Re Williams
[2018] VSC 76
•23 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0014
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an Application for bail by DALE DAVID WILLIAMS
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2018 |
DATE OF JUDGMENT: | 23 February 2018 |
CASE MAY BE CITED AS: | Re Williams |
MEDIUM NEUTRAL CITATION: | [2018] VSC 76 |
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CRIMINAL LAW – Bail – Appeal against refusal – Recklessly causing injury and unlawful assault – Contravening a family violence intervention order – Whether applicant shows cause – Whether applicant poses unacceptable risk – Bail refused – Bail Act 1977 s 4(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Tovey QC | Grigor Lawyers |
| For the Respondent | Mr N Moran | Victoria Police |
HIS HONOUR:
Overview
On 14 November 2017, the applicant Dale Williams was arrested and charged by police with offences relating to a series of family violence incidents alleged to have occurred in 2017. Subsequently, he was charged with further offending relating to a family violence incident alleged to have occurred in 2013.
The complainant in all the matters before the Court is Ms Brooke Rushby, who has been in a relationship with the applicant for approximately ten years. There are two children from that relationship, and another child from a previous relationship of Ms Rushby, within the family’s constellation.
Procedural history of the matter
At the time of the alleged offending on 2 November 2017, the applicant was the subject of an interim Family Violence Intervention Order, granted by the Frankston Magistrate’s Court on 4 October 2017 and served on the applicant on 12 October 2017. Ms Rushby was listed as the affected family member. On 30 November 2017, the applicant consented without admission to a final no–contact intervention order, where the complainant and her three children were listed as affected family members.
On 15 November 2017, being the day following his arrest, the applicant applied to the Moorabbin Magistrates’ Court for a grant of bail with respect to all the charges he faces. Having adjourned part-heard, the application was ultimately refused on 30 November 2017 on the basis that the applicant had not shown cause, and was at an unacceptable risk of committing further offences while on bail, endangering the safety and welfare of members of the public and interfering with witnesses. The applicant was remanded to the Magistrates’ Court on 11 January 2018, on which day no further application for bail was made. He was again remanded to the Moorabbin Magistrates’ Court for the matters to be heard as a contested fixture on 18 June 2018.
The applicant now applies to this Court for an order granting bail.
Charges before the Court
In chronological sequence, the charges before the Court involve allegations of a family violence nature alleged to have occurred in October 2013; August 2017; and November 2017.
On 13 October 2013, the applicant is alleged to have intentionally caused injury and recklessly caused injury to Brooke Rushby.
On 29 August 2017, the applicant is alleged to have intentionally caused injury (two counts) and recklessly caused injury (three charges) to Brooke Rushby.
On 2 November 2017, the applicant is alleged to have recklessly caused injury to Brooke Rushby, unlawfully assaulted her, (three charges) and contravened a Family Violence Intervention Order (three charges).
The law that applies in this case
The applicant in this bail application is in a show cause position pursuant to s 4(4)(ba)(i) of the Bail Act 1977 (‘the Act’). The basis for this is that he is presently before the Court charged with three offences laid under s 123(2) of the Family Violence Protection Act 2008 alleging contraventions of a family violence intervention order, and in the course of committing those offences he used violence. In order to qualify as a show cause situation the Act further requires that within the preceding 10 years the applicant had been found guilty of an offence in the course of which he used or threatened to use violence against a person.
In the proceedings before me it was specifically conceded on behalf of the applicant that he is in a show cause situation.
Pursuant to s 4(2)(d)(1) of the Act the Court shall refuse bail if it is satisfied that there is an unacceptable risk that the accused if released on bail would:
(a) fail to surrender himself into custody in answer to his bail;
(b) commit an offence whilst on bail;
(c) endanger the safety or welfare of members of the public; or
(d) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.
I will return to the relationship between the show cause requirement and the unacceptable risk factors later in these reasons.
The alleged offending
As observed above the prosecution alleges offending by the applicant against the complainant on three occasions, the second and third of which are said to have occurred in 2017, and a few months apart. A summary of the alleged occasions of offending follows.
The 13 October 2013 incident
It is alleged that at approximately 10.00pm on 13 October 2013, the applicant arrived at an address in Frankston where the complainant was with her friend, Ms Bianca Rossco. An argument took place between the applicant and the complainant, during which it is alleged the applicant kicked and punched the complainant, after which he drove her to Frankston Hospital. At the hospital, he dragged her from the car and left her at the entrance. The complainant alleges that she was treated overnight for her injuries and was bedridden for three weeks. As a result of the events, she suffered pain to her right wrist, her lower back, and left ribs.
The 29 August 2017 incident
On 29 August 2017, the applicant and the complainant had an argument at the applicant’s home in Bentleigh.
The complainant alleges that she left the home by car after the argument to go to a gambling venue and later began driving to a friend’s house. According to the complainant the applicant had travelled by car in an effort to locate her, passing her vehicle as she drove her car. He then chased her in his car, which she abandoned on the side of the Frankston Freeway due to the level of his dangerous driving. She then hid on a nearby property and went later to her sister’s home.
According to the complainant, after knocking on the door at her sister’s home the applicant arrived in a car, and an unnamed female also arrived who was in her own car. Fearing for her safety, the complainant got into the female’s car and was driven away. At some point, the female stopped driving and the applicant pulled up behind in his car. The applicant then approached the car where the complainant was a passenger, and dragged her out of the car, kicking her and then dragging her into his vehicle. She alleges that this activity left her in pain, with injuries to her right bicep and forearm. Inside his vehicle, the applicant is alleged to have punched the complainant several times to the face and, after having arrived back at his address, grabbed her by the head and twisted it hard. The complainant suffered injuries to her face and eyes as a result of this assault.
Following these incidents the complainant was treated at the Alfred Hospital for her injuries which included two black eyes; soreness to her neck, ribs and kidneys; and bumps to the head.
The 2 November 2017 incident
At approximately 11.00pm on 2 November 2017, the complainant alleges that the applicant went to the complainant’s home in Brighton, knocked on the door and, when it was opened, forced his way into the home. The complainant alleges that when they went to use the bathroom at the same time, the applicant then assaulted the complainant by deliberately urinating on her. Shortly after that, the applicant punched the complainant to the right side of the head and left jaw, then leaving the premises.
At some point during the alleged assaults a neighbour who had heard the complainant’s screams called the police. Police then attended shortly afterwards and found the complainant distressed and crying, and the home in a disorderly state.
On 3 November 2017, 10 November 2017 and 23 November 2017, the complainant made a series of statements to police about the matters alleged.
Grounds of application for bail
By an application dated 1 February 2018, Dale Williams applies for a grant of bail from this Court. The grounds stated in the application for bail include, first, that the applicant is able to show cause why his detention in custody is no longer justified, and, second, that he does not constitute an unacceptable risk of further offending, failing to appear on bail, interfering with the public, or endangering the public.
With respect to the first ground the applicant relies on the following factors, in combination:
(a) the availability of stable accommodation;
(b) the availability of a substantial surety;
(c) his preparedness to enter and abide by strict bail conditions and reporting conditions;
(d) his willingness to continue with counselling supervision and adherence to a stringent alcohol and other drugs regime, including regular drug and alcohol screening, supervision, attendance upon the Men’s Behaviour Change program (or an equivalent family violence program), and reporting to the informant;
(e) the availability of immediate gainful employment;
(f) that the prosecution case is not strong and relies in most part on the evidence provided in the complainant’s statements. The evidence of the complainant will be the subject of significant challenge by the applicant, including the credibility of the complainant.
In support of the applicant’s second ground, the applicant relies on the following sub-grounds:
(a) the applicant is amenable to bail conditions requiring him not to contact, directly or indirectly, any witness in this case;
(b) the applicant consented to a full no contact intervention order without admissions, whereby the complainant is named as the affected family member. This order will not expire until 30 November 2022;
(c) the applicant has no desire to continue contact with the complainant;
(d) the applicant was compliant with the conditions of his previously Community Corrections Order, completing 50 of the 60 community work hours required;
(e) the applicant will be undergoing significant alcohol and other drug treatment upon release, which will include supervision conditions and reporting to the informant by the program director;
(f) the applicant has stable accommodation and gainful employment available upon release;
(g) in the present case, the risk of re-offending is reduced to a level where it is not unreasonable by virtue of the support available to him upon release.
As stated above, in this application the applicant must show cause why his detention in custody is not justified. Differently, unacceptable risk factors are for the prosecution to establish.
As outlined in the affidavit in support of application for bail sworn by Joshua Gregory Cunningham dated 1 February 2018, the following matters, supplemented and expanded upon by submissions from Senior Counsel for the Applicant, are advanced in support of this application.
The nature of the prosecution case
For the applicant it is argued that the prosecution case is not without its problems, and can be described as a case that is not strong, essentially being a ‘word on word’ case. The applicant points out that the case significantly relies on evidence provided by the complainant and there will be heavy challenge to her account of events in the contested hearing of these matters.
It is argued that the complainant has a psychiatric history which included her treatment as an involuntary inpatient in the mental health ward at the Alfred Hospital from approximately 7 September 2017 to 14 September 2017; that the complainant has a history of drug addiction and dependency; that she has a history of making complaints to police with which she ultimately does not proceed; that she was in constant contact with the applicant up until the time of his arrest on these matters; and, that on occasions when she has sought treatment for her alleged injuries, she had told medical staff that she had been attacked by unknown people or could not remember the circumstances of the events leading to her alleged injuries.
It seems clear that it will be argued that the complainant is erratic, and her credibility and reliability will be under significant attack. I was told that the matters will be strongly contested.
Delay
The applicant has been in custody since his arrest on 14 November 2017. The matter was listed for a contest mention on 11 January 2018, on which day an adjournment was sought of the matter for a contested hearing. The prosecution obtained the hearing date of 18 June 2018. This was the earliest available date for the hearing, with the exception of one date in February at which time the informant would be on leave and overseas.
On the hearing before the learned Magistrate on 11 January 2018, it was argued by the legal representative for the applicant that in light of the current policy of the Magistrates’ Court to fast track family violence proceedings, and the fact that the matter relied substantially upon the complainant’s credibility and reliability, that to adjourn the matter for a contested hearing to 18 June 2018 amounted to undue delay.
Despite this submission, it appears that the Magistrate formed the view that the informant’s presence was required at the hearing as given the nature of this case, which involves issues relating to witnesses and evidence, the informant would be best placed to provide information about the investigation. It was in that context that the hearing was adjourned to 18 June 2018, as against the possible finalisation of the matter in February 2018.
It is argued that the delay was due to circumstances beyond the applicant’s control and, as a result, this amounted to undue and unfair delay.
It is also put that the delay is compounded by the conditions in custody that arose from a fire at Port Phillip Prison in late November 2017, the result of which was that all prisoners, including the applicant, were placed on 23 hour lockdown. This lockdown lasted approximately three weeks, at which time it was eased slightly, to approximately 18 hours a day. It appears that the lockdown situation has further eased, however the conditions still include minimal prison visits and restricted access to the outside yard and canteen.
The applicant’s personal circumstances
The applicant relies on his personal circumstances to support the argument that he has shown cause why his detention is no longer justified.
The applicant had full-time custody of his children from late August 2017 to the date when the allegations were made by the complainant in early November. Over that time, he was the primary carer for the children and was responsible for their daily care, including transporting them to their appointments and commitments. It appears that the health of Ms Rushby at that time was such that she was unable to appropriately care for the children.
The applicant owns the property at 12 Cairnes Grove, Bentleigh, and proposes to reside there upon his release from custody with his current partner, Ms Candice Leigh. Ms Leigh has offered to provide a surety in the amount of $20,000. Further, the applicant has been formally offered full-time work as a carpenter should he be released on bail.
The applicant asserts that he has not used drugs of any type since being remanded in custody, and he refers to the assessment of Ms Denise Abadee, an accredited clinical assessor and supervisor engaged by the applicant for the purpose of counselling and treatment, who assessed the applicant on 5 June 2017 as suitable for her program. Should the applicant be released on bail, he proposes to continue to engage with Ms Abadee in her program. Ms Abadee has developed a treatment regime for the applicant which requires him to undertake two urine tests per week including alcohol testing, participate in a Men’s Behaviour Change program, engage with a psychologist and return to work.
Ms Abadee gave viva voce evidence before me and adopted an updated report she had written.[1] She expanded upon aspects of her report confirming that the applicant had sought private treatment from her during which he had engaged very well. She had consultations with the applicant both before and after his being remanded into custody on the matters before the Court. It is to be noted that these consultations were occurring before the occasions of the offending alleged in August and November 2017. Ms Abadee was of the opinion that if released on bail it was not a real possibility that the applicant would seek out the complainant and cause her harm, as he had now moved on with his life.
[1]Which was tendered by the prosecution at the hearing.
Intervention order matters
The applicant points to his preparedness to consent to an intervention order on 30 November 2017 in which he was named as the respondent and the complainant named as the affected family member. Further, the applicant consented without admissions to the full no-contact intervention order including the names of the children of their relationship.
The applicant emphasises the existence of the final intervention order protecting the complainant until 30 November 2022, with the complainant currently residing in crisis/emergency accommodation, and not having a known address. Accordingly, she would be very difficult to locate, should he wish to do so. He asserts he has no intention or desire to contact the complainant again.
In summary therefore, the applicant asserts that he has shown cause why his detention is no longer justified by a combination of factors, including that the prosecution case is not strong; that there is delay of a further approximate four months until the hearing date; he has stable accommodation available to him; that there is a substantial surety; that he is amenable to strict bail conditions; that he is prepared to engage in supervised and stringent alcohol and other drugs counselling; and that he has the prospect of gainful employment.
With respect to the question of unacceptable risk, the applicant points to his preparedness to comply with onerous bail conditions, his consent to a full no–contact intervention order without admissions, that he has no desire to continue contact with the complainant, that he was compliant with the conditions of his previous Community Corrections Order, that he will be undergoing significant alcohol and other drug treatment on release, that he has stable accommodation and gainful employment available, and ultimately that his risk of re-offending is reduced to a level where it is not unreasonable to grant him bail.
The prosecution’s contentions
The prosecution opposes the application for bail on the basis that the applicant has not shown cause, and that there is an unacceptable risk that, if released on bail, he would commit an offence, endanger the safety or welfare of members of the public or interfere with witnesses or otherwise obstruct the course of justice.
The prosecution put forward the following matters in support of the argument that bail should not be granted.
The applicant’s criminal record and violent history
The prosecution pointed to the substantial criminal record of the applicant, in particular his history of violent offending, as being a significant factor in weighing a decision to grant bail. His criminal record includes driving, drugs, and serious assault related matters. The submission was advanced that the nature of his prior convictions tie intrinsically to the risk of endangering the safety and welfare of the public, and are therefore not limited to any potential safety or welfare concerns in relation to the complainant.
The prosecution argued that the applicant has shown a disregard for both the interim Family Violence Intervention Order, and has a prior conviction for committing an offence on bail. Furthermore, the present matters before the court are alleged to have occurred during the currency of a Community Corrections Order (‘CCO’) arising from a conviction for armed robbery in 2016, for which the applicant received a sentence of 12 months’ imprisonment, to be followed by a 30 month CCO.
The prosecution point to the applicant’s prior conviction as being relevant to an assessment of the risk that the applicant would endanger the safety and welfare of the public, and the potential to interfere with witnesses.
The complainant’s attitude to the applicant
Contained within the written materials was information that the complainant has an extreme fear that the applicant will kill her and her children. Further, apart from the current charges, the complainant has apparently provided police with further statements alleging assaults by the applicant, and the informant envisages further charges will be laid against the applicant as a result. However, these matters were not advanced further on the hearing before me and no evidence was called on the issues, hence I have not placed weight on them.
The applicant’s criminal associations
The informant submits that the applicant has associates with extensive violent criminal histories. I have not taken this matter into account in reaching my decision.
Ineffectiveness of counselling
The prosecution argues that the engagement of the counsellor Ms Abadee in June 2017 took place before the offending alleged to have occurred in August and November 2017. Accordingly the prosecution argued that the report, written by Ms Abadee after the alleged offending in November occurred, does not support the argument put forward on behalf of the applicant that her counselling efforts with the applicant have been effective, and will continue to have a positive impact on his behaviour into the future.
Insufficiency of intervention orders to protect the complainant
The complainant’s aunt has been recorded as stating that the applicant has arranged for family members to contact the complainant on his behalf and threaten her. This suggestion was not elaborated on during argument and I have placed no weight on the assertion that appeared in the written materials put before me.
Discussion
If proven, the allegations of violence committed by the applicant towards the complainant represent serious misconduct against a domestic partner. The events are alleged to have occurred not only in a domestic setting in houses, but also in a public setting, on one occasion where it is suggested that the applicant chased the complainant in a car whilst driving in a reckless manner and assaulted her by kicking her on the ground having dragged her from a car. Allegations of violent conduct across the three instances of alleged offending have included striking and twisting to the head, repeated blows to the chest and kidney areas, dragging her on more than occasion, kicking, and urinating on her. Moreover the type of conduct alleged is said to have occurred on three separate dates.
The conduct on the last occasion in November 2017 is alleged to have occurred when an interim Family Violence Intervention Order was in effect. It is not disputed that the applicant was aware that this was the case. Furthermore, the conduct alleged to have occurred in August 2017 and in November 2017 was in the setting of the applicant being subject to a CCO, which was itself imposed in respect of an armed robbery offence, to which the applicant pleaded guilty. It was not challenged that the circumstances of that offending involved threats of violence.
The allegations brought by the prosecution are to be strongly challenged by the applicant. The challenge is made in circumstances where the case brought by the prosecution depends almost entirely on the evidence of the complainant. The existence of independent supporting evidence in the nature of witnesses, or photographs, is limited. The applicant has also pointed out various features of the complainant’s evidence that will provide fertile ground for cross-examination, including her lack of reliability associated with alleged drug use, aspects of her mental health, and the fact that when making complaints about the alleged conduct of the applicant, she either reported that she did not know how injuries may have occurred, or blamed people other than the applicant. The complainant explains why she reported the cases in this way as being related to her ongoing fear of the applicant. This aspect of the case will of course be a matter for a magistrate to take into account, and I am in no position to evaluate the strength of her assertion.
On the other hand, the prosecution points out that cases involving family violence frequently involve ‘word on word’ evidence and that this is often the very nature of these types of cases. The prosecution submits that this circumstance does not of itself warrant the prosecution case as being regarded as weak, or without merit.
It is clear enough that the case will be strongly defended, and that there are arguable issues to be decided. That said, it was not submitted to me that the case should be regarded as inherently weak.
From what I have been able to glean in this application I cannot conclude that the prosecution case is weak.
The question of delay is an issue that arises in this application as it appears it will be approximately four months before the matter is resolved at a contested hearing. Initially I did have some concern that the matter was adjourned from 11 January to June 2017 due to the unavailability of the informant to attend a possible listing of the hearing in February. The learned magistrate appears to have been satisfied that the informant’s presence was necessary at the hearing. I have not been told why this is so, and nothing was advanced in the hearing before me that explained this situation. That said, the fact that the matter is listed for hearing in June does not appear to me to amount to a delay that assumes compelling significance in resolving this application.
It was submitted for the applicant that in this case the possibility of injustice may occur, ‘as a result of delay’. I am not convinced this is the case. Nothing was put to me that suggested that the evidence will deteriorate as a result of the delay occurring. Rather it seems to me such injustice as may occur is associated with the length or type of sentence that may be imposed should the applicant be found guilty of any or all of the alleged offending. This injustice would be due to the possibility that a sentence imposed for any offending may be less than any period served on remand.
On this application I am not in a position to determine what an eventual sentence may or may not be. There may be cases where that can be broadly determined, but in my view this is not one of those cases. Overall, the alleged offending should be regarded as serious, particularly in light of the past criminal history of the applicant, and the fact that the second and third pieces of alleged offending occurred in breach of a CCO, and an interim Family Violence Intervention Order.
Further, with respect to the role that delay plays in this application, and acknowledging that there will always be a risk in a grant of bail, it is submitted that if a court becomes satisfied there is the prospect of an injustice occurring in a case where there is delay experienced, there can be a justification in taking a greater risk in granting bail. In other words, it can be acceptable to balance the delay against the realistic possibility of acquittal and in such circumstances be prepared to take a greater risk in the grant of bail than otherwise might have been taken.
Whilst I would leave open that such an approach is available in some circumstances, I am of the opinion this is not a case where that balancing exercise should weigh in favour of a grant of bail. In short, the prosecution case is not inherently weak, and the expected delay is not of such compass that it becomes a strongly determinative factor.
I have considered the possibility of imposing strict conditions on the applicant should there be a grant of bail. The applicant advanced a series of proposed conditions, and sought to support the likelihood of his compliance with them by argument, and by the evidence of Ms Abadee, which in effect asserted optimism at his positive engagement with her, and a view that his life has changed for the better. Also, it is to be acknowledged, he has formed a new relationship and has moved on.
It is submitted that these proposed conditions ameliorate any unacceptable risk factors to the point where, on balance, a grant of bail is justified. I am not able to accept that submission. The applicant’s criminal history demonstrates a clear willingness on his part to not only engage in criminal conduct at a serious level, but also a clear trend of defiance of court orders. His history since 2000 reveals convictions for multiple offences involving personal violence which have in a number of instances resulted in sentences of imprisonment. As observed earlier, his last serious conviction involved an armed robbery involving threats, with a subsequent CCO to begin on the expiration of the sentence. Further, I was informed that a conviction in 2015 involved reckless conduct endangering serious injury, that instance involving the driving of a motor vehicle, and ramming into another car. He received 10 months imprisonment for that offending, and at the same time two months imprisonment to be served concurrently for having committed that offending whilst on bail from another matter.
The current allegations before the Court are set within the context of the CCO the applicant was serving at the time, and if proven, would quite possibly amount to a yet another breach of a court order.
In this application it is common ground that the applicant must show cause why his detention in custody is not justified. Parliament has seen fit to qualify the presumption of bail set out in s 4 of the Bail Act 1977, in circumstances of the type of offending alleged in the charges faced by the applicant laid under the s 123(2) of the Family Violence Protection Act 2008.
The approach to be taken in assessing the question of the applicant’s requirement to ‘show cause’, was clearly set out by Maxwell P in Re Fred Joseph Asmar.[2] The learned President’s approach was subsequently followed by Lasry J in Re Application for bail by JF.[3] The approach adopted in both cases confirmed that the only question to be answered is whether the applicant has shown cause pursuant to s 4(4) of the Act, but that importantly, ‘unacceptable risk’ issues are not to be excluded from that consideration, and remain central to whether a person’s pre-trial detention is justified.
[2][2005] VSC 487.
[3][2017] VSC 139.
This approach to the application of s 4(4) of the Bail Act was approved in Robinson v The Queen.[4] In their joint judgement Maxwell P and Redlich JA observed:[5]
…that the debate over the interpretation of s 4(4) will rarely be of practical significance, as the application of either approach will produce the same outcome.
[4](2015) 47 VR 226.
[5]Ibid 234 [25].
As part of the balancing of factors I have had to undertake I have had regard to the risk factors relevant to the question of unacceptable risk in accordance with the authorities cited above. In my opinion the applicant has failed to show cause, as required by the Act. In my view there is an unacceptable risk that the applicant, if released on bail, will commit an offence, or offences, whilst on bail, or interfere with witnesses.
I have weighed the evidence before me and given careful consideration to the arguments put before me by Counsel for both the applicant and the respondent. In my opinion the applicant has not shown cause why he should be granted bail.
Accordingly I refuse the application for bail.
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