Taylor v The State of Western Australia
[2014] WASC 292
•19 AUGUST 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 292
CORAM: HALL J
HEARD: 11 AUGUST 2014
DELIVERED : 11 AUGUST 2014
PUBLISHED : 19 AUGUST 2014
FILE NO/S: MBA 32 of 2014
BETWEEN: STEPHEN JOHN TAYLOR
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Bail application - Bail Act 1982 (WA) sch 2 - Exceptional reasons required - Alleged breach of protective bail condition - Schedule 1 pt C cl 3A and cl 3B
Legislation:
Bail Act 1982 (WA), s 14 sch 1 pt C cl 3A, cl 3B
Result:
Bail refused
Category: B
Representation:
Counsel:
Applicant: Mr N J Terry
Respondent: Mr B H Costello
Solicitors:
Applicant: Barone Criminal Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bertolami v The State of Western Australia [2009] WASC 269
HALL J:
Introduction
On 11 August 2014 I refused this application for bail and said that I would publish reasons for that decision.
This is an application for bail pursuant to s 14 of the Bail Act 1982 (WA).
On 4 October 2013 the applicant was charged with assaulting his former de facto partner, Haylee Hunter, and thereby doing her bodily harm contrary to s 317(1) of the Criminal Code (WA). He was released on bail on that charge to appear in the Midland Magistrates Court on 24 October 2013. The bail undertaking included a condition that he was not to contact or attempt to contact Ms Hunter by any means.
It is alleged that on 6 December 2013 the applicant committed a further assault on Ms Hunter causing her bodily harm. As a consequence he was arrested and charged with a further offence under s 317(1) and with failing to comply with a protective bail condition contrary to s 51(2a) of the Bail Act.
Assault occasioning bodily harm is classified as a serious offence under sch 2 of the Bail Act. Because it is alleged that the applicant committed a second serious offence whilst on bail for another serious offence he was not eligible to be granted bail again unless he satisfied a judicial officer or authorised officer that there were exceptional reasons why he should not be kept in custody: sch 1 pt C cl 3A Bail Act.
Because the alleged offences on 6 December 2013 would, if proved, amount to a breach of a protective bail condition the requirements of sch 1 pt C cl 3B must also be met. That clause requires that before making a decision as to whether there are exceptional reasons for the purposes of cl 3A, the court is to make enquiry as to whether there has been any other proven breach of the protective condition, any other alleged breach of that condition or any other alleged breach of any other such condition that has been the subject of prosecution. Clause 3B also requires that the court give any person for whose protection a protective condition has been imposed a reasonable opportunity to give evidence by affidavit on the matters relating to that condition. Clause 3B(4) also sets out a list of factors that must be taken into account in considering whether bail should be granted in a case involving an alleged breach of a protective condition.
Prosecution case
The prosecution case in regard to the two incidents that are the subject of pending charges is as follows.
It is alleged that on 3 October 2013 the applicant and Ms Hunter travelled together to Northam and then returned to Ellenbrook. During this time they each consumed a large amount of alcohol. At about 7.00 pm the applicant and Ms Hunter went for a drive in order to obtain cannabis. They began to argue about Ms Hunter's consumption of alcohol.
The applicant is alleged to have used his left elbow to hit Ms Hunter in the face and then to repeatedly punch her to the face. When Ms Hunter attempted to get out of the vehicle the applicant straightened his left arm, pushing his forearm against her throat and choking her. Ms Hunter attempted to push the applicant's arm away but was not strong enough to do so. Ms Hunter did manage to free herself and again attempted to get out of the car. The applicant grabbed Ms Hunter by her hair, dragged her back into the car and repeatedly punched her with his left clenched fist.
Ms Hunter then attempted to call 000 on her mobile phone but the applicant grabbed the phone from her. She ran to a nearby house and asked the occupants to call the police. Ms Hunter received a cut to her upper lip and severe bruising and swelling to her face, lips and neck.
The applicant was interviewed on 4 October 2013 and charged with assault occasioning bodily harm. As mentioned above, he was released on bail which included a condition that he not contact or attempt to contact Ms Hunter.
The second incident is alleged to have occurred on the evening of Friday 6 December 2013. At that time the applicant, Ms Hunter and two other male adults were in a car together in the Ellenbrook area. At some point the car was parked and the two other males got out. The applicant and Ms Hunter remained in the vehicle and commenced arguing. It is alleged that the applicant struck Ms Hunter in the nose with a clenched fist causing a laceration and her nose to bleed.
The two males then returned and the group drove away in the car together. Ms Hunter attempted to get away from the applicant by opening the vehicle's door whilst it was moving. The applicant then stopped the vehicle but pulled on Ms Hunter's hair in an attempt to stop her leaving. Ms Hunter escaped and approached a driver of another vehicle who took her to the Ellenbrook police station. She was then taken to hospital where she received treatment for her injury.
The application
The applicant relies on two matters which he submits justify a grant of bail. The first matter is the time that the applicant will spend in custody prior to any trial of the charges. The applicant has been in custody since 6 December 2013 when, having been charged following the second incident, he was denied bail. An application for bail was made in the Magistrates Court on 22 May 2014 but was refused. The applicant's trial on all charges is listed to commence in the Magistrates Court on 26 August 2014. The applicant submits that there is a real possibility that even if convicted of all offences he will by then have served a period of time in custody that will represent a substantial portion of any sentence likely to be imposed.
The second factor that the applicant relies upon is the strength of the prosecution case. The applicant submits that self‑defence and provocation will be live issues in regard to both assault charges. The applicant has filed affidavits from Mr Nicholas Jeremy Terry and Mr James Woodford, who are both solicitors who at different times have acted for the applicant. Mr Woodford's affidavit in turn annexes affidavits from the applicant, his mother and three proposed defence witnesses (one of which is unsigned). The purpose of this material is to show that the applicant has a basis for advancing the defences and that the prosecution case may be a weak one insofar as it relies upon the credibility of Ms Hunter.
Having regard to the protection afforded to an accused person who gives evidence at a bail application (see s 25 of the Bail Act) I will not refer to the details contained in the applicant's affidavit. It is sufficient to note that the defence case will be that in respect of both incidents Ms Hunter was the aggressor and the applicant was either defending himself or acting reasonably in response to provocation. On both occasions it will be alleged that the applicant also suffered injuries, in particular scratches to his face and bruises to his jaw. Photographs taken by the police in December 2013 support the existence of such injuries at that time.
Another of the affidavits annexed to that of Mr Woodford is from a man who states that he was with the applicant and Ms Hunter when they drove to Northam in October 2013. He refers to Ms Hunter being aggressive and physically violent towards the applicant during that journey. However, he does not appear to have been present later that evening when the assault on Ms Hunter is alleged to have occurred. Another man states in his affidavit that he was in the car at the time of the December incident. He says that Ms Hunter was abusing and hitting the applicant. He says that this posed a danger to all of the occupants and that the applicant stopped the car and told Ms Hunter to get out. His statement provides no ready explanation for the injuries to Ms Hunter.
The respondent has provided statements from a number of prosecution witnesses, including Ms Hunter. Copies of photographs depicting the injuries of Ms Hunter and the applicant have also been produced. Ms Hunter's statements are consistent with the prosecution case referred to above.
The applicant submits that the time he will spend in custody prior to trial together with the questionable strength of the prosecution case are such as to establish that there are exceptional reasons for granting bail in accordance with cl 3A. It is also submitted that conditions could be imposed that would address any possible concerns that the applicant would not appear at trial or would commit further offences. The proposed conditions include a residential condition, a surety, regular reporting and a protective condition. The applicant is also willing to abide by the conditions of home detention bail if the court considers that to be appropriate.
Whilst the application was focused on the requirement to establish exceptional reasons under cl 3A, in the circumstances of this case cl 3B requires that the matters referred to in that clause be addressed before the court makes any decision as to whether there are exceptional reasons to grant bail. Accordingly I will consider the cl 3B factors first.
Evidence from the protected person (cl 3B(4)(a))
The proceedings were adjourned to allow the protected person, Ms Hunter, a reasonable opportunity to give evidence by affidavit on matters relating to that protective condition. Ms Hunter has sworn an affidavit dated 31 July 2014.
I am obliged to give due weight to that affidavit and any evidence that there would be an adverse effect for the protected person if bail was granted or any difficulty that the protected person may have in proving any further breach.
In her affidavit Ms Hunter states that she and the applicant lived together between 2007 and 2011. They have two children. She says that the relationship was marked by domestic violence. She says that she suffers an anxiety disorder and is on medication to treat that disorder. She states that she is scared that if the applicant is released he will find and kill her. Her anxiety will worsen if he is freed on bail. She states that she is worried that if released the applicant will find and contact her in a way that will cause no one to believe her.
Other breaches of protective conditions (cl 3B(2) and cl 3B(4)(d))
The applicant's criminal record shows that he has two prior convictions for breach of protective bail conditions. Those offences occurred on 19 August 2012 and 7 March 2013. He was sentenced in respect of both of those offences on 17 June 2013 and received a small fine and a 9 month community based order for the first and a concurrent 9 month community based order for the second.
The facts of the first offence are that on 19 August 2012 the applicant was subject to bail conditions that included that he was not to contact or attempt to contact Ms Hunter or to approach within 50 metres of her. On that day he was located in the presence of Ms Hunter at a house in Helena Valley. He was arrested and charged. He gave as an explanation that, 'she came to me'. Notwithstanding that explanation he was subsequently convicted of the offence.
The facts in respect of the second offence are that as at 17 December 2012 the applicant was on bail and subject to a condition that he not contact or attempt to contact Ms Hunter. On 7 March 2013 he made 37 telephone calls and sent one message to Ms Hunter. On the following day 16 telephone calls were made. On 13 March 2013 14 calls were made. On 16 March 2013 17 calls and three text messages were made. On 17 March 2013 one call was made. On 19 March 2013 20 telephone calls and one text message were made. On 20 March 2013 six telephone calls were made. On 21 March 2013 68 telephone calls and four text messages were made. On 22 March 2013 20 telephone calls and one text message were made. On 23 March 2013 78 telephone calls and 15 text messages were made. Some of the text messages were abusive. On 4 April 2013 the applicant was arrested and charged. His explanation was that Ms Hunter had his telephone until 16 March 2013. Notwithstanding this partial denial he was convicted of the offence.
Clause 3B also requires the court to take into account any allegation of a breach that has not been the subject of prosecution. The State provided call charge records for the mobile telephones of the applicant and Ms Hunter for the period 3 October 2013 to 7 December 2013. This is the period between the two incidents that are the subject of the pending charges. At this time the applicant was subject to a bail condition requiring him not to contact or attempt to contact Ms Hunter. The call charge records show that in that period the applicant made telephone calls or sent text messages to Ms Hunter in excess of 600 times. In contrast there are approximately 90 calls or text messages going the other way. The prosecution submit that this shows that the applicant has no real willingness to comply with protective bail conditions when they are imposed.
Merits of the application
It is apparent that protective bail conditions in respect of Ms Hunter have not been effective in preventing the applicant from contacting her. It was suggested on behalf of the applicant that some of the breaches in the past have occurred when Ms Hunter has come to see him uninvited. I note that this was an explanation given for one of the past convictions but, whether because the applicant pleaded guilty or because his explanation was not believed, he was convicted of this offence. It is also the explanation given for the presently pending charge of breaching a protective bail condition. However that explanation cannot justify the numerous occasions when the applicant has made telephone calls or sent text messages to Ms Hunter in defiance of protective bail conditions.
I am obliged to treat any alleged breach of a protective bail condition as a serious matter even if the conduct alleged to amount to the breach in itself appears to be trivial: See cl 3B(4)(c). It would appear that the incidents that have resulted in charges represent only a portion of the past protective bail breaches. The bail conditions have been breached many times by making telephone contact.
In the context of the clearly acrimonious relationship between the applicant and Ms Hunter I do not consider that any of the breaches or alleged breaches could be viewed as trivial. It is possible that there is violence on both sides. I am told that Ms Hunter has a conviction for assaulting the applicant. However, even accepting that is so, it does not provide any justification for the applicant's failure to comply with protective bail conditions.
As regards the strength of the prosecution case, it is clear that the credibility of Ms Hunter will be critical. It is difficult for me to make any real assessment of her credibility. Whilst the defence have indicated an intention to call other witnesses it would not appear that any of those witnesses were present either at the time of the alleged assault or during the whole course of it. These witnesses may provide some support to the applicant but ultimately the critical witnesses are likely to be Ms Hunter and the applicant.
The prosecution case may not be an overwhelming one but nor could it be said to be particularly weak. A less than overwhelming case does not provide exceptional reasons to grant bail. If the prosecution case was a particularly weak one or there was a high probability of acquittal the position might be different: Bertolami v The State of Western Australia [2009] WASC 269.
As regards the time in custody the applicant accepts that if found guilty of the pending charges the likely outcome would be immediate terms of imprisonment. Given that the October and December incidents are quite separate some accumulation of sentences would be expected. Furthermore, if convicted the applicant would be in breach of the community based orders imposed on 17 June 2013 and would be liable to be resentenced for the offences of breaching protective bail conditions for which those CBOs were imposed. Whilst the applicant is presumed to be innocent and it cannot be assumed that he will be convicted and that sentences of imprisonment will be imposed, I cannot accept the applicant's argument that if that does occur the minimum term of any such sentence is likely to be equal to or less than the time already spent in custody. I also note that the trial of these matters is imminent and that further time in custody awaiting trial will be limited.
I have also had regard to the factors referred to in pt C cl 1 of the Bail Act. In particular, if the applicant is not kept in custody there is a possibility that the safety or welfare of Ms Hunter could be endangered. I am also satisfied that there would be a risk that the applicant would commit further offences if released on bail, in particular by breaching any protective bail condition in regard to contacting Ms Hunter. I have considered the possibility of whether conditions could minimise any risk to the safety of Ms Hunter or the risk of reoffending. A home detention report was obtained and whilst the proposed residence was considered suitable the report was guarded in respect of the applicant's suitability for home detention. This is understandable given his past non‑compliance with bail conditions. I am not satisfied that any conditions could be imposed that would satisfactorily reduce the risks that I have referred to.
For these reasons the application for bail was refused.
0