YSN v The State of Western Australia - [2017] WASCA 155

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: YSN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 155

CORAM: BUSS P
MITCHELL JA
HALL J

HEARD: 4 AUGUST 2017

DELIVERED : 4 AUGUST 2017

PUBLISHED : 16 AUGUST 2017

FILE NO/S: CACR 102 of 2017

BETWEEN: YSN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TOTTLE J
File No  :MBA 6 of 2017

Catchwords:

Criminal law - Bail - Appeal against refusal to grant bail - Sexual offences against children under the age of 13 years - Whether there is any condition which could reasonably be imposed which would sufficiently remove the possibility that the accused may commit an offence of accessing or possessing child exploitation material or interfere with witnesses - Meaning of 'sufficiently remove' - Where allegations that accused threatened victim in the course of the offending to discourage victim from disclosing the offending - Where accused before his arrest destroyed mobile telephone potentially containing evidence - Where evidence that accused used internet searches before his arrest to access child exploitation material

Legislation:

Bail Act 1982 (WA), cl 1(a)(ii), cl 1(a)(iv), cl 1(e)(i) of pt C to sch 1

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr M Gunning
Respondent: Mr L M Fox

Solicitors:

Appellant: Gunning Young Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

House v The King [1936] HCA 40; (1936) 55 CLR 499
Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99

REASONS OF THE COURT:

Summary

The appellant, who is facing a number of charges of child sex offences currently before the Magistrates Court, appeals against a refusal of his bail application by the primary judge. The primary judge refused to grant bail on the ground that, if the appellant is not kept in custody, he may:
1.commit an offence of accessing or possessing child exploitation material; and
2.interfere with the witness A or her mother,
and there is no condition which could reasonably be imposed which would sufficiently remove those possibilities.
At the conclusion of the hearing of the appeal, we made orders allowing the appeal and granted the appellant bail for his next appearance in the Magistrates Court on conditions. The conditions included a residential condition and a protective bail condition that the appellant not contact or communicate with specified witnesses directly or indirectly, or attempt to do so. The conditions also required the appellant not to access the internet, or to use a computer, mobile telephone or electronic device that has the capacity to connect to the internet. We said that we would publish reasons for making those orders at a later time. These are our reasons for allowing the appeal.

Procedural history

The appellant is charged with 5 counts of indecent dealing with a child under 13 years of age and two counts of (digital) sexual penetration of a child under 13 years of age. The offences are alleged to have been committed on unspecified dates between 31 January 2013 and 30 January 2016 against the same complainant, A, who was born in January 2005. The appellant's partner, L, is A's maternal grandmother. The particulars of the allegations are set out in the primary judge's reasons and need not be repeated here.[1]
[1] [2017] WASC 129 (Primary reasons) [5] - [12].
The appellant is also charged with one count of indecently recording a child under the age of 13 years. The appellant is alleged to have committed that offence on 22 March 2014 against a child, W, who was aged 2 years at the time.
The alleged offences against A were described in child witness interviews conducted on 9 and 16 June 2016. Handwritten notes of those interviews were before the primary judge. A search warrant of the appellant's house was executed on 28 July 2016, during which time it is alleged that he attempted to destroy the mobile phone used to record W. The phone and computer equipment were seized during the search. The appellant was not arrested or charged until 11 January 2017, when a second search warrant was executed at his premises. The appellant appeared before the Magistrates Court at Perth on 12 January 2017, and was remanded in custody.
The appellant applied for bail at a hearing in the Magistrates Court on 27 January 2017. Bail was refused and, on 3 March 2017, the appellant made an application for bail to the Supreme Court under s 14 of the Bail Act 1982 (WA). In dealing with that application, the court was required to consider the question of bail afresh. There was no need for the appellant to demonstrate error on the part of the magistrate who refused bail. The court was not confined to considering the evidentiary material before the magistrate.
The primary judge heard the bail application on 21 March 2017. On 31 March 2017, the primary judge gave reasons for refusing to grant the appellant bail for his next appearance (a mention) in the Magistrates Court, which was listed for 31 March 2017.

Statutory provisions

The primary judge was exercising the discretionary power conferred by s 14(1)(a) of the Bail Act, read with s 13(1) of that Act and cl 2 of pt A of sch 1 to that Act.
Clause 2 confers jurisdiction on the magistrate granting an adjournment of proceedings for an offence, not being a committal, to grant bail for an appearance in the Magistrates Court after that adjournment. Section 14(1)(a) of the Bail Act relevantly provides for a judge of the Supreme Court to, in accordance with the Act, exercise a power to grant bail for appearances in the Magistrates Court which is conferred upon any other judicial officer. Section 14(2) relevantly contemplates that this jurisdiction may be invoked by application made by an accused, whether or not any other judicial officer has previously refused bail.
Section 13(1) of the Bail Act requires that the jurisdiction to grant bail be exercised subject to and in accordance with pt III of the Bail Act and the further provisions in pts B, C and D of Schedule 1 to the Bail Act.
Subject to presently immaterial exceptions, cl 1 of pt C provides that the grant or refusal of bail to the appellant was at the discretion of the primary judge. Clause 1 required the discretion to be exercised having regard to questions posed by par (a) to (g) of that clause, as well as any others the primary judge considered to be relevant. The specified questions are as follows:
(a)whether, if the accused is not kept in custody, he may:
(i)fail to appear in court in accordance with his bail undertaking; or
(ii)commit an offence; or
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
(c)whether the prosecutor has put forward grounds for opposing the grant of bail;
(d)whether, as regards the period when the accused is on trial, there are grounds for believing that, if he is not kept in custody, the proper conduct of the trial may be prejudiced;
(e)whether there is any condition which could reasonably be imposed under Part D which would:
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d); or
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
(f)where the accused is charged with an offence that is alleged to have been committed in respect of a child, whether a condition should be imposed under Part D requiring the accused to reside at a place other than the place where the child resides;
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
Clause 3 of pt C required the primary judge, in considering whether the appellant may do any of the things mentioned in cl 1(a), to have regard to the following matters, as well as to any others which his Honour thought relevant:
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted; and
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused; and
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
Clause 2 of pt D of sch 1 to the Bail Act provides for bail to be granted subject to conditions which may apply before the accused is released on bail or while the accused is on bail. Relevantly, conditions may be imposed for the purposes of ensuring that the accused:[2]
(a)appears in court in accordance with his bail undertaking; or
(b)does not while on bail commit an offence; or
(c)does not endanger the safety, welfare or property of any person; or
(d)does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person; or
(e)as regards the period when the accused is on trial, does not prejudice the proper conduct of the trial.
[2] Clause 2(2) of pt D of Sch 1 to the Bail Act.
These provisions indicate the purposes for which the power to refuse bail or impose conditions is to be exercised. In general terms, bail may be refused, or conditions imposed, for the purposes of securing the integrity of the criminal justice process and community protection.
In Milenkovski v The State of Western Australia,[3] McLure P, with whom Pullin JA and Hall J relevantly agreed, noted that the matters specified in cl 1 of pt C of sch 1 are non-exclusive mandatory relevant considerations. The correct approach to the exercise of the discretion is sourced in and guided by the matters in cl 1(a) - (g).[4] McLure P noted a number of points about the proper construction of cl 1:[5]
First, the matters in pars (a) - (g) are characterised as 'questions' rather than the more common 'matters' or 'considerations'. The answers to the mandatory and other relevant questions (or findings as the case may be) provide the factual basis for the exercise of the discretion. The court is required to consider and answer the mandatory questions before commencing the weighing or balancing process inherent in the exercise of a discretionary power.
Secondly, with the exception of par (e), all of the mandatory questions are directed to whether there are positive grounds for refusing bail. The matters in (e) go to the question of whether it is possible to neutralise, wholly or sufficiently, the positive grounds for refusing bail. The court is not required to consider questions directed to whether there are positive grounds for granting bail. The focus of the questions, which direct attention to whether there are proper grounds to refuse bail, is the means by which the legislature has chosen to acknowledge the presumption that an accused person is innocent until proven guilty.
The Bail Act does not in terms place any legal onus on any party to a bail application. However, in those circumstances where the bail application is to be determined under cl 1, the consequence of its structure is that bail would have to be granted if there is no material before the court providing a proper foundation for refusing bail. Thus, as a practical matter, it will often be left to the State to provide the material required to provide a proper foundation for refusing bail.
The word 'may' in pars (a) and (d) of cl 1(a) means the possibility of the relevant event occurring: see cl 1(e)(i). For example, the court is required to answer the question whether, if the accused is not kept in custody, there is a possibility he would fail to appear in court in accordance with his bail undertaking. In answering that and the other questions in cl 1(a), the court must have regard to all the matters in cl 3(a), (b), (c) and (d) of pt C. (original emphasis)
[3] Milenkovski v Western Australia [2011] WASCA 99; (2011) 42 WAR 99 at [24] - [25], [37].
[4] Milenkovski [39].
[5] Milenkovski [39] - [42].
As noted in the above passage, the exercise of the discretion to grant or refuse bail involves two stages. The first stage involves asking and answering the questions posed in cl 1(a) - (g) in the applicable statutory context. The second stage involves the exercise of the discretion to grant or refuse bail by reference to the answers given to those questions. The issue, at least in an ordinary case, is ultimately whether the answers to those questions, and any other questions the judicial officer or authorised officer considers relevant, in the applicable statutory context, provide proper grounds for refusing to grant bail in order to secure the integrity of the criminal justice process and to protect the community.
The question posed by cl 1(a) does not ask whether, if the accused is not kept in custody, the accused will engage in conduct such as committing an offence or interfering with witnesses. Rather, the question is whether, if he or she is not kept in custody, the accused may engage in such conduct. The use of the word 'may' indicates that, in answering that question, the judicial officer or authorised officer is concerned with whether there is a risk that the accused might engage in the relevant conduct if not kept in custody. That sense of the word 'may' is indicated by cl 1(e)(i), which speaks of the 'possibility referred to in paragraphs (a) and (d)'. That confirms that the subject of the question posed by cl 1(a) is the existence of a risk or possibility that the accused may engage in the relevant conduct. However, cl 1(a) is not concerned with a risk or possibility that is merely theoretical or hypothetical and would consequently apply to anyone and everyone charged with an offence. The risk or possibility must be actual or real, as distinct from theoretical or hypothetical, and assessed having regard to the matters set out in cl 3(a) ‑ (d) and any other matters the judicial officer or authorised officer considers relevant.
Clause 1(e)(i) directs the judicial officer or authorised officer to consider whether there is any condition which could reasonably be imposed under pt D which would 'sufficiently remove the possibility referred to' in cl 1(a). Ordinarily, a reference to removing something (here a possibility) is to take the thing away. The context in which the words 'the possibility' appear in cl 1(e)(i) (in particular, the qualifying words 'sufficiently remove') indicates that this is not the meaning which Parliament objectively intended. The possibility that a person not kept in custody may commit an offence can never be entirely removed. If a judicial officer or authorised officer granting bail had to be satisfied that there was no risk that a person would engage in conduct of the kind referred to in cl 1(a) before granting bail, bail would never be granted. It is always possible that an accused person who is on bail may breach one or more of the conditions of bail.
It is clear that a judicial officer or authorised officer hearing a bail application is not required to be satisfied that no relevant risk would exist if bail was to be granted. Rather, the judicial officer or authorised officer must assess the nature and extent of the risk to the integrity of the criminal justice process and community safety, and consider whether the nature and extent of that risk provides a proper ground for refusing to grant bail. That assessment is made in the context where the accused has been charged with, but not convicted of, an offence and is presumed to be innocent. What is a proper ground for refusing bail must be considered in light of the risk of injustice to an accused who is ultimately acquitted of the charged offence after being held in custody for a lengthy period.
In this context, reference to the possibility of the accused engaging in relevant conduct being 'sufficiently removed' is to be understood as requiring an assessment of whether the risk of the accused engaging in that conduct is sufficiently reduced. The 'sufficiency' referred to must relate to the grant or refusal of bail with which the judicial officer or authorised officer assessing sufficiency is concerned. In that context, the possibility of an accused engaging in conduct referred to in cl 1(a) will be sufficiently removed by conditions where the remaining risk no longer constitutes a proper ground for refusing bail. That construction recognises that, before bail is refused, the nature and extent of the risk which the judicial officer or authorised officer assesses to remain after the imposition of reasonable conditions must be such as to warrant the detention of a person who has not been convicted and is presumed to be innocent.
Answering the questions posed by cl 1 and exercising the discretion to grant or refuse bail are obviously inter-related, particularly in relation to the assessment of whether conditions will 'sufficiently remove the possibility of' the accused engaging in relevant conduct. However, the two stages of the process remain, and answers to the relevant questions against the interests of an accused person will not justify the refusal of bail in all cases. For example, refusal of bail will not be justified by every possibility, which cannot be significantly reduced by conditions, that an offender may commit an offence if not kept in custody. The apprehended offence may be trivial or the accused may not constitute a risk to community safety of a nature or to an extent which justifies the refusal of bail.

Primary judge's approach

The primary judge noted that the offences with which the appellant has been charged are such that he will almost certainly be sentenced to a significant term of imprisonment if he is convicted.[6] In the absence of information about the appellant's employment history, the primary judge assumed that the appellant was not in paid employment at the time of his arrest.[7]
[6] Primary reasons [23].
[7] Primary reasons [24].
The primary judge referred to the appellant's criminal record and observed that he has no previous convictions for offences of the nature with which he has been charged. The appellant has a lengthy record of comparatively minor offending involving predominantly driving and drug offences. With the exception of a conviction for unlawful possession of a firearm or ammunition in June 2015, for which a fine of $75 was imposed, the appellant had no convictions between 2003 and 2015.[8]

Strength of the State's Case

[8] Primary decision [25].

In relation to the indecent dealing and sexual penetration charges, the primary judge observed:[9]
My impression gained from the limited materials that have been provided to me is that the evidence of the victim as recorded in the investigators' handwritten notes of their interview with her is coherent and cogent and provides prima facie evidence of indecent dealing and sexual penetration.
I remind myself, however, as counsel for the [appellant] has also reminded me, the evidence is untested.
[9] Primary reasons [26] - [27].
The primary judge also said that the evidence against the appellant in relation to the indecent recording charge appeared to him to be strong. This was on the basis that the images were found on a computer that, on the State's case, was only used by the appellant and to which the images taken with the destroyed phone had been transferred.[10]

The risk of interference with witnesses and obstruction of justice

[10] Primary reasons [28].

The primary judge inferred that the appellant may attempt to obstruct justice, by attempting to interfere with or influence A or her mother (who is L's daughter). The primary judge identified two bases for drawing this inference:[11]
1.The appellant was seen by police to destroy his mobile phone at the time the first search warrant was executed.
2.The account of A (which was untested but plausible and not inherently incredible) was that before the first search warrant was executed the appellant had made threats to her on several occasions. A said in her child witness interview that the appellant had threatened her on a number of occasions in an attempt to stop her from disclosing the offences. A said that the appellant had threatened to kill her mother, that he had threatened to shoot A, that he had hit A when they were alone, and that he had run over her dog because A was going to tell her mother.[12]
[11] Primary reasons [29].
[12] Primary reasons [18] (point 5).
The primary judge said that he had reservations about the extent to which conditions could protect A and other witnesses. Those reservations were based on what were described as the close but unusual relationships between the appellant and other members of A's family. The appellant was the partner of A's maternal grandmother, and A's older brother lived with the appellant and L at the time of the appellant's arrest. L also alleged that the appellant had a past intimate relationship with her daughter (A's mother). The primary judge said:[13]
The closeness of these relationships gives rise to a risk of contact between the victim and the [appellant] even if conditions are imposed. There is a risk that the [appellant] will attempt to influence the victim indirectly through [L] or another family member. I acknowledge that this risk will exist even if the [appellant] is in custody, but I consider that the risk is greater if the [appellant] is on bail.
The primary judge concluded that the unusual family relationships created a potential for contact and communication between the appellant and A, which conditions could not adequately address.

The risk of the appellant committing offences on bail

[13] Primary reasons [30].

The State had produced evidence that the computer seized during the execution of the search warrant on 28 July 2016, and the phone seized during the execution of the second search warrant on 11 January 2017, had been used to search for child pornography on the internet.[14] The primary judge described this evidence as 'compelling', and considered that there was a risk that the appellant would commit offences whilst on bail by accessing and possessing child exploitation material. The primary judge observed that the appellant had offered to abide by a condition not to access the internet whilst on bail, but said that such a condition was, in a practical sense, unenforceable.[15]

The balancing of the relevant considerations

[14] Primary reasons [18] (points 7 and 8).

[15] Primary reasons [31].

In balancing the relevant considerations, the primary judge observed:[16]
The [appellant's] counsel has rightly emphasised that the [appellant] is entitled to the benefit of the presumption of innocence and pointed to the absence of any prior convictions for offending of the nature with which he is presently charged. The [appellant] has not breached bail in the past. Counsel has also emphasised that the evidence has yet to be tested.
On the other hand, the evidence against the [appellant] is relatively strong, and particularly strong in the relation to the indecent recording offence. The destruction of the mobile phone and threats the victim reports were made to her by the [appellant] create a deep sense of unease and a concern that he may try to interfere [with] or influence the victim. For the reasons I have already given, there are credible reasons to believe that the [appellant] will commit offences if granted bail. I do not consider that there are any conditions that could reasonably be imposed to remove to a sufficient extent the possibility of the [appellant] offending whilst on bail or, in the particular circumstances of this case, sufficiently removing the possibility of the [appellant] interfering with the victim or her mother.
The primary judge declined to grant bail for those reasons.
[16] Primary reasons [32] - [33].

Nature of the appeal to this court

The appellant's right of appeal from the primary judge's decision to refuse bail is provided for by s 15A(2)(c), read with s 15A(1)(a), of the Bail Act. Section 15A(3) provides that the leave of this court is required for each ground of appeal in an appeal under s 15A of the Bail Act. This court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.[17] Unless the court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.[18]
[17] Section 27(2) of the Criminal Appeals Act 2004 (WA), incorporated by s 15A(4) of the Bail Act.
[18] Section 27(3) of the Criminal Appeals Act, incorporated by s 15A(4) of the Bail Act.
Section 15B(1) of the Bail Act gives this court jurisdiction to hear and determine an appeal under s 15A of that Act. Section 15B(2) provides:
The Court of Appeal shall determine an appeal on the material and evidence that was before the judge whose decision is the subject of the appeal.
As was noted in Smart v The State of Western Australia,[19] this provision means that, if there are new facts and circumstances which have arisen since the decision under review, the proper course is to make a fresh application to the General Division under s 14(2a) of the Bail Act.
[19] Smart v The State of Western Australia [2010] WASCA 218 [10].
An appeal under s 15A and s 15B of the Bail Act is not an appeal de novo.[20] Rather it is an appeal by way of rehearing,[21] which requires the appellant to either establish error by the primary judge or a miscarriage of justice.
[20] De Alwis v The State of Western Australia [2012] WASCA 146 [14].
[21] Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA), incorporated by s 15A(5) of the Bail Act.
Further, the appeal to this court is against a discretionary decision of the primary judge. In Milenkovski, a ground contended that the primary judge in that case erred in 'refusing to make a grant of bail having regard to all the circumstances of the case'. McLure P noted:[22]
This ground does not raise an appealable error that entitles this court to intervene in the exercise of the discretion to grant or refuse bail. In an appeal from a discretionary decision, the principles in House v The King (1936) 55 CLR 499, 504 - 505 apply. In particular, the appellant must demonstrate that the primary judge made an express or implied material error of fact or law. A failure to give 'adequate weight' or 'insufficient regard' to relevant considerations only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen (2000) 202 CLR 321, 330; Mallet v Mallet (1984) 156 CLR 605, 614 - 615.
[22] Milenkovski [46].
Milenkovski also involved grounds contending that the primary judge in that case erred in concluding that no conditions of bail could reasonably be imposed which would sufficiently remove the possibility of non-appearance at trial, and in finding that Milenkovski may commit a further offence if not kept in custody. In relation to these grounds, McLure P observed that Milenkovski had the difficult task of establishing that the findings were not reasonably open on the evidence.[23]
[23] Milenkovski [47] - [48].

Grounds of appeal

The appellant appeals against the primary judge's dismissal of his bail application on two grounds:
Ground 1
His Honour erred in concluding that there were credible grounds that the Appellant would commit further offences if granted bail; and that there were no conditions which could reasonably be imposed to remove that concern.
Ground 2
His Honour erred in concluding that there were no conditions which could reasonably be imposed which would sufficiently remove the possibility of the Appellant interfering with the victim or her mother.
On 6 July 2017, Mazza JA granted the appellant leave to appeal on both of these grounds.
As explained by counsel's oral submissions, the appellant intends these grounds to include the following two contentions:[24]
1.It was not reasonably open on the evidence before the primary judge to conclude that there were no reasonable conditions which could be imposed which would sufficiently remove the possibility that, if he is not kept in custody, the appellant may:
(a)commit the offence of accessing or possessing child exploitation material; or
(b)interfere with the witness A or her mother.
2.It was not reasonably open, in the circumstances of this case, to refuse bail on the grounds relied on by the primary judge.
[24] Appeal ts 2 - 4.
That is, the appellant contends that the primary judge erred by answering the question posed by cl 1(e)(i), in relation to cl 1(a)(ii) and (iv), in a way not reasonably open on the evidence. Alternatively, the appellant contends that, applying House v The King,[25] the primary judge's answers to those questions did not, in the circumstances of the case, constitute reasonable grounds for refusing bail, and his Honour's exercise of discretion was unreasonable or plainly unjust.
[25] House v The King [1936] HCA 40; (1936) 55 CLR 499.

Disposition of appeal

In terms of cl 1 of pt C, the primary judge concluded that bail should be refused on the ground that, if the appellant is not kept in custody, he may:
1.commit an offence of accessing or possessing child exploitation material; and
2.interfere with the witness A or her mother,
and there is no condition which could reasonably be imposed under pt D which would sufficiently remove those possibilities.
As explained in more detail below, we accept the appellant's submissions that:
1.the findings that no reasonable conditions could be imposed under pt D which would sufficiently remove those possibilities were not reasonably open on the evidence; and
2.in the circumstances of this case, the existence of those possibilities did not provide a reasonable basis for exercising the discretion to refuse bail.

Possibility that the appellant may commit an offence

In our view, it was not reasonably open on the evidence to conclude that there was no condition which could reasonably be imposed under pt D which would sufficiently remove the possibility that the appellant would commit an offence. Nor did the possibility that the appellant might search for child pornography on the internet, in breach of the conditions of his bail, constitute a reasonable or sufficient basis for the exercise of the court's discretion to refuse bail.
The primary judge's concern was with the enforceability of a condition which would prohibit the appellant from accessing the internet. The ubiquitous nature of the internet and internet connected devices in modern society must be acknowledged. A device capable of connecting to the internet is relatively easy and cheap to obtain, register, use and conceal. Conditions could not entirely exclude the possibility that the appellant might surreptitiously use such a device to search for child exploitation material. However, the use of electronic devices to access the internet commonly leaves an electronic trail leading to the user. If the appellant were to use an electronic device to access the internet, he would do so knowing of the risk that his use may be detected and his bail revoked as a consequence of the breach of bail conditions. Counsel for the State conceded that there is a difference between the appellant attempting to access child exploitation material while knowing he was under suspicion by the police and doing so while under conditional release on bail.
At the material time the appellant had not been charged with any offence of accessing child exploitation material. He had no prior convictions for accessing child exploitation material or for any sexual offence. Nor did he have any prior convictions for failing to comply with conditions of bail. The appellant says that, if granted bail, he will reside at a property that will not have internet access and will not have access to any electronic device with internet access.
In this case, the possibility that the appellant might conduct internet searches for child pornography could be significantly reduced by a condition that he not have access to the internet or use a device capable of accessing the internet. In our view, in all the circumstances of the present case, conditions prohibiting the appellant from accessing the internet or using an internet-capable device would reduce the risk of him seeking to access child exploitation material to a level that it does not constitute a proper ground for refusing bail. In our view, the only reasonable conclusion open on all of the evidence in the present case is that these conditions would sufficiently remove the possibility that the appellant may commit an offence of accessing or possessing child exploitation material.
In all the circumstances of the present case, the residual possibility that the appellant might conduct searches in breach of a bail condition prohibiting any access to the internet is not such as to be capable of justifying the refusal of his bail application on community protection or any other grounds.

Possibility that the appellant may interfere with witnesses

Notes of the child witness interviews of A indicated that she alleged that the appellant had threatened to kill members of her family if she told them about the abuse, and that the appellant ran over A's dog because she was going to tell her mother. These threats were allegedly made at or about the time of the offending which is the subject of the charges.
There was also evidence that the appellant destroyed a mobile phone as the first search warrant was executed.
The State did not contend that the appellant may carry out the threats he made to A before she made her complaint. Rather, the State's apprehension is that, if the appellant is not kept in custody, he may attempt, either directly or indirectly, to influence the testimony which A or her mother may give when called to give evidence. The State points to a number of unusual features of the family relationship as reinforcing that apprehension.[26]
[26] Appeal ts 19.
However, both the threats and the destruction of the phone are alleged to have occurred well prior to the appellant being charged with the offences. Steps taken to avoid detection of an offence by police might, in certain circumstances, justify a conclusion that the accused may interfere with witnesses. However, evidence of the taking of such steps often does not carry the same force as steps taken to obstruct justice after police have detected the alleged offence. For example, attempts to dispose of prohibited drugs as police attempt to gain entry into the premises would not ordinarily support a conclusion that there was a substantial risk that the accused person would interfere with witnesses after charges had been laid. There is ordinarily a difference between committing an offence in a manner designed to avoid its detection and attempting to obstruct the course of justice after it has been detected.
Further, in the present case there was a period of almost 6 months between the execution of the first search warrant on 28 July 2016 and the appellant being arrested and charged on 11 January 2017. A disclosed the alleged offences to police in child witness interviews given in June 2016. According to the mother's witness statement, which was before the primary judge, A's mother told L about allegations of sexual abuse of A by the appellant prior to the matter being reported to police.[27] Given the nature of the relationship between A's mother and L, and between L and the appellant, there is a compelling inference that the appellant would have been aware that A had made a complaint to police at least shortly after the first search warrant was executed. Counsel for the State in the appeal properly conceded this inference to be open.[28] Yet there was no suggestion that, in the period between the execution of the first and second search warrants, the appellant had attempted to contact A or her mother directly or indirectly, or to cause them to recant the account they had given to police.
[27] Par 71 and 72 of the mother's witness statement dated 6 April 2016 (AB 132).
[28] Appeal ts 21.
There is no evidence that the appellant has contacted or attempted to influence any witnesses. The appellant says that he does not have contact with any witnesses other than his partner L. The police were aware of threats to A in June 2016 and the appellant was not arrested until January 2017. There was no contact by the appellant with A during this period or, according to the witness statement of A's mother,[29] in the year prior to the matter being brought to the attention of police.
[29] Par 122 and 123 of the mother's witness statement dated 6 April 2016 (AB 136).
Further, there is no evidence to suggest that, if the appellant attempted to communicate with A or her mother in breach of protective bail conditions, A or her mother would not promptly inform the police of the attempt. Such an attempt in breach of a protective bail condition would constitute an offence,[30] and bail on a charge of that offence could be granted only in exceptional circumstances.[31] Such an attempt, if detected, would also be expected to lead to a revocation of bail in respect of the offences of which the appellant is currently charged.
[30] Under s 51(2a) of the Bail Act.
[31] Clause 3A and 3B of pt C to sch 1 to the Bail Act.
The possibility that the appellant might attempt to interfere with witnesses by attempting to have them alter their evidence was to be evaluated in a context where:
1.There was no material to suggest contact or attempted contact between the execution of the first and second search warrants;
2.There was no evidence that the appellant took or sought to take any steps to obstruct justice after the execution of the first search warrant;
3.It is to be inferred that the appellant was aware of A having complained to police at least shortly after the execution of the first search warrant;
4.The appellant was going to live apart from, and would accept a condition not to contact, relevant witnesses; and
5.The appellant did not have any record for offences involving violence or breach of bail conditions.
In this context, in our view it was not reasonably open on the evidence to conclude that a residence and non-contact condition would not sufficiently remove the possibility of the appellant interfering with A or her mother as witnesses. The extent of the risk remaining after the imposition of conditions could not, in our view, provide a proper basis for refusing bail.

Conclusion as to grounds of appeal

The material before the primary judge did not provide an adequate basis for concluding that bail should be refused to secure the integrity of the criminal justice process or to protect the community. It was not reasonably open to the primary judge to conclude that the possibility that the appellant might access child exploitation material or seek to interfere with witnesses, which would remain after the imposition of reasonable conditions, justified refusing bail. The appellant was in no different position to many accused persons charged with child sex offences, who commonly have a history of accessing child pornography prior to being charged and are alleged to have made threats to the child in order to deter the reporting of the offence. Persons in that position are regularly granted bail, and there was nothing in the present case which was capable of justifying a departure from that ordinary approach.

In all the circumstances, it was not open on the evidence for the primary judge to find that conditions would not sufficiently remove the possibility of the appellant committing offences or interfering with witnesses. While the risk could not be entirely eliminated, the nature and extent of that risk was not such as to constitute a proper ground for refusing bail. Any residual risk remaining after the imposition of reasonable conditions did not reasonably justify the exercise of the primary judge's discretion to refuse bail.
It was for these reasons that we allowed the appeal and granted the appellant conditional bail for his next appearance in the Magistrates Court.