In the Matter of an application for bail by James Hume
[2015] VSC 695
•8 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0166
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an application for bail by JAMES HUME |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 December 2015 |
DATE OF RULING: | 8 December 2015 |
MEDIUM NEUTRAL CITATION: | [2015] VSC 695 |
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CRIMINAL LAW – Bail – “Show cause” situation – Cause not shown – Unacceptable risks of endangering the safety or welfare of others, interfering with witnesses, and failing to answer bail – Bail refused.
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APPEARANCES: | Solicitor | Solicitors |
| For Victoria Police | Mr P Murphy | Victoria Police Legal Services |
| For the Applicant | Mr M Doyle | Victorian Aboriginal Legal Service |
HER HONOUR:
Introduction
On 21 October 2015, the applicant was charged with 23 offences, namely: make threats to kill; make threats to inflict serious injury; contravene bail conduct conditions (3 charges); commit indictable offence whilst on bail (2 charges); contravene and/or persistently contravene family violence intervention order (“FVIO”) conditions (15 charges); and stalking. The offending is alleged to have occurred between 5 and 21 October 2015. The victim of the alleged offending is the applicant’s former domestic partner, ME.
Two previous bail applications, made on 2 and 17 November 2015 respectively, were refused in the Magistrates’ Court, on the grounds that the applicant had not shown cause and there were unacceptable risks.
The applicant is due to appear for a contest mention in relation to these charges in late January 2016.
By notice filed in this Court on 24 November 2015, the applicant seeks bail.
The applicant is in a “show cause” situation, because:
(a) He is charged with an offence of stalking, contrary to s 21A(1) of the Crimes Act1958, and on a separate occasion committed or threatened an act of gross violence against the same victim of stalking (s 4(4)(b) of the Bail Act 1977);
(b) He is charged with an offence against s 125A(1) of the Family Violence Protection Act 2008, of persistently contravening an FVIO (s 4(4)(ba) of the Bail Act); and
(c) He is charged with contravening conduct conditions of an earlier grant of bail (s 4(4)(d) of the Bail Act).
The applicant argues that cause is shown because of the following matters:
(a) He has the support of his mother, including in the provision of accommodation at her home in Inverloch;
(b) As an indigenous man, he has cultural obligations towards his mother;
(c) He has employment available to him;
(d) He has a favourable report from the Court Integrated Service Program (“CISP”), with the prospect of support upon release; and
(e) The Crown case in relation to the stalking charge is weak.
The Crown disputes that cause has been shown. The Crown also opposes bail on the basis that the applicant presents an unacceptable risk of interfering with ME, endangering her safety or welfare, and failing to answer bail.
The Bail Act does not specify what considerations may be relevant to showing cause. There is no dispute that cause may be shown either by one particular factor, or (more usually) a combination of factors.
Here there is considerable overlap between the factors which are said to show cause and the issue of unacceptable risk, so it is not necessary for me to determine whether these involve a single question or a two stage approach.[1]
[1]The divergent views among judges at first instance were discussed, but not resolved, by the Court of Appeal in Robinson v R [2015] VSCA 161.
At the conclusion of the hearing on 4 December, I dismissed the application. I said that I was not satisfied that cause had been shown, and there were unacceptable risks. These are my reasons for doing so.
The alleged offending and its background
The applicant and ME were in an on-again-off-again relationship for 6 years. They have two sons, now aged 2 and 4. ME has an older child from another relationship.
The applicant has a history of violence against ME and others. He has also shown complete disregard for court orders requiring him to stay away from her.
On 25 January 2013, he was convicted and fined in the La Trobe Magistrates’ Court for unlawful assault and contravening an FVIO.
The assault occurred on 2 February 2012, when ME was at home with her children. The applicant entered her home and started yelling at her for not dropping off his son. Whilst arguing with ME, he grabbed the child, left the house and got in his car. He then jumped out of his car and chased ME inside. She locked the door, but he managed to gain access and follow her into the laundry, where she tried to call 000.
ME obtained a FVIO in early February 2012, the conditions of which prohibited the applicant from being within 5 metres of her. Notwithstanding the terms of the order, it seems that ME and the applicant lived together for about 2 weeks in May 2012. On 19 May 2012, a verbal argument occurred over money that he owed ME. The applicant then tried to physically remove his son from the house.
On 23 June 2014, the applicant was convicted of: unlawful assault (3 charges); false imprisonment; make threat to kill; recklessly cause injury (3 charges); commit an indictable offence whilst on bail; and fail to answer bail. On that occasion, he was sentenced to an aggregate of 6 months’ imprisonment.
Some of those offences occurred on 17 December 2013. The applicant and ME were both attending a social function at a relative’s house. The applicant became angry when ME and another man went outside for a cigarette. When they came back inside, the applicant accused them of having an affair. He became angry and chased ME around the house, punching her numerous times to the face. He hit another woman in the head, and punched one of the male guests several times. He smashed bottles and kicked a door, before driving off.
He then returned to the house and started behaving aggressively again. When the police arrived, the applicant fled.
Another group of offences occurred on 28 December 2013. ME had tried to end her relationship with the applicant three days earlier, and had taken her children to stay with her friend, Amy. Around 5.45 pm, the applicant attended at Amy’s house. As Amy opened the door, the applicant forced his way in, punching her several times to the face. ME came into the room, carrying one of their sons. The applicant grabbed ME by the arm, grabbed their other son, and took them out to his car. Amy and her mother tried to stop him taking ME and the children. The applicant abused them and drove off with his family.
The applicant drove to his mother’s house and took the children inside. He told ME to stay in the car, or he would slit her throat while the children watched. He came back and drove off with her, telling her he was going to kill her and himself. He told her where he was going to bury her, and punched her in the head several times. He held her arm, bit her on the hand, and told her he had a knife behind his seat. He asked her to tell him why he shouldn’t kill her. ME undid her seatbelt and considered jumping out of the car. The applicant noticed what she had done, sped up to 100 kmph, and told her several times to jump out. He then drove back to his mother’s house, punched her several times, gouged her face, grabbed her around the throat, and said “die, die”.
At the time of that offending, the applicant was on bail for charges of intentionally causing injury, recklessly causing injury and unlawful assault. Those related to an incident on 4 September 2012, in which the applicant attended at the home of, and attacked, a man who he believed owed him $30.
The applicant was in prison for those various offences between late June 2014 and January of this year.
The current charges arise out of the following allegations by the police.
On 4 October 2015, the applicant found out that ME had begun a relationship with another man. He met ME at his mother’s house and began intimidating her, in an attempt to find out about her new partner and where she was living.
After a heated argument, he coerced her into driving him to her new address, so he could see it. ME notified her parents, who called the police. She told the police she had been afraid to tell the applicant to leave, due to his intimidating and controlling behaviour, but was extremely frightened now that he knew where she lived.
On 5 October, the applicant was arrested on a complaint and warrant for a FVIO, and bailed from the Wonthaggi police station. The bail conditions included conditions preventing him from engaging in family violence towards ME. He signed an undertaking to comply with the bail conditions. He was ordered to appear again on 8 October.
The applicant contacted ME that very evening, in breach of his bail conditions. He used the phone of his mother, Ada Hume, to contact ME, to try to persuade her to meet and sort out their issues.
The applicant and ME met at a beach in Inverloch, where the applicant continually verbally abused and degraded ME, making her repeatedly call herself a filthy whore. He tried to forcibly coerce her into performing oral sex on him.
They returned to his mother’s house, where he continued to verbally abuse and degrade her. He smiled as he said to her “You don’t know how much I’d love to kill you.” He told her he could get away with it, because he had killed someone before and hidden the body.
They stayed together that night. During the course of that night, he made a number of violent threats towards her and punched the bed. He harassed and coerced her into having oral sex and sexual intercourse. She asked several times to go home, but he refused to let her get dressed and leave.
On 8 October, the applicant attended the Wonthaggi Magistrates’ Court, where an interim FVIO was put in place. He was present when the terms and conditions were explained to him by the magistrate, but left before the paperwork was completed. The protected persons under the interim order were ME and their children.
From the time the interim order was in place, until his arrest on 21 October, the applicant contacted ME every day, by text message or calls, using his mother’s phone. Each such contact was in breach of the FVIO.
On 11 and 12 October, the applicant made further face to face threats to kill or injure ME. Terrified that the applicant would carry out his threats, ME went to police on 12 October and made a signed statement. Between the time that she made her statement, and his arrest some 9 days later, the applicant sent almost 100 text messages to her.
Police took a photo of the text messages received on ME’s phone from “Ada”, and recorded five audio recordings of a male voice believed to be the applicant’s. Copies of those photos and recordings have been provided to the defence.
When the applicant’s lawyers asked to inspect the phone, to see the context in which the texts were sent, they were told that the phone had been returned to ME. What impact that fact may have on the admissibility of the photos will be for another court to decide on another day. But even if that evidence is ruled inadmissible, it will only affect the strength of the prosecution case in relation to the single charge of stalking.
It is often not feasible or appropriate for a judge hearing a bail application to minutely examine each piece of evidence, to determine its likely admissibility and importance. In particular, I am not in a position to assess ME’s credit as a witness. However, in relation to the 22 charges other than stalking, the applicant’s solicitor did not put forward any substantive argument as to why the prosecution case should be characterised as weak. I would certainly not describe the prosecution case on those other charges as weak.
The fact that the current charges do not allege actual physical violence is of little comfort to the court, given the applicant’s proven history of physical violence against ME and others.
The position of the applicant’s mother
The applicant’s mother, Ada Hume, gave oral evidence in support of his application.
The applicant is 30 years old. He is one of 8 adult children, all of whom are living in various parts of Victoria. Sometimes the other children visit and stay with Ms Hume, sometimes she drives to visit and stay with them.
The applicant’s father died two years ago, this month. Ms Hume is still grieving for him, and visits his grave every month.
Ms Hume suffers from high blood pressure, and describes herself as “very stressed out”.
Before the applicant went into prison in mid-2014, he was living with Ms Hume, and assisting her practically and emotionally. While the applicant was in prison, one of Ms Hume’s daughters came to live with her; but she moved out when the applicant was released from prison earlier this year.
Ms Hume and the applicant are Yorta Yorta people, who engage in cultural activities within their community. As her son, the applicant has kinship obligations to help support his mother.
It is clear that Ms Hume loves her son and is very protective of him. Her evidence was given in a partisan manner, and at times was more advocacy than evidence.
Ms Hume does not accept that the applicant has ever engaged in any domestic violence towards ME. She asserts that she has never spoken to her son about why he went to prison, and has no idea why he was imprisoned. She strongly objects to her son being prevented from seeing his children by any FVIO. She said that she wanted an order against ME (although gave no evidence of any behaviour by ME, such as might justify such an order).
According to ME, Ms Hume has tried to persuade her to withdraw her complaints against the applicant.
Ms Hume said that she had no respect for the police, and complained about their treatment of her. I do not know the history of any past dealings with police, nor whether she has some justification for feeling aggrieved with them.
However, she has been uncooperative with police in relation to the current charges. The applicant is alleged to have used his mother’s mobile phone to repeatedly contact ME, in breach of the FVIO. When the police came to her house with a search warrant, and asked her to hand over the phone and passcode, she threw the phone on the ground and refused to give police the passcode. By the time she later handed over the passcode, all text messages had been deleted from the phone.
Given her feelings towards her son, ME, and the police, I have no confidence that Ms Hume would take any steps to discourage her son from having contact with ME or their children, or that she would supervise any curfew or similar conditions, if the applicant was released on bail and went to live with her.
Employment
According to his solicitor, the applicant has worked in the past in various labouring jobs; however, details of his employment history were not provided to the Court.
A letter dated 9 November 2015, from Leigh Johnstone Carpentry and Maintenance Services, was tendered. Mr Johnstone has known the applicant socially for about 17 years. The applicant worked for Mr Johnstone in an unspecified role, on an unspecified basis, and for an unspecified period “since his last release date”.
Although Mr Johnstone – and another old friend, Jared Wyhoon, who also provided a character reference – spoke in very positive terms about the applicant’s character, they did so in apparent ignorance of the applicant’s domestic violence history or the nature of the current charges.
In a subsequent, undated letter, Mr Johnstone said that the applicant could come and work with him, or on his brother’s commercial fishing boat, if released on bail. There is no indication as to what work he would be doing, where he would be working, or whether it would be on a part or full time basis.
Formal support on release
A report, dated 16 November 2015, was prepared by CISP for the purpose of the second bail application in the Magistrates’ Court.
The author noted that the current offences occurred within the family violence context, and the applicant would benefit from learning and implementing better ways of expressing anger. It was suggested that he would benefit from accessing the Men’s Behaviour Change Program run by Salvocare, and psychological counselling via the GP mental healthcare plan. The author recommended that the applicant be supported in the local community, as ongoing case management by the CISP team was not required.
Neither the applicant nor his lawyers have followed up on CISP’s suggestion to make contact with Salvocare, or a GP for a psychologist’s referral. The Court has no information as to matters such as the following: whether such services are available in Inverloch, or at a location at which the applicant could readily access them; how soon the applicant could be assessed and commence treatment, particularly given the time of year; or the frequency of any such counselling.
Absent any supervision by CISP or any other external agency, there is no evidence before the Court of there being suitable mechanisms to address the applicant’s offending behaviour and minimise future risks.
Other matters relevant to risk assessment
The applicant’s list of prior convictions, other than those already discussed, is not extensive. Most of his earlier convictions (which began when he was 14) were for drug or underage alcohol possession, or property damage.
In 2010 and 2014, he was convicted of failing to answer bail, but the circumstances of those offences are not known to me.
Apart from the various convictions for violence in 2013 and 2014, which have been discussed earlier in these reasons, he was also convicted of assault in 2011.
The court has been provided with a copy of a recent report prepared by Sarah Peterson from the La Trobe Child Protection Unit of the Department of Health & Human Services. DHHS staff have been in weekly contact with ME and the children, in relation to the applicant’s conduct. They confirm that ME is extremely fearful of further violence from the applicant. Ms Peterson says that if bail were granted, DHHS would make a protection application in respect of the children. She also says that it is DHHS’s view that ME and the children would need to be relocated to an unknown location, if bail was granted; that would mean separating ME from her family and other support networks, in order to ensure her safety.
Given the applicant’s history of domestic violence against ME, his clear problems with anger management, and his flagrant disregard for past bail conditions and FVIOs, I am concerned about the prospect of releasing him on bail without appropriate structures in place to minimise the very real risk of his reoffending in relation to ME. The current bail application offers no substantial support structures to address those risks.
In considering this bail application, I have had regard to the applicant’s kinship obligations to his mother, as required by s 3A of the Bail Act. However, they are not sufficient to overcome my concerns about the risks he poses to ME if released on bail without adequate support and supervision.