R v Cornwell

[2016] NSWSC 767

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Cornwell [2016] NSWSC 767
Hearing dates:	8 June 2016
Date of orders:	14 June 2016
Decision date:	14 June 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Bail granted with conditions.
Catchwords:	CRIMINAL LAW - Procedure - Bail
Legislation Cited:	Bail Act 2013 (NSW), ss 18(2), 19
Category:	Procedural and other rulings
Parties:	Regina (Crown) Paul Lioneel William Cornwell (Applicant)
Representation:	Counsel: R Sharma (Crown) Applicant (self-represented) Solicitors: Office of the Director of Public Prosecutions (Crown)
File Number(s):	2016/90215
Publication restriction:	Non publication order lifed

ex tempored Judgment- revised

1. The applicant for bail is facing a total of 6 charges, some of which are serious. Chronologically, the first charge relates to an offence said to have been committed on 8th March 2016 of behaving in an offensive manner. The facts are that he, his partner and children entered a department store. Store staff thought him acting suspiciously and a kept close watch on him. I interpolate that the applicant tells me that he suffers from Huntington’s disease. Becoming aware of the close attention he was being paid, the police allege that he commenced to remove articles of his outer clothing to demonstrate that he was not concealing any items shoplifted from the store. Police facts allege that he moved “his hands around the waist of his boxer shorts almost exposing himself to female staff” making them feel very uncomfortable. There was no allegation of actual exposure. He and his partner left the store, but a complaint was lodged with police. Notwithstanding having obtained the CCTV footage from the store at 3:15 pm on the same day and identifying the applicant who is well known to them, the police took no steps to apprehend him before the events of 10th of March 2016, which I will now relay.

2. Five of the offences with which he is charged are alleged to have occurred on 10th March 2016. The most serious of the charges relates to an allegation of sexual intercourse without consent. The victim of this alleged crime was an arresting female police officer. In the alternative he is charged with assault with act of indecency in relation to the same officer, and resisting her in the execution of her duty. Arising out of the same incident, he is charged with assaulting the female officer’s male police partner and with using offensive language in a public street.

3. The circumstances giving rise to that matter are that the female officer and her male police partner were patrolling Cessnock performing duties under the Suspect Target Management Plan. This operation is not further explained in the evidence before me. They identified the applicant barechested leaving the driveway of a hotel. From his appearance they assumed him to be “very intoxicated in a public place”. The formal police facts prepared for the Court do not mention any suspicion of any other crime. There is no mention of the events of 8th of March. In her statement, the female officer says the male officer said “we need to speak to him … he looks like he may be intoxicated”. They exited their vehicle and approached on foot. The female officer formed the impression that the applicant may have been under the influence of an unknown substance because “he appeared to be unsteady on his feet as he was walking”.

4. I think the Court can be taken to know that Huntington’s disease is a neuro-degenerative genetic disorder that affects muscle co-ordination and leads to mental decline and behavioural symptoms. With some individuals the disorder can manifest itself in uncontrolled movements, emotional problems and impairment of cognition.

5. In his unsworn statement to me, the applicant informed me that his mother and brother also had the condition. From his appearance on the audio visual link to the corrections centre where he is held, I noted what appeared to be jerky, somewhat flaying movements of his arms. His speech was delivered in a staccato fashion and in a discursive, disorganised way.

6. The female officer said that her male partner said “that’s Paul Cornwell, I’m pretty sure he is wanted”. He did not say for what. The officers announced their office and asked the applicant to wait because they wanted to talk to him. He declined saying he’d done nothing wrong and kept walking. When police persisted, it’s said that the applicant clenched his fist at his sides and moved towards the police in a manner they found intimidating. As he moved towards them the male officer, according to police facts, in concern for his safety, tackled the applicant to the ground. In her statement, the female officer said that the applicant was resisting violently, thrashing his arms about in what she took as an attempt by him to release himself from the Senior Constable’s grip. The female officer came to the assistance of her colleague and as the applicant was on the ground the male officer applied a headlock and the female officer squatted over his back to help subdue the applicant “by using her body weight” and locking her legs either side of his torso. She also attempted to apply handcuffs. She said that attempts to restrain the applicant “were becoming futile” due to his “bucking his body around violently in attempts to release her hold on him”. He was face down on the ground and throwing his head back “in a head butting motion”. Members of the public assisted by calling 000 for backup. Another bystander grabbed the applicant by the legs, but he continued “to butt furiously”. Another male bystander came in to assist.

7. The female officer was able to get the applicant’s right arm cuffed, but she was unable to complete the operation. As she continued in her efforts she said “[the applicant] thrust with force his right hand into my vagina region causing his fingers and my pants to penetrate my vagina”. She told him to desist in no uncertain terms, but she says he repeated the assault. She then wrapped her body about his back region so there was no gap for him to manoeuvre.

8. She had her legs tightly around either side of the applicant’s body at this time. He was eventually subdued, but it was necessary for her to keep her body weight down on the applicant with the assistance of the male officer and a number of members of the public until back up police arrived and he was put in a caged vehicle. The female officer says that during this delay the applicant continued to thrash about and in the process she sprayed him with capsicum spray which appeared to have little effect. The female officer made immediate report of the sexual assault to the male officer and also by text message to other police colleagues.

9. Medical examination later the same day revealed a superficial abrasion in the fossa navicularis, just to the left of the midline consistent with the application of a moving blunt force.

10. Forensic examination revealed some damage in the stitching of the Officer’s drill cotton cargo pants. The damage is said to be two or three loops of snagged stitching in the crotch area of the pants. From the photographs tendered it appears to be in the area where the seat of the pants was joined to their front, between the legs of the pants. DNA testing was also carried out, and the results are unavailable. This is hardly likely to be conclusive, given what the officer says about the necessary interaction between her and the applicant during the arrest.

11. The applicant wished to rely upon the DVD of his arrest, which he has seen, but was not available to me. He does not deny thrashing about, indeed he relies upon his illness to explain this, at least in part. He states, that if he struck the officer in the area of her genitalia, this was entirely accidental. He certainly denies any deliberate act, which a necessary element of the assault alleged against him.

12. None of the offences with which the applicant is charged is a show cause offence. Obviously the sexual assault and its alternative of assault with act of indecency charge is a serious offense and this consideration is very relevant in the application of the unacceptable risk test.

13. As I have said, the Crown opposes bail and argues there are four bail concerns which on assessment demonstrate in each category there is an unacceptable risk.

14. The Crown contends there is a risk of non-appearance. It argues that there can be no question about the seriousness of the offence, and the inevitability of a significant term of full time imprisonment if convicted. A combination of these considerations provides a strong motive to the applicant not to appear if released on bail. Moreover, an analysis of his criminal record shows that between 24th July 2000 and 29th October 2015 there are 22 instances of breach of bail, the issue of bench warrants for non-appearance and call up on breaches of bond. At the time of this apparent offending, he was subject to s 12 and s 9 bonds, which had been imposed by the Local Court on 29th October 2015 for various offences including resisting a police officer in the execution of her duty and common assault as instances of domestic violence.

15. The Crown further argues that there is a risk of the applicant committing a serious offence while at liberty. Relevant considerations in this regard are referred to in s 18(2) Bail Act 2013 (NSW). The applicant’s criminal history re-produced for the purpose of the Application runs to some 40 pages and commences in 2001. His last offending before the current allegations were for domestic common assaults and resist office offences which occurred in September 2015. His poor record for compliance with bail and bonds strongly suggests that he is unable to exercise the self-control necessary for compliance with the constraints of conditional liberty.

16. In respect of the consideration of the risk he poses to the victim and the community, the victim is obviously very distressed by what she perceives to be a deliberate sexual assault upon her. The applicant apparently attempted to contact her at the police station where she works. But I accept that the applicant was probably trying to explain that he did not intend to strike her on the genitalia.

17. There is certainly a risk that, given his record, he will continue to commit the type of offences he has so frequently committed in the past.

18. I accept there is a concern about flight, the commission of offences which may be serious, and the related concern of community safety. I am not satisfied that there is a concern about “interfering with witnesses”. Having tried and failed, I am not persuaded that the applicant will attempt to contact the complainant again and any such risk in that regard could be managed by an appropriate conduct condition.

19. In evaluating the risks that I have accepted, I have regard to the matters set out in s 18. The applicant’s background including in particular his criminal history does not assist him. The seriousness of the offence means that he will go to prison for a comparatively lengthy period if convicted.

20. I question the strength of the prosecution case. I have no reason to doubt the sincerity of the complainant and given that she is a serving police officer, who may be taken to be of robust personality, her complaint would not be lightly made. Doubtless she will be an impressive witness. On the other hand, the nature of the police engagement with the applicant on 10th March 2016 and the probability that his neurodegenerative disease contributed to his apparent flaying movement raise a serious possibility that there was a misunderstanding of the applicant’s intentions. There is a real issue to be tried about whether the applicant deliberately applied force including penetrative force to the genital area of the complainant’s body. Absent a deliberate, intentional act, an essential element, the offence will not be proved. Bearing in mind the criminal standard, there is a serious question about the strength of the Crown case.

21. I have already pointed out that his criminal history includes crimes of violence and that he has a poor history of compliance with court orders including those relating to bail and bonds. There are also instances of non-compliance with an apprehended domestic violence order in May 2012. He has no known criminal associations.

22. Because the offence of sexual intercourse without consent is strictly indictable, it is likely that, if bail is refused, the applicant will be held on remand until about the middle of 2017. Of course, if convicted a custodial sentence is likely to exceed that time. He does have special needs, given his Huntington’s disease.

23. I would not infer that the applicant has behaved improperly toward the complainant by attempting to contact her at her place of work after the event. Having had the benefit of seeing and hearing him, albeit by AVL, I am satisfied that in his way he was probably attempting to explain himself. Doubtless the complaint would prefer it if the applicant remained in custody on remand. That is a matter to which I will have some, but not determinative regard.

24. Although the applicant’s record does not inspire confidence that he will comply with the bail undertaking, it may be that part of his difficulty is due to his neuro-degenerative condition. Given his strained personal relationships, it is difficult to rely on others to help him comply with conditions. Having said that, I received evidence by telephone from Ms Kylie Akert. She is prepared to have the applicant reside at her home and will assist him report to police by driving him to the police station for reporting purposes. She has also given evidence that she will report him to the police if he fails to comply with bail conditions, including a curfew. However, she asked that there be no enforcement condition in respect of a curfew as she has the care of her 3 year old granddaughter and she is understandably concerned about the disruption that police attendances at night may cause.

25. I am satisfied that there are legitimate concerns about whether the applicant will appear, whether he will commit a serious offence if at liberty on bail and the safety of the community depends upon that latter consideration. I am satisfied that whether there is an unacceptable risk depends upon the valuation of the risk of those concerns materialising when one considers that question by reference to the s 18 considerations.

26. I am satisfied that it would be unacceptable for there to be a real risk of an accused person failing to appear to stand trial for a serious offence, which upon conviction requires the imposition of a term of imprisonment measured in years. One must, however, measure the degree of probability of the occurrence of that eventuality by reference to the strength of the Crown case. As I have said, I by no means rate the Crown case as weak, but there are very real issues of fact to be tried. There are clear competing versions. But the outcome of this trial, does not depend upon one person’s word against the other. The dynamic circumstances of the interaction between police and the applicant at the time of his arrest on 10th March 2016, objectively create ample scope for the existence of doubt.

27. The applicant’s dreadful record of compliance with Court orders does not inspire any confidence about compliance with the bail undertaking. But it is unlikely that he is going to flee the jurisdiction or deliberately make himself scarce. I doubt he is up to any elaborate measures to evade the police. Part of his difficulty may relate to his Huntington’s disease and what appears to be related mental difficulties.

28. There is a risk that he will fail to appear and I am not persuaded it amounts to a risk that he will successfully evade the criminal justice system for long. In my judgment, the risk not unacceptable within the meaning of s 19 of the Bail Act.

29. As I have already said, there is much force in the Crown submission that his record suggests that he will have difficulty complying with bail conditions and he may commit other offences whilst at liberty. The question is whether he is likely to commit a serious offence. Although his record is long, it is devoid of instances of major offending or serious crime. Notwithstanding some violence, and the present serious charge, I am not persuaded that there is a risk of serious offending which rises to an unacceptable risk in the present case. I am satisfied that stringent conditions will appropriately manage this risk including daily reporting.

30. I should record that the applicant does have community ties. He has a long time de facto partner living in the area with whom he has three children. He was in their company on 8th March 2016.

31. I am also influenced by the consideration that if he is acquitted of the most serious charge he is likely to spend a long time in prison for what are essentially relatively minor offences.

32. My decision is bail is granted with conditions.

**********

Amendments

25 October 2018 - Publication Restriction: Non Publication order lifed

Decision last updated: 25 October 2018