Morgan v The State of Western Australia
[2009] WASC 224
•12 AUGUST 2009
MORGAN -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 224
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 224 | |
| Case No: | MCS:3/2009 | 23 JANUARY, 2 & 3 FEBRUARY, 6 AUGUST 2009 | |
| Coram: | JENKINS J | 12/08/09 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DARREN JOHN MORGAN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Application for bail pending trial Whether conditions can be placed on bail which would sufficiently reduce the risks associated with a grant of bail |
Legislation: | Bail Act 1982 (WA), s 14, sch 1 pt C cl 1, cl 3 |
Case References: | Jemielita v The Queen (1994) 12 WAR 362 Lim v Gregson [1989] WAR 1 WCVB v The Queen (1989) 1 WAR 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Application for bail pending trial - Whether conditions can be placed on bail which would sufficiently reduce the risks associated with a grant of bail
Legislation:
Bail Act 1982 (WA), s 14, sch 1 pt C cl 1, cl 3
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr R W Richardson 23 January, 2 & 3 February 2009 & Mr P F Collins 6 August 2009
Respondent : Mr D L S Davidson 23 January, 2 & 3 February 2009 & Ms A J Burrows 6 August 2009
Solicitors:
Applicant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Jemielita v The Queen (1994) 12 WAR 362
Lim v Gregson [1989] WAR 1
WCVB v The Queen (1989) 1 WAR 279
(Page 3)
1 JENKINS J: These are my reasons for decision in respect to three applications dated 14 January 2009 for orders that the applicant be released on bail.
2 The applications have been protracted because, after the hearing commenced, the applicant requested that the applications be adjourned sine die. They were relisted in August, at the request of the applicant.
3 In the meantime, there have been developments in the progress of the charges against the applicant and changes in the proposal concerning where the applicant will live if released on bail. Further evidence has been filed by both parties.
4 The applications are supported by the affidavit of Ronald David Todd Woodroffe, the applicant's solicitor, sworn 22 December 2008. An additional affidavit sworn by Frank Chulung on 31 July 2009 has been filed. Neither affidavit is in the proper form as they do not contain the heading of this matter. Nevertheless I gave leave for them to be filed and relied on by the applicant.
5 The applicant has also tendered an excerpt from his medical record, documents written by members of the Dunham River Aboriginal Corporation and a letter from the proposed surety.
6 The State opposes bail and relies upon:
(a) The affidavit of Quentin Flatman sworn 21 January 2009;
(b) The affidavit of RJG sworn 29 January 2009;
(c) The affidavit of HRG sworn 28 January 2009;
(d) The affidavit of ABC 28 January 2009;
(e) The affidavit of MM 29 January 2009;
(f) The affidavit of SBG sworn 30 January 2009;
(g) The affidavit of Steven John Bertoli sworn 28 July 2009; and
(h) The affidavit of Steven John Bertoli sworn 3 August 2009.
7 The applicant also tendered a map of the Kimberley and photos of a settlement at Dillon Springs.
(Page 4)
8 These applications relate to charges of indecent or sexual offences against three complainants. The offences contained in the prosecution notices are alleged to have occurred between the years 1988 and 1999. The offences are now contained in indictments which have been presented in the District Court. One of the two indictments I have seen contains two charges of having a sexual relationship with two of the complainants. Each of these offences carry a maximum penalty of 20 years' imprisonment. The indictment also contains 20 other charges in respect of the same complainants. The second indictment I have seen contains 4 counts of indecent dealing against a different complainant. The sexual penetration charges in the first mentioned indictment carry maximum penalties of 20 years' imprisonment. The other charges carry lesser maximum penalties. In the 22 count indictment, the applicant is jointly charged with his wife and another man.
9 The history of the applicant's custody commences in early October 2007, when the applicant was charged with two offences of indecent dealing of another complainant. He was remanded in custody for a week or so and then granted bail of $5,000 x $3,000 on conditions that he reside at the 7 Mile Block in Wyndham. There were other conditions attached to this grant of bail.
10 In November 2007 the applicant's bail conditions were changed so that he was required to reside within the Wyndham town site and to report to Wyndham Police Station, if he wished to leave Wyndham. Other conditions remained. There are no alleged breaches of bail conditions between November 2007 and his arrest on the first group of these charges. Although it is alleged that the applicant committed an offence of assault in January 2008 whilst on bail.
11 On 28 October 2008 the applicant was arrested on some of the charges the subject of this application. On 7 November 2008 the applicant was granted bail by a magistrate in respect to them. Bail was set in the sum of $110,000 x $100,000. Other conditions of bail required him to report to Wyndham Police Station daily, to remain within a 10 km radius of Wyndham Police Station, not to attend Oombulgurri or be within a 5 km boundary of it and not to contact witnesses.
12 The applicant remained in custody until he was able to find a surety on 5 December 2008. During that period of remand the applicant spent time in the Broome and Casuarina prisons. There were no alleged breaches of bail after he was released.
(Page 5)
13 On 10 November 2008 the applicant was charged with a further seven charges. He was granted bail in respect to them.
14 On 8 December 2008, when he attended Wyndham Police Station, the applicant was charged with the final four charges.
15 On 10 December 2008 the applicant was remanded in custody. He applied for bail before Magistrate Crawford in Kununurra on 11 December 2008. However, bail was refused. By then the applicant's surety had withdrawn and he was unable to obtain a surety in the same sum. That was only one issue that the magistrate took into account in deciding to deny bail. Her Honour was particularly concerned with the risk to the safety of the State's witnesses, the potential for interference in the case and the risk of flight. The applicant has been in custody since that date.
16 In March 2009 the applicant was acquitted of the two charges laid in early October 2007.
17 The applicant has pleaded not guilty to all charges. The charges have been listed in the Kununurra District Court for pre-recording of the complainants' evidence for a week commencing 14 September 2009 and for a further week commencing 5 October, if required. The charges are listed for trial consecutively commencing 3 November 2009.
Alleged facts
18 The four earliest charges are alleged to have occurred in Wyndham and the remainder in Oombulgurri.
19 The complainants were various ages when the offences were allegedly committed but it is said that they were at all relevant times under 16 years of age.
20 One of the complainants is now 26, another 33 and another 24 years of age. Relevantly there are two other female lay witnesses. Two of these witnesses reside just outside of Wyndham and they and their families regularly visit Wyndham. One witness lives in the Northern Territory and the remaining two witnesses live in Kalumburu.
21 It is not necessary for me to refer specifically to all the alleged facts. It is sufficient for me to say that it is alleged that the applicant resided in the same Kimberley community as the complainants and took advantage of close family and community ties with the complainants and their families to groom and then repeatedly indecently and sexually abuse the
(Page 6)
- complainants, often in a degrading manner. In effect, the complainants allege that when they were still children the applicant, who was an adult and a community leader, repeatedly abused them to satisfy his base sexual desires, without any consideration for their ages, their wishes or their physical or mental health. In some cases the offences are alleged to have occurred in the presence of or with the active involvement of the applicant's wife and, at other times, of another adult male.
22 In the case of one complainant it is alleged that the applicant fathered her child when she was 14 years of age. In respect of another complainant it is suspected that he may have done so. That complainant was 16 or 17 at the time she gave birth. Samples have been sent for DNA analysis in respect to both allegations. The report of one analysis is in evidence and it states that it is '96,000 times more likely if the obligate paternal alleles were contributed by Darren John Morgan and he is the father of [the child] than if they were contributed by a person at random'. However, a note says that the calculations do not provide information regarding the likelihood of a male relative of the putative father being the actual biological father. As I can imagine that there may be many male relatives of the applicant who were living in the same community at the time the child was conceived, I accept that this evidence may not have great probative weight. As the respondent submits it does show that the DNA evidence establishes that the applicant can not be excluded as the father of the complainant's child. The applicant says that this evidence will be disputed.
23 My assessment of the strength of the State's case is that there is a prima facie case against the applicant in respect to these offences in that all the complainants have provided direct evidence in their statements to the police of what it is alleged the applicant did to them. Further, there is evidentiary support of the complainant's evidence in statements of other witnesses. This evidence amounts to corroboration of a few charges.
24 Statements have also been made by the applicant's co-accused which implicate them and the applicant in sexual offences against the complainants. Although the material in those statements is not always consistent with the statements of the complainants it does confirm that sexual activity took place between the complainants and the applicant, when the complainants were under the age of 16. If these witnesses gave evidence for the State, the State's case in respect to some of the charges would be very strong. The DPP has undertaken not to use the co-accused's statements against them if they give evidence against the applicant.
(Page 7)
25 On the other hand, I am not unaware of the possibility that some of the State's witnesses will not come up to proof. In particular, the applicant submitted that the applicant's co-accused have not confirmed that they will give evidence in accord with their statements. The respondent's counsel submitted that the applicant's wife has advised the Aboriginal Legal Service that she gave her statement to the police under threats. Further, both parties agree that the applicant's wife was listed as a State witness at the applicant's trial in March this year. She did not give evidence for the State because she told the prosecutor that the events which she had related in her signed statement to the police did not occur.
26 The allegation made by the applicant's wife to the Aboriginal Legal Service is very serious. It is of the utmost importance that she receive independent legal advice concerning her position both as an accused person and a potential State witness.
27 In assessing the strength of the State's case I have not assumed that the co-accused will give evidence in accordance with the statements they made to the police. However, I think their statements are still relevant to bail in that those statements tend to support the truth of the complainants' statements.
28 If found guilty of all or some of the charges the applicant is likely to receive an immediate custodial penalty of significant length. Certainly, it would be many years longer than any likely length of incarceration whilst awaiting trial. This statement is not designed to underestimate the length of time the applicant has been in custody or the time left to trial.
Applicant's background
29 The applicant was born in Wyndham and is currently 44 years of age. He has lived between Wyndham and Oombulgurri all of his life. He has a wife who is his co-accused. She is on bail and living in Wyndham with their children. The applicant has five children aged between 10 and 18. The family also cares for three male children between the ages of 14 and 16.
30 The applicant held responsible positions in the communities in which he lived. For example he was a warden and CDEP co-ordinator in Oombulgurri. He was a member of the Oombulgurri Community Council for a number of years. The applicant was employed in Wyndham as a labourer whilst on bail in 2008.
(Page 8)
31 The applicant has recently been appointed the chairperson of the Dunham River Aboriginal Corporation. The role of the Corporation is to set up the applicant's mother's community, called Gillanyowan.
32 The applicant has many convictions up to and including 2 April 2008. On that date he was convicted of possessing an unlicensed firearm in March 2007. He had previously held a firearms' licence but he had not renewed it. In 2006 he was convicted of offences of threatening to cause injury, carrying a weapon so as to cause fear, threatening words, criminal damage and unlawful assembly. Two of his convictions in 2006 were for threatening to cause injury to police officers who had arrested his brother. Prior to 2006, his last convictions had been in 1998. Between 1984 and 1998, the applicant had been convicted of a number of street offences and assaults, which, in view of their penalties, must have been of a relatively minor nature. He has no convictions for breach of bail but has convictions for hindering and assaulting police.
33 The applicant has an outstanding assault charge which is set for trial in the Magistrates Court at Wyndham on 2 September 2009. The alleged facts are that in January 2008 the complainant attended premises in Wyndham to obtain the keys to a relative's car as he had heard that the relative was drunk and was driving. After obtaining the keys, some occupants of the house called out to the applicant and his relatives to come over to confront the complainant. They did so and the applicant allegedly walked up to the complainant and punched him once to the mouth. Despite the complainant telling the group that he did not want to fight, the applicant punched him again in the mouth. He was also punched by the applicant's brother. The complainant retreated and the police arrived shortly afterwards.
34 If the applicant is released on bail he proposes that it be on condition that he live at the place of his mother's proposed community, Gillanyowan. This is an unconstructed community approximately 60 kms south of Wyndham, near Dillon Springs. The evidence before me as to the proposed location of the community is very vague. I was told that it is neither the Dillon Springs Community identified by Mr Chulung in his affidavit, nor is it the community shown in the photographs tendered by the State.
35 I have been told that this will be a new community established by members of the Morgan family. Although the corporation has the necessary equipment to create the community, the corporation needs the
(Page 9)
- applicant who is a grader driver to do the earthworks and to supervise other workers to create the community.
36 Thus, if released to bail the applicant will live in a caravan by himself, at an unknown location somewhere in the area of the proposed community. Once the community is established it is proposed that the applicant will live at the community with his mother and other members of his family. His wife and children will visit but remain living in Wyndham so that the children can attend school.
37 The applicant would need to visit Wyndham regularly as it is envisaged that he will be supervising other workers assisting to construct the community and organising the construction work. He also needs to visit Wyndham for medical treatment. In order to get to Wyndham he would have to drive past the communities where two of the complainants live.
38 There is other material in Mr Bertoli's affidavit sworn 28 July 2009 to the effect that the land on which the Dunham River Aboriginal Corporation wants to establish the community is controlled by a commercial forestry corporation. The evidence also strongly suggests that even with the forestry corporation's co-operation it will take years to obtain the necessary approvals to set up a community on the land.
39 The applicant submits that he could be banned from going into the communities where the complainants live and restricted in the times he could attend Wyndham. He is not able to obtain a surety of more than $10,000.
40 The grounds of the applications for bail are as follows:
(a) there is no real risk of flight or that the applicant will not turn up for his trial;
(b) the safety of, and risk of interference with, witnesses can be provided for by protective bail conditions; and
(c) the applicant will have spent about a year in custody before trial.
41 The respondent opposes bail on the basis of:
(a) the seriousness of the charges;
(b) the strength of the prosecution case;
(Page 10)
- (c) the risk of interference with witnesses;
(d) the likelihood that if convicted the applicant will receive substantial custodial penalties;
(e) risk of flight; and
(f) the applicant's background and antecedents.
42 Despite these matters, the respondent submits that the applicant could be placed on bail after the lay witnesses' evidence has been pre-recorded, on strict conditions. These conditions it says would have to include conditions that the applicant live in Kununurra or another place in Western Australia, away from Wyndham and that he not go in or near Wyndham or Oombulgarri.
43 There is evidence from each of the complainants and other lay witnesses about their fear of the applicant. Each of them are worried that the applicant, if released on bail, will threaten or assault them or incite others to do so. They refer to past episodes where they believe they were threatened by, or on behalf of, the applicant. They speak of the applicant being the ringleader of his family. The inference is that whilst the applicant is in custody the witnesses believe that he is unable to threaten to or actually cause trouble but that if he was released to live near Wyndham he would do so and his presence would encourage other members of his family to cause trouble.
44 The respondent also relies on the applicant's criminal history as showing that he is someone who will assault and threaten others who he views as his or his family's opponents.
45 It also says that his previous good history whilst on bail can not be relied on as he has never been on bail for such a large number of serious offences.
46 The applicant says in response that there is little firm evidence that he has ever threatened any of the complainants or incited others to do so, despite numerous members of his family living in the Wyndham area.
47 He says that he complied with the terms of his bail previously.
48 The applicant says that the complainant's concerns are illusory but in any event they can be dealt with by protective bail conditions.
(Page 11)
49 The applicant's counsel acknowledges that the applicant's proposed living conditions are not ideal but says that it is not fair to keep the applicant incarcerated because he can not find somewhere more appropriate to live. He has lived all his life in the Wyndham/Oombulgarri area and simply knows of no-one or nowhere outside of the area.
The law
50 These applications are brought pursuant to the Bail Act s 14 which gives this court jurisdiction to exercise a power to grant bail which is conferred upon any other judicial officer or any authorised office by the Bail Act. It is not an appeal from Magistrate Crawford's decision.
51 I have a discretion to grant bail but that discretion must be exercised according to law. The criteria for the grant of bail are set out in cl 1 and cl 3 of pt C of the first schedule to the Bail Act. Legislation gives no one of those criteria primacy but nor does it require they all be given the same weight. All the criteria must be considered: WCVB v The Queen (1989) 1 WAR 279. The weight to be given to them individually will depend upon all the circumstances of the particular case: Jemielita v The Queen (1994) 12 WAR 362.
52 Clause 1 of the schedule requires me to exercise my discretion having regard to a number of questions as well as to any others which I consider relevant. Clause 3 provides that in considering whether an accused may do any of the things mentioned in cl 1(a) I must have regard to certain relevant matters as well as to any others which I consider relevant.
53 In outlining the applicant's background and the nature of the charges I have already discussed the matters in cl 3 and I take them into account.
54 The law provides that in cases in which the charges fall into the extremely serious class, the applicant must show exceptional circumstances to justify bail being granted: WCVB v The Queen; Lim v Gregson [1989] WAR 1.
55 The State says that these charges are extremely serious charges.
56 These charges, when considered together, are very serious. However, I hesitate to find that they are extremely serious, in the way that phrase is used in the context of applications for bail, so that they fall into a special category requiring the applicant to satisfy me that exceptional circumstances exist justifying the grant of bail.
(Page 12)
57 Given that the applicant is not facing the possibility of a sentence of life imprisonment and given that people are often charged with these types without any suggestion that they are offences which require them to show exceptional circumstances justifying a grant of bail, I would prefer not to categorise these offences as falling into any special category. However, it is apparent that given the maximum penalty for each charge, especially the charges of having a sexual relationship with a child, given the number of charges the applicant is facing, given the facts alleged and given the possibility of accumulation of some sentences if convicted, there is a likelihood of the applicant receiving a long period in custody if convicted of even a small number of these charges. Thus, there is a significant incentive for him to abscond or take steps to dissuade the lay witnesses from testifying against him. Correspondingly, there is a greater need for me to be satisfied that he will answer to the obligations of bail and attend the ultimate trial or trials before I release him on bail.
58 I have considered all the submissions made by the parties. I consider that, if the applicant is not kept in custody, he may -
(a) fail to appear in court in accordance with his bail undertaking;
(b) commit an offence;
(c) endanger the safety, welfare, or property of any person; or
(d) interfere with witnesses.
59 I have come to the view that there is a risk that he will fail to appear in court because that inference is available from the nature of the charges, the number of the charges and the likelihood that, if convicted, he will receive a long sentence. Coupled with those considerations is his mobility. He is very familiar with the country in the Kimberley.
60 On the other hand the applicant was born in the Kimberley and has lived there his whole life. He has family and country ties to that area and he has few, if any, property resources which would enable him to travel or exist away from that country. These matters significantly reduce the risk of flight or non-appearance.
61 I have come to the view that there is a risk that he will commit an offence if released on bail, because of his prior criminal history and the frequency of his recent offending history. I am of the opinion that he may commit an offence of a similar type with which he has been charged
(Page 13)
- because of the material in the State's prosecution brief. However, I would hope that this risk is not substantial.
62 I have come to the view that if released on bail the applicant may endanger the safety, welfare, or property of a person or interfere with witnesses on the basis of the material in the prosecution brief, his prior criminal history and the material in the affidavits of the three complainants and two witnesses which I have received.
63 The risk of interference with witnesses also exists because the applicant is facing serious charges and, if convicted, a lengthy period in custody. He also has a criminal history which indicates that he may be prepared to use violence to intimidate people. Coupled with this is the applicant's senior position in the community in which he has lived all his life. There is every reason to believe that the complainants would feel very vulnerable and be susceptible to pressure from the applicant or his family.
64 On the other hand, even if the applicant is kept in custody there may be family members of the applicant who may place similar pressure on the complainants. Refusing the applicant bail does not remove the risk, entirely. Although it seems to me that there is less risk of people acting on the applicant's behalf if he is not at liberty to influence them to do so.
65 Mr Richardson, the counsel who initially appeared for the applicant, submitted that I could not come to the view that there is a risk that the applicant will interfere with witnesses unless I accepted that he was guilty of these offences. I reject this submission. An accused person may interfere with witnesses who he believes may give false testimony against him. If I was assuming that the applicant was guilty, I would refuse this application for bail without a second thought. In order to come to this conclusion I have simply taken into account all the matters that the Bail Act requires me to take into account.
66 In determining what weight to give to the witnesses' affidavits, I have taken into account that they are sworn allegations and beliefs but have not been tested by cross examination and are denied, from the bar table, by the applicant. I have also taken into account that there is not material before me to justify me finding that the deponents are not worthy of credit. Further, the material in the affidavits is consistent with what could be expected in these circumstances, where a formerly powerful man with a history of aggression has been accused of serious wrongdoing by relatively powerless and vulnerable members of his former community.
(Page 14)
67 The greatest risks are that the applicant will not appear in court and that he will interfere with witnesses.
68 Despite the risks I have identified, conditions can be placed on the applicant's bail which will sufficiently remove them so as to make a grant of bail appropriate.
69 I am of the view that the proposal that the applicant live by himself in a remote and imprecise area but with access to a motor vehicle which would enable him to drive to the area where the complainants live is, self-evidently, inappropriate. It does not sufficiently reduce the risks which I have identified.
70 Acceptable and reasonable conditions of bail would require;
(a) a substantial surety who was living with or having frequent contact with the applicant;
(b) regular reporting to the police, depending on the applicant's place of residence;
(c) a curfew;
(d) an established place of residence away from the Wyndham, Kalumburu and Oombulgurri areas which did not involve a substantial risk of the applicant coming into contact with the State's lay witnesses;
(e) a protective bail condition;
(f) a condition requiring surrender of the applicant's firearms' licence and any accessible firearms;
(g) a condition that prohibited the applicant from having unnecessary contact with female children.
71 One of the issues which has arisen is the amount of surety required for a grant of bail. In my opinion, because of the seriousness of the charges and the risks I have identified a substantial surety is required. I appreciate that the applicant has difficulties in obtaining a surety. I am prepared to reduce the amount of the surety previously set and also to permit more than one person to enter into a surety undertaking. Nevertheless, I do not believe that a surety as low as that asked for by the applicant is appropriate. A surety and the loss the surety will incur if the
(Page 15)
- applicant fails to comply with his bail conditions is an important safeguard that the applicant will meet his bail obligations.
72 Although I am prepared to set suitable bail conditions, I have been told by the applicant's counsel that the applicant could not meet conditions of bail, other than those proposed by him. As I do not consider these to be sufficient to reduce the risks which I have identified, the preferable course is to refuse the applications. If the applicant's circumstances change he may make a further application for bail.
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