"P" (A Child) v The State of Western Australia
[2006] WASC 174
"P" (A CHILD) -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 174
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 174 | |
| Case No: | MCS:19/2006 | 3 AUGUST 2006 | |
| Coram: | BLAXELL J | 15/08/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail refused | ||
| B | |||
| PDF Version |
| Parties: | "P" (A CHILD) THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Bail Charges of deprivation of liberty, aggravated sexual penetration without consent, and aggravated indecent assault Very strong prosecution case Applicant a 15-year-old boy without previous convictions Whether the applicant may commit a further offence if not kept in custody Whether offences are so serious that bail inappropriate Turns on own facts |
Legislation: | Bail Act 1982 (WA), Sch 1, Pt C, cls 1, 2 and 3 |
Case References: | Edwards v The Queen (1993) 178 CLR 193 WCVB v The Queen (1989) 1 WAR 279 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Charges of deprivation of liberty, aggravated sexual penetration without consent, and aggravated indecent assault - Very strong prosecution case - Applicant a 15-year-old boy without previous convictions - Whether the applicant may commit a further offence if not kept in custody - Whether offences are so serious that bail inappropriate - Turns on own facts
Legislation:
Bail Act 1982 (WA), Sch 1, Pt C, cls 1, 2 and 3
Result:
Application for bail refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr T F Percy QC
Respondent : Ms L B Black
Solicitors:
Applicant : D G Price & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
WCVB v The Queen (1989) 1 WAR 279
Case(s) also cited:
Nil
(Page 3)
1 BLAXELL J: The applicant is 15 years old and applies for bail pending trial on one count of deprivation of liberty, four counts of aggravated sexual penetration without consent, and one count of aggravated indecent assault. He has pleaded not guilty to these charges and it is not yet known whether the trial will be in the Children's Court or District Court.
2 The applicant was arrested on 30 March, and on 21 April 2006 was refused bail by his Honour Judge Reynolds, the President of the Children's Court. He has remained in custody ever since.
3 For the purposes of the present application it is proposed that the applicant be released to bail subject to strict conditions including a 24 hour curfew other than on particular occasions when he will be in the company of a responsible adult. However, the State contends that the circumstances of the alleged offences are so serious as to make bail inappropriate. It is further submitted that even if bail was granted on the proposed conditions, there is a substantial risk that the applicant may commit a further offence.
The circumstances of the alleged offences
4 The complainant is 17 years of age and resides with her parents in a suburb near Joondalup. On the afternoon of Thursday 30 March 2006 she attended the Joondalup Cinemas with her boyfriend and then went with him to the nearby railway station so that he could catch a train.
5 When the two of them parted company at about 6.20 pm it was still daylight, and the complainant commenced to walk home alone. She followed a public footpath which took her away from the station along Grand Boulevard and then through Central Park in Joondalup. As she crossed Grand Boulevard to enter the park she became aware that a young male was walking behind her but had no reason to be concerned. However very shortly afterwards he picked up pace behind her and kicked the back of her heel. This caused her to turn and briefly look at him before continuing to walk forward.
6 As the complainant did this the young male placed his right arm around her neck, cupped his hand over her mouth, and forced her backwards into a nearby bush area. He pushed her to the ground and threatened to kill her if she screamed. The complainant then offered him money but he said he did not want her money. He said words to the effect that he was a rapist and that she was to be his "first rape victim".
(Page 4)
7 The offender continued to threaten the complainant whilst at the same time demanding that she remove all of her clothing (apart from a belt that was fitted loosely around her waist). She complied with these demands out of fear, and at the same time he lowered his pants exposing his erect penis. The offender then went on to penetrate the complainant with his penis, firstly in her vagina, and then in her anus. Each of these acts occurred without her consent.
8 The offender also demanded that the complainant give him oral sex. Out of fear of being killed, the complainant put her mouth over his penis and performed oral sex as required. The offender then said that they were going to have a "69er". As the complainant wished to avoid further acts of penetration she said that she needed to go to the toilet. She was then told to urinate where she was and she squatted and pretended to do so.
9 When the complainant had finished the offender said that he no longer wanted a "69er" as she was now dirty. He told her to get on her hands and knees, and he then penetrated her once again anally without her consent.
10 Throughout these events the complainant did not scream because the applicant kept telling her that if she said anything he would kill her. He also told her that he would be finished with her when he had ejaculated. However the last act of anal penetration was interrupted by a call to the offender's mobile phone. When he answered this call the complainant heard him say that he was at "Hungry Jacks" and that he would meet the caller in about 10 minutes to get a lift home. After completing the telephone conversation the offender pulled up his pants and made ready to leave.
11 The complainant then asked him to dial the number of her own mobile phone so that she could find it where it had been lost amongst the bushes. He did this, and when her telephone rang she went and retrieved it. (This request by the complainant was a ruse, designed to record the offender's telephone number on her mobile phone.)
12 Before leaving, the offender asked the complainant how old she was and she replied that she was 17. He then said:
"I am 15. I have never had a girlfriend before and you are my first rape victim."
13 The offender then ran away towards the Joondalup train station. By then it was about 7 pm.
(Page 5)
The evidence against the applicant
14 On the evidence presently available the prosecution appears to have a very strong and compelling case that the applicant was the offender. In particular, the following aspects of the evidence are significant:
(1) The police were able to retrieve video surveillance footage at the Joondalup train station on 30 March 2006 from about 6 pm onwards. This shows the complainant and her boyfriend together, and her subsequently walking through the train station out towards Grand Boulevard. A person closely resembling the applicant is seen to be following her all the way out of the train station.
The video footage is very clear and is capable of satisfying a jury that the person following the complainant was the applicant. He is also seen to wear clothing which matches the description given later that evening by the applicant's brother. Part of that clothing includes a black T-shirt similar to that which the applicant was wearing at the time of his arrest. He is also seen to be carrying a white plastic shopping bag similar to one described by the complainant, and by the applicant's brother, and which matches one found by the police at the applicant's home.
(2) When the offender telephoned the complainant's mobile phone, it recorded the number of his own mobile phone. That phone number is the number of the applicant's mobile phone.
Furthermore, while the police were interviewing the complainant at about 8.05 pm the same evening her mobile phone received a call from the applicant's mobile phone. She immediately recognised the number that was displayed and the call was allowed to ring out. (The prosecution contends that this may well have been an accidental redialling rather than any deliberate attempt by the applicant to contact the complainant.)
(3) At approximately 8.10 pm a female police officer used the complainant's mobile phone to return the applicant's call. When the applicant answered she pretended to be
- the complainant and asked if he was "the guy that I met this afternoon?". The applicant replied "Yes, maybe".
- (4) At that point, the applicant handed his mobile phone to his older brother, and in the course of the conversation that followed the police officer revealed her true identity. After giving the brother an opportunity to make another telephone call to confirm her identity, the police officer telephoned him once again. During the course of that second telephone conversation the brother gave the police officer a description of the clothes that the applicant had been wearing that day. That description matches the clothes that the presumed offender is seen to be wearing on the train station surveillance video.
The brother also told the police officer that he had collected the applicant from Hungry Jacks at about 7 pm at which time the latter was carrying a white plastic bag with certain items in it.
(5) On 5 April 2006 the complainant participated in a photo board identification procedure in an attempt to identify her assailant. From a photo board of 12 photographs she selected the photograph of the applicant as being that of the offender.
(6) The police seized the clothes that the applicant was wearing on the afternoon of 30 March 2006. Forensic examination revealed cellular material at the top front of the applicant's jeans which when analysed had a mixed DNA profile coming from at least two people. The expert who carried out the DNA analysis will say that if the mixture comes from two individuals, it is 2 billion times more likely that it came from the accused and the complainant than from the accused and some other random individual.
15 For the purposes of the bail application only, the applicant concedes that there is a strong case that he was "the person described by the complainant". However, he contends that there is not such a strong case that there were actual offences as alleged. In this regard, emphasis is placed on the lack of any male DNA being found in swabs and samples
(Page 7)
- taken from the complainant immediately following the incident, or on her clothing.
16 In making this submission, the applicant does not in any way suggest that there may have been consensual sexual activity. His counsel has made it crystal clear that the applicant's case is that there was "never any contact" between him and the complainant "at any time at any level".
17 The prosecution's case that there were offences as alleged will depend upon the complainant's evidence being accepted at trial. Her evidence is corroborated in a number of ways. Firstly there is evidence that she made complaints about the offences immediately after they had occurred. The first complaint was by telephone to her boyfriend, and the second complaint was to her mother immediately upon reaching home.
18 There is also evidence of the results of a medical examination of the complainant later that evening. The physical findings included multiple abrasions, marks and bruises on various parts of the complainant's body as well as "fine sand-like dirt" between all of her toes. Of particular significance were bruises in the genito-anal area which in the doctor's opinion:
" ... indicate the recent application of a blunt force to this area. This is an unusual area for accidental trauma."
19 Furthermore, the applicant's denial of any contact with the complainant is, in itself, potentially corroborative of the offences having occurred. In this regard, there is ample independent evidence which (if accepted) will show that this denial is a lie. In these circumstances the principles in Edwards v The Queen (1993) 178 CLR 193 will apply.
20 In my opinion, the combination of all of this evidence provides a strong case that the offences occurred. This is so notwithstanding the absence of any male DNA being found on swabs taken from the complainant. Such findings are not unusual in circumstances where an alleged offender is said not to have ejaculated.
The applicant's personal circumstances
21 The applicant was born on 19 October 1990, comes from a respectable and supportive family, and has never previously been charged with any offence. Prior to his arrest he was a year 11 student at a private school and he also worked part-time at a local supermarket. His general background is such that, without knowledge of the evidence against him,
(Page 8)
- one could not imagine him to be capable of the offences with which he is charged.
22 Since 30 March 2006 the respondent has been in custody at the Banksia Hill Detention Centre. This has greatly disrupted his education but he has continued his studies through the School of Isolated and Distance Education. There are no other detainees at Banksia Hill with a private school background, and consequently he is the "odd one out".
23 The applicant is visited every afternoon by his parents and they have shifted from Joondalup to a suburb close to Banksia Hill so that they are able to give that support. These arrangements have interfered with the parents' employment and have caused them considerable financial difficulties.
24 If the applicant is released to bail it is proposed that he will live with his parents at their new location. He will be supervised very closely and will only be permitted to leave the house for limited purposes and while in the company of a responsible adult. The applicant would continue to study through the School of Isolated and Distance Education, but would do so in an environment more conducive than the one he is in at present.
The principles governing a grant of bail
25 As a child, the applicant is entitled to bail unless I am of the opinion that one or more of particular questions set out in cl 1 of Pt C of Sch 1 of the Bail Act 1982 must be answered in the affirmative; and that there is no condition which can reasonably be imposed to meet certain concerns. In the present circumstances, the relevant questions in cl 1 are the following:
"(a) whether, if the defendant is not kept in custody, he may -
(i) fail to appear in court in accordance with his bail undertaking;
(ii) commit an offence;
(iii) endanger the safety, welfare, or property of any person; or
(iv) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
...
(Page 9)
- (g) whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate."
26 Clause 3 of the Schedule provides that when considering whether the applicant may do any of the things mentioned in cl 1(a), I must have regard to the following matters, as well as any others that I consider relevant:
"(a) the nature and seriousness of the offence or offences ... and the probable method of dealing with the defendant for it or them, if he is convicted;
(b) the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the defendant;
...
(d) the strength of the evidence against him."
27 WCVB v The Queen (1989) 1 WAR 279 is authority for the proposition that no question in cl 1 should rigidly be given more importance than another. All relevant factors are to be considered as a whole, but in each case the particular circumstances will determine the weight to be attributed to each factor.
28 Similarly, the matters required to be taken into account under cl 3 must obviously be considered as a whole, but the weight to be attributed to each matter will depend upon the circumstances of the particular case. For example, a weak prosecution case for a serious offence against a person of good antecedents will often result in the question in cl 1(a) being answered in the negative. However there might be a different outcome if it is a strong prosecution case or if the applicant has very poor antecedents. In the end, the exercise of the discretion to grant bail in each individual case must always depend upon the particular circumstances.
Whether the applicant should be granted bail
29 The State concedes that the conditions that are proposed in the event of bail being granted are sufficient to remove any flight risk. This is a reasonable concession given that the applicant is a 15-year-old boy accustomed to living at home with his parents.
(Page 10)
30 However the State at the same time contends that those conditions are insufficient to remove the possibility of the applicant committing a further offence if released. In this regard it is suggested that the particular circumstances and very serious nature of the alleged offences indicate a criminal disposition which might not be kept in check by the proposed conditions.
31 Putting aside for one moment the question whether the applicant was the offender, there are undoubtedly some objective features of the alleged offences which support the suggested criminal disposition. There was firstly the apparent randomness with which the victim was selected. There was then the offender's predatory behaviour in following her for some distance from the railway station until she reached a location where there was an opportunity for the offences to occur. Even so, it was very brazen offending which was committed in daylight next to a public thoroughfare, and without any apparent concern that others might happen upon the scene. From the offender's point of view it was very reckless and highly risky behaviour.
32 The various acts of sexual penetration that then followed and the circumstances in which they occurred places the offending towards the upper end of the scale of seriousness. The offender repeatedly threatened the complainant, and appears to have been cool and calm in everything that he did. He was evidently unperturbed and conducted a normal telephone conversation when interrupted during his last act of anal penetration. There was then the very disturbing comment that the complainant was his "first rape victim" (which in terms of disposition, tends to speak for itself).
33 Clearly, all of these circumstances support an inference that the offender might well commit further such offences if given the opportunity. However, I am required to have regard to all of the matters set out in cl 3 of Sch 1 of the Bail Act including the applicant's past character, antecedents and home environment. This raises the inherent improbability of a person of his young age and background committing such callous and cold-hearted crimes.
34 This is a paradox that has caused me anxious consideration, but in the end it is the strength of the prosecution case that must be given the greatest weight. In my view, the compelling evidence that the applicant committed crimes of the nature alleged leads inevitably to the conclusion that he may commit a further offence if given the opportunity. In this regard, it is the reckless and risk-taking character of what was done that is
(Page 11)
- the greatest concern. Notwithstanding the strictness of the proposed bail conditions, I am of the opinion that they do not provide a sufficient assurance that the applicant will not commit a further offence.
35 Furthermore, and by reason of the particular circumstances and characteristics of the alleged offences as already outlined, I consider that they also amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
36 In coming to these conclusions I am very mindful of the applicant's parents who were present in court during the hearing and were so obviously in despair at their son's situation. However this is not a factor which can influence the outcome, and I am bound by the requirements of the Bail Act. It follows that the application for bail must be refused.
3
0