainant.
It was further submitted that conditions of bail could address some of these issues. Such bail conditions could include regular reporting to a police station, a prohibition on entering the ACT (except for limited proper purposes) and a prohibition on contact with the complainant or her partner.
While conditions do not guarantee protection, there is the added fact that, as an AFP officer, Mr Eiginson is likely to be more readily identifiable and known to other AFP officers, so that prospective breaches would, perhaps, be more readily identified and appropriate action taken.
I have thought carefully and at some length about this issue and am not satisfied, on the balance of probabilities, that, with appropriate conditions, Mr Eiginson is likely to re-offend.
Intimidation of witnesses
It was also submitted that bail should be refused because Mr Eiginson would interfere with or intimidate witnesses. The obvious witnesses would be the complainant and her new partner. To some extent, that is dealt with above. Other witnesses were, however, encompassed within the concern expressed by the respondent.
It seems to me that the same general approach should be taken to this issue as to the question of whether further offences are likely to be committed.
Thus, in R v Green (Unreported, New South Wales Supreme Court, Hunt J, 5 October 1979), Hunt J said (at p 10), that where there was an objection that the accused may tamper with evidence, it was not sufficient simply for the Crown to allege such to be the case, but it was a matter that had to be proved.
I note, too, that in R v Cotter (Unreported, New South Wales Supreme Court, Carmichael J, 15 May 1980), the fact that a witness lives in a country area and reporting conditions can be placed on the accused so as to reside sufficiently far away that he cannot communicate with witnesses, the objection cannot be sustained.
This has some relevance here for, although it is Mr Eiginson who will live in the country, the same position can apply. Of course, electronic communication has advanced significantly since 1980 and harassment and intimidation can be very seriously effected electronically. I note, however, that this usually leaves a traceable record which makes it easier, as Mr Eiginson would know, to show that contact has been made in this way.
In any event, I am not satisfied on the balance of probabilities that there is a real likelihood of Mr Eiginson interfering with or intimidating witnesses. The highest the evidence comes is through the conversation with his supervisor where he inquired whether, if the complainant withdrew her complaint, the proceedings would be terminated.
The complaint may not, on the material I have seen, be an essential part of the prosecution case and the availability of provisions such as s 38 of the Evidence Act 2011 (ACT), together with statements already taken make a prosecution more sustainable despite an unco-operative complainant.
In any event, Mr Eiginson still faces other charges. While any reduction in the number of charges is clearly in his interests, the withdrawal of the stalking charge may not significantly reduce the criminal law problems he is facing. I estimate the likelihood of him being able improperly to influence the prosecution of the other charges to be remote.
Further, there is no evidence that Mr Eiginson has made any improper contact with other witnesses and certainly no suggestion of any interference or threatened interference other than with the complainant. It appears, also, that statements have already been taken from these witnesses.
Again, conditions of bail are likely to reduce the likelihood below that which would justify refusal of bail.
Other matters
I note that the offence of stalking carries a maximum penalty of two years’ imprisonment. While there are some nasty features of the offences as charged, it is by no means certain that Mr Eiginson would receive a sentence of imprisonment that exceeds the time he has already spent in custody.
While the respondent pointed out that Dr Knox’s report did suggest that Mr Eiginson had a degree of passion that may lead to an illogical response, Mr Eiginson was for over a decade in a responsible position as a Protective Services Officer and is capable of reasoned and rational thought.
Conclusion
I am not satisfied that, with appropriate conditions, bail should be refused. Accordingly, I will grant Mr Eiginson conditional bail.
| I certify that the preceding one hundred and seventeen [117] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 5 September 2014 |
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