Re Application for Bail - Iveson
[2014] VSC 64
•5 March 2014
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0008
| IN THE MATTER of the Bail Act 1977 and IN THE MATTER of an application for bail by PI |
---
JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 28 February 2014 | |
DATE OF RULING: | 5 March 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 64 (first revision) | |
---
CRIMINAL LAW – Bail – “Show cause” situation – Cause not shown – Unacceptable risks of re-offending, endangering the safety or welfare of others, and interfering with witnesses – Bail refused
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Rattray | Kerry Clancy Solicitors |
| For the Crown | Ms D Manova | Solicitor for Public Prosecutions |
HER HONOUR:
Introduction
On 5 June 2013, the applicant was charged with 6 offences, including false imprisonment, intentionally causing serious injury, recklessly causing serious injury and making a threat to kill. The offending is alleged to have occurred on 4 June 2013 at the applicant’s house. The victim of the alleged offending is the applicant’s former domestic partner, KH.
On 12 July 2013, the applicant applied for bail at the Shepparton Magistrates’ Court. Two subsequent bail applications, made on 21 November and 18 December 2013 respectively, were also refused in the Magistrates’ Court.
In December 2013, the applicant was committed to stand trial on these charges in the County Court. The matter is listed for a final directions hearing in the County Court on 29 May 2014, at which time it is expected that a trial date will be set. It is common ground that the trial will probably be heard in one of the Shepparton circuit sittings, commencing in late July or late August of this year.
By notice filed in this court on 30 January 2014, the applicant seeks bail.
The applicant is in a “show cause” situation, by reason of s 4(4)(c) of the Bail Act 1977, because he is charged with indictable offences, in the course of committing which he is alleged to have used one or more offensive weapons (namely, a knife or knives and a metal pole). The applicant argues that cause is shown because of the following matters:
(a) He has the support of his family, including in the provision of accommodation and employment;
(b) Psychological counselling is available to him in the community;
(c) The Crown case is weak;
(d) He will be prejudiced in the conduct of several court proceedings unless he is released on bail;
(e) Suitable bail conditions can be imposed, to ensure he stays away from KH.
The Crown disputes that cause has been shown. The Crown also opposes bail on the basis that the applicant presents an unacceptable risk of interfering with witnesses, endangering the safety or welfare of others, and committing further offences while on bail.
Show cause
The Bail Act does not specify what considerations may be relevant to showing cause. There is no dispute that cause may be shown either by one particular factor, or (more usually) a combination of factors.
Employment
One of the applicant’s brothers, DI, is employed as a manager of a large cleaning business in Castlemaine. If the applicant were to be released on bail, DI would be able to get his brother a job as a cleaner, on a net wage of about $750 per week.
Availability of a surety
The applicant’s mother, DII, a nursing attendant, owns her own home in Pyalong. After taking into account moneys owed under a mortgage, she has equity in the property of at least $220,000.
She is prepared to act as surety for her son, using the equity in the property as security. She understands that if he breached his bail, for example, by failing to appear or re-offending, she could lose her home.
Accommodation and family support
DII is also prepared to offer the applicant accommodation at her Pyalong home, where two of her other adult children, LI and GI, also live. The applicant appears to have the support of at least some of his six siblings, some of whom have been to visit him in prison.
The informant, Detective Senior Constable Michelle Mason, does not regard the applicant’s family as a suitable support network, or the mother’s home as a suitable place for the applicant to live. In her report to the court, the informant refers to a number of incidents of violence by family members, as well as several intervention orders taken out by family members against each other. She also refers to the prior criminal convictions of two of the applicant’s brothers, GI and DI. The informant was not cross-examined as to the accuracy of her summary of the family history.
When DII gave evidence, she said she could not remember or did not know of many of the incidents or matters referred to in the informant’s report. In respect of those which she said she did remember, she sought to downplay the extent of the applicant’s violence. For example, after initially saying that she had obtained an intervention order against the applicant as a teenager “to stop him from hitting the girls”, when asked about this in cross-examination, she denied that he had ever hit his sisters. Instead, she said she had sought and obtained an intervention order against him, when he was in his early teens, because he had on one occasion squeezed lemon juice into one of his sister’s eyes; this explanation seemed highly implausible, both in terms of what a mother might do, and also in terms of what a court would have been prepared to order against a young teenager back in the early 1990s.
DII’s protectiveness of her son was perfectly understandable, but does not give the court much confidence that she would report any breaches of his bail conditions – for example, if he failed to observe curfew hours, or reside at her home.
Availability of counselling
A letter was produced to the court from a Dr Joseph Scopelliti, a clinical psychologist in Castlemaine. It recorded that Dr Scopelliti would be able to treat the applicant in relation to “the significant psychological distress” associated with not having access to his children. He said he could provide weekly counselling, to deal with the applicant’s psychological issues.
I indicated that the court needed to know what, if anything, was proposed to be done to address the applicant‘s violence and anger management issues, so as to reduce his risk of re-offending. His counsel replied that the psychologist could address those matters, if he thought they were a problem after talking to the applicant.
Given that the applicant, through his counsel, vehemently denies having any problems at all with violence or anger management, I have no confidence that he would voluntarily report, or obtain counselling for, such problems if released on bail.
The strength of the Crown case
In summary, the Crown case is that at about 7am on 4 June 2013, KH attended at the applicant’s house with one of their two young sons, L, in order to provide child access. It is alleged that while at the house, the applicant became aggressive and violent towards KH, refused to let her leave the property, poked her with a sharp metal pole, punched her, stabbed or cut her with kitchen knives, and repeatedly threatened to kill her. Only after telling KH what to say when the emergency services arrived, did he telephone 000 and KH’s mother.
When interviewed by the police, the applicant denied the allegations. In his lengthy record of interview, the applicant alleged that KH was the initial aggressor, who armed herself with a knife, and he wrestled her for the knife.
The applicant’s counsel says that the prosecution case is a “word on word” case, resting solely on the evidence of KH, which should not be accepted in preference to the applicant’s account of events. I disagree with this characterisation of the state of the evidence.
After a contested committal, the applicant has been committed to stand trial. This court has been provided with considerably more material than is commonly available on an application for bail. By the second hearing date of this application, the court had received a copy of the depositions, which have been prepared for the forthcoming County Court trial, as well as some additional statements. Having regard to that material, I am satisfied that the Crown case is far from weak, even taking into account the presumption of innocence.
The only other person present during the incident was the couple’s then 4 year old son, L. In his VARE interview, L said a number of times words to the effect that “Dad cut Mum” on the back, on her fingers, on her hand, on her leg, and so on. Then, late in the interview, in answer to the question “Did you see Dad cut Mum?”, L answered “Nope”. And, at one other place in his interview, L refers (somewhat ambiguously) to his Mum having got a knife which was on the floor. The applicant’s counsel latched on to these couple of answers as supporting the applicant’s case, whilst completely ignoring all the parts of the interview which strongly support the Crown case. In assessing the strength of the Crown case, I have not had regard to L’s statement, given his age.
Notwithstanding the applicant’s assertion that KH attacked him aggressively with a knife, he managed to avoid sustaining even a single graze or abrasion in the incident, while she received multiple stab wounds and other injuries. The number, nature and extent of the injuries to KH’s head, neck, torso, arms, hands and thighs, are far more supportive of her account of events than his. For example:
(a) KH sustained 5 injuries to the front or back of both of her hands. She says those injuries were inflicted by the applicant with the knives and a sharp metal pole. The applicant’s only explanation for those injuries is that KH must have cut herself, repeatedly, as she was trying to remove a knife from its cover;
(b) She received a deep stab wound to the back of her head. She says that as she was trying to flee the house, the applicant grabbed her by her hair, and stabbed the back of her head with one of the knives. The applicant alternates between saying he doesn’t know anything about that injury, and giving a rather garbled explanation about her slipping on some water that he had thrown at her from a glass, and stabbing herself as she fell on the floor.
At least one of the neighbours heard high-pitched screaming and calls for help; that is also consistent with KH’s account of events.
Apart from his prior convictions for violence, there is ample evidence, from a number of sources, that the applicant has been violent and threatening towards KH (as well as other people) in the past; this evidence will be considered in more detail when I come to discuss risk factors. There is no evidence that KH has ever been violent towards the applicant (or anybody else) in the past. For the purposes of this bail application, this evidence tends to support the Crown case that it was the applicant, not KH, who was the initial aggressor on this occasion.
The applicant’s counsel criticised the Crown for not having tested any of the knives for DNA or fingerprints, as he said that the presence of KH’s DNA or prints on the knives might have exculpated the applicant. The informant explained that the police forensic unit had determined there was no utility in testing kitchen knives that would have been used by both parties when they were living together, as both of their DNA and prints would be expected to be on the knives. The defence has never sought to have the knives tested. In the circumstances, the failure to test the knives does not weaken the Crown case for the purpose of this bail application.
Ability to conduct other proceedings
The applicant sought to argue that, unless he was released on bail, he would be prejudiced in his ability to:
(a) Defend the County Court charges; and
(b) Obtain access to his children in proceedings in the Federal Circuit Court.
The County Court proceeding
When the application for bail first came on before me, the supporting affidavit made some bald assertions about the child access proceeding, but said nothing at all about the applicant’s ability to defend the County Court proceeding.
The applicant’s counsel said on a number of occasions at the first hearing that: the applicant’s initial application for legal aid had been refused; VLA would not grant legal aid while he owned his house; the applicant was awaiting a decision from VLA on what was described as his “fresh application”; and, unless he was released on bail and able to earn an income, he would be unable to properly defend the County Court proceeding. As this would have been a very relevant consideration in deciding whether to grant bail, I granted the applicant an adjournment, in order to enable him to put evidence before the court in relation to this matter. I informed the applicant’s counsel that I would expect the applicant to put before the court evidence as to the initial and subsequent legal aid applications, as well as making full disclosure as to the applicant’s current financial position. I adjourned the hearing for 10 days, as the applicant’s counsel said that such a period would be sufficient for the preparation of a further affidavit addressing these matters.
When the matter came back on for hearing, no such affidavit had been filed, and it became clear that the true position was very different to that which had been stated previously by the applicant’s counsel:
(a) A bundle of correspondence from VLA was tendered, which showed that the initial application for legal aid had not been refused; on the contrary, it had been approved by 3 July 2013, subject to the applicant providing an equitable charge over his property. By 9 July 2013, the applicant had refused to sign an equitable charge, leading to VLA ceasing to act for him. A letter from VLA, dated 7 August 2013, noted that the applicant had engaged a barrister to represent him, and no longer sought assistance from VLA; and
(b) The applicant’s counsel informed the court that although a fresh application for legal aid had been completed by the applicant, it was sitting in his instructing solicitor’s offices, and had not even been lodged with VLA.
Notwithstanding the state of the evidence, the applicant’s counsel persisted with arguing that I should at least find that there was “a question mark over whether or not he will be able to obtain legal representation.”
I indicated that it would be pure speculation for me to come to any opinion as to the likelihood of the applicant being granted legal aid, or being able to fund his own defence, on the evidence currently before the court.
This led to the applicant’s counsel putting forward the proposition that “there is a public policy argument in providing bail to a person who will undertake to pay for their own legal representation rather than relying on the state to provide that representation.” Given the absence of evidence as to his financial circumstances, and given that the applicant’s argument prior to this point rested on the proposition that he could not pay for his own representation, unless he was granted bail, this “public policy” argument appeared to be clutching at straws.
Even though the applicant’s financial circumstances were relied upon as part of his original “show cause” grounds, and the adjournment was granted to enable an affidavit as to financial circumstances to be put before the court, the court was left in a very unsatisfactory situation in terms of an understanding of the applicant’s true financial position.
Under a heading “Financial circumstances”, the applicant’s solicitor had deposed in his supporting affidavit as follows:
21. I have been provided with a document (beginning 25 March 2013 and ending 30 June 2013) relating to a Commonwealth Bank home loan for the applicant’s home property situated at [address] in the amount of $227,568.96 payable at an interest rate of 5.450 per cent. The applicant has not been able to service this loan. The responsibility for meeting the loan repayment has fallen on the applicant’s immediate family.
22. Further, I have been provided a document from Gadens Lawyers for [Esanda] dated 1 July 2013 regarding recoveries of monies owed by the applicant for the purchase of a Holden motor vehicle in March of 2009. The applicant has been unable to meet his repayments and has been threatened with repossession of the motor vehicle.
23. Further, as a consequence of the applicant’s continued incarceration and inability to earn an income and meet loan/mortgage obligations, his personal credit rating has been affected.
When the matter first came on before me, the applicant’s counsel said several times that the applicant had “lost” the house, conveying the impression that the mortgagee had taken possession of the property due to the applicant’s inability to service the loan whilst in custody. He said the applicant was “about to lose his car” too.
I said that I would require some evidence about these matters, including evidence as to whether the loans were being serviced before the applicant went into custody, how much was owing on the car loan, and the like.
When the applicant’s counsel called the applicant’s mother and brother, DI to give evidence, it became apparent that the picture was very different to that conveyed by counsel. Far from the house having been “lost”, the applicant and his brother had decided to sell it themselves for about $320,000. After repaying money which DI had lent the applicant to service his debts, there would be enough money to pay out the car loan and some left over. However, the court does not know how much the applicant has left over from the sale proceeds after discharging all his debts.
The proceeding concerning the children
On 4 February 2013, the Federal Magistrates’ Court made final parenting orders, including an order that the applicant and KH have equal shared parenting responsibility for H (born in October 2006) and L (born in September 2008).
On 5 June 2013, after the incident the subject of the current charges, an interim intervention order was made pursuant to the Family Violence Protection Act 2008. KH and the children were all made protected persons by the order. The intervention order was made final on 20 August 2013.
On 14 June 2013, the Federal Circuit Court discharged the previous parenting orders, on the application of KH. The interim orders provide that she have sole parental responsibility for the children and, until further order, the children spend no time with the applicant.
In the supporting affidavit, the applicant’s solicitor asserted as follows:
28. The applicant seeks to apply to have the current interim [parenting] orders discharged. The applicant, who is not eligible for legal aid funding, and who has not worked since prior to the alleged assault, argues that funding and preparation of his response to the current Federal Circuit Court application by [KH] would be assisted by him not remaining in custody.
In fact, as the evidence unfolded before me, it became apparent that the following is the true position:
(a) In the more than 8 months since the interim orders were made, the applicant has made no attempt to apply for any variation to the orders, or to have the children visit him in custody;
(b) The next mention of the proceeding is on 30 May 2014;
(c) The applicant has repeatedly failed to file material when required to do so by the Federal Circuit Court. There is no evidence as to why that is so; and
(d) There is no evidence that the applicant cannot afford private legal representation in that proceeding.
In the circumstances, I am not persuaded that the applicant is being prejudiced in the conduct of either of the proceedings, by reason of his being in custody, so as to “show cause”.
Unacceptable risk factors
In assessing risk, s 4(3) of the Bail Act requires the court to have regard to all relevant matters, including:
(a) The nature and seriousness of the offence;
(b) The character, antecedents, associations, home environment and background of the accused;
(c) The history of any previous grants of bail to the accused;
(d) The strength of the evidence against the accused;
(e) The attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail; and
(f) Any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk.
The applicant does not have a history of failing to answer bail, and the Crown does not suggest that he would fail to answer bail, if it were granted in this case.
However, the Crown does argue that the applicant presents an unacceptable risk of interfering with witnesses, endangering the safety or welfare of others, and committing further offences while on bail.
The applicant denies that any such risks exist or, if they do, says it can be managed by appropriate conditions, such as that he observe a curfew and abide by the current intervention order.
The applicant was born in January 1979, and is now 35 years old. This is his first time in custody.
From the police records, the informant prepared a detailed report of the applicant’s long history of violence, some of which had resulted in the applicant being interviewed and charges being laid, and some not. Although the applicant’s counsel said from the bar table that his client disputed the contents of the report, he made no attempt to cross-examine the informant as to the accuracy of her report, or to lead any evidence to contradict it. This was in spite of my clearly warning him on the first day of the hearing that he needed to address “fairly and squarely” the Crown material about violence and the family history, before I would consider granting bail.
The applicant was dealt with by courts on 7 separate occasions between January 1998 and September 2010, for offences including making threats to kill, unlawful assault, recklessly causing injury, and resisting and hindering police. On some occasions, convictions were recorded; others were dealt with by way of community-based orders.
In September 2003, the applicant was found guilty of harassing someone who was a witness to an earlier incident of violence by the applicant. I accept that, on that occasion, the applicant came upon the witness by chance, rather than seeking him out, and that he was not attempting to interfere with the course of a trial (as the trial had already occurred). Nevertheless, once he came upon the witness, he and his male friend aggressively pursued the witness in a car, abused him, and threw a beer stubby at the witness’s car. This demonstrates a willingness to engage in threats and violence towards somebody who is prepared to give evidence against him.
The applicant and KH were in a de facto relationship for about 6 or 7 years. There is considerable evidence that their relationship was characterised by abuse, threats, and physical violence by the applicant; a few examples follow.
During the period of their relationship, she obtained two final intervention orders against him, on 19 June 2006 and 4 February 2010, respectively.
There is evidence from a number of sources that the applicant continued to be violent towards KH, even during the term of the intervention orders. However, he was not interviewed or charged in relation to these apparent breaches, because of KH’s reluctance to make formal complaints against her then partner.
The June 2006 intervention order was obtained after the applicant slapped KH, pulled her hair and threatened her. On that occasion, KH was not prepared to make a statement to police, but agreed to an intervention order being obtained.
In 2007, KH decided to take their child and go to her parents’ house. On the way to their home, the applicant called her and threatened her. She went to the police station. The applicant went to her parents’ home, where he banged on the door and made threats. On this occasion, KH made a formal complaint, but she later withdrew it.
In October 2009, there was another domestic dispute between the applicant and KH. KH’s mother called the police. When the police arrived, the applicant refused to let them enter the house to check on the welfare of the children. He assaulted the police, including kicking one of the police while the officer was holding one of the children. Capsicum spray had to be used to subdue him. He was charged and convicted in relation to the assaults on police. He was not interviewed or charged in relation to his violence against KH, as she did not want to make a formal statement. The February 2010 intervention order was issued as a result of this incident.
KH’s mother, HH, says she has seen text messages from the applicant, threatening to kill KH. She has also witnessed him assaulting her daughter more than once, and heard complaints from her daughter of violence.
In a statement prepared for the purposes of this application, KH says that she is terrified at the prospect of the applicant getting bail, and explains in some detail why that is so.
The applicant’s counsel sought to criticise KH’s credit, because she did not put all that information in the statement she gave to police after the incident in June 2013. The criticism is misplaced; the two statements were prepared for completely different purposes. Her first statement did not address her fear if the applicant was granted bail, as he was safely in custody at the time and no bail application was pending.
Although she now lives at an address which is not known to the applicant, KH still works at the same place as before, and the applicant could easily locate her at work if he wished to do so. The fact that it is proposed that he would be living about 100kms away from her would not present any real impediment to his finding her and violently confronting her. The proposed curfew requirement (that he be at his mother’s house between certain hours) would not prevent him from confronting her outside of curfew hours.
The evidence suggests that the nature and seriousness of the applicant’s domestic violence against KH is escalating. The current charges are very serious ones, and the Crown case against the applicant is far from being weak.
The current intervention order is a piece of paper, it cannot physically protect KH. The applicant has shown scant regard for intervention orders in the past. I have no confidence that imposing a condition of bail that he abide by the current intervention order would protect KH.
Notwithstanding the evidence before the court, there is no acknowledgement by the applicant of any problems with violence or anger management, and therefore no proposal that he address these problems as a condition of bail.
In the circumstances, I am not satisfied that cause has been shown, and I am satisfied that the applicant presents an unacceptable risk of interfering with witnesses, endangering the safety or welfare of others, and committing further offences while on bail. The application for bail is refused.
---
0
0
0