Re MDT
[2010] VSC 28
•16 February 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 13 of 2010
| IN THE MATTER of the Bail Act 1977 (Vic) | |
| and | |
| IN THE MATTER of an Application for bail by MDT | |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2010 | |
DATE OF RULING: | 16 February 2010 | |
CASE MAY BE CITED AS: | Re MDT | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 28 | |
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CRIMINAL LAW – Application for bail – Sexual offences – Unacceptable risk – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gullaci | Victoria Legal Aid |
| For the Respondent | Ms C Parkes | Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by “MDT” (“the applicant”).
The applicant is aged 36 years and on 28 November 2009 he and his wife were arrested in Ballarat by police. The applicant was charged with two counts of sexual penetration of a child under 16, one count of committing an indecent act with a child under 16 and two counts of indecent assault. I am informed that his wife was also charged with three counts arising from her alleged complicity in one of the assaults on one of the complainants. Since the arrest of the applicant on 28 November 2009 he has remained in custody. I am informed, and so the material reveals, he is at Port Phillip Prison.
Although there is some suggestion that the wife of the applicant will be a prosecution witness in the case against the applicant, she remains charged with offences and has been released on bail by the Magistrates Court on 10 December 2009. As I refer to later, counsel for the respondent relies on the prospect that the applicant’s wife will be a witness against her husband at his committal and trial.
The young girls who are alleged to be the victims of these offences are the nieces of the applicant. They are aged seven and ten years respectively. The charges laid against the applicant relate to events which occurred between August and November of 2009.
Charged with the offences that he is, it is common ground that pursuant to s 4(1)(b) of the Bail Act 1977 the applicant is prima facie entitled to be granted bail. However under s 4(2) of the Act the respondent/informant had submitted that I should refuse bail to the applicant because there is an unacceptable risk that if released on bail he would commit an offence whilst on bail, endanger the safety and welfare of members of the public, or interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person. In such circumstances the onus is clearly on the respondent to establish that the applicant is an unacceptable risk. 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;
(c) the history of any previous grants of bail to the accused; and
(d) the strength of the evidence against the accused person;
In broad summary the case to be put against the applicant is as follows. The applicant’s sister in law is the mother of the two young girls in respect of whom the applicant is charged. From time to time they have been taken to the applicant’s premises to be looked after. On Friday 27 November 2009, as they were being prepared to be taken there again, they displayed fear and were upset at the prospect. They then complained that they had been the victim of sexual offences whilst at the applicant’s premises previously. The two girls were taken to the Ballarat Police Station and were interviewed by way of video and audio recording. Details were provided which implicated the applicant and his wife as an assistant to his activities. The following day both the applicant and his wife were arrested by police. The four children of the applicant and his wife have been placed in protective welfare. In a record of interview with police, the applicant denied any involvement in the offences with which he is charged.
The first affidavit in opposition to this application for bail was filed on behalf of the respondent on 22 January 2010. That affidavit exhibits a statement by Leading Senior Constable Jacinta Ford from the Ballarat Sexual Offences and Child Abuse Unit who in turn refers to a number of matters on which the respondent relies. In that statement Ms Ford refers to the following matters:
· The circumstances of the arrest of the applicant and his wife;
· The suggestion that the applicant’s wife will provide support for the allegations made against the applicant;
· The fact that in his record of interview the applicant denied the allegations made against him;
· The allegation that five images of child pornography were located on the computer of the applicant after it had been seized on 7 January 2010;
· That contrary to the conditions of her bail, the applicant’s wife had been visiting him at Port Phillip prison.
The statement concludes with the allegation that the applicant would interfere with witnesses. It does not seem to me that any of those matters listed above would necessarily support that conclusion.
As it presently stands, the case against the applicant is comprised of the evidence proposed to be led against him from the two young girls who claim he has committed these offences against them. As the charges against the applicant indicate he is charged, among other matters, with two counts of sexual penetration of a child under the age of 16 years. The medical examinations of each child do not appear to me to support the allegations though such evidence may not be conclusive on the issue. In addition, it may be that the wife of the applicant is also a witness and can give evidence relevant to the allegations. When she was interviewed on 28 November 2009, she told police that her husband had molested her 10 year old niece. She described the sexual contact she saw happen between the applicant and one of the nieces on several occasions in some detail. To some extent her statement coincides with the allegations made by the 10 year old child in her VATE interview.
However, apart from offering a police statement in relation to her visits to her husband and conversations she had with him, she is at this stage not a police witness on the main allegations against her husband. At this stage the case against the applicant would not be described as a very strong case, though not a weak case as Mr Gullaci accepted.
However, in addition to the first affidavit in opposition to the grant of bail, a further affidavit was sworn on behalf of the respondent on 4 February 2010. Exhibited to that affidavit are police summaries of five phone calls which had been monitored at Port Phillip Prison and which involved the applicant. Those phone calls occurred on 26 January 2010, 28 January 2010 and 29 January 2010. Detective Senior Constable Barry Hills of the Ballarat Criminal Investigations Unit has listened to the calls but the conversations themselves have not been provided by way of evidence since no warrant has been executed to retrieve them.
Despite those shortcomings, the summaries indicate that during these telephone calls the applicant informed his wife that notwithstanding her bail conditions she could not be stopped from coming to prison to visit him. He is also alleged to have said during a conversation with a male person that his wife would never be a witness for the police and that he would make sure of it. Referring to the victims, he is alleged to have expressed the hope that the victims’ mother loses her children and the conversation includes him being abusive and angry towards the victims’ mother. He is also alleged to have said that when he is released on bail he was going to kill the victims’ family members because of threats made by them against him. In a further conversation he is alleged to have described the hatred he has towards the victims’ mother and reiterates that he will continue to communicate with his wife.
In support of the application for bail an affidavit was sworn by Mary Catherine Mangan, solicitor. The matters relied upon in that affidavit included:
· The applicant has no relevant prior convictions;
· The applicant receives a disability support pension;
· The applicant has supportive family members being his sister, mother and father;
· The applicant’s children are now the subject of an interim accommodation order made on 2 December 2009 so they are not at risk from the applicant;
· The applicant proposes to consent to an intervention order on a “without admissions” basis in relation to his wife and four children.
In his submissions in support of the application counsel for the applicant, Mr Gullaci, noted correctly that prima facie his client was entitled to the grant of bail and as to the acknowledged risk involved in such a grant of bail he submitted that the risk can be made acceptable. That, he argued, could be done by the imposition of strict conditions. He noted that his client has one prior conviction which is a court appearance some 14 years ago for indecent language and otherwise has no prior convictions either for sexual offences, for making threats or for bail related offences.
Mr Gullaci repeated that, as set out in the affidavit of Ms Mangan, his client has the support of his mother, his father and sister and it is proposed that if he were to be released on bail he reside at an address at Wendouree in Ballarat. The respondent has submitted that such arrangements would be a matter of primary concern given the proximity to the family of the two young girls. Mr Gullaci sought to make suggestions about how conditions could be imposed on the applicant to ensure that he did not endeavour to locate or have any contact with his children.
In relation to the unacceptable risk of releasing his client on bail, Mr Gullaci then made the following specific submissions. First, that the offending alleged against his client was in a reasonably short and discrete period between August and November 2009 and that that was to be contrasted with offending in other cases where it was claimed to have occurred over a period of years and was extensive. He contrasted the factual allegations in this case with that in Application for bail by APS [2009] VSC 588 in which I granted bail to an applicant alleged to have committed offences over a 32 year period. That is a reasonable point to make but the nature and gravity of the offences alleged against the applicant in this case is significant and the differences between that case and this as they affect the issue of whether the applicant is an unacceptable risk are clear.
Second, he submitted that it was noteworthy that the alleged offending occurred in the applicant’s home while he was babysitting with his wife and four children present. That situation, Mr Gullaci submitted, would not arise again if he were released on bail and therefore the prospects of further offending were low.
Third, Mr Gullaci dealt with the allegation that five images of child pornography had been located on the applicant’s computer following his arrest for the charged offences. He submitted those facts would have a limited effect on whether or not his client was an unacceptable risk if released on bail. As I understand it, he has not yet been interviewed by police about those matters and I agree with Mr Gullaci that the effect on the issue I have decide is limited.
Fourth, Mr Gullaci dealt with the threats said to have been made by the applicant against his wife to burn down the house. He submitted that those alleged threats were “all over the shop”, that the applicant’s wife had not made a statement and that no charges had been laid.
In reading the interview between the police and the applicant’s wife I note that she is clear about her allegation that the applicant had molested their niece and described what she observed. She also seems to express apprehension about the applicant. In addition, on 3 February 2010 she made a statement to police at Ballarat. She described visiting her husband, the applicant, in prison a number of times contrary to the conditions imposed on her by the magistrate who granted her bail. Included in that statement is the following:
On one of these visits Thomas said to me that he was going to get bail and that when he did he would come and get me and try and find the kids. He said we would all then leave Ballarat. I didn’t say anything to this.
In dealing with the summary of the phone calls to which I have earlier referred Mr Gullaci informed me that to the extent it could be said his client had made threats during the course of the second and third phone calls they were likely to be in the context of threats having already been made by the victims’ family against the applicant and his family. Mr Gullaci submitted that the full context of those conversations really needs to be heard in order to understand what has been said. I agree it would be an advantage to have the full context of those conversations. Mr Gullaci submitted that in the absence of any recent or relevant criminal history I should be careful about the extent to which these matters are taken into account.
However in my view the respondent has discharged the onus of proving that the risks involved in the release of the applicant on bail are unacceptable. There are several reasons for this conclusion. The first is that the address at which the applicant proposes to live is unsatisfactorily close to the residence of the alleged victims in this matter and, as was submitted by counsel for the respondent, the applicant would obviously have access to a car and easily be able to go to the address. I am concerned that in the particular circumstances of this case the applicant may well approach the complainants and/or their mother given the close proximity. It is of further particular concern that there seems to be some significant hostility between the applicant’s family and the family of the complainants and living in close proximity in the present circumstances there is a realistic risk of some level of confrontation.
Although the tape recordings of the conversations involving the applicant from Port Phillip Prison have not yet been obtained pursuant to police warrant, in my opinion they raise sufficient concern to persuade me that the respondent has discharged the onus of demonstrating that the applicant is an unacceptable risk. I am not confident that the imposition of conditions would resolve the risk. It may turn out that upon receipt of the actual recordings or transcripts of them that Mr Gullaci’s submission about the effect of the context in some way dilutes the effect of what has been summarised but in the present circumstances I consider that the combined effect of
· the applicant proposing to reside at an address very close to where the victims and their family live;
· the applicant’s apparently expressed desire to his wife to leave Ballarat, and locate his children; and
· the risk that he may harm his wife and/or harm or confront the family of the victims or interfere with the victims themselves;
is sufficient to make him an unacceptable risk pursuant to s 4(2) of the Bail Act. Finally I note that in the course of his submissions no surety was offered on behalf of the applicant. Such conditions add an obligation to another person to guarantee the attendance of the applicant at court as required and in my view would have further reduced the risk that is implicit in a grant of bail.
In all those circumstances the application for bail is refused.
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