Re APS
[2009] VSC 588
•11 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. 1637 of 2009
| IN THE MATTER of the Bail Act 1977 (Vic) |
| v |
| IN THE MATTER of an Application for bail by APS |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2009 | |
DATE OF JUDGMENT: | 11 December 2009 | |
CASE MAY BE CITED AS: | Re APS | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 588 | |
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CRIMINAL LAW – Application for bail – Incest and other sex offences – Presumption in favour of bail – Unacceptable risk – Crown failed to discharge onus – Bail granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr AM Jackson | Littleton Hackford & D’Alessandro Pty Ltd |
| For the Crown | Mr D Bliss | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by APS (“the applicant”). The applicant was arrested and charged on 23 September 2009 with 27 offences involving seven victims which are alleged to have taken place over 32 years from 1970 until 2002. The charges include carnal knowledge of a girl under 10 years (7 charges), indecent and unlawful assault of a girl (7 charges), indecent assault (2 charges), incest, gross indecency with a person under 16 years (2 charges), sexual penetration of a child under the age of 10 years (3 charges), threat to kill, common assault (2 charges) and indecent assault with a child under the age of 16 years (2 charges).
The applicant is currently held on remand at the Metropolitan Remand Centre. The applicant’s solicitor, Mr Clem D’Alessandro has sworn an affidavit dated 16 November 2009 in support of the application for bail. In a record of interview conducted on the date of his arrest, the applicant categorically denied all of the allegations put to him.
The victims of the alleged offences were aged between four and fifteen years of age at the time of the alleged offending. They include the applicant’s sister, daughter, two nieces, a former school friend, a babysitter and a former neighbour’s nine year old daughter.
Under the Bail Act 1977 and despite the gravity and number of offences alleged, the applicant does not fall into a special category which would require him either to show cause or demonstrate exceptional circumstances in order for the Court to consider a grant of bail. The presumption of bail is in the applicant’s favour pursuant to s 4 (1)(b) of the Act. The application is opposed by the Crown on the basis that there is an unacceptable risk that the applicant would commit an offence whilst on bail and/or interfere with witnesses. That resistance to a grant of bail to the applicant follows the provisions of s 4(2)(d).
A previous bail application on behalf of the applicant was heard at the Latrobe Valley Magistrates’ Court on 28 October 2009. The Magistrate, Mr Murnane refused bail on that application. In that instance bail was opposed on the grounds that the applicant was an unacceptable risk in that he might:
(a) Endanger the safety and welfare of members of the public;
(b) Interfere with witnesses or obstruct the course of justice; and
(c) Fail to surrender himself into custody.
During that hearing, the informant, Detective Leading Senior Constable Vincent Manno gave evidence. The applicant’s brother, MPF also gave evidence in support of the applicant.
As I have said, the present application for bail is opposed by the informant on the basis that there is an unacceptable risk that the applicant will commit an offence if released on bail (pursuant to s 4(2)(d)(i) of the Bail Act). The onus is on the informant to establish that an unacceptable risk exists. Section 4(3) of the Bail Act indicates how issues raised under s 4(2)(d)(i) are to be assessed. I must consider all matters appearing to be relevant and in particular to several considerations including the following relevant factors—
(a)the nature and seriousness of the offence or offences;
(b)the character, antecedents, associations, home environment and background of the accused person;
(d)the strength of the evidence against the accused person;
On behalf of the informant, Mr Anthony Rooney of the Office of Public Prosecutions has filed an affidavit in opposition to the application for bail. Exhibited to that affidavit is a large amount of material including statements made by a number of the complainants in this matter. He also refers to the applicant’s antecedents, the most relevant of which is a charge of threat to inflict serious injury in 1996. In the informant’s statement which is exhibited to Mr Rooney’s affidavit, further details of this charge are provided. It was apparently related to three charges of indecent assault which were ultimately dismissed. The charge of threatening to inflict serious injury apparently involved the applicant making threats while in possession of a shotgun and cartridges. It was alleged that the applicant threatened harm if the indecent assaults which were alleged against him were revealed by the victims. The informant has also asserted a long history of allegations of violence or the threat of it by the applicant. In 1990 there are alleged to have been threats made with a shotgun. In 1991 further threats were alleged to be made by reference to the use of firearms. Several of the victims claim that assaults were committed on them apart from the sexual offences alleged. However it is relevant to note that none of this behaviour apart from that which is part of the offence with which the applicant is charged appears to be any more recent than 1991.
In his submissions opposing the application and in which he appropriately acknowledged that the onus lay on the informant, Mr Bliss of counsel referred to several matters which he said constituted an unacceptable risk of further offending whilst on bail. First, and most obvious, these are very serious charges. That is indisputable. Mr Bliss also placed reliance on the interest taken in the proceedings by the brother of the applicant although the resultant assertion that interference with witnesses would be likely to occur through the agency of the applicant’s brother depended on drawing inferences which I am not sure can be drawn on the evidence as it presently stands. Mr Bliss frankly conceded that to date there was no evidence that the brother of the applicant had interfered with witnesses or expressed any intention of doing so. Mr Bliss also pointed to hearsay evidence of a witness who related a conversation which occurred between the applicant’s brother and another person in which the brother expressed confidence that the applicant was guilty of these offences. Even given the flexibility of material which can be taken into account in an application for bail, I could not place any reliance on that material. It is also suggested that there has been offending by the applicant since the date of the last offence in 2002 but no evidence of that is before me and this aspect seems to be no more than a continuing police investigation.
In support of the application, Mr D’Alessandro’s affidavit deposes that the applicant has no prior history in relation to failing to answer bail, and has one prior conviction for deception in or about 1982. Mr D’Alessandro also referred to a number of court appearances dating from 1996 until this year in which the charges were dealt with without conviction. In the submissions before me in support of the application, Mr Jackson of counsel submitted that whilst these charges are serious, as to the risk raised by the informant there are a number of conditions that could be imposed which would make that risk acceptable. He refers also to the fact that there is no history of the applicant have either failed to answer bail or committing offences whilst on bail.
The applicant is 49 years old and is married with no dependent children. He is a disability pensioner. The applicant has three children from his previous marriage: one of those children is the alleged victim in charges of incest, three counts of sexual penetration of a child under 10 years of age, two charges of common law assault, and one of threat to kill. His former wife has made two statements which appears to corroborate some allegations of other victims, as well as providing information regarding the applicant’s alleged propensity for violence, and a previous application for an intervention order.
The applicant is currently married with one 25 year old step-daughter who lives, as I understand it, elsewhere. The applicant’s wife was not born in Australia, speaks little English , does not hold a driver’s licence and apparently suffered from thyroid cancer. She has chronic asthma and hypertension and visits her general practitioner in a town 40 kilometres from the family home once per month for reviews. She is apparently suffering from stress and is isolated.
In his affidavit Mr D’Alessandro also referred to the “inordinate” delay the applicant is likely to suffer in having these matters dealt with. He referred to the backlog of matters awaiting trial at the Latrobe Valley County Court which he indicates has matters waiting four or more years presently, the fact that the large number of charges have already led the informant to seek an extension of time with regard to delivery of the hand-up brief and committal mention, and the fact that there are currently seven victims involved in the matter will likely require a lengthy committal, and there are apparently delays in the hearing of matters with an expected length of more than two days in the Latrobe Valley Magistrates’ Court presently. It would seem unlikely that a trial of this matter could be heard in the Latrobe Valley County Court before the end of 2010.
As to the strength of the case against the applicant, it was submitted that it is presently difficult to make an assessment of it. Be that as it may, the fact is that allegations against the applicant come from four members of this applicant’s family and three others. There appears to be support for their evidence from eight other witnesses in various aspects as to injuries or evidence of complaint. These include statements made by the applicant’s former wife, daughter, sister, nieces, nephews, and other family members. The material contained therein details serious allegations of violence, manipulation and abuse said to have been perpetrated by the applicant to young children, teenagers and adults alike. As Mr Jackson of counsel submitted however, the status of some of that evidence obviously remains to be ruled upon by a trial judge.
Mr Jackson submitted that with the imposition of conditions, such risk as there was as claimed by the informant could be ameliorated. I think there is merit in that submission. I note however that no surety is offered. Mr Jackson suggested that the equity the applicant holds in his property jointly with his wife would not support a surety. I accept that but as to whether another person could provide security as a surety, Mr Jackson informed me that he had no instructions.
In my view, given the nature and seriousness of the offences and their long history, there should be a surety. Such conditions add an obligation to another person to guarantee the attendance of the accused at court as required and in my view further reduce the risk that is implicit in a grant of bail.
In this application, the Crown has failed to discharge the onus of demonstrating that the applicant poses an unacceptable risk of committing further offences whilst on bail. In the absence of probative material of greater weight regarding the applicant’s propensity for violence, further information about the apparently pending charges, and any psychological evidence regarding the applicant’s propensity to commit offences of the type charged, the presumption in favour of a grant of bail remains intact.
I have therefore decided there should be a grant of bail.
The applicant will be admitted to bail on his own undertaking with one surety in the sum of $20,000 conditioned in the proper form for his appearance as required by law at the hearing of his committal mention at the Latrobe Valley Magistrates’ Court of Victoria on 16 February 2010 at such time as he shall be notified and upon the following special conditions:
(1) The applicant reside at [address] in the State of Victoria;
(2)The applicant give 7 days’ notice to the Informant or his nominee of any proposed change of address;
(3)The applicant report each day to the Officer‑in‑Charge of the Police Station at Moe or his/her nominee between the hours of 9.00 a.m. and 5:00 pm;
(4)The applicant is to surrender any passport he may hold to the Informant upon being admitted to bail and is not to apply for or possess any other passport or travel document nor attend any point of international departure;
(5)Other than the Informant, Detective Leading Senior Constable Vincent Manno, the applicant is not to approach any witness for the prosecution either directly or indirectly through any member of his family;
(6)The applicant to appear before the Latrobe Valley Magistrates’ Court on such dates as required.
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