Parnell v The State of Western Australia
[2020] WASC 143
•5 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PARNELL -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 143
CORAM: FIANNACA J
HEARD: 22 APRIL 2020
DELIVERED : 5 MAY 2020
PUBLISHED : 5 MAY 2020
FILE NO/S: MBA 10 of 2020
BETWEEN: CALLUM MATHEW ANTHONY PARNELL
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Bail application - Bail refused - Need for exceptional reasons - Impact of COVID-19 - Inability to prepare for trial - Turns on own facts
Legislation:
Bail Act 1982 (WA)
Result:
Bail refused
Representation:
Counsel:
| Applicant | : | Mr S Nigam |
| Respondent | : | Mr K Rosenthal |
Solicitors:
| Applicant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Atherton v Western Australia [2005] WASC 15
De Faria v the Queen [2012] WASCA 256
Donaldson v Western Australia [2010] WASC 264
Jolly v The State of Western Australia [2014] WASC 118
Magistro v The State of Western Australia [2016] WASC 268
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
Rakielbakhour v Director of Public Prosecutions [2020] NSWSC 323
Re Broes [2020] VSC 128
Roberts v The State of Western Australia [2011] WASC 118
Shrivastava v The State of Western Australia [2010] WASCA 96
The State of Western Australia v Sturgeon [2005] WASC 256
Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303
YSN v The State of Western Australia [2017] WASCA 155
FIANNACA J:
The application and its history
The applicant, Callum Mathew Anthony Parnell, has applied for bail in respect of seven charges that are pending in the Magistrates Court in Joondalup. All charges are listed for a trial hearing in the Magistrates Court on 19 June 2020. Bail was refused in the Magistrates Court on 23 March 2020.
All of the charges allege offending by the applicant against his ex‑partner, Ms H. There are two sets of charges.
On 24 September 2019, the applicant was charged with two counts of aggravated unlawful assault occasioning bodily harm to Ms H (JO 11065 and 11066/19) and one count of criminal damage (JO 11067/19), which is alleged to have consisted of the unlawful destruction of Ms H's mobile telephone. The offences are alleged to have been committed on dates in the period 24 ‑ 26 August 2019. The circumstance of aggravation for the unlawful assault occasioning bodily harm (AOBH) charges is that the applicant and Ms H were in a domestic relationship.
The applicant appeared in the Magistrates Court on that first set of charges on 25 September 2019 and was released on bail, which included a protective condition pursuant to cl 2(1) and 2(2)(c) of sch 1 pt D of the Bail Act 1982 (WA) (the Act) for the purpose of ensuring that the applicant did not endanger Ms H's safety or welfare. The protective condition prohibited the applicant from contacting or attempting to contact Ms H (the protected person) by any means, either directly or indirectly, or approaching or remaining within 50 m of Ms H, or going within 50 m of the nearest external boundary of any place where Ms H was living or working.
On 23 March 2020, the applicant was charged with failing to comply with a requirement of his bail undertaking, namely the protective bail condition to which I have referred (JO 2983/2020), and three offences alleged to have been committed against Ms H, being an aggravated AOBH (JO 2984/2020), an aggravated unlawful assault (JO 2985/2020) and a threat to unlawfully injure Ms H (JO 2986/2020). The breach of the protective bail condition is alleged to have been committed on 24 September 2019. The other offences are alleged to have been committed on dates in the period 26 January 2020 ‑ 4 February 2020.
In broad terms, the case against the applicant is that he used significant violence against Ms H and caused her injuries on the dates or during the periods charged, in the context of a relationship in which he sought to control Ms H and was physically and psychologically abusive towards her. The injuries are said to be those depicted in photographs taken of Ms H on 26 August 2019 and 6 September 2020. It is also alleged that, after the applicant had been arrested and released on bail in respect of the 2019 offences, he coerced Ms H to withdraw her complaint in respect of those offences. In essence, it is alleged that Ms H returned to the applicant because she was emotionally captive to him, despite the abuse.
The 2019 charges were to proceed to trial on 27 March 2020. However, as a result of the applicant being charged with the 2020 charges, the trial was vacated on 23 March 2020 and relisted for 19 June 2020 so that all charges could be dealt with in the one trial.
The charge of breaching the protective bail condition and the 2020 charge of aggravated AOBH bring the applicant within the provisions of cl 3A of sch 1 pt C of the Act. That clause provides that, where an accused is in custody awaiting an appearance in court before conviction for a serious offence, and the serious offence is alleged to have been committed while the accused was on bail for another serious offence, the court must refuse to grant bail for the later offence unless it is satisfied there are exceptional reasons why the accused should not be kept in custody, and is also satisfied that a grant of bail would otherwise be proper, having regard to other factors the court must take into account under cl 1 and cl 3 of sch 1 pt C.
'Serious offence' is defined in s 3(1) of the Act to mean an offence under s 51(2a) of the Act and an offence described in sch 2 of the Act. The offence of breaching the protective bail condition, with which the applicant was charged on 23 March 2020, is an offence against s 51(2a) of the Act. The offence of AOBH (whether or not committed in a circumstance of aggravation) is an offence described in sch 2 of the Act. Both the offence under s 51(2a) and the 2020 aggravated AOBH offence ('the later serious offences') are alleged to have been committed by the applicant while he was on bail for the two counts of aggravated AOBH alleged to have been committed in 2019. Therefore, the court must refuse to grant bail for the later serious offences unless satisfied there are exceptional reasons why the applicant should not be kept in custody and that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of sch 1 pt C.
If bail is refused in respect of the later serious offences, that decision in effect determines the application in respect of the other charges, in that the applicant would not be able to avail himself of bail in respect of those other charges, even if bail could properly be granted. By s 10 of the Act, the applicant's right to have bail considered in respect of the other charges, and the court's duty to consider bail in respect of those charges does not arise if the applicant is in custody for some other offence or reason.
The applicant was refused bail in the Magistrates Court on 23 March 2020. At the time of the hearing of the present application, transcript of the proceedings in the Magistrates Court was not available. Further, the entry of the magistrate's decision on the court record does not specify the basis on which bail was refused. However, I was informed by the applicant's counsel, who appeared in the Magistrates Court, that the learned magistrate refused bail in essence 'on the basis that the complainant needed to be protected'.[1] It is not apparent what conclusion, if any, her Honour arrived at on the question of whether there were exceptional reasons for a grant of bail.[2]
[1] ts 53, 22 April 2020.
[2] See [13] ‑ [15] below. If her Honour determined that it was not otherwise proper to grant bail, it was not necessary for her to determine whether there were exceptional reasons why the applicant should not be kept in custody.
The present application is brought under s 14(2) of the Act, and invokes this court's jurisdiction under s 14(1), by which the court may exercise afresh the power to grant bail conferred by s 13 and sch 1 pt A of the Act on the magistrate who refused bail. It is not an appeal from the magistrate's decision. The application was filed on 6 April 2020.
The legal framework
The issues to be determined
Clause 3A creates a rebuttable statutory presumption against the grant of bail.[3] As I said earlier, there are two elements about which the judicial officer must be satisfied before bail can be granted. The first is that there are exceptional reasons why the accused should not be kept in custody. The second is that bail may properly be granted, having regard to the provisions of cl 1 and cl 3 of sch 1 pt C of the Act. In Milenkovski, McLure P referred to the two elements in reverse order and said that:[4]
If the judicial officer is not satisfied that bail may properly be granted under the general provisions in cl 1 and cl 3, it is not necessary to consider whether there are exceptional reasons.
[3] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 (Milenkovski) [36].
[4] Milenkovski [37].
That approach reflects the possibility that, if there are exceptional reasons, they may not be relevant to or inform the answers to the mandatory questions the court must consider in cl 1(a) to (g) of sch 1 pt C. However, as Simmonds J noted in Jolly[5], the approach that had been taken in cases before Milenkovski tended to put the consideration of whether there were exceptional reasons first. That has been the case in a number of first instance considerations of bail since Milenkovski as well. Simmonds J took that approach in Jolly, partly in deference to the fact that counsel had argued the matter in that way. I too have taken that approach previously.[6]
[5] Jolly v The State of Western Australia [2014] WASC 118 (Jolly).
[6] Magistro v The State of Western Australia [2016] WASC 268.
Given that both elements are necessary conditions of which the court must be satisfied under cl 3A before bail can be granted, it does not matter in which order they are considered. If either condition is not satisfied, it would not be necessary to go on to consider the other. In the present case, the application was argued on the basis that I should first consider whether there are exceptional reasons for the grant of bail. I will take that approach. However, in the context of this case, the considerations that are relevant to deciding whether there are exceptional reasons, as argued by the applicant, are also relevant to the question whether a grant of bail would otherwise be appropriate.
What are exceptional reasons?
The use of the word 'exceptional' denotes something which is unusual, out of the ordinary, in some way special or an exception to the general run of cases.[7] There is no closed list of exceptional reasons.[8] What might constitute exceptional reasons will depend upon the facts in each particular case.[9] As with bail applications generally, it is necessary to look at the circumstances as a whole, weighing competing factors in determining whether exceptional reasons have been established.[10]
[7] Tieleman v The Queen [2004] WASCA 285; (2004) 49 A Crim R 303 [15] (Murray J); Shrivastava v The State of Western Australia[2010] WASCA 96 [28] ‑ [32] (Mazza JA); De Faria v the Queen [2012] WASCA 256 [13].
[8] Roberts v The State of Western Australia [2011] WASC 118 [9] (Murray J).
[9] Donaldson v Western Australia [2010] WASC 264 (Murray J).
[10] Atherton v Western Australia [2005] WASC 15 (Blaxell J).
The policy behind the requirement for exceptional reasons where an accused is charged with committing a serious offence while on bail for another serious offence was discussed in Sturgeon.[11] Although an accused is presumed innocent of any charge unless and until found guilty, there is obvious community concern when someone is charged with a serious offence or offences alleged to have been committed while on bail for one or more other serious offence. The risk that the person may commit offences if released on bail is given prominence as a factor that tells against release on bail.
Clauses 1 and 3
[11] The State of Western Australia v Sturgeon [2005] WASC 256 (EM Heenan J).
The second requirement under cl 3A requires consideration of whether bail may properly be granted having regard to the provisions of cl 1 and cl 3. The provisions of cl 1 are in the form of questions which address, firstly, whether there are grounds to refuse bail, and secondly, whether there are any conditions that the court can impose which would remove the reasons for refusing bail.
The first category of questions requires consideration, relevant for this application, of whether the applicant will appear at a future court date, will commit an offence, will endanger the safety or welfare of others, or will interfere with witnesses or obstruct justice.
In considering those questions, the court must have regard to the factors set out in cl 3 of sch 1 pt C, which include (a) the nature and seriousness of the offence and the probable method of dealing with the applicant for it if he is convicted; (b) the applicant's character, previous convictions and antecedents; (c) the history of any previous grants of bail to him; and (d) the strength of the evidence against him.
The second category of questions in cl 1 requires consideration of conditions that may alleviate the risks that would otherwise justify a refusal of bail.
The approach to be taken when considering the factors or questions in cl 1 and cl 3 is well known and was explained in Milenkovski[12] and YSN.[13] It is sufficient to note for present purposes that there must be an actual risk or possibility that the accused will do one of the things referred to in [19] above, and the court must consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail, having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the court considers to be relevant. That requires weighing the risk that such conduct would pose to the integrity of the criminal justice process and community safety, against the potential injustice to the accused if he is ultimately acquitted of the charged offences after being held in custody for a lengthy period. The assessment is made in the context that an accused person is presumed to be innocent. Where the nature and extent of the risk provides a proper ground for refusing to grant bail, the next question is whether conditions of bail could reasonably be imposed that would sufficiently reduce the risk, so that the remaining risk no longer warrants the detention of a person who has not been convicted and is presumed to be innocent.
[12] Milenkovski [24] ‑ [25] and [39] ‑ [41] (McLure P).
[13] YSN v The State of Western Australia [2017] WASCA 155 (YSN) [15] ‑ [21].
It will be obvious that the circumstances which bring this application within the provisions of cl 3A will also be relevant to a number of the factors to be considered under cl 1 and cl 3.
Clause 3B
Before turning to the merits of the application, I note that, as the serious offences to which cl 3A applies involve a breach of a protective bail condition, cl 3B also applies. That clause requires that, before making a decision that there are exceptional reasons for the purpose of cl 3A(1)(c), the court must give the person for whose benefit the protective condition was imposed a reasonable opportunity to give evidence relating to the protective condition, and the court must give such evidence due weight as well as taking into account other factors stipulated in cl 3B(4).
The parties agreed that it was not necessary to seek Ms H's attitude at this stage, in that I should determine the question of whether there are exceptional reasons, and if I am satisfied there are exceptional reasons, then it would only be necessary to give Ms H the opportunity to give evidence if I considered it may bear upon the question of whether bail could properly be granted having regard to the provisions of cl 1 and cl 3. That is appropriate, particularly given that the basis on which the applicant comes within cl 3A involves more than a breach of the protective bail condition. Nevertheless, in the absence of transcript of the proceedings in the Magistrates Court, I am prepared to rely on information from Mr Nigam, counsel for the applicant, that the prosecutor in that court told the magistrate that, while Ms H did not oppose bail being granted, she had concerns for her safety or welfare.[14] Assuming that, if she were to give evidence in these proceedings, it would be to that effect, it would not affect the outcome, given the conclusions I have reached on the materials adduced at the hearing.
[14] ts 52, 22 April 2020.
The basis of the application
The applicant argues that there are exceptional reasons why he should not be kept in custody pending his trial. Those reasons are said to be that:
(1)the prosecution case in respect of all of the charges other than the breach of the protective bail condition is weak because there is evidence that undermines the complainant's credibility, in particular the veracity of her claims that she suffered injuries as a result of assaults inflicted by the applicant;
(2)the current Government-imposed restrictions to deal with the COVID‑19 pandemic, and concerns about the spread of the coronavirus within prisons, amount to exceptional circumstances that militate against keeping the applicant in custody pending his trial; and
(3)the applicant will not be able to prepare properly for his trial if he is remanded in custody.
As developed by counsel during the hearing, the COVID‑19 issue is really a factor going to the applicant's ability to prepare for trial, rather than a separate matter amounting to an exceptional reason.
The applicant submits it is the combination of the factors identified in [26] above that constitutes the exceptional reasons. As for the argument that the prosecution case is weak, the applicant submits in effect that, if the case in respect of the 2020 charges is weak, that fact in combination with the other factors would be sufficient to amount to exceptional reasons, because it is the 2020 charges that give rise to the need for exceptional reasons. The applicant had previously been on bail for the 2019 charges. Further, the applicant submits, in effect, that the charge of breaching the protective bail condition must be considered in the context that Ms H willingly returned to live with the applicant, and, therefore, should not be a barrier to a finding that there are exceptional reasons if the case is weak in respect of the other 2020 charges and the court is satisfied the applicant will not be able to prepare properly for trial if kept in custody.
The applicant submits that, if I am satisfied there are exceptional reasons for a grant of bail, then a grant of bail would be proper, as there are conditions that could be imposed that would sufficiently reduce the risk that he would commit an offence, endanger the safety or welfare of Ms H or interfere with her as a witness, which were the grounds on which the respondent opposes a grant of bail, apart from the question of exceptional reasons. The respondent has not submitted that the applicant poses a flight risk.
The evidence in the proceedings
The evidence in these proceedings consists primarily of affidavits from three witnesses and the applicant's solicitor filed by the applicant and materials tendered by the respondent in the form of briefs for prosecution in respect of both sets of charges. It is convenient to refer first to the materials tendered by the respondent, as the affidavits filed by the applicant were to a large extent responsive to the materials in the prosecution briefs.
The brief for prosecution in respect of the 2019 charges includes:
(1)the prosecution notices;
(2)the police statements of material facts in respect of each of the charges;
(3)a witness statement of Ms H dated 26 August 2019;[15]
(4)a witness statement of Ms H dated 21 September 2019; and
(5)photographs taken by the police on 26 August 2019, including photographs of Ms H showing injuries to her face, upper chest and arms.
[15] All of the witness statements in the materials comply with the requirements of the Criminal Procedure Act 2004 for such statements when they are to be used in criminal proceedings. They include a declaration of truth and knowledge that, if the statement is tendered in evidence, the maker of the statement will be guilty of a crime if they have included anything in the statement that they know to be false or they do not believe to be true.
Ms H's statement of 21 September 2019 was for the purpose of withdrawing her allegations against the accused in respect of the 2019 charges. She claimed that the contents of her statement of 26 August 2019 were not true, and that she had felt compelled to provide the statement. However, in her subsequent statement to the police of 26 February 2020, in respect of the 2020 charges, Ms H said that she had been coerced by the applicant to withdraw the allegations in her statement of 26 August 2019 and had told her what to say.
The brief for prosecution in respect of the 2020 charges includes:
(1)the prosecution notices;
(2)the police statements of material facts in respect of each of the charges;
(3)the witness statement of Ms H dated 26 February 2020;
(4)a witness statement of Ms H's aunt, Ms JH, dated 28 February 2020;
(5)a Patient Health Summary recorded on 6 February 2020 in respect of Ms H's attendance at a medical centre on that day; and
(6)photographs of Ms H taken by police on 6 February 2020 showing injuries to various parts of her body.
The respondent also tendered a statement of Ms Dewing dated 14 April 2020. Ms Dewing lives across the road from the house where the applicant was living at the time that both sets of offences are alleged to have occurred. Her statement concerns an incident that occurred on 12 August 2019 (wrongly stated in the statement as 2018). The respondent also tendered a police incident report which records calls made by Ms Dewing to the police on 12 August 2019 in respect of the incident she describes in her statement, and the actions taken by the police in response to the calls.
Finally, the respondent also tendered notes made by a police prosecutor, Sgt Gregg, of proofing sessions with Ms H on 25 February 2020 and 20 March 2020. Sgt Gregg was to prosecute the 2019 charges in the Magistrates Court on 27 March 2020, but the trial was vacated and the charges relisted for a trial hearing on 19 June 2020, to be heard with the 2020 charges, after those charges were brought on 23 March 2020. The notes are relevant to one of the submissions made by the applicant in support of the first proposition referred to at [26] above.
The applicant filed affidavits from:
(1)Frank Carbone, sworn 1 April 2020;
(2)Sharon Marie‑Anne Parnell, the applicant's mother, sworn 9 April 2020;
(3)Laura Jensen, being two affidavits sworn 9 April 2020 and 14 April 2020; and
(4)Sean Thomas Hogan, solicitor for the applicant, sworn 21 April 2020.
Mr Carbone and Ms Jensen are close friends of the applicant. Their affidavits (a) speak of their knowledge of the applicant and Ms H and observations they have made of the pair's relationship; (b) describe their interactions with the pair and observations they made in January and February 2020; and (c) provide opinions about the applicant's character.
Sharon Parnell (a) provides background information about the applicant and Ms H; (b) describes events observed by her on 12 August 2019, and on various dates in January and February 2020; and (c) indicates that she is prepared to have the applicant live with her if released on bail, and to provide a surety.
Mr Hogan's affidavit sets out, among other things, (a) the applicant's instructions in broad terms in respect of the charges and the allegation that he coerced Ms H to withdraw her allegations of 26 August 2019; (b) the applicant's account of the events of 12 August 2019; (c) the applicant's instructions to his lawyers to take still photographs from a video recording made by him and Ms H (see below); and (d) proposed bail conditions.
To the extent that Mr Hogan's affidavit purports to set out the evidence that the applicant would give about certain matters, I am not prepared to place any weight on the appellant's statements unless they are not in dispute or there is other evidence on affidavit from witnesses who are able to give direct evidence about those matters. That is because I have not been provided with an adequate explanation as to why the applicant could not swear or affirm an affidavit himself containing that evidence. I made that clear during the hearing. In my opinion, if an applicant wishes to put before the court his account of matters affecting the issues to be determined at trial, or which bear upon other issues to be determined in the bail hearing, he should do so on affidavit sworn or affirmed by him. It is by that means that his statements can have testimonial, and therefore probative, value.
The applicant tendered five still images, which are said to have been taken from a video recording made by him on 17 October 2019 and which depict a woman engaging in activities described as sexual bondage. The applicant asserts that the woman is Ms H, and that the recording shows Ms H had an interest in bondage, violent sex and discipline. The relevance of that assertion is discussed later in these reasons. The respondent conceded for the purposes of the hearing that the woman is Ms H, although counsel for the respondent had not had an opportunity to make enquiries in that regard and it is not possible, given the quality of the images and the manner in which the woman is depicted, to make an identification by reference to photographs of Ms H on the prosecution brief.
The case against the applicant
The issues to be decided require consideration of the facts alleged against the applicant in respect of each of the charges. They can be summarised as follows.
The 2019 charges
The applicant and Ms H were 31 years of age at the time of the 2019 incidents. They had known each other for approximately 20 years and had been in an intimate relationship since December 2018.
Ms H has described a relationship in which she suffered emotional, psychological and physical abuse from the applicant, which made her feel controlled by, and fearful of, the applicant. Ms H is of smaller physical stature than the applicant.
At the time of the alleged offending in August 2019, the applicant was living at a house in Woodvale owned by his mother.[16] Ms H says that she was staying at the applicant's home so that he could help her with her anxiety issues, because she had been feeling unhappy.
[16] The ownership of the property is referred to in the affidavit of Sharon Parnell [4.11].
It is alleged that on Saturday, 24 August 2019, the applicant was drinking alcohol. An argument developed between the applicant and Ms H, which resulted in Ms H saying she was going to leave. The applicant told her that he was going to meet other girls and went into the shower. Ms H was not able to find her car keys. She eventually found them in the bathroom bin. The applicant apologised to her, and she decided to stay.
Around midnight that day, Ms H was sleeping when the applicant repeatedly came into the room, causing her to wake. The applicant then began to argue with Ms H. The argument escalated to the point that Ms H threw a bottle of water and pillows at the applicant. The applicant then grabbed Ms H and threw her to the floor. He placed his hands around her throat and began to strangle her. Ms H pleaded with the applicant to stop to think of her children. The applicant continued to strangle Ms H until she passed out. When Ms H regained consciousness again, the arguing continued and the applicant again strangled her until she lost consciousness.
As result of the assault, Ms H suffered bruising to her neck, pain to her jaw and pain when swallowing. The assault and resulting injuries are the basis of the first count of aggravated AOBH.
When Ms H came to again, the applicant would not let her leave the house. He treated her in a demeaning way by forcing her to clean the house while naked.
Ms H says that, later, in the early hours of the morning, the applicant let her go outside for a cigarette and, at that stage, he was sad and remorseful. Ms H decided to stay because the applicant appeared to have calmed down and she did not want him to harm himself, as he had asked her to retrieve a noose he had made from rope, which she had earlier thrown over the fence.
However, later, inside the house, Ms H tried to call her friend on her mobile telephone so her friend could hear what was happening. The applicant grabbed the telephone from her and smashed it on the floor, breaking it into pieces. That is the subject of the charge of criminal damage.
The applicant then tackled Ms H to the floor after a number of times with a fist to her head. He also punched her in the abdomen and her left arm. As a result of the blows, Ms H suffered bruising to her left eye, her jaw, the front and back of her head and her arm. That assault and the resulting injuries are the basis for the second count of aggravated AOBH.
The applicant subsequently threatened to hang himself with the noose he had made. He told Ms H she had to watch him die, and that it was her fault. Ms H says she was crying hysterically and would not assist the applicant. He then made her read texts he had written about the wrong things that Ms H did to him. Ms H says that he also continued to strangle her. Eventually, he suggested they have 'make up' sex. Ms H says she acquiesced, even though she did not want to, and that she was crying.
On the morning of Monday, 26 August 2019, the applicant allowed Ms H to go outside. She used the opportunity to go to her car and lock herself inside. She refused to go back into the house when the applicant told her to go back in. She asked a neighbour to call the police. When the police arrived and arrested the applicant, Ms H retrieved her belongings.
Police found the noose to which Ms H refers and her broken mobile telephone. Both items were photographed.
Ms H's injuries were also photographed. They depict a black left eye and bruising to her left cheek and temple area, right cheek, her lower neck and upper chest on the left, and both arms, particularly the upper left arm, where there is a large dark bruise and a smaller red bruise.
The applicant declined to participate in a recorded interview. He was subsequently charged with the three counts to which I have referred. Although the applicant was arrested on 26 August 2019, the prosecution notice is dated 24 September 2019.
The 2020 charges
After he was arrested on 26 August 2019, the applicant was released on bail after signing a bail undertaking, which included a protective bail condition, being that he was not to contact the protected person, Ms H, by any means either directly or indirectly, and he was not to approach or remain within 50 m of Ms H and not to go within 50 m of the external boundary of any place where Ms H lived or worked.
Ms H says, in her statement of 26 February 2020, that on 26 August 2019, after she was informed by a police officer that the applicant had been charged and released on bail, the applicant called her on her mobile telephone and asked if she was 'ok'. He hung up after she asked why he was calling. Ms H says she stayed away from the applicant for about two weeks, but moved back in with him at his mother's house. She says that while she knew that she should not do so, the applicant had control over her and she struggled without him.
Ms H says that her statement of 21 September 2019, whereby she sought to withdraw her complaint of 26 August 2019, came about because the applicant told her she had to go to the police to withdraw her earlier statement. She says that the applicant would belittle her, calling her 'a dog and a slut and a shit mother', and said she did not love him, because he had to go to court because of her, and it was all her fault.[17] Ms H says that the applicant also threatened to kill himself she did not change her statement. She says she agreed to withdraw her complaint because she did not want anything bad to happen. She also says the applicant told her what to put in her new statement, including the suggestion that she had been coerced by the police to make her first statement.[18]
[17] Statement of Ms H dated 26 February 2020 [57].
[18] Statement of Ms H dated 26 February 2020 [64] ‑ [65].
Ms H says that, although she thought the withdrawal of her complaint would make things better, the applicant continued to assault her while she remained with him at his home. She says that, if he was assaulting her while they were in his bedroom and his mother was home, the applicant would speak loudly over her crying or screaming, saying that he was not hitting her. She says that the applicant would tell her people would think she was crazy. She says that she did not report these assaults to the police because she did not want to get the applicant into trouble.
On the morning of Tuesday, 24 September 2019, the applicant was driving his vehicle with Ms H in the front passenger's seat when he was stopped by police at a Mobile Breath Testing Station (referred to by Ms H as a 'booze bus'). After participating in a breath test, the applicant went with police for a further test. It appears that he was found to have been driving while having a prescribed prohibited drug in his system. He was convicted of that offence and fined on 9 March 2020.
While he was being tested away from the vehicle, Ms H got out of the vehicle and fled the area.
The statement of material facts records that, when he was being tested, the applicant was served with an outstanding violence restraining order, which was for the protection of Ms H. There is no indication in the materials as to when that order was obtained.
The applicant was charged on 23 March 2020 with breaching the protective bail condition by having contact with Ms H. That is the first of the 2020 charges.
The charge of aggravated AOBH is alleged to have occurred in the early hours of the morning sometime between 26 January 2020 and 3 February 2020. Ms H says it was a couple of days after Australia Day. It is alleged that, after returning home from a friend's party, where they had commenced to argue, the applicant and Ms H continued to argue and it woke the applicant's mother. She says that she left the house and slept in her vehicle that night. The next morning she returned to the applicant's home after the applicant's mother had gone to work. It is alleged the applicant verbally abused Ms H to the point that she attempted to hang herself on the veranda by using a rope she found in the backyard.[19] She lost consciousness for a short period. The applicant came out and unhooked the rope, causing Ms H to fall to the ground. It is alleged that he then removed the rope from her neck and immediately whipped her with the rope to all areas of her body. One of the blows with the rope caused a bruise and a 3 cm laceration to Ms H's chest, on the left. That was the only part of her body where she was whipped that was not protected by clothing. Ms H says the injury needed a 'bit of care'.[20] She says that the injury to her chest is the one depicted in the photographs subsequently taken by police on 6 February 2020.
[19] It is not clear whether it is the same rope that was photographed by police on 26 August 2019.
[20] Statement of Ms H dated 26 February 2020 [98].
Ms H did not report the incident at that stage. However, the assault and injury are the subject of the 2020 charge of aggravated AOBH.
The last two charges arise from events that occurred after the applicant and Ms H had been to the beach on 3 February 2020. In her statement, Ms H does not say at what time they went to the beach or when they returned to the applicant's home. However, she says she thinks it was late because she thinks the applicant's mother was in bed. She says the applicant started hitting her with an open hand outside the house and called her a 'slut' because she wore a play suit. She says the applicant continued to hit her inside the house, punching her to her face and body while she was on the bed.
Ms H says that the punches caused bruising and pain. However, it appears from the statement of material facts in respect of the offence of aggravated assault, that the basis for that charge is a subsequent alleged assault, after the alleged offence of making a threat to unlawfully injure Ms H. The latter arises from the incident which Ms H says occurred shortly after they had returned from the beach. She says that the applicant's assault upon her while she was on the bed caused her to fall off the bed, onto the floor. She says that the fall caused a glass vase to break. The vase contained a candle. It is alleged that the applicant took a broken piece of glass, held it against Ms H's throat, while she was on the ground, and threatened to cut her face. Although he did not cut Ms H, he continued to punch her.
It appears that the incident that gives rise to the charge of aggravated assault is one described in Ms H's statement as occurring later. She says that the applicant told her that some of his friends were coming around, so she had to put on long‑sleeved clothing to hide the bruising to her arms and legs. She also says that she tried to put on makeup to hide the bruising on her face but was not able to hide the swelling so she stayed in her bedroom to avoid embarrassing the applicant. She also says that the applicant was 'unusually loving' towards her and provided her with her medication and some Panadol. She says she then went to sleep.
Ms H says that 'at about midnight' she was woken by the applicant who said he was going out with his friends and asked if she wanted to join them. She says she declined and queried the fact that he was going out at that time. She says that made the applicant angry. He accused her of controlling him. He then closed the bedroom door and began to punch Ms H to the face and body. She fell to the ground and the applicant kicked her to the body and legs. Ms H says that she was screaming and crying hysterically. She says that the applicant's mother woke and said, 'That's enough.' She says the applicant blamed her for waking his mother. She then says that 'it went on for hours', but it is not clear from Ms H's statement whether she is referring to a physical assault or verbal abuse. Eventually they went to sleep.
It is apparent from the above outline that, on Ms H's account, there were two incidents on the night of 3 February 2020, going into the early hours of 4 February 2020, that could account for bruising to her body. Photographs taken of Ms H on 6 February 2020 show a red mark on the bridge of her nose, some yellow bruising on her nose and extending to the sides, yellow bruising to both cheeks and her lower jaw on the left, a large bruise on her back in the area of her right shoulder, a large bruise on her upper chest on the left surrounding the laceration I mentioned earlier, a large dark bruise and other bruising on her left upper arm, large dark bruises on both of her thighs and buttocks, abrasions to the upper part of her left thigh and in the area of her buttock, a large bruise on her left knee and a smaller bruise on her lower left leg.
As the charge of aggravated assault does not allege bodily harm, it does not matter whether any of the bruising can be attributed to the last of the alleged assaults. However, the bruises are in areas consistent with those described by Ms H as places where she was punched or kicked.
Ms H says that over the next couple of days she wanted to get away from the applicant. She says that she contacted her cousin and told her she needed help to get away. She says that on 7 February 2020 the applicant went to work. She took the opportunity to contact her cousin and arranged to meet her at a shopping centre. It would appear that the date stated by Ms H in her statement is incorrect. That is because the events that she goes on to describe as having occurred that day correlate with events described by her aunt, JH, and those events occurred on 6 February 2020. Ms JH was called by her daughter, Ms H's cousin, who told her that Ms H was in a bad way and needed help. Ms JH left work and assisted Ms H during the afternoon. She says that, when she first saw Ms H at her daughter's home, she looked 'really sore', bruised and battered.[21] Ms H showed them the bruises to her legs and the bruise and cut on the front of her chest. According to Ms JH, Ms H said that the applicant had been torturing her.
[21] Statement of Ms JH dated 28 February 2020 [11] ‑ [12].
For present purposes, it is sufficient to say that Ms H was subsequently taken to a medical centre where she had an appointment after 5.00 pm. Details of the medical consultation are contained in the Patient Health Summary from the medical centre, which shows that Ms H was attended to on 6 February 2020.
The medical notes record that Ms H had 'come with bruises all over her face and chest'. They also record that Ms H said her partner had 'beaten her up' and had been doing so for the previous three months. There are other details of her description of the relationship. In respect of the injuries seen on Ms H, the doctor recorded that there were two large bruises, one around the right eye and one on the nasal bridge. He also recorded multiple bruises on her chest, including one near her left breast. Ms H is recorded as having said that one of the bruises on her chest was caused by being whipped with a rope. The doctor also recorded that Ms H had multiple bruises on the rear of her left leg, 'spanning from her hip down to the left', which Ms H said were caused by being kicked by her partner.
Ms H was subsequently taken to the police where she made a complaint and asked to be placed in a women's refuge. She says that she did not provide a statement to police at that time because she was not in a very good frame of mind. She says she provided a statement on 24 February 2020, and it was signed by her on 26 February 2020.
I note that Ms H also states that, after she made contact with her cousin, she stayed the night at her aunt's house and did not make a report to the police until the following day. She states that she had not intended to report the applicant, but the following day she went to the bank to withdraw money and found that all of the funds in her account had been transferred by the applicant, without her consent, into an account to which she did not have access. She states that she could not believe the applicant would do that in spite of everything she had endured. She decided to make the report to the police about the 2020 assaults at that time.[22]
[22] Statement of Ms H dated 26 February 2020 [141] ‑ [147].
Ms H states that she still loves the applicant but no longer deserves to be treated badly by him.[23]
Incident of 12 August 2019
[23] Statement of Ms H dated 26 February 2020 [154].
Although the applicant is not charged with any offence in relation to an incident that occurred on 12 August 2019, the prosecution intends to rely on evidence of the incident as relationship or propensity evidence, both under common law principles and under s 31A of the Evidence Act 1906 (WA). If the evidence is to be adduced under s 31A, leave will be required. Counsel appearing for the respondent in these proceedings said that the prosecutor will be advised to make an application for leave promptly. However, as counsel also submitted, there is a strong argument for the admission of the evidence on either of the bases indicated.
The relevant evidence is contained in the statement of Ms Dewing, which is augmented by the police incident report. Ms Dewing lives across the road from the house where the applicant was living at the time that both sets of offences are alleged to have occurred.
In her statement of 14 February 2020, Ms Dewing describes witnessing a violent altercation between the applicant and Ms H on 12 August 2019. She says that at 7.30 pm she heard a disturbance across the road from her home. She went outside and saw the applicant and Ms H out the front of the applicant's house arguing loudly. When the argument became sustained and more aggressive, Ms Dewing called the police to attend.
Ms Dewing states that the applicant was stopping Ms H from leaving. He had parked his car close to her car so she could not leave, and would not give her the keys.
After the applicant and Ms H went inside briefly and came back out, the argument continued. Ms Dewing saw the applicant grab Ms H and throw her to the ground at the front of the house. He then kicked at her while yelling obscenities. Ms H cowered and tried to get away. The applicant threw her to the ground twice more in the same manner. On the third occasion, they came very close to the curb of the road.
Ms Dewing called the police a second time, as she was concerned Ms H's head would hit the curb or the road. The police arrived at the end of the second call.
Ms Dewing said that she heard noises outside of the house during the night. When she woke up in the morning she saw that the rear of the black car was burnt at the front of the applicant's house.
The police incident report in respect of the incident records that Ms Dewing first called the police at 7.32 pm and that she called again at 8.12 pm, when she said that 'the suspect was seen throwing the female to the ground'. The report further records that the police who attended the incident spoke with the applicant, Ms H and Sharon Parnell. That was recorded from 8.23 pm to 8.28 pm. It records that Ms H and the applicant said they had never been in a domestic relationship, but were best friends. It records further that Ms H was intoxicated and going through a bad time, and that the applicant was trying to stop her from leaving the house because she was intoxicated. It records that Sharon Parnell said she would ensure there would be no further escalation.
The defence case
For the purposes of these proceedings, the evidence pertaining to the defence case is contained in the affidavits of Mr Carbone, Sharon Parnell and Ms Jensen. All three witnesses are employed and there is nothing in the materials to raise any concern about their characters. Mr Carbone has known the applicant for about 20 years and Ms Jensen has known him for about three years. Both describe themselves as close friends of the applicant.
Background matters
Ms Jensen states that she met the applicant on a dating app. She says that over the years the applicant has demonstrated a great deal of kindness to her and has been protective of her. She says that was particularly so in relation to civil proceedings she brought against her ex‑partner in the District Court arising from the fact that he had physically and sexually assaulted her. She refers to other examples of the applicant being caring towards her. She says that she has made the applicant aware that she suffers trauma from her past abuse.[24]
[24] Affidavit of Laura Jensen 9 April 2020 [4.13] ‑ [4.16].
Ms Jensen makes a number of statements about Ms H, the admissibility of which at trial may be questionable. However, the respondent did not object to the material being relied upon in these proceedings. In those circumstances, I am prepared to have regard to it for the purposes of assessing the strength of the prosecution case against the applicant, as that is the primary issue to which the material is directed.
Ms Jensen states that she believes Ms H has a drug and alcohol addiction. She states she has only seen Ms H sober once in all their meetings. She states that Ms H has previously threatened her and has attempted to physically fight her, and that the applicant defused those situations. She states that she has seen Ms H scream and 'conduct herself aggressively' with the applicant.[25]
[25] Affidavit of Laura Jensen 9 April 2020 [4.24].
Significantly, Ms Jensen states that she has never seen any injuries on the face or body of Ms H. She says that during the summer months, Ms H usually wore shorts and a singlet top.
Ms Jensen also states that Ms H would talk openly about her sex life and had told her, on a number of occasions, that she 'enjoyed rough/violent sex, and bondage and discipline'.[26] The relevance of this is discussed below.
[26] Affidavit of Laura Jensen 9 April 2020 [4.26].
Mr Carbone states that he met Ms H through the accused about 10 years ago. He says that she had her own key to the applicant's home and would move around the home freely. Although it is not clear from his statement, I will assume Mr Carbone is relating his own observations on the occasions he visited the applicant. He says that when he visited the applicant, he would also talk with Ms H.
Mr Carbone also states that, during the times he visited the applicant after 17 December 2019, when Mr Carbone returned from Canberra, where he had been working for four years, Ms H would usually be in shorts and a singlet top. He states that he has never seen Ms H with any marks or injuries on her body.
Sharon Parnell states that the applicant commenced a romantic relationship with Ms H in early 2019. She says that Ms H told her the applicant had saved her from a previous abusive relationship. Although Ms Parnell does not specify when that conversation took place, it appears to be associated with what she says about the commencement of the relationship. There is no detail of how the applicant was said to have 'saved' Ms H. In any event, it is not inconsistent with events having occurred, as described by Ms H, later in 2019. On her account, irrespective of how the relationship commenced, it became an abusive one.
Sharon Parnell states that Ms H came to live with her and the applicant in August 2019, telling them she had nowhere to go as she had burnt all her bridges.
Sharon Parnell further states that the applicant's room is next to hers, separated by a wall and wardrobe. She says that the applicant and Ms H would argue on occasions, but she has never seen the applicant be aggressive towards Ms H.
Sharon Parnell goes on to say that after the applicant was charged with the 2019 offences, Ms H arrived at her residence in or about October, when the applicant was not home, and said she had nowhere to go and had burnt all her bridges. Ms Parnell said she spoke with the applicant and they both agreed to let Ms H stay, as they both felt sorry for her. That is despite the assertion by Ms Parnell that Ms H had previously caused extensive damage to Ms Parnell's home. Ms Parnell says that, in the months that followed, Ms H spent most of her time drinking alcohol and smoking cigarettes, and the applicant had to assist her financially. She says that Ms H moved out again on 27 December 2019, but turned up unannounced on the evening of 31 December 2019 heavily under the influence of drugs. She goes on to describe a police visit to her premises during which they expressed concerns that Ms H might commit suicide, and an incident in which she found Ms H asleep in the backyard and subsequently appeared to be heavily under the influence of something.
Sharon Parnell also says that, after Ms H moved back in around October 2019, she apologised to Ms Parnell for the charges that had been brought against the applicant in August 2019, and said the allegations were not true and that the applicant had never harmed her.
Incident of 12 August 2019
Sharon Parnell refers to an incident on 12 August 2019. She says that the applicant parked his car close behind Ms H's car because Ms H was 'under the influence' and the applicant was suspicious she was going to pick up illicit drugs, which he did not want her to do. Apart from the doubtful admissibility of such evidence in that form, as it may be hearsay or opinion evidence, the claim is arguably not consistent with what was recorded in the police incident report as the explanation given to the attending officers, which made no mention of such a suspicion. More importantly, Ms Parnell makes no reference to the altercation that took place outside, the fact that police attended, or her indication to the police that she would ensure there would be no further escalation of the argument.
Instead, Sharon Parnell refers to an incident later that evening when her vehicle was set alight, around 10.00 pm. Her statements about that incident are based on hearsay and speculation and otherwise irrelevant to the issues in these proceedings. I have not taken them into account.
I note that the applicant instructed Mr Hogan, in relation to the incident of 12 August 2019, that he was trying to take Ms H's car keys from her, that he came into contact with her in doing so, and that she fell to the ground, but that he was not violent towards her. For reasons I stated earlier,[27] I am not prepared to place weight on that account. However, I have noted it as indicating the applicant's case, which is relevant to comments I make later in these reasons about Ms Dewing's account.
3 February 2020
[27] See [40] above.
Turning to the evidence in the affidavits concerning the events the subject of the 2020 charges, the defence case, in general terms, is that on 3 February 2020 the applicant, Ms Jensen, Mr Carbone, Ms H and another friend, Cameron, were socialising at the applicant's home during the late afternoon and into the evening. Everyone except for Mr Carbone was drinking alcohol. Ms Jensen had been picked up and driven to the house around 4.20 pm. Cameron was picked up later by Mr Carbone and arrived at the house at about 5.30 pm. The applicant's mother was home from about 6.00 pm. Around that time, Ms H was dying Ms Jensen's hair. That is referred to by all three defence witnesses in their affidavits. Ms Jensen has attached to her second affidavit a photograph she took while her hair was being dyed by Ms H. Mr Carbone states that the hair dying was occurring when he arrived with Cameron at about 5.30 pm.
The defence case, based on the statements of Mr Carbone, Sharon Parnell and Ms Jensen, is that the applicant, Ms H and their friends left the house at about 8.30 pm or 9.00 pm. According to Mr Carbone and Ms Jensen, the latter was dropped off at her home. Mr Carbone states that the rest of the group then went to dinner and later to Quinns Beach, where they stayed until about 3.00 am on 4 February 2020. They then returned to the applicant's home in the early hours of the morning. Ms Parnell was in bed when the applicant and Ms H returned and went into the applicant's room. She believes that they returned around 3.00 am, as she heard them go into the bedroom. She says she did not hear any arguments.[28] Mr Carbone states that when they arrived at the house, the applicant rushed to the toilet and he (Mr Carbone) and Ms H took the beach towels to the back of the house. He states that Ms H gave him a hug and said it was a great night. Mr Carbone states he then left with Cameron and that, around 3.45 am, he sent the applicant a text message to say it had been an amazing night. He states that the applicant and Ms H were interacting 'fine with each other the entire time [the group was] together' and they looked like 'a normal affectionate couple'.[29]
[28] Affidavit of Sharon Parnell [4.56].
[29] Affidavit of Frank Carbone [4.33].
The defence case is that the applicant and Ms H were on good terms and no injuries were visible on Ms H that evening or the next day.
4 February 2020
Mr Carbone states that he visited the applicant's home on 4 and 5 February 2020 and that he saw Ms H on both occasions. He says that he did not see any marks or injuries on her body or face on either day. The observations on 4 February 2020 appear to have been fleeting, as he walked past the applicant's bedroom. However, on 5 February 2020, he says Ms H was lying on the couch, wearing shorts and a singlet, and that he spoke with her briefly.
Sharon Parnell states that, on 4 February 2020, she went to work at 6.30 am. She says she next saw the applicant and Ms H at 6.00 pm and did not notice any marks on Ms H's face or body. She says Ms H was wearing shorts and a singlet top, which she says is what Ms H usually wore in summer.
5 February 2020
Sharon Parnell states that on 5 February 2020 she again went to work in the morning and saw the applicant and Ms H around 6.00 pm. She says they both seemed fine. She says she did not see any marks or injuries on Ms H.
6 February 2020
Sharon Parnell states that on 6 February 2020 she again went to work in the morning. She says that when she returned home the applicant told her Ms H had left.
Finally, Ms Parnell states that she cleaned the applicant's bedroom on 15 February 2020 and did not see any broken vase or glass. She says she has never seen a vase in the applicant's room.
The applicant's personal circumstances
Before turning to the applicant's arguments in respect of exceptional reasons, I will outline the evidence in respect of his personal circumstances.
The applicant is 31 years of age. He completed year 10 of high school and subsequently completed an apprenticeship as a locksmith. He is qualified as a master locksmith but worked in the information technology sector prior to being remanded in custody.[30]
[30] Affidavit of Sharon Parnell [4.9].
The applicant's parents separated in 1991. Sharon Parnell states that the rest of the family has had very little to do with the applicant's father since that time.[31]
[31] Affidavit of Sharon Parnell [4.10].
The applicant lived with his mother, in her home, before being remanded in custody. Sharon Parnell states that she and the applicant have a very close relationship and saw each other almost every day prior to his arrest.[32]
[32] Affidavit of Sharon Parnell [4.13].
The applicant's mother is 63 years of age and works as a business support officer for local government. The applicant has two siblings, a brother who is 40 years old and a sister who is 35 years old, who resides in Queensland. Both have respectable antecedents.
In the event that the applicant is released on bail, it is proposed that he reside again with his mother.
Whether there are exceptional reasons
Strength of the prosecution case
(a) Applicant's submissions - overview
The applicant submits that the prosecution's case against him on all of the charges, other than the contravention of the protective bail condition, is so weak as to constitute an exceptional reason why he should not be kept in custody. Alternatively, he submits that the weak nature of the case and his inability to properly prepare his case combine to constitute an exceptional reason.
The case is said to be weak for a number of reasons.
First, the applicant submits that the case depends critically on the evidence of Ms H. It is her evidence alone that can establish it was the applicant who caused the injuries depicted in the photographs taken by the police in August 2019 and February 2020, and the court would have to be satisfied beyond reasonable doubt by that evidence before it could find the applicant guilty of the offences of violence and the threat. The applicant submits that the prosecution case is weak in respect of those charges, because Ms H has been shown to be an untruthful and unreliable witness.
Ms H's lack of credibility and unreliability is said to be demonstrated by the fact that she gave a statement on 21 September 2019 in which she sought to withdraw her complaint made on 26 August 2019 and said the contents of her earlier statement were not true. In her statement of 21 September 2019, she also claimed that she had made it clear on 26 August 2019 that she did not wish to make a statement, but was held against her will and made the statement because she felt she had no choice. Those claims are said to demonstrate a preparedness to lie, knowing that, if the statement were tendered in evidence, she would be guilty of a crime if she knowingly included anything she knew to be false, as stated in the declaration at the end of the statement.
Secondly, the applicant submits that Ms H has been shown to be untruthful by what she said to the police prosecutor during proofing about whether her injuries could have been caused by her involvement in acts of bondage.
Thirdly, the applicant submits that significant aspects of Ms H's account of the events of January and February 2020 are inconsistent with the accounts given by Mr Carbone, Sharon Parnell and Ms Jensen in their affidavits, as outlined above. The applicant submits that, overall, her allegations that the applicant was violent to her and caused her injuries are implausible, given the observations of three defence witnesses as set out in their affidavits.
Finally, the applicant submits that there is a possible explanation for Ms H's injuries depicted in the photographs of 6 February 2020, which is consistent with the defence case, which he submits is supported by the affidavits of the three witnesses, that Ms H did not have any injuries while she was living at the applicant's home. The explanation advanced by the applicant is that Ms H engaged in violent sexual activity with another man after she left the applicant's home on or about 5 February 2020 and before she went to the police on 6 February 2020.
The applicant relies on the evidence of Ms Jensen that Ms H had told her she 'enjoyed rough/violent sex and bondage and discipline'.[33] The applicant also relies on the five still images taken from the video recording made by him on 17 October 2019. On the assumption that the woman depicted in the images is Ms H, they depict her engaging in activities that can appropriately be described as sexual bondage.
[33] Affidavit of Laura Jensen 9 April 2020 [4.26].
I will deal with each of the defence propositions in the order I have outlined them.
(b) Submission that Ms H is not credible because of statement of 21 September 2019
The question of what weight is to be placed on Ms H's statement of 21 September 2019, and what impact it has on Ms H's credibility, will be a matter for the trial magistrate. Ms H has provided an explanation. If her explanation is believed, she was coerced into making the statement and withdrawing her complaint by the applicant in circumstances in which he had a psychological hold over Ms H. In those circumstances, the applicant's proposition that Ms H lacks credibility because she was prepared to lie, notwithstanding the declaration of truth at the end of the statement, loses potency. As the respondent submitted, the phenomenon of victims of domestic violence being captive in abusive relationships, to which they continue to return, is well-known to the courts, as is the fact that such victims will sometimes withdraw their complaints of violence against their partners.[34] There are various reasons why that might happen, including financial or emotional dependency, or feelings of loyalty, notwithstanding the violence. The existence of the phenomenon does not mean that Ms H's explanation should be accepted, but nor is it the case that her explanation lacks plausibility so as to render the prosecution case a weak one.
(c) Submission that the complainant lacks credibility because she lied about her participation in acts of bondage
[34] See the comments of Hamill J in Rakielbakhour v Director of Public Prosecutions [2020] NSWSC 323 (Rakielbakhour) [7] ‑ [8].
Ms H was interviewed by Sgt Gregg, the police prosecutor who was to conduct the trial in the Magistrates Court in March 2020, on two occasions. On both occasions the interview was by telephone. The first occasion was on 25 February 2020 and was directed at the fact that she had made the statement on 21 September 2019. Ms H gave her explanation for making that statement and confirmed that what she had said in her statement of 26 August 2019 was true.
Sgt Gregg again spoke with Ms H on 20 March 2020. On that day the Magistrates Court had granted an application that Ms H be declared a special witness and permitting her to give evidence from a remote room. In the course of argument in the application, the applicant's counsel had informed the court of some of the propositions that would be put to Ms H during the trial. Sgt Gregg asked Ms H if he could the propositions to her, and she agreed. The following exchange was then recorded by Sgt Gregg in the proofing notes:[35]
MG: Well, the lawyer, on the trial date, will suggest to you that you got those injuries some other way.
NH: I got them from him hitting me.
MG: I know, but what would you say if it was put to you that you were into bondage and you injured yourself.
NH: Are you kidding me, is that what he is saying
MG: They will say that your medical records will say or support that
NH: Let them get the records they will only make things worse for him
MG: But did that happen
NH: No! I can't stand pain, I struggle to even have blood tests done
[35] 'MG' refers to Sgt Gregg and 'NH' refers to Ms H. The syntax is as it appears in the notes.
The applicant submits that the import of Ms H's answers is that she did not engage in bondage, because she cannot stand pain. The applicant submits that Ms H was dishonest in her answers, as there is evidence of her engaging in bondage activities, being the images from the video he made with her and the evidence of Ms Jensen as to what Ms H told her about her sexual interests.
The respondent submits that, on a proper construction of Ms H's answers, she did not deny engaging in bondage. Rather, given the context of the questions that were asked by Sgt Gregg, it is reasonable to construe her answers as a denial that she had engaged in bondage activities that had resulted in the injuries with which she had presented to police.
The question of what meaning should be given to Ms H's answers to Sgt Gregg, if they are put to her in cross‑examination, will be a matter for the trial magistrate to determine. However, in my opinion, it is arguable that her answers bear the meaning advanced by the respondent, because the questions put to her were concerned with the possible cause of her injuries, not her interest in bondage. It is obvious from the wording of Sgt Gregg's first question that it included a compound proposition, namely that Ms H was 'into' bondage and that she injured herself (by that means). Arguably, her answer that it did not happen and that she cannot stand pain is consistent with a circumstance in which, while she was 'into' bondage, she was not involved in activity that caused pain, bearing in mind that the effect of the proposition being put to her was that she was prepared to endure pain that would result in the injuries she suffered.
In my opinion, for the purposes of assessing the applicant's argument in these proceedings that the prosecution case is weak, Ms H's answers in the proofing notes do not provide unequivocal support for the proposition that she is not a credible witness.
(d) Submission that the complainant's account of the incidents in February 2020 is inconsistent with the evidence of defence witnesses
The applicant submits that the evidence of Mr Carbone, Sharon Parnell and Ms Jensen that they did not see any injuries on Ms H in January or February 2020, before she left the applicant's home, combined with their evidence that they never saw the applicant being violent towards Ms H, undermines Ms H's credibility to such an extent that her account constitutes a very weak foundation for the charges of aggravated AOBH and aggravated assault alleged to have been committed a few days after Australia Day and on or about 4 February 2020 respectively. The applicant submits that if her credibility and reliability are lacking in respect of those matters, then her evidence in respect of the 2019 charges must also be treated with caution so that, again, the prosecution case ought to be regarded as weak.
The applicant also submits that the timing and chronology of events described by Ms H in respect of the second alleged incident in the early hours of 4 February 2020 is not possible when one has regard to the description of events in the affidavits of Mr Carbone, Sharon Parnell and Ms Jensen.
The applicant submits that Ms H's account suggests that she and the applicant were at the beach during the day, which is inconsistent with the evidence of Mr Carbone and Ms Jensen that they socialised with the couple during the late afternoon. Further, the applicant relies on the fact that Ms H makes no mention of being with friends during the day or when she and the applicant went to the beach.
The applicant also submits that Ms H's account is inconsistent with the evidence of Mr Carbone and Sharon Parnell, because on her account, while she says she and the applicant got home from the beach late, it appears to have been some time before midnight, because she describes an incident occurring soon after arriving home, and a second incident occurring after she had gone to sleep and was woken by the applicant at about midnight. The evidence of the defence witnesses is that the applicant and Ms H got home from the beach around 3.00 am. Further, contrary to Ms H's statement that the applicant said he was going out with friends around midnight, and that she said she did not want to go, both of them had already been out with friends from about 9.00 pm and they did not return home until 3.00 am.
The respondent submits that the apparent inconsistencies may be due in part to Ms H being inaccurate in her estimation of time, and that, in the overall context of the case, it is not something that is particularly significant. The respondent points to the fact that Ms H mentions that the applicant told her people would be coming over. However, it must be acknowledged that her account is quite different to that of Mr Carbone, Ms Jensen and Sharon Parnell. On her account, the reference to friends coming over occurred after she and the applicant had returned from the beach, and she did not go out of her bedroom because she was not able to conceal the swelling to her face. Nevertheless, the respondent submits that the evidence of the defence witnesses does not preclude a period of opportunity for the applicant to have committed the 2020 offences between 3 and 6 February 2020.
In my opinion, the real difficulty with the applicant's arguments is that none of the evidence has been tested.
As the respondent submitted, on the face of it, there are objective aspects of the prosecution case that tend to lend weight to Ms H's account, namely the photographs of Ms H's injuries, both in August 2019 and February 2020, the medical report in respect of her injuries in February 2020, and the noose and smashed mobile telephone found and photographed by the police in August 2019. As the respondent submitted, the photographs of the complainant's injuries are capable of corroborating Ms H's account, both in 2019 and 2020, because they were taken in close proximity to the time of the alleged incidents. In relation to the alleged incident of 24 August 2019, police were called at Ms H's instigation after she ran away from the applicant's home on 26 August 2019,[36] a relatively short period of time after the incident, and the photographs showing her injuries, including the black eye, were taken soon after.
[36] Statement of Ms H dated 26 August 2019 [51].
Arguably, Ms H's complaint in each case was made at a relatively early stage and might be regarded as buttressing her credibility, although that will be for the trial magistrate to determine. In respect of the 2020 complaint, it will be necessary to consider Ms H's statement that, although she had complained to her cousin and aunt, she did not make a complaint to police until after she discovered that money had been withdrawn from her account by the applicant, although she has explained why she did not go to the police earlier.
Further, as the respondent submitted, Ms Dewing's statement provides evidence of prior violence inflicted by the applicant upon Ms H at a time proximate to the 2019 alleged offences, which speaks to the nature of the relationship and the applicant's preparedness to use violence, including kicking Ms H, when he was angry with her. The respondent submits that Ms Dewing is an independent witness. There was no suggestion in the hearing that she is biased. In her statement she expresses her discomfort in giving the statement, because she has been a long term neighbour of Sharon Parnell, but she says she has a strong commitment to reporting domestic violence. Ms Dewing gave her statement after the police approached her for a statement. The respondent submits that another reason to regard Ms Dewing's statement as reliable is that her actions in making the second call to police on the evening in question were consistent with concern about the level of violence she was observing. They are not consistent with the applicant's case that he was simply trying to take Ms H's car keys from her and she fell to the ground.
The evidence of the defence witnesses has not been tested. While there is no suggestion in the materials that the character of Mr Carbone, Sharon Parnell or Ms Jensen could be questioned, the respondent properly identified matters in their affidavits that may be regarded as demonstrating bias in favour of the applicant and against Ms H. For instance, each has vouched for the applicant's character and reputation, referring to his high moral and ethical standards, and has expressed a belief that the applicant would not be capable of violent behaviour towards Ms H or any woman. Ms Dewing's evidence, if accepted, would tend to indicate that the assessment of each of the defence witnesses of the applicant's character is inaccurate in an important respect and based on incomplete information. Further, it is not apparent that the defence witnesses are aware of the applicant's participation in the bondage activities with Ms H depicted in the images said to be from a video made in October 2019, in which Ms H was held by the throat, bound with rope, gagged with a belt and treated in a demeaning way, as I will explain below. If they are not aware, their assessments of character must be regarded as provisional. If they are aware, a court might well conclude that their assessments are of little value and disclose bias, as submitted by the respondent.
Significantly, the images from the video depict writing on Ms H's torso, front and back, in the nature of obscene and demeaning phrases. The writing appears to have been made with a marker pen. It is obvious from its size and location that Ms H could not have made the writing on her back. The writing consists of derogatory descriptions, including the words 'slut' and 'whore'. Those words resonate with some of the disparaging comments which, according to Ms H, the applicant would make to demean her. The phrase on her back could properly be described as misogynistic. The images are consistent with Ms H being treated in a demeaning manner. Irrespective of whether she consented to the activity, the images may be regarded as speaking to the applicant's attitude towards Ms H. That will be a matter for the trial magistrate to assess, but in the context of the present proceedings, it is a factor militating against the argument that the prosecution case is weak; further, it is relevant to the court's consideration of the risk the applicant poses to Ms H's safety.
The respondent points to the fact that Ms H left the applicant's home on 6 February 2020, while the applicant was at work, and met with her cousin. Her aunt, Ms JH, was with her from about 1.30 pm, and appears to have remained with Ms H until she attended the medical centre, where her injuries were observed and recorded. It appears the photographs were taken by police soon after. The respondent submits that, on the materials before the court, there was no opportunity for Ms H to have suffered the injuries after she left the applicant's home. Further, the respondent submits that the number and appearance of the bruises to Ms H's body, including the bruises to her face, and the laceration to her chest, are consistent with having been caused in the days before she left the applicant's home, as she alleges. The respondent submits that the evidence of Mr Carbone and Sharon Parnell that they did not observe injuries to Ms H on 4 or 5 February 2020 is either unreliable or explained, contrary to their evidence, on the basis that she was wearing clothing that covered the bruising, particularly the large bruises to her left leg. In my opinion, those conclusions are reasonably open, having regard to all of the evidence in the materials before this court. Whether those conclusions are drawn at trial will be a matter for the Magistrates Court, having regard to all of the evidence presented in that court.
It was appropriate that the bail hearing proceeded on the basis of written materials only, being the statements of witnesses and other materials in the prosecution brief, and the affidavits, with attachments, of the defence witnesses. It would not have been appropriate to require any of the witnesses to be cross‑examined on matters going to the issues to be determined at trial. It is not the role of the court at this stage to determine issues of credibility or reliability of witnesses whose evidence will be contested at trial. However, it has been necessary to assess aspects of the evidence both in the prosecution brief and in the affidavits of the defence witnesses to deal with the applicant's submissions in respect of the first ground on which he relies to establish exceptional reasons. On that assessment, while the evidence of the defence witnesses, if accepted, may give rise to a reasonable doubt about the 2020 charges, I do not accept the applicant's submission that the prosecution case is so weak, having regard to the evidence of those witnesses, as to give rise to an exceptional reason why he should not be kept in custody.
(e) Submission that the injuries can be explained by the complainant engaging in bondage activities
As I noted earlier, the applicant's argument that the prosecution case is weak also relies on the proposition that there is a reasonable explanation for her injuries consistent with the applicant's innocence, namely that she suffered them as a result of engaging in rough or violent sex with someone else. In respect of the injuries depicted in the photographs of 6 February 2020, the applicant's argument is that she engaged in such activity after she left the applicant's home. The applicant relies on the still images taken from the video recording which he says was made on 17 October 2019, which I have described earlier, and the evidence of Ms Jensen concerning statements made by Ms H that she enjoyed 'rough/violent sex and bondage and discipline'.
Accepting that Ms H had previously engaged in sexual bondage with the applicant, the applicant's theory that she suffered injuries as a result of engaging in sexual bondage with another person is nothing more than speculation, without any reasonable basis in the materials tendered in the bail hearing. Moreover, there is an inherent flaw in the theory. Although Ms Jensen states in her affidavit that Ms H said she enjoyed rough or violent sex, the only evidence adduced by the applicant of what such activity might have entailed are the five still images from the October 2019 video. However, the applicant maintains that the activities depicted in the images did not result in injuries to her; his case is that he never caused any injuries to Ms H.[37]
[37] ts 23, 22 April 2020.
There are no apparent injuries to Ms H in the images. Nor is it apparent that any of the activities depicted would result in injuries to Ms H, in particular, the laceration and bruising apparent in the photographs of 6 February 2020. The images depict scenes of domination (apparently by the applicant, as the images were tendered on the basis that he had taken the video) and bondage, involving the use of a rope binding Ms H from her neck to her groin and across her torso, and the use of a belt pulled tightly as a gag and collar. In one of the images where Ms H is gagged, there is a hand around her throat. Again, in light of the basis on which the images have been tendered, it must be assumed that it is the applicant who has his hand in a choking position. It is not readily apparent that Ms H is in pain in any of the images, although it would be reasonable to expect that the gag and the hand around her throat would cause discomfort.
Having regard to all of those circumstances, the images from the video could have no probative value in advancing the proposition that Ms H may have engaged consensually in violent sexual activity of a kind that could have resulted in the injuries with which she presented to the medical centre and subsequently to the police on 6 February 2020. Those injuries are consistent with numerous blows being inflicted on Ms H.
Impact of COVID‑19
At the time this application for bail was commenced, the community and the criminal justice system were affected by COVID‑19, the disease declared by the World Health Organisation to be a pandemic, which has been caused by the worldwide spread of a novel coronavirus. As Lasry J put it in Re Broes,[38] 'the entire community has been overtaken by the eventuality of COVID‑19'. At the time of writing these reasons, the Australian Government Department of Health website showed that there had been 6,783 confirmed cases of people infected with the virus and 95 deaths from COVID-19 nationwide since 22 January 2020. In Western Australia, the figures were 551 (523 of whom have recovered) and 9 respectively in that period.
[38] Re Broes [2020] VSC 128 [35].
Dramatic steps were taken by state and federal governments, working collaboratively, in an endeavour to prevent or slow the spread of the virus. Those steps have involved significant restrictions upon, and in some cases prohibition of, business and social interactions, by declarations under legislation such as the Emergency Management Act 2005 (WA) and the Public Health Act 2016 (WA). In addition, the heads of jurisdiction for the courts in this state have issued notices placing restrictions upon the business of the courts. The greatest impact in the criminal jurisdiction has been in the superior courts, because of the postponement of jury trials until such time as it is considered safe for large numbers of people to congregate for jury service and participate in such trials. The congregation of people for that purpose obviously creates a significant risk of the transmission of the virus from person to person.
The result of the totality of the restrictions and prohibitions within the community has been that, after an initial exponential rise in cases (referred to as 'the curve'), there has been a 'flattening of the curve' in relation to the spread of the virus. As a consequence, there has been an easing of restrictions, although there continue to be restrictions in the business of the courts.
The applicant referred to Re Broes and Rakielbakhour[39] as authority for the proposition that the impact of COVID‑19 may be a relevant consideration in a bail application, and that one of the factors to be taken into account is the potential for a lockdown in a prison if a case is detected within the prison. Such a lockdown may have personal adverse effects on a prisoner or may affect their ability to prepare for trial, and those matters should be taken into account in determining whether there are exceptional reasons why an accused should not be kept in custody. So much may be accepted. Re Broes was a case in which the accused was required to establish exceptional reasons under a similar statutory provision to cl 3A, as she was alleged to have committed a drug trafficking offence while on bail for similar offending.
[39] See footnote 34 above.
However, each case must be determined on the facts particular to the case. In both Re Broes and Rakielbakhour bail was granted. It is not necessary to examine either case in any detail. It is sufficient to note the following differences.
The first significant difference is that since the decisions in those cases (on 23 and 31 March 2020), the number of new cases of COVID‑19 being recorded on a daily basis has reduced very significantly to the point where it is considered that the curve has been flattened. In Western Australia, there had been two new cases reported in the previous seven days, and no new reported cases in the previous four days. As noted earlier, governments had commenced to ease restrictions, although authorities continue to advise that there is a need for caution. In contrast, Hamill J noted in Rakielbakhour that, at the time that case was being decided, there had been an 'exponential rise in the number of cases being reported in and around Australia'.[40]
[40] Rakielbakhour [14(8)].
In Re Broes, the accused had been in custody for four months and it was expected there would be a further significant delay in the matter proceeding to trial, in part because of the impact of COVID‑19. Further, there was a likelihood that, if convicted, the accused would be sentenced to a custodial sentence that did not exceed the period she would have spent in custody on remand.[41] In contrast, the applicant's charges are listed to proceed to trial in the Magistrates Court on 10 June 2020, less than three months after he was charged with the most recent offences.
[41] Re Broes [24].
In Rakielbakhour, which was also a case of alleged domestic violence, but was not an exceptional reasons case, the complainant had indicated that she did not wish to give evidence in the case, which was regarded by the court to be 'a significant problem for the prosecution'.[42] Further, she had given a statement that exculpated the accused and explained her injuries. Even though there was other evidence that could establish a prima facie case, the strength of the case was considered to be questionable.[43] Further, against that background, the applicant in that case had tendered 'a body of evidence concerning the [then] current "novel corona" or "COVID‑19" pandemic'.[44] The evidence then set out by Hamill J reveals a great deal of information from various sources concerning the impact of the pandemic generally and more specifically in respect of the courts and prisons. For instance, there was specific evidence that inmates in NSW prisons were, at that time, subject to more onerous conditions of incarceration.[45]
[42] Rakielbakhour [7].
[43] Rakielbakhour [9].
[44] Rakielbakhour [12].
[45] Rakielbakhour [14(3)].
The applicant has not produced any evidence in respect of the impact of COVID‑19 on prisons in Western Australia, other than an entry on the Department of Health of Western Australia website listing 'Correctional Facilities' among the category of 'High Risk Settings', and a notice on the Department of Justice website that prison social visits to the prison where the applicant is in custody have been suspended for the time being. There is no evidence of any case of COVID‑19 infection being detected in a prison. Moreover, there is no evidence of the impact, if any, on the applicant of the fact that prison is regarded as a high risk setting; nor that the applicant has any health issues or problems that increase the risk of serious illness if he were to contract COVID‑19.
The applicant relied on the comments of Hamill J in Rakielbakhour, referring to a statement of the NSW Health Department on 20 March 2020, that 'gaols and similar institutions are particularly susceptible to the rapid spread of the COVID‑19 virus', and that it is 'difficult, if not impossible, to enforce or facilitate the kinds of restrictions currently being encouraged among people in the community',[46] which would include social distancing. Those comments are consistent with the categorisation of correctional facilities in this state as 'high risk settings'. It is in that context that the prospect of lockdowns, by which prisoners would be confined to their cells, has been raised. However, in the absence of any identified case of infection in a prison, such an eventuality is no more than a possibility. In the meantime, measures have been taken to prevent an infection in prison by the suspension of social visits. It was accepted on behalf of the applicant at the hearing that inmates can still make social telephone calls.
[46] Rakielbakhour [14(1)].
Importantly, there is no suggestion that the applicant is prevented from providing instructions to his legal representatives. It is apparent from Mr Hogan's affidavit that he has been able to take instructions from the applicant by telephone and by Skype calls (which are treated as official visits). A Skype call was the means by which Mr Hogan read the contents of his affidavit to the applicant and obtained his confirmation that it was correct.
I am not satisfied that the impact of COVID‑19 constitutes an exceptional reason why the applicant should not be kept in custody in the circumstances of this case.
Inability to prepare for trial
The applicant submits that the fact the applicant has been in custody has made it more difficult for him and his lawyers to prepare for trial. Counsel informed me that, apart from the video from which the five images were taken, there are a number of other exhibits, in the nature of photographs and video, that the applicant intends to use at his trial in respect of the events of January and February 2020, that he cannot access from prison, and which cannot be accessed by any other person. The applicant has filed no evidence in support of that proposition. When I asked counsel why the materials could not be accessed by other persons, including the applicant's lawyers, he was not able to provide an explanation, other than the applicant had instructed him to that effect and a speculative suggestion that the applicant may not want his mother to see certain materials. That is an unsatisfactory basis for the submission. As I indicated during the hearing, the applicant can provide instructions to his lawyers to enable them to access any such materials. If it transpires that they cannot access the materials after receiving such instructions, there may be a basis for renewing the bail application on the basis of changed circumstances. However, at this stage the applicant's circumstances are no different to those of any accused who is remanded in custody. They are not exceptional.
That observation applies also to the submission that the applicant is not able to approach other potential defence witnesses who could provide support for his account. That is difficult to accept, given that the applicant was able to instruct his lawyers adequately for them to obtain detailed affidavits from Mr Carbone, Sharon Parnell and Ms Jensen, as well as enabling them to take still images from the video recording from October 2019.
It was submitted on behalf of the applicant that the fact telephone calls made by him are recorded on the prison monitoring system (about which all prisoners receive a warning at the start of a call) creates an added complication for his ability to communicate with potential witnesses about the evidence they might be able to give, or to give them notice that his lawyers may approach them for a statement. Again, it is difficult to see how this constitutes a factor which, in combination with others, would establish exceptional reasons, given that he has been able to identify relevant witnesses and has enabled his lawyers to obtain affidavits from them so far.
The applicant submitted that the information in the affidavits deals largely with the events of 3 to 6 February 2020, and that, in respect of the 2019 charges, he needs to '[trace] back through his records trying to work out where he was, who he was with back in August 2019'.[47] That is curious, because the trial of those charges was listed to take place on 27 March 2020, and one would have expected the applicant to have obtained any information about his activities in August 2019, and to have instructed his lawyers about any relevant material or potential witnesses, well before the trial date. There is no explanation from the applicant as to why he did not. Although Ms H had given a statement in September 2019 seeking to withdraw her complaint of 26 August 2019, there is no suggestion that the police had indicated they would not proceed with the trial on 27 March 2020, before the intervening events of 23 March 2020, when the applicant was charged with the 2020 offences.
[47] ts 25, 22 April 2020.
Conclusion as to exceptional reasons
For the reasons I have given, I am not satisfied that any of the grounds on which the applicant relies amounts to an exceptional reason why he should not be kept in custody. In some cases, while each of a number of grounds may not be sufficient individually to constitute exceptional reasons, the cumulative effect of the issues raised by the grounds may cross the threshold of what is exceptional. In the present case I am not satisfied that the combined effect of the grounds gives rise to exceptional reasons. The deficiency of each ground is not overcome by accumulation.
It follows that the application for bail must be refused.
However, even if exceptional reasons had been established, there are factors that militate against a grant of bail, having regard to cl 1 and cl 3 of sch 1 pt C of the Act.
Whether it would otherwise be proper to grant bail
It is correct to say, as the applicant submitted, that respondent has not suggested the applicant would fail to appear for his trial if he is not kept in custody. The indications are to the contrary, that he wishes to have his trial and present the evidence he has collated. The issue is the possibility or risk that the applicant would commit an offence, endanger Ms H or interfere with her as a witness. It is for that reason, as I noted earlier, that the circumstances which bring this application within the provisions of cl 3A are also relevant to a number of the factors to be considered under cl 1 and cl 3.
The possibility that the applicant will commit a further offence, endanger the safety of Ms H or interfere with her as a witness must be assessed having regard to his previous conduct while on bail. Although the applicant does not have a criminal record of any significance and his mother and close friends vouch for his character, his preparedness to ignore the protective condition of his bail in respect of the 2019 charges gives rise to a real concern as to whether he would comply with conditions of bail now. That is so, notwithstanding the fact that Ms H returned to live with him willingly. On her account, the applicant contacted her the very day he was released on bail with the protective bail condition. Although nothing came of that contact, and Ms H chose to return to the applicant's home, what followed, according to her account, was that the applicant again sought to control her.
In particular, on Ms H's account, the applicant procured her to make a false statement to the police, withdrawing her complaint and alleging impropriety on the part of the officers who had taken her statement on 26 August 2019. There is prima facie evidence that Ms H then suffered injuries while residing with the applicant for a further period of time. The injuries with which she presented on 6 February 2020 were consistent with the description she has given of the alleged assaults upon her by the applicant. Although Ms H's evidence will be contested at trial, it gives rise at this stage to the real possibility that, if the applicant is not kept in custody, he would endeavour to contact Ms H and have her withdraw her complaint, and could be violent towards her, putting her safety at risk.
I accept that the applicant's circumstances on this occasion are different from when he was granted bail in respect of the 2019 charges. He has now spent approximately 40 days in prison and is aware of the consequences of failing to comply with a protective bail condition, and of being arrested for a serious offence while already on bail for such an offence. Further, there is no evidence that the applicant has current contact details for Ms H. He has told his counsel he does not want to have any contact with Ms H. However, one could safely assume that was his expressed intention after he was charged with the 2019 offences. In addition, the indorsement for 25 September 2019 on the prosecution notice for the 2019 charges records that the applicant was warned about the consequences of breaching the protective bail condition. Yet, he subsequently ignored it. On the other hand, the applicant says he is now in another relationship.
In any event, notwithstanding the changed circumstances, the risk to Ms H remains, given the previous history, and the potential harm to Ms H in the event that the applicant were to assault her could be significant.
The applicant submits that the conditions that have been proposed would sufficiently mitigate the risk as to make it appropriate to grant bail. Those conditions include a personal undertaking, a surety of $10,000 from his mother, a residential condition requiring him to live with his mother, a curfew, the surrender of his passport, a prohibition on the applicant approaching any point of domestic or international departure, and a condition preventing the applicant from contacting Ms H by any means.
Most of the conditions are directed to securing the applicant's attendance at court. The only condition that is specifically directed at mitigating the risk of offending, endangering Ms H or interfering with her as a witness is the 'no contact' condition.
The residential and curfew conditions do not provide any protective measure for Ms H, as the residence is the place where the offending is alleged to have occurred, and the offending is alleged to have occurred at various times of the day, including the early hours of the morning. Further, the surety and owner of the home, the applicant's mother, proved not to be a protective factor previously, if Ms H's evidence is accepted. Significantly, she did not ensure that the applicant was compliant with his protective bail condition.
It may be accepted that, if the applicant complied with his conditions, Ms H would only be at risk if she attended the applicant's home. I was told by the applicant's counsel that, in the Magistrates Court, the prosecutor informed the magistrate that Ms H did not object to the granting of bail, but was concerned for her safety. That might suggest she would choose to stay away from the applicant. However, her resolve in that regard previously was short‑lived, which may be a function of the emotional frailty to which I referred earlier.
On balance, having regard to the principles in YSN, I am not satisfied that the conditions that have been proposed would sufficiently reduce the risk to which I have referred, so that the continued detention of the applicant on remand would no longer be justified.
Given the conclusion I have reached in relation to the absence of exceptional reasons, I do not propose to explore further whether there are other conditions that could be reasonably imposed which would sufficiently reduce the risk, so that bail could be properly granted.
Conclusion
For the reasons I have given, the application for bail is refused.
Addendum
On 5 May 2020 I refused an application for bail by Callum Mathew Anthony Parnell (the applicant), which had been filed on 6 April 2020, in respect of seven charges that are pending in the Magistrates Court in Joondalup. I published reasons to the parties on that day.
At [24] ‑ [25] of those reasons, I considered the application of cl 3B of sch 1 pt C of the Bail Act 1982 (WA), which requires the court to give a person protected by a protective bail condition a reasonable opportunity to give evidence relating to the protective condition, when an offence for which bail is sought includes a breach of such a condition. At [25], I explained why it was not necessary in the circumstances to ascertain the complainant's attitude. Nevertheless, I noted:
… in the absence of transcript of the proceedings in the Magistrates Court, I am prepared to rely on information from Mr Nigam, counsel for the applicant, that the prosecutor in that court told the magistrate that, while Ms H did not oppose bail being granted, she had concerns for her safety or welfare. Assuming that, if she were to give evidence in these proceedings, it would be to that effect, it would not affect the outcome, given the conclusions I have reached on the materials adduced at the hearing.
Mr Nigam subsequently sent a letter to my chambers on 8 May 2020 to inform the court that he has now received the transcript of proceedings on 23 March 2020 in the Joondalup Magistrates Court, and that it appears he inadvertently misled the court in the bail hearing before me on 22 April 2020, in that he did not accurately represent what the prosecutor said to the magistrate on 23 March 2020.
It appears from page 6 of the transcript of the Magistrates Court proceedings, that the prosecutor advised the court as follows:
… Mr Parnell should have been arrested in September and he would have been subject to the schedule 2 then. He has been at large since then. The complainant we've ultimately been able to place in a refuge. She's in a refuge now. She's not in any danger at this point in time. I have spoke (sic) to her, and so far as clause 3B is concerned I've definitely gleaned her thoughts on bail. Her comments to me about whether or not Mr Parnell should be subject to bail are half disturbing; she wants to profess the fact that she still loves him, and the second half is that she's genuinely terrified that he will kill her. The trial for this matter is set for Friday, so that's the position we're in.
It must be noted that the enquiry under cl 3B is not whether the protected person opposes or does not oppose bail, which is a matter for the prosecutor, not the complainant; rather, it concerns potential evidence the protected person may wish to give about the protective condition. Nevertheless, it is apparent from the transcript, contrary to Mr Nigam's recollection at the bail hearing, that the complainant did not indicate that she did not oppose bail. The transcript shows elsewhere that Mr Nigam had been under the impression that the application for bail would not be opposed by the prosecutor, but that was not a basis for attributing a view to the complainant. However, I accept that the error was the result of the time that had elapsed and the absence of transcript, which Mr Nigam had ordered so as to be able to provide accurate information before this court.
I accept, therefore, that Mr Nigam's error was inadvertent and he has quite properly brought the matter to the court's attention. The error did not affect the outcome of the application. However, it is appropriate to put this matter on record, so that the complainant's position is properly represented.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Secretary
9 AUGUST 2022
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