PJE v The State of Western Australia
[2016] WASC 66
•1 MARCH 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PJE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASC 66
CORAM: MARTINO J
HEARD: 1 MARCH 2016
DELIVERED : 1 MARCH 2016
FILE NO/S: MBA 6 of 2016
BETWEEN: PJE
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail - Indecent dealing and sexual penetration charges
Legislation:
Bail Act 1982 (WA), s 14 & s 22, sch 1 pt C cl 1 & cl 3
Result:
Bail granted
Category: B
Representation:
Counsel:
Applicant: Ms A McGregor
Respondent: Ms B Coleman
Solicitors:
Applicant: Justine Fisher Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case referred to in judgment:
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99
MARTINO J: The applicant applies under s 14 of the Bail Act 1982 (WA) for bail to his appearance in the Magistrates Court at Perth on 1 April 2016. I am to exercise the discretion to grant or refuse bail having regard to the questions set out in cl 1 of pt C of sch 1 as well as any other questions which I consider to be relevant.
In considering whether the applicant may do any of the things mentioned in cl 1(a) of pt C of sch 1 I am to have regard to the matters set out in cl 3 of pt C of sch 1, namely the nature and seriousness of the offences with which the applicant has been charged and the probable method of dealing with the applicant for them, the character, previous convictions, antecedents, associations, home environment, background, place of residence and financial position of the applicant, the history of previous grants of bail to the applicant and the strength of the evidence against the applicant, as well as to any other matters which I consider relevant.
The applicant has been in custody since 24 September 2015. He applied for bail in the Magistrates Court on 25 September 2015 on charges he then faced. The Magistrate hearing the application adjourned it to 2 October 2015 to review recorded telephone calls relied upon by the prosecution in opposing bail. On 2 October 2015 the Magistrate listened to telephone conversations between the applicant and a complainant on some of the charges. Bail was refused. The applicant does not need to demonstrate that there has been error in the Magistrates Court in refusing bail. This is a fresh hearing of the application for bail, which I am required to determine in accordance with the provisions of the Bail Act.
In Milenkovski v The State of Western Australia,[1] McLure P said that the Bail Act does not place any legal onus on any party to a bail application. However, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
[1] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [41] (McLure P).
On 24 September 2015 the applicant was charged with 19 sexual offences. On 24 November 2015 the applicant was charged with a further five charges. The charges the applicant faces are ten charges of indecently dealing with a child under the age of 14 years, seven charges of sexual penetration of a person over the age of 18 years who was to his knowledge a lineal relative, four charges of carnal knowledge of a female known to be his daughter, two charges of indecent assault and a charge of procuring a child aged between 13 and 16 to engage in sexual behaviour.
There are three complainants, two of whom are the applicant's daughters.
Many of the charges are allegations of offending many years ago. However some are more current. One of the charges is a charge that on 6 September 2015the applicant sexually penetrated a person over the age of 18 years who was to his knowledge a lineal relative. The prosecution case is that the applicant commenced committing sexual offences against his daughters when they were very young and that he has continued to engage in sexual activity with them over three decades. The State case is that the applicant has a manipulative relationship particularly with one of the complainants who is his daughter and with his wife.
The applicant is 58 years old. In 1996 the applicant was charged with indecently dealing with one of his daughters who is a complainant in the current charges. He pleaded guilty to that charge.
On 22 May 2014 the applicant was charged with seven sexual offences against the same complainant. Those charges were discontinued on 27 November 2014. The charges that the applicant now faces include the facts of the seven charges that were discontinued on 27 November 2014. The State's case is that he continued to offend while on bail on those charges by committing offences with the complainant who was not a complainant in the charges laid in 2014.
The applicant has no convictions for offences of breaching bail.
The only offence on his record is the offence of indecent dealing with a child under 13 for which he was convicted in 1996. The victim of that offence was one of the applicant's daughters who is one of the complainants in the current charges. When the applicant was sentenced for that offence he was sentenced on the basis that there were six or seven other occasions when he committed indecent acts against the same complainant.
The State opposes bail. The State submits that if the applicant were to be granted bail there is a significant risk that he will commit further offences and he will exert pressure on the complainants and his wife to retract their allegations.
The State has provided copies of three statements from one of the complainants who is a daughter of the applicant, one made in 1996, one made in 2014 and the third made in 2015, two statements made in 2015 from the other of the complainants who is a daughter of the applicant, a statement made in 1996 by the third complainant, two statements made in 2015 by the applicant's wife, a transcript of a telephone conversation in 2015 between the two complainants who are the applicant's daughters and photographs of the mobile telephone of the applicant's wife which the State contends show that in 2014 the applicant sent to his wife text messages admitting to engaging in sexual conduct with one of his daughters.
The State has also provided a summary of text messages obtained from telephone intercepts of the mobile telephones of the applicant and his wife. In the text messages taken from the applicant's wife's mobile phone there seems to be abusive messages sent backwards and forwards between the applicant and his wife. It is a possible interpretation of those messages that the applicant's wife has assisted the applicant in his dealings with police. In a text message taken from the applicant's mobile phone there is an instruction to delete all stored messages.
The applicant's wife made statements only after the applicant was remanded in custody. The State says that this confirms that if granted bail there is a risk that the applicant will influence her to retract her allegations. The applicant's wife has visited him while he has been remanded in custody. The State submits that this shows that there is a power imbalance between the applicant and his wife and she is not able to sever ties with him.
The State has provided a disc containing six telephone conversations to which the applicant was a party before he was remanded in custody. Four of those conversations were with one of the complainants who is a daughter of the applicant. Two of the conversations were with the applicant's wife. I have listened to those recordings. In those telephone conversations the parties discuss the fact that a police officer has contacted the complainant and wish to speak to her about allegations concerning the applicant. There is no suggestion that the complainant thought that the police officer wished to speak to her about alleged offending against her. She thought that they wished to speak to her about allegations concerning the other two complainants. In my view the telephone conversations do not, on their own, demonstrate that the applicant was exerting any undue influence over that complainant or the applicant's wife or that he was seeking to persuade them to give false statements to police. The conclusion that the applicant could manipulate the complainant and his wife could be reached on the whole of the evidence at a trial, if the complainant and the applicant's wife give evidence in accordance with their witness statements, but the intercepted telephone conversations on their own do not demonstrate such manipulation.
The State contends that in addition to the evidence that was provided to me there is evidence in the form of recorded telephone conversations between the applicant and one of the applicant's daughters who is a complainant which the State alleges relate to arranging meetings for sexual intercourse, a recording made by a listening device installed in the house of that complainant which the State says supports her evidence that the applicant had sexual intercourse with her on 6 September 2015 and recorded telephone conversations between the applicant and his wife which relate to the offending.
I have not been provided with those recordings or transcripts of the telephone conversations. I am nevertheless able to take the information into account pursuant to s 22 of the Bail Act.
Counsel for the applicant and counsel for the State have listened to the recording made by a listening device installed in the house of that complainant which the State says supports her evidence that the applicant had sexual intercourse with her on 6 September 2015. I gather that the recording is open to interpretation as to whether or not the sounds made by the applicant are consistent with him engaging in sexual activity.
The applicant has been married for 38 years. He has a trade and has been carrying on business in that trade for 19 years. He has not been able to pay personal and business accounts that have been received since he has been in custody. He has also been unable to make monthly payments due on the mortgage on the family home. That home is now for sale.
If granted bail the applicant can reside with his father.
Following the refusal of bail on 2 October 2015 the charges were adjourned to a committal mention hearing on 8 January 2016. On 8 January 2016 the prosecution applied for a 12 week adjournment to a committal disclosure date. The applicant opposed the adjournment. The adjournment was granted to the appearance on 1 April 2016.
I have been informed by counsel for the State that the State will endeavour to be ready for the charges to be committed to the District Court for trial at the next appearance, but the State cannot be certain that the matter will be ready for committal by that date. Having heard from counsel it is my assessment that if the applicant remains remanded in custody the earliest that the charges will get to trial is towards the end of this year, but there is a chance that the trial will not take place until next year.
The State submits that I should not grant bail because if granted bail the applicant may commit further offences and he may interfere with witnesses or otherwise obstruct the course of justice. The State points to the nature and seriousness of the charges, the likelihood that the applicant will be sentenced to imprisonment if convicted, the previous conviction of the applicant and the statements of the complainants that he has offended over many years, including while on bail for the charges that were laid in 2014, the recordings of the telephone conversations between the applicant and his daughter which, counsel submits, demonstrate a risk of him reoffending if granted bail and also a risk that he will exert pressure on her to withdraw her statements. The State also submits that the prosecution case is strong.
Counsel for the applicant says that the applicant denies offending while on bail in 2014. She submits that protective bail conditions would adequately deal with the risk of the applicant committing further offences and interfering with witnesses.
I regard the State case as a strong case if the witnesses give evidence in accordance with their witness statements and what was said in a telephone conversation between the two complainant daughters. The combination of that evidence and the evidence of the conduct for which the applicant was convicted in 1996 that is likely to be admitted under s 31A of the Evidence Act 1906 (WA) would make the prospects of conviction strong. However on the evidence that I have been referred to the State's case will depend on the evidence of the witnesses being given in accordance with their witness statements and being accepted by the jury.
I have expressed my views as to the telephone conversations to which I have listened. As I have said it is my view that they do not on their own demonstrate that the applicant was exerting any undue influence over that complainant or the applicant's wife or that he was seeking to persuade them to give false statements to police. The text messages that the applicant appears to have sent to his wife in 2014 do refer to sexual activity by the applicant, but, on their own, do not demonstrate that the sexual activity referred to was with one of the complainants. The text messages that appear to have been sent between the applicant and his wife in 2015 are abusive on both sides and they may indicate that the applicant's wife has assisted the applicant in his dealings with police but they do not indicate that the applicant's wife provided false information to the police or that she did so at the applicant's request.
The applicant has been on bail in 1996 and in 2014. He appears to have complied with his bail conditions while on bail on those occasions. The State submits that he has offended while on bail, but that is a matter that is in issue in this prosecution.
I do not regard the fact that the applicant's wife has visited him in prison as demonstrating that there is a power imbalance between the applicant and his wife or she is not able to sever ties with him. Any such visits were her choice. I do not know what they discussed.
It is my conclusion that if appropriate bail conditions are imposed the possibility of the applicant offending or interfering with witnesses or otherwise obstructing the course of justice while on bail can be sufficiently removed.
The applicant wishes, if granted bail, to have the opportunity to contact his wife by text messages from his father to enable him to make repairs to the family home for the purpose of sale and associated matters. I am not prepared to permit that contact. It is my assessment that the need to sufficiently remove the risk that the applicant might interfere with his wife means that no contact should be permitted other than through a lawyer or a settlement agent for the purpose of effecting the sale and transfer of the home. This will mean that the applicant will not be able to carry out repairs or maintenance to the home. It may mean that he will not be able to collect tools of trade and business records. This will be very inconvenient for him, but it is my assessment that it is a necessary consequence of the need to take into account the matters to which I have referred in these reasons.
I have provided counsel with proposed bail conditions. Following further submissions from counsel I grant bail on the following terms:
1.A personal undertaking of $50,000;
2.A surety of $50,000;
3.A residential condition to reside at [address];
4.A curfew at that address between the hours of 7 pm and 6 am daily and to attend at the front door of that address during those hours if a police officer attends at that address and requests that the applicant does so;
5.Protective bail conditions that save for contact between the applicant and [the applicant's wife] through a lawyer or a settlement agent for the purpose of the sale and settlement of the family home the applicant is not to contact or attempt to contact directly or indirectly:
a.[the applicant's wife];
b.[complainant];
c.[complainant];
d.[complainant]; or
e.any prosecution witness;
6.A protective bail condition not to be within 100 m of [address] or [address];
7.A protective bail condition that the applicant is not to have any contact with a child under the age of 16 years unless an adult is present;
8.Not to attend within 1 kilometre of any domestic or international point of departure from Western Australia.
9.Not to leave the Perth metropolitan area.
10.To report to the [nominated] police station every Monday, Wednesday and Friday, other than on public holidays, at a time nominated by the officer in charge of that police station, the first report to be on Wednesday 2 March 2016.
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