Tweedie v The Queen
[2001] WASC 152
TWEEDIE -v- THE QUEEN [2001] WASC 152
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 152 | |
| Case No: | MCS:32/2001 | 7 JUNE 2001 | |
| Coram: | ROBERTS-SMITH J | 7/06/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Bail granted on conditions | ||
| PDF Version |
| Parties: | JOHN NICHOL TWEEDIE THE QUEEN |
Catchwords: | Criminal law Bail pending trial Multiple charges of sexual offences History of similar offences in Western Australia and New South Wales Whether risk applicant would commit further offences while on bail |
Legislation: | Bail Act 1982 (WA), s 14(2), Schedule 1, Part C, cl 1 and cl 3 |
Case References: | WCVB v R (1989) 1 WAR 279 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Bail pending trial - Multiple charges of sexual offences - History of similar offences in Western Australia and New South Wales - Whether risk applicant would commit further offences while on bail
Legislation:
Bail Act 1982 (WA), s 14(2), Schedule 1, Part C, cl 1 and cl 3
Result:
Bail granted on conditions
(Page 2)
Representation:
Counsel:
Applicant : Mr P A Roth
Respondent : Ms J A Girdham
Solicitors:
Applicant : P A Roth & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
WCVB v R (1989) 1 WAR 279
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: This is an application for bail by application dated 25 May 2001 pursuant to s 14(2) of the Bail Act 1982 (WA) in respect of a number of complaints of charges pending in the Rockingham Court of Petty Sessions. The applicant's next appearance in that court is to be on 19 June this year.
2 The application is supported by an affidavit of the applicant dated 21 May 2001 in which, shortly put, the applicant states that he has been charged with two counts of aggravated indecent assault and five counts of indecent assault. He says that he appeared on 3 April 2001 before Ms Bennett-Borlase SM in the Rockingham Court of Petty Sessions and applied for bail on that occasion.
3 The police prosecutor objected to bail on the basis of the seriousness of the offences. It was also noted at that time that the applicant had previous convictions for similar offences in New South Wales. Her Worship refused bail, having regard to the serious nature of the allegations and the existence of the prior convictions. A further application for bail was apparently made before her Worship again on 8 May but, again, bail was refused. The charges, although capable of being dealt with summarily, are proceeding for trial to the District Court at the election of the applicant. He states in his affidavit that he intends to defend all charges. He further states that prior to his arrest his parents were living with him in Rockingham but as a result of the fact that he is now in custody, they have been forced to vacate that property and rent new accommodation at 9 Pictor Close, Rockingham. If released, it is the applicant's intention to live with his parents at that address.
4 He further states that prior to his arrest he was self-employed as a contract welder with Race Spars and, if released, would return to that employment, assuming it is still available to him. He admits to having convictions in this State for burglary and indecent assault and in New South Wales for indecent assault and aggravated sexual penetration but he asserts that he has no convictions in any State for breaching bail or for failing to comply with any bail condition imposed.
5 The statutory penalties in respect of these offences are 7 years' imprisonment and 10 years' imprisonment when dealt with on indictment. I appreciate what Mr Roth, who appears for the applicant, says about the seriousness of them being indicated by the fact that they could be dealt with summarily, in which circumstance the statutory maximum penalties would be 2 years' imprisonment or 3 years' imprisonment respectively on each count, but for present purposes the fact of the matter is the applicant
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- is to be dealt with in the District Court where the more substantial penalties will be open.
6 The applicant has been in custody now for 2 months already from 3 April 2001.
7 The considerations to which I am required to have regard under the Bail Act are set out in schedule 1 part C clauses 1 and 3.
8 The first question is: what general principles apply in relation to an application of this kind? The approach to be taken was discussed by Ipp J in WCVB v R (1989) 1 WAR 279. In that case his Honour noted the Bail Act is silent as to the approach that should be adopted where there are material disputes of fact and as to the onus of proof, if any, which either an applicant or the Crown has to bear on a bail application.
9 Nonetheless his Honour concluded that the common law position continued to apply under the Bail Act and so the situation, therefore, is that the onus is on the Crown to establish that there is a reasonable degree of risk that an accused, if allowed bail, would fail to answer it. I take the view that the same consideration applies in respect of any other aspect which the Crown contends would operate such as to preclude bail.
10 Where a charge is properly to be described as a serious charge, (although I use that expression not in terms of the way in which it is used and defined in the Bail Act for different purposes), then the circumstances would have to be shown to be extremely exceptional before bail would be granted, and the onus of demonstrating that is on the applicant.
11 Against that very briefly expressed background of principle I turn to the particular offences charged. There are seven of them and in short they are all essentially similar. They range from 4 September 2000 through to 11 February 2001, the last three offences being committed respectively on 3, 9 and 11 February as alleged by the prosecution.
12 In each instance it is alleged that the applicant who was naked at the time attacked his female victim from behind on a beach, generally placed his hand over her mouth and forced her to the ground, tried to remove clothing and fondled her or tried to fondle her on the breasts or vagina, as the case may be. In the more recent attacks it would appear that an increasing level of force was used as against the earlier alleged offences. In each instance the victim resisted and the offender ran away naked, usually collecting his clothes on the way. There is, as I have said, a
(Page 5)
- striking similarity between the facts alleged in respect of each of those particular offences.
13 The question initially then is whether or not these are "serious offences" within the description used by Ipp J in WCVB v R. They are certainly serious in terms of their facts and their nature, particularly in combination, and as seen as part of a series, but as they are presently charged, I do not see them as falling into the category of serious offences in the sense that expression was used by Ipp J in WCVB v R.
14 Accordingly I am prepared to proceed on this application on the basis that it is not a situation in which the applicant must show exceptional circumstances before an order for bail would be justified. Rather the Crown must show a reasonable risk, either that the applicant would not appear at his trial or that there is some other good reason why bail should not be granted.
15 In the present case the Crown contention (again expressed briefly) is that given the nature and seriousness and number of the individual offences, combined with the applicant's previous criminal history, there is what Ms Girdham described as an inevitability that he would be sentenced to imprisonment if convicted. That, I think, is a reasonable assessment. She says in light of that, there is at the very least a possibility that the applicant would not appear on his trial. Her second and probably major contention, however, is that there is a real risk of the applicant reoffending should he be released on bail.
16 The applicant's previous history in Western Australia reveals that on 17 December 1987, he was convicted of four offences of indecent assault, two offences of breaking and entering a dwelling at night, one of breaking and entering a dwelling with intent, for which he got 2 years' imprisonment, another of entering a dwelling with intent and stealing, for all of which offences overall he was sentenced to a total of 4 years 6 months' imprisonment with a minimum term of 18 months. On 11 January 1988, he was convicted of being on a place for an unlawful purpose and wilful exposure, for which he was sentenced to an aggregate of 3 months' imprisonment concurrent with the earlier sentences.
17 In New South Wales, on 8 January 1991 he was convicted of sexual intercourse category 3, the precise meaning of which I do not know, two offences of indecent assault, one attempted sexual intercourse and one sexual intercourse without consent, in respect of which he was sentenced to 2 years' imprisonment on each. He was also convicted, on 11 January
(Page 6)
- 1991, of two indecent assaults, an attempted sexual assault, obscene exposure, two assaults on a person with an act of indecency and one attempted sexual intercourse without consent, on which he was sentenced to 2 years 6 months' imprisonment on each.
18 On 12 October 1994 he was convicted of aggravated sexual assault, obscene exposure and aggravated sexual intercourse without consent and sentenced to a total of 5 years' imprisonment with an additional 1 year 8 months.
19 I have before me details of most of those previous offences and it is, I think, sufficient for me to say simply that once again there is a striking similarity between the facts of those and the facts alleged in respect of the present offences. Again, the common features seem to be that the applicant approached his victims, either in the bush or on a beach, whilst naked and began to assault the victim in a sexual way. There are some instances of rather more violence being used than in other instances.
20 So far as the strength of the prosecution case here is presently concerned, it may be observed from what I have already said that there will no doubt be considerable strength gained to the prosecution case from the leading of similar fact evidence in respect presumably both of the seven offences presently charged as between themselves as well as those which bear a striking similarity as having been committed by the applicant in the past, here and elsewhere. Collectively and in combination, that evidence seems to me to be likely to be very strong indeed.
21 In addition, I am told that there will be DNA evidence available on the prosecution of the present charges, coming down, I think, to two factual aspects. The first, that the victim in relation to the first charge scratched the offender and on an analysis of the fingernail scrapings from her, the DNA evidence will tend to indicate that the applicant was the offender. I put it that way obviously carefully without being more specific as to quite how that evidence might work, but that certainly is no doubt intended to be the effect of it.
22 The same applies in relation to a DNA sample from a shoe, which I am told was found in the sandhills near the scene of one of the alleged assaults. Ms Girdham asserts that the DNA test again would tend to indicate that the shoe came from or was connected with the applicant. Mr Roth, on the other hand, points out that the shoe was simply found in the sandhills, not necessarily even particularly close to where the alleged offence occurred, and may not indeed have anything to do with it.
(Page 7)
23 Furthermore, in terms of the strength or otherwise of the prosecution case, Mr Roth points out that the applicant will be leading evidence of an alibi in relation to certainly one and perhaps four of the counts. I know no more about it than that. I do not know for example the nature of the alibi and I am obviously therefore in no position to make any assessment whatsoever of its potential cogency. Likewise, the material which has been put before me on behalf of the respondent, although more detailed than that put to me by Mr Roth because it is in the form of witness statements, nonetheless has not been tested.
24 I am conscious of all of these considerations which make it very difficult indeed for obvious reasons to arrive at any proper assessment of the strength and/or weaknesses of the prosecution case. Nonetheless, the Bail Act requires me to undertake that exercise and do the best I can in the circumstances. Having said that and taking that approach, it seems to me that on the limited material I do have at the moment the case against the applicant is likely to be quite strong.
25 I also accept that there is an indication that the offences were escalating in frequency and becoming more violent. So far as the respondent's contention is concerned, that because the sentences likely to be imposed should the applicant be convicted would be imprisonment, and quite possibly appreciable terms of imprisonment, there is therefore a prospect that he will not attend for his trial, it seems to me that that contention really has no greater force than it would have in most other cases. Indeed, as Mr Roth has pointed out, although the applicant has been charged with similar and indeed more serious offences in the past, there is no indication at any time that he has ever failed to attend for his trial. For the moment, therefore, I put that consideration aside and I shall return to it shortly.
26 So far as the major contention on the part of the respondent is concerned; namely, that there is a risk that the applicant would continue to reoffend even whilst on bail, I am required to consider not only whether there is anything to support that in the material before me but also whether, if there is, there are conditions which can be imposed which might ameliorate any concerns I may have about it. The same consideration of course applies insofar as the imposition of conditions is concerned to that first question of the likelihood of the applicant attending for his trial.
27 I have to say that the aspect of the respondent's submissions here which has given me most cause for concern is the proposition that the
(Page 8)
- nature of the offences alleged here, particularly considered in the context of the remarkably similar offences of which the applicant has been convicted in the past, indicates some kind of serious and ongoing psychological problem which is not likely to have been resolved merely by the fact that the applicant has been in custody for 2 months. That, as I say, has given me grave cause for concern.
28 I have, however, in the end come to the conclusion that there are conditions which I can impose which would serve to allay my concerns about that and also the substantially less concern I feel about the prospect of him not attending for his trial. Under those circumstances, it seems to me that I am obliged to grant bail on the basis that I impose conditions which in my view, will serve to ensure not only that the applicant does attend for his trial but that he does not commit any offences whilst released to bail.
29 The conditions I have in mind would be first, or generally, that the applicant would be released on his own recognisance, which I would be presently minded to fix in the sum of $20,000; that there be two sureties in the sum of $30,000 each; and that the specific conditions be:
(1) that he reports to the officer in charge of the Rockingham police station daily between 7 am and 6 pm;
(2) that he not leave Western Australia;
(3) that he surrender his passport to the court;
(4) that he reside at 9 Pictor Close, Rockingham; and, by way of protective bail conditions,
(5) that he not contact nor attempt to contact any prosecution witness directly or indirectly;
(6) that he observe a home detention curfew between 6 pm and 7 pm each day.
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