Re Bradley
[2021] VSC 431
•20 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0100
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an application for bail by PAUL BRADLEY |
---
JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 14 and 18 May 2021 |
DATE OF JUDGMENT: | 20 July 2021 |
CASE MAY BE CITED AS: | Re Bradley |
MEDIUM NEUTRAL CITATION: | [2021] VSC 431 |
---
CRIMINAL LAW – Application – Attempted murder – Contravention of family violence intervention order – Exceptional circumstances made out – No unacceptable risk.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R. Nathwani | Stary Norton Halphen |
| For the Crown | Mr P. Pickering | Ms A. Hogan, Solicitor of Public Prosecutions |
HIS HONOUR:
Introduction
This is an application for bail by Paul Dale Bradley (‘the applicant’).
On 15 November 2020, the applicant was arrested and remanded in relation to an incident involving his former partner, MF (‘the complainant’), said to have occurred the evening prior. He was charged by informant Detective Acting Sergeant Christopher Brown with the following offences: attempted murder, reckless conduct endangering life, reckless conduct endangering serious injury, intentionally causing injury, aggravated assault, committing an indictable offence while on bail (four charges) and intentionally causing serious injury.
At the time of the alleged offending, the applicant was on bail and summons in four outstanding matters, largely involving driving offences. The applicant has been in custody since his arrest on 15 November 2020. This is his first application for bail, which was filed on 28 April 2021.
The matter is next listed for a committal hearing on 19 August 2021 in the Ballarat Magistrates’ Court.
The matter came before me as an application for bail on 14 May 2021 and again on 18 May 2021. I granted the application and indicated that I would provide my written reasons. These are those reasons.
Summary of alleged offending
The applicant and the complainant were in a relationship for approximately 10 years and were separated at the time of the alleged offending.
On 14 November 2020, between 8pm and 10pm, the complainant attended the applicant’s residence in Scarsdale to borrow some dog food. The two got into an argument and the applicant allegedly threatened, ‘you have accused me of being a woman-basher and putting my name through hell with DHHS, and everyone else, I might as well do it’. He is also alleged to have asked the complainant to have sex with him, which she refused.
It is the prosecution case that the applicant then grabbed the complainant by the throat and squeezed tightly, causing the complainant to become unconscious. While unconscious, it is alleged that the applicant punched the complainant to the face multiple times. After the complainant regained consciousness, she was driven to her family home in Illabarook by the applicant’s mother. Upon arrival, the complainant collapsed on the back porch and an ambulance was called.
While paramedics were treating the complainant, she was noted to be unresponsive for seconds at a time. She later began coughing up blood, which paramedics believed to be an indication of internal injuries. The complainant was subsequently taken to Ballarat Base Hospital in a ‘serious but stable condition’.[1]
[1]The complainant’s medical records have since been provided to the court.
The applicant was arrested at his home the following day. He refused to listen to the allegations against him and was remanded in custody.
On 16 November 2020, a final full no-contact family violence intervention order (‘FVIO’) was made in the Ballarat Magistrates’ Court naming the applicant as the respondent and the complainant and their two children as the affected family members (‘AFMs’). That order remains in effect until 15 November 2023.
Other pending matters
The following outstanding matters are listed for mention in the Ballarat Magistrates’ Court on 26 August 2021.
Informant Richards
On 21 June 2019, the applicant was pulled over by police in Smythes Creek for driving a vehicle with an expired registration. He did not have a driver’s license at the time.
On 4 August 2019, he was charged on summons with unlicensed driving and driving an unregistered vehicle. He failed to appear in answer to the summons and a bench warrant was issued for his arrest. The applicant was arrested pursuant to the warrant on 22 May 2020 and granted bail.
Informant Walker (1)
On 22 May 2020, the applicant was pulled over by police in Smythesdale for a routine license and registration check. He did not have a valid driver’s licence and his vehicle was unregistered. The applicant provided an oral fluid sample which confirmed the presence of cannabis in his system.
Informant Walker (2)
On 25 July 2020, the applicant was pulled over by police in Newtown for a routine license and registration check. He did not have a driver’s license and his vehicle was unregistered. He then refused to undergo a preliminary breath or oral fluid test.
Informant Vincent
On 22 August 2020, the applicant was pulled over by police in Rokewood. He did not have a driver’s licence.
On 3 September 2020, the applicant was charged on summons with unlicensed driving.
The applicant
The applicant is 33 years old. He has two siblings and was raised by his mother and step-father in the Dandenong and Frankston areas. He never knew his biological father.
The applicant left school at the age of 15. He had a strong employment history up until October 2019, when the company he worked for (assembling roof trusses) went into liquidation. He struggled to find work during the COVID-19 pandemic and was thereafter unemployed up until the time of his arrest in November 2020.
As indicated, the applicant and the complainant were in a long-term relationship. They share 11 year old twin daughters together, NB and KB, who live with the complainant in Scarsdale. KB was born with cerebral palsy. She is blind, has high needs and cannot walk or talk.
Criminal history
The applicant has an extensive criminal history spanning between 2006 and 2017. It includes offences involving dishonesty, driving, weapons, drug use, and reckless conduct endangering life. It also includes a number of dispositions for bail offences (eight counts of failing to answer bail between 2010 and 2017) and breaches of court orders (failing to comply with a community based order in 2008 and breaching a suspended sentence in 2011).[2]
[2]Affidavit in Support, Exhibit JM-2.
Family violence history
In March 2019, the twins’ school notified Child Protection of possible family violence occurring in the home. As a result, police became involved and the complainant divulged that, two days prior, the applicant had dragged her across the ground by her hair, resulting in scratches and bruising. He later drove into her mother’s car and threatened the complainant, ‘if [KB] fits again, I’ll put you in a hole’.
On 12 March 2019, a full non-contact interim FVIO was made in the Ballarat Magistrates’ Court naming the applicant as the respondent and the complainant and the twins as the AFMs. On 10 July 2019, a final FVIO was made with conditions that the applicant not commit family violence against the AFMs, damage their property, or get anyone else to. That order expired on 10 July 2020.
On 16 November 2020, a final full no-contact family violence intervention order was made in the Ballarat Magistrates’ Court naming the applicant as the respondent and the complainant and their two children as the affected family members (‘AFMs’). That order remains in effect until 15 November 2023
During the hearing of this application, the respondent relied on a number of recorded telephone calls made by the applicant from Port Phillip Prison to allege contravention of the FVIO.
The applicable legislation
Guiding principles
When interpreting and applying the Bail Act 1977 (‘the Act’), the Court is required to have regard to the guiding principles set out in s 1B. This includes, amongst other things, maximising the safety of the community and persons affected by crime to the greatest extent possible, and taking account of the presumption of innocence and the right to liberty.
Step 1 – exceptional circumstances test
As the applicant is charged with a Schedule 1 offence within the meaning of the Act, namely attempted murder, bail must be refused unless he can satisfy this Court that exceptional circumstances exist that justify the grant of bail. In determining whether exceptional circumstances exist, the Court must take into account the relevant ‘surrounding circumstances’, including, but not limited to, those prescribed in s 3AAA(1) of the Act.
Step 2 – unacceptable risk test
If satisfied that exceptional circumstances exist, the Court must apply the ‘unacceptable risk test’. Bail must be refused if the respondent satisfies the Court that there is a risk of the kind set out in s 4E(1)(a) of the Act, and that such risk is an unacceptable risk. In considering whether any relevant risk is unacceptable, the Court must again have regard to the ‘surrounding circumstances’ contained in s 3AAA of the Act and consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not unacceptable.
Family violence risk
Section 5AAAA(2) of the Act provides that, in considering the release of a person charged with family violence offences on bail, the Court must:
(a) make inquiries of the prosecutor as to whether there is in force a FVIO, FVSN or recognised DVO made or issued against the applicant; and
(b) consider whether, if the applicant were released on bail, there would be a risk that he would commit family violence and whether that risk could be mitigated by the imposition of a bail condition or the making of a FVIO.
Analysis
A number of matters were put by Mr Rishi Nathwani, who appeared on behalf of the applicant, in support of the bail application.
The matters that he raised generally under s.3AAA of the Act as part of the surrounding circumstances were: the strength of the prosecution case, the impact of the COVID-19 pandemic, which is now accepted as a matter to be taken into account when considering applications of this kind and the question of delay should this matter go to trial. My view is that it is more likely to go to trial in the County Court than it is to go to trial in this court, and it is therefore likely that the delay would be very significant. There would be no trial this year, and possibly no trial next year. The delay may therefore go well into 2023.
If the matters distil, the matter may come down to an assessment of the injuries sustained by the complainant. While these are quite nasty, they are not in the range of the most serious injuries in events of this kind and although quite likely to lead to a custodial sentence, they are unlikely to lead to a very substantial one. An analysis of the comparison between the likely time in custody and the likely sentence imposed in this matter therefore falls to be judged in favour of the applicant.
The applicant has a significant criminal history, including breaches of bail. While his history largely relates to not particularly serious offending, it shows that he is a person who has not got a particularly good history of observing ordinary requirements such as being licensed to drive a motor car, or driving motorcars when disqualified and so on. In that sense, his criminal history does undermine confidence in his willingness and ability to accept and comply with court orders. It is, however, hoped that he would now understand the importance of these matters and the risk he puts any bail that is granted to him if he breaches any of the conditions imposed.
I think it is a reasonable assessment of the applicant's conduct in the past to say that he has not taken much notice of summonses or of been releasing on bail. It should be noted in that regard that previous court orders imposed on the applicant have related to significantly less serious matters than the present offending.
The applicant has the support of his family. The informant takes the view that that support might go so far as interfering with the complainant, and that is a matter that will have to be kept seriously under review, but it does not increase the likelihood that the applicant himself is likely to commit further offences.
Exceptional circumstances
I am satisfied that on a proper analysis of the material, that the case for attempted murder is extremely weak. In fact, there is very little evidence to support the proposition that there was an attack made by the applicant on the complainant with intent to cause death; the necessary intent for the crime of attempted murder.
It should be noted that in relation to the recorded interview taken from the complainant when she was at the hospital on the night of these events, as well as in relation to a subsequent statement that she made, that there is almost no detail provided regarding what happened to her and how she actually came to have the injuries seen by the paramedics and seen at the hospital.
There is an inference open that the injuries were inflicted by the applicant, but the precise circumstances are very hard to discern. I note my concerns about how the narrative as it is alleged by the informant can be supported by the evidence, without having had available to me the whole of the hand up brief.
That of itself would be sufficient to say that exceptional circumstances had been established but that is not the end of the matter. There are other Schedule 2 offences with which the applicant has been charged and as he was on bail at the time of the offending. These would give rise to the compelling reasons threshold. I am satisfied that there would be sufficient delay in this matter getting to trial, together with the indefinite state of the prosecution case, such as to say that compelling reasons had been made out, if it be that compelling reasons need to be established when exceptional circumstances have separately been disposed of.
Unacceptable risk
I do have special regard to the matters put by the respondent which arise out of the recorded telephone calls from Port Phillip Prison where the applicant has been on remand. It is clear that a number of those calls are plain contraventions of the family violence intervention order and are matters about which I should have concern; in particular regarding the applicant's attitude to that order. That is not to say that I accept all the matters that the informant submits to be breaches of the order as sustainable, but there are a sufficient number of them to make the position clear, and probably give rise to the possibility of a charge of persistent breach of the order.
The other matter raised by the informant is whether the conduct in the various telephone calls amount to an attempt to pervert the course of justice. Having listened to the calls that were provided to me, which was not every call, I am not satisfied that what is said in those calls necessarily goes so far as to amount to an attempt to pervert the course of justice. I am also not entirely satisfied that the conduct of the applicant’s sister amounts to an attempt to pervert the course of justice or to harassing a witness, as was suggested by the informant, but they will be matters for later consideration in terms of what the evidence amounts to.
There is no doubt in this matter that the informant has serious concerns about the safety of the complainant. Although I take those concerns seriously and have regard to those parts of the Act that require me to take special care in relation to family violence considerations, I am that satisfied at the end of the day that the applicant is not an unacceptable risk of committing further offences on bail, failing to answer bail or endangering the welfare of members of the public.
The proposed conditions of bail are also significant to a consideration of whether the applicant can be rendered a not unacceptable risk. I am satisfied that the imposition of appropriate conditions, and the possibility of having available a substantial surety, would increase the restraints on the applicant to ensure that he obeys his bail conditions and render him not an unacceptable risk.
Ruling
The Court is satisfied that exception circumstances exist that justify the grant of bail and that it has not been shown that the applicant is an unacceptable risk.
The Court notes that the applicant is subject to FVIO L12679700.
Paul Bradley will be admitted to bail on his own undertaking, with one surety of $100,000 and on the following special conditions:
(a) He attend the Ballarat Magistrates’ Court on 19 August 2021 and then surrender himself, and must not depart without the leave of the Court and, if leave is given, return at the time specified by the Court and again surrender himself into custody.
(b) He reside at an address known by the Court in Victoria, and not change that address without the leave of the Court.
(c) He remain at those premises between the hours of 9pm and 6am each day for the duration of bail except in the company of Faye Bradley.
(d) He present himself at the front door of the premises during those curfew hours if and when called upon by a member of Victoria Police to do so.
(e) He not attend or be within 50km of Ballarat in Victoria for the duration of the bail period except to attend Court and on Friday 21 May 2021.
(f) He report Monday, Wednesday and Friday to the Officer in Charge of the Police Station at Pakenham, or his or her nominee, between the hours of 7am and 8pm.
(g) He not contact, directly or indirectly, any witness for the prosecution, except the informant, his mother, Tina Bradley, and step-father, Rodney Guymer.
(h) He not leave the State of Victoria.
(i) He surrender any passport he may have to the informant within 24 hours and apply for no other.
---
0
0
0