R v David Ewen - [2017] NSWSC 1328

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v David Ewen [2017] NSWSC 1328
Hearing dates: 28 September 2017
Date of orders: 28 September 2017
Decision date: 28 September 2017
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Bail granted on conditions

Catchwords: BAIL – sexual assault – serious allegations – alleged victim three years old – show cause – material omission in police facts – Crown case weak – bail proposal otherwise strong – bail granted
Legislation Cited: Bail Act 2013
Court Suppression and Non-Publication Orders Act 2010
Crimes Act 1900
Crimes Sentencing Procedure Act 1999
Cases Cited: Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314
R v Peter Tsallas [2017] NSWSC 64
Category: Principal judgment
Parties: Regina (Crown)
David Ewen (Applicant)
Representation:
Counsel:
M Harper (Crown)
T Game SC; P Nematalla (Applicant)
Solicitors:
Director of Public Prosecutions (Crown)
Crawford & Duncan Lawyers (Applicant)

File Number(s): 2017/258061
Publication restriction: Non-publication order in respect of the first names of the applicant’s children and names of the schools they attend.

EX TEMPORE Judgment

This is a bail application for a person facing a charge of sexually assaulting a very young child.
Section 578A of the Crimes Act 1900 prohibits the publication of any material that would tend to identify the victim or alleged victim of such an offence. For ease of reference the alleged victim will be referred to by a completely unrelated name, specifically “Helen”.
On 11 August 2017, the applicant David Ewen was charged with one count of having sexual intercourse with a person under 10 years of age contrary to s 66A(1) of the Crimes Act and two counts of indecently assaulting a child under 16 years of age contrary to s 61N(2) of the Crimes Act. The maximum penalty for an offence under s 66A(1) is life imprisonment.
After the applicant was arrested he was refused bail. He was again refused bail in the Local Court on 17 August 2017. He has been in custody since then. An offence under s 66A(1) of the Crimes Act is a “show cause offence” under the Bail Act (see Bail Act s 16B(1)(a) and (b)). This means that the Court must refuse bail unless the applicant can show that his detention is “not justified” (s 16A(1)).
Senior Counsel for the applicant, Mr T Game SC contended that cause had been shown by a combination of an assessment of the strength of the Crown case, the strength of the applicant’s community ties, his personal circumstances and the compelling nature, so it is said, of his bail proposal. It is clear that these matters, if established, can be considered in determining whether cause has been shown (see R v Peter Tsallas [2017] NSWSC 64 and Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314 at [51] to [56]).

Strength of the Crown Case

I turn to consider the strength of the Crown case. The allegations against the applicant are very serious. Helen is only three years old. In relation to the s 66A(1) charge the prosecution alleges that the applicant licked her on the vagina while both of their respective families were staying at a chalet at a ski resort. One of the indecent assault charges is a backup charge to that charge. The other indecent assault charge is an allegation that the applicant placed his hand on Helen’s inner thigh between her knee and waist. If the applicant were to be convicted of these offences then he is likely to receive a very substantial custodial sentence.
Mr Game SC’s written submissions identified a number of respects in which it is said that the Crown case is weak. Some of those matters concern the reliability of Helen’s account and of her mother in recounting Helen's complaints and making certain observations. This application can be addressed without considering questions of reliability, those being matters for a jury. Instead, I will address the matter on the basis that their tribunal of fact accepts their evidence so far as it goes.
Tendered on this application was a transcript of Helen's interview with the police, statements from Helen's mother and father and a statement from another person who stayed at the chalet at the relevant time.
In her statement, Helen's mother states that on the evening of 15 July 2017 she was sitting with Helen and her other child at a table in the restaurant area of the chalet while her children were having dinner. She states that two boys were also at the table and that their father was present, or at least in the vicinity. The evidence is capable of establishing that person was the accused. That person is described by Helen in her statement as having “quite short brown hair, or slightly grey”.
In her statement, Helen's mother states that, after her children finished dinner, she settled both her kids onto a sofa in the lounge area while she and her husband ate their meal. It seems they were in close proximity to their children although Helen's mother did not have direct sight of Helen and her sibling.
At one point during her meal, Helen's mother checked on her children. She found Helen was standing near a pool table in the lounge room. She was about 30 cm from the man who had been previously supervising his two boys who ate dinner with her children. She recalls that this man said words to the effect “I stopped her from going out” or “I told her not to go out”. Helen's mother settled Helen back on the sofa.
In her statement, Helen's mother states that she checked on her daughter and her sibling again about 10 or 15 minutes later. She said at this time she could not see either Helen or the man and his two sons whom she had seen previously. She said she found Helen “sitting on the last step near the bottom of the stairs” which were just outside the entrance to the lounge and led to the reception area of the chalet.
Helen's mother recalls that she attempted to take Helen back to the lounge area but that her daughter was resistant. She said that her daughter said words to the effect, “No, the man said I had to stay here”. Eventually Helen's mother returned Helen to the lounge area. Helen's mother and her husband resumed their meal. Helen's mother states that she moved her seat so that this time she had a direct line of sight to Helen and her sibling.
The next part of Helen's mother’s statement needs to be set out in full. It reads as follows:

“A short time later, may be about 5 to 10 minutes, I was watching [Helen] when the man with the two boys walked back into the lounge room, he walked past [Helen] and as he was in front of her I saw him put his left hand between her legs about halfway between her knees and her vagina, from where I was sitting I could not see if he actually touched her, but she was not sitting with her legs spread out. I thought [Helen] had maybe dropped something but she was still holding my phone. He was looking at [Helen] as he did this and his two boys were in front of him near the pool table. When he moved his hand and turned away he looked into the dining room and saw me staring at him. He kind of recoiled, he looked startled by seeing me, he then quickly looked away like he was uncomfortable”. (emphasis added)

The statement of Helen's mother records that she thought this was “really odd” and commented to her husband that he needed to go and check on their daughter.
On this application it was confirmed that this material is the only evidence said to support the commission of the second indecent assault charge referred to earlier. It is noteworthy that the police facts, which I understand were tendered in the Local Court, described this incident as follows:

“As the accused walked past the couch next to the entrance he walked up to the victim and put his left hand between her legs about halfway between her knees and her vagina. The accused was looking at the victim when he did this. When the accused turned to walk away he looked into the dining room where he saw [Helen's] mother staring at him”. (emphasis added)

Thus, the police facts omitted the highly material part of Helen's mother’s statement in which she said, “I could not see if his hand actually touched her”. This omitted material is important in three respects.
First, it means that in substance there really is no evidence supporting the second indecent assault charge. It is very difficult, almost impossible, to see how the extract from Helen's mother’s statement set out above could ever constitute proof beyond reasonable doubt that an indecent assault occurred.
Second, perhaps more importantly, it significantly undermines the impression one would otherwise obtain from the police facts, namely, that this particular incident assists in identifying the applicant as the person who had allegedly sexually assaulted Helen on the stairs only shortly before. If there was strong evidence that the applicant had indecently assaulted Helen in the way asserted in the police facts then one could see how that would be probative, perhaps strongly probative, of him also being the person who sexually assaulted her in the way that Helen later complained about.
Third, I note that Helen's mother’s statement was not placed before the Local Court which it determined to refuse bail.
The next relevant part of Helen's mother’s statement recounts Helen's complaint to her at their home on 25 July 2017 in which she said, inter alia, that “at the snow” a man “pulled down my undies and licked my vagina” and that this happened “on the stairs”.
Helen's mother’s statement recounts that when Helen was asked to identify which man did this, Helen told her that it was not the man that took her “down on the skidoo” but it was a man who had hair “not like daddy’s”. Apparently Helen’s father has a shaved head.
The statement from Helen's father records her complaint in roughly similar terms. He does not add to the description of who it was that was said to have perpetrated the sexual assault.
On this application, Mr Game SC submitted that a reading of the material suggests that the complaints by Helen to her mother appear to have arisen out of a discussion that was initiated with Helen by her sibling. He submitted that there is doubt as to whether ultimately Helen was seeking to recount an event that actually happened. Consistent with what I said earlier, it is not necessary to address that contention.
As I stated, the transcript of Helen’s interview with the investigating police was tendered. It can be expected that at any trial there will be significant debate about the admissibility of that transcript, any video of the interview, as well as debate about Helen’s reliability as a witness given her age. As I have already stated twice, reliability not in the sense of honesty but in the sense of capacity to accurately recount events is not a matter that I need to address in determining this application. Instead, I will only refer to those parts of the interview in which Helen refers to where she was when she was sexually assaulted and what she said when she was asked to describe the man who sexually assaulted her.
In relation to the former, Helen was asked if the place where she was staying at the snow had stairs, she agreed that it did (A. 152). She was asked if “anything happened on those stairs that you didn’t like?” She answered “Yeah I didn’t like the stairs” (A. 156). She was then asked “Can you tell me about what happened on the stairs that you didn’t like? A. The man licked my vagina” (A. 157).
After this Helen was asked who the man was, she replied “Someone’s daddy” and that “he didn’t have hair like my daddy” (A. 161). At one stage during the interview Helen was pressed on what the man was wearing, she replied “Nothing” (A. 201). This could be a reference to her not remembering what he was wearing.
Helen was also asked about her reference to the man who assaulted her being “a daddy”. She was asked if she saw any kids “with the man”. Initially Helen said “No” (A. 373). She then repeated that the man “didn’t wear clothes”. However, she was asked “what the man’s kids looked like” and said “he kids were bigger, his kids are bigger”.
Helen was then asked whether the man’s kids were “a boy or a girl”. She said “There were two girls, one smaller and one’s bigger” (A. 394). When she was asked what the colour of the smaller girl’s hair was, Helen said “pink” (A. 395). She also said that the bigger girl’s hair was “purple” (A. 400).
Helen was asked to describe the colour of hair of the interviewing officer and the support person. She described one as having brown hair and the other as golden hair. It was not suggested that those descriptions were inaccurate.
The statement of the other guest at the chalet that was tendered recounts that on the evening of 15 July 2015 she observed a girl who was most likely Helen sitting on the bottom of the steps near the entry to the lounge of the chalet. This person states that she “did not see anyone else with a little girl at that point”. This person fixed the time of this observation as sometime between 5 and 6pm. This is prior to the time at which Helen's mother found her at the bottom of the stairs, which was later during dinner.
That said, the evidence from this witness appears to be of considerable assistance to the applicant. If this witness was observing the time at which it is said by the Crown that Helen was assaulted then her evidence that there was no one else present is clearly supportive of the applicant. Alternatively, if this is said to be some other occasion when Helen was sitting at the bottom of the stairs then this undermines the Crown case because all that was said by Helen was that the assault occurred “at the stairs”. The Crown invites the conclusion that this was about the time that Helen’s mother observed the applicant with his two sons in that area. If there was another occasion when Helen was sitting on those stairs, then the Crown case is weakened.
The evidence of Helen and her mother tendered on this application, if accepted, appears to be capable of demonstrating that Helen was sexually assaulted sometime during her ski trip in July 2017, that it occurred “at the stairs” at the lounge and possibly that it occurred sometime on 15 July 2017. It is, however, very difficult to see how it identifies the applicant as the person who committed the assault. Clearly, there is no witness who saw the applicant assault Helen. The best that can be done is somehow to draw together the thread that at some point the applicant told Helen that she should not leave the area together with the behaviour of Helen when her mother found her at the bottom of the steps along with whatever Helen’s mother observed when the applicant walked past Helen later that evening.
The Crown facts also refer to other allegations of indecent assault against the applicant which are not the subject of charges, or at least not yet. They consist of an allegation in 2008 that he touched the vagina of a young girl on the outside of her trousers who was staying at his home who was not his daughter and two instances in 2016 where he is alleged to have rubbed the inner thigh of a seven-year-old girl.
Reference is made in the police facts to the fact that the police wish to introduce evidence of these incidents as proof of the subject charges, presumably on a tendency basis. Without any further details and some precise articulation of what the alleged tendency is and how it assists the Crown case, these matters cannot be taken further. All that can be said is that at this point it is difficult to see how that material can assist in bolstering the Crown case insofar as it is necessary for the Crown to identify the accused as the perpetrator of the sexual assault on Helen that allegedly occurred on the stairs. It is also difficult to see how evidence of such events can convert whatever Helen’s mother observed into concrete evidence of an indecent assault.
The end result is that I accept Mr Game’s submission that the Crown case is relatively weak. This conclusion is of particular significance in considering whether cause has been shown especially because the applicant faces another fifteen to eighteen months in custody prior to his trial. The applicant faces the prospect of spending that amount of time in custody on one charge that appears relatively weak and another charge that does not seem to be supported by any real evidence.

Community Ties and Bail Proposal

Mr Game also relies on the applicant’s personal circumstances, his community ties, and the strength of the bail proposal as demonstrating that cause has been shown.
The applicant is fifty years of age. He has convictions for firearm offences in 2016 in respect of which he received a bond under s 10 of the Crimes Sentencing Procedure Act 1999. He manages a newsagency on behalf of his elderly parents. Suffice to say that the survival of that business is in great jeopardy if the applicant continues to be incarcerated.
The applicant has three school age children. He is separated from their mother but it is clear that they are on sufficiently good terms for him to be heavily involved in their children’s upbringing. The applicant’s ex-wife, that is their mother, has sworn an affidavit confirming her support for the applicant and setting out her very grave concerns for her children’s welfare if the applicant continues to be remanded in custody. The applicant’s parents also offer a substantial surety to support the application for bail.
The bail proposal involves the applicant returning to his residence and observing a curfew as well as place restrictions and also a restriction on his approaching international points of departure. The bail proposal also includes a proposed condition that he not be allowed to be in the presence of any child under the age of sixteen years unless he is in the company of another adult, with the exception of his own children. There is nothing in the material to suggest that the applicant represents a threat to them.

Cause and Bail Concerns

I accept that an assessment of the strength of the Crown case as well as a consideration of the applicant’s personal circumstances and the strength of the bail proposal means that cause has been shown under s 16A(1) of the Bail Act. It follows that it is necessary to consider whether there exist any bail concerns arising from the applicant’s release and, if so, determine whether if conditions are imposed those concerns nevertheless rise to represent an unacceptable risk.
I accept that there is a risk that the applicant may fail to appear given that he faces a charge that carries a maximum penalty of life imprisonment. However, it follows from what I have stated that the applicant has strong community ties especially to his family. Given that and the proposed conditions, I am satisfied that there is not an unacceptable risk of him failing to appear at court.
There remains to consider the risks to the community and the commission of serious offences. The prosecution’s allegations are sufficient to raise a concern that the applicant represents a danger to young girls in his presence other than his own children. The proposed conditions seek to remove that possibility by excluding him from being in the presence of anyone under the age of sixteen unless he is in the company of another adult.
The conditions also address this by requiring him to reside at his home. That resident requirement means that the applicant will not be able to take his children on any overnight stay which will preclude him from taking them on holidays where children might frequent. Given those matters, I am satisfied that the risk of the commission of further offences and the danger to the community can be reduced to a level that is acceptable. Accordingly, there will be a grant of bail on conditions I will shortly state.
During argument I made an interim non-suppression order under subs 10(1) of the Court Suppression and Non-Publication Orders Act in respect of the first name of the applicant’s children, the schools they attended and the applicant’s home address which is where they at least sometimes reside. I did so on the basis that the evidence revealed a significant potential for psychological and emotional harm to them from any publicity of those matters (ss 8(1)(c); and 8(1)(e).)

Just prior to giving judgment, Mr Game SC informed me that there had been publicity stating the applicant’s home address. It follows that there is no proper basis upon which that aspect of the non-publication order can continue. It is hereby revoked. However, I will continue to make an interim order in respect of the first names of the applicant’s children and the names of those schools they attend. It will be an interim order because it is conceivable that, at some point, one of the various courts that will consider this matter may need to vary it if circumstances require. Further, the order will be subject to an exception to enable publication of those details in and between the police and the prosecuting authorities so as to facilitate the investigation into the applicant and the conduct of the prosecution.
Accordingly, there will be a grant of bail on the following conditions:

(1) The applicant is to reside at [xxx].

(2) The applicant is not to be absent from the residence between the hours of 10:00pm and 5:00am.

(3) The applicant is to present himself at the front door of the premises where he is to reside at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy.

(4) The applicant is to report to Chatswood Police Station daily between the hours of 8:00am and 8:00pm.

(5) The applicant is not to enter [xxx].

(6) The applicant is not to enter the Snowy Mountains region, other than for the purposes of attending court.

(7) The applicant is not to approach within 2 kilometres of any international point of departure.

(8) The applicant is to surrender all current passports to the NSW Police.

(9) The applicant is not to apply for any international travel documents including passports and visas.

(10) The applicant is not to be in the presence of any children under the age of 16 years unless in the company of another adult, with the exception of the applicant’s own children.

(11) An acceptable person is to enter into an agreement without security to forfeit the sum of $200,000 should the applicant fail to appear in accordance with his bail acknowledgment.

(12) The applicant is to attend any psychologists' / psychiatrists’ appointments as directed and is to take any medication as prescribed.

(13) The applicant is not to approach or contact any prosecution witness or any family member of a prosecution witness other than police officers except through his lawyers.

(14) The applicant is to be of good behaviour.

Non-Publication Order

I further order that:

Until further order, the first names of the applicant’s children, and the names of the schools they attend, are not to be published. Save that nothing in this order shall prevent the members of the police force and officers and staff of the Director of Public Prosecutions from notifying each other and any Court of that information.

This order will operate throughout the Commonwealth.

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Amendments

04 October 2017 - Bail conditions (1) and (5) amended to remove addresses.

Decision last updated: 04 October 2017

Medium Neutral Citation:	R v David Ewen [2017] NSWSC 1328
Hearing dates:	28 September 2017
Date of orders:	28 September 2017
Decision date:	28 September 2017
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Bail granted on conditions
Catchwords:	BAIL – sexual assault – serious allegations – alleged victim three years old – show cause – material omission in police facts – Crown case weak – bail proposal otherwise strong – bail granted
Legislation Cited:	Bail Act 2013 Court Suppression and Non-Publication Orders Act 2010 Crimes Act 1900 Crimes Sentencing Procedure Act 1999
Cases Cited:	Moukhallaletti v Director of Public Prosecutions [2016] NSWCCA 314 R v Peter Tsallas [2017] NSWSC 64
Category:	Principal judgment
Parties:	Regina (Crown) David Ewen (Applicant)
Representation:	Counsel: M Harper (Crown) T Game SC; P Nematalla (Applicant) Solicitors: Director of Public Prosecutions (Crown) Crawford & Duncan Lawyers (Applicant)
File Number(s):	2017/258061
Publication restriction:	Non-publication order in respect of the first names of the applicant’s children and names of the schools they attend.