Burton v The Queen

(d) that he not enter the suburbs of Campbell, Charnwood, Manuka or Kaleen.

(e) that he not contact, directly or indirectly, or approach within 100 metres of, or assault, threaten, intimidate or harass, Mr Mark Edward Gow, Ms Christiane Seears or Mr Andrew Shegog, but it is noted that this condition is not breached by Mr James Seears attending at (address omitted for legal reasons) on 23 August 2013 to collect personal effects of the applicants, including making a telephone contact with the applicant while at those premises.

(f) that upon taking up residence in Cooma, he not return to Canberra except

(ii) for the purpose of conferring with his lawyers, which must be by prior appointment and the date and time to be notified to the Director of Public Prosecutions not less than 24 hours prior to the appointment.

(g) that, if he returns to Canberra in accordance with condition (f), he remain in Canberra no more than one day and travel directly to and from the court or his lawyer's office.

(h) that he notify the court if he changes his solicitors

1. On 26 May 2013, the applicant for bail, Gregory Bernard Seears, was taken into police custody. He had been at premises in Campbell in the ACT where his estranged wife and another gentleman were staying. It is alleged that Mr Seears smashed the pane of the front bedroom window with a spirit level he had brought with him and, when the male occupant came to the door, he attempted to attack him with the spirit level.

2. An altercation appears to have ensued and police were called. Mr Seears was charged with aggravated burglary with intent to cause harm, assault occasioning actual bodily harm and damaging property. These are relatively serious offences attracting severe maximum penalties.

3. Aggravated burglary is an offence under s 312 of the Criminal Code 2002 (ACT) with a maximum penalty of 2,000 penalty units (that is, a fine of $220,000), imprisonment for 20 years, or both. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT), rendering Mr Seears liable to a maximum penalty of five years imprisonment. Damaging property is an offence prohibited by s 403 of the Criminal Code and attracts a maximum penalty of 1,000 penalty units (that is, a fine of $110,000), imprisonment for 10 years or both.

4. Mr Seears appeared in the ACT Magistrates Court on 27 May 2013. Bail was refused and he was remanded in custody. After some adjournments, he entered a plea of not guilty on 25 June 2013 to all charges and on 8 August 2013, he was committed to this court for trial. Mr Seears has now applied for bail from this court. His application for bail was supported by two affidavits of his solicitor and the contents were not challenged.

5. The police Statement of Facts alleged that Mr Seears went to the Campbell property at 6:10 am on Sunday, 26 May 2013 and walked up the front entry stairs of the premises carrying a shopping bag containing a cordless angle grinder, a red-handled kitchen knife, a timber-handled folding knife and approximately 12 long cable ties. He was also carrying a 1.2 metre silver coloured spirit level. Police allege that Mr Seears smashed the right pane of the front bedroom window with the spirit level. At the time, police allege there were two occupants of the bedroom, the male occupant referred to earlier and Mr Seears' estranged wife. The male occupant opened the front door and Mr Seears yelled out, "You're sleeping with my wife, I'm going to kill you, I'm going to kill you." The police Statement of Facts continued that Mr and Mrs Seears had been married for over 35 years, though Mr Seears suggested to me it was 40 years, and that they had been separated for the past five years.

6. Mr Seears managed to enter the premises and told the male occupant, "I'm here to kill you." He began swinging the spirit level towards the male occupant who managed to shield the blows by holding up his left forearm in front of his face but the spirit level hit him on the forearm with significant force. Mr Seears' estranged wife managed to grab hold of the spirit level and removed it from Mr Seears' hand. Mr A Doig, who appeared for Mr Seears, submitted that if she was able to do that in the circumstances, Mr Seears could not have had a significant grasp on it. Mr Seears then punched the male occupant in the face but the male occupant punched Mr Seears also in the face with a closed fist. Another resident of the premises heard the disturbance and came to the assistance of the male occupant, restraining Mr Seears on the floor. Police arrived a short time later.

7. I was provided with photographs of the male occupant showing significant wounds on the left side of his head and also a photograph of Mr Seears showing a blood nose and what appeared to be quite a lot of blood on his clothing. I also saw a photograph of the window which had been smashed. There was a significant amount of glass on the outside of the window but most of the glass in the window, a considerable amount, had been smashed and I could not tell from the photograph that the glass outside was inconsistent with the window being smashed from the outside, as suggested by Mr Doig may have been the case.

8. Mr Seears is 60 years old and, prior to his incarceration, worked fulltime as a bricklayer. It was said in the affidavit of Mr Seears' solicitor that on 11 July 2013, Mr Seears, without admissions, consented to a final domestic violence order being made in favour of his estranged wife. It appears now that, in fact, that order was made on 30 July 2013, as on 11 July 2013, Mr Seears was not brought in from the Alexander Maconochie Centre where, of course, he was detained, bail having been refused, and it was later that the order was, in fact, made without admissions, as indicated. He now accepts, having been in custody for about three months, that the relationship with his estranged wife is over.

9. Mr Seears has a long and disturbing criminal history dating back to 1970. It includes a total of 42 offences dealt with in 31 court appearances. Twenty-two of those offences, however, are traffic offences and 10 are what might be described as "street offences", though some are somewhat more serious versions of such offences such as carrying a knife in a public place. He has one drug offence, three damage property offences, one dishonesty offence and five offences of violence in his record, including an offence of assault occasioning actual bodily harm. One of the recent charges of assault, however, is currently the subject of an appeal. That assault, it appears, was alleged to have been committed on 23 May 2011. Since that date, the only two offences committed by Mr Seears that were on his record have been an offence of driving with a low range of prescribed concentration of alcohol and driving with a licence expired less than two years prior to that offence. There are further offences to which I will refer in a moment.

10. Mr Seears has accommodation in Cooma and in Adelaide and seeks bail to reside in either of those places. He now seeks to reside in Cooma. He has been in custody since 26 May 2013 and it appears that the trial of the charges will not be able to be commenced this year. Indeed, the information that was provided to me from the Bar table indicates that the matter has been relisted for further directions in November of this year. He has not sought an election for trial by judge alone and I am told that the trial is likely to take three days. There are no dates for a trial of that length this year.

11. It was submitted by Mr Doig that, given the special circumstances of the case, even were Mr Seears to be convicted, it is unlikely that he would receive a sentence of actual imprisonment longer than the eight months, which he would at least have had to have spent in custody before any trial commenced at the earliest in February 2014. This was despite the maximum penalties. That may be so. It is quite difficult to assess that on a bail application. Sometimes there is considerable evidence at the bail hearing where an assessment of the strength of the prosecution case and the likely penalties can be made (see R v Rubino [2012] ACTSC 157 at [31]- [40]). It is, however, usually difficult to make a proper assessment of the Crown case but as Chairman of Quarter Sessions Cross said in R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325 at 330, "a perusal of the papers may indicate an apparently powerful case which makes the possibility of a conviction at trial not inevitable but more likely."

12. On the basis of the statement of facts, that does seem to be the case here.

13. Mr Doig submitted that the time in custody had made Mr Seears appreciate that his relationship with his estranged wife is now over and that if he were to reside out of the Territory with a prohibition from returning to the Territory, any risk to the complainant or his estranged wife would be virtually eliminated. That is reinforced, I suppose, by the existence of the domestic violence order.

14. Mr S McLaughlin, who appeared for the respondent, opposed the grant of bail. His principal ground was that there was a risk of interfering with witnesses but also that there was a risk of reoffending.

15. As to the first, he pointed out that if Mr Seears were in Cooma, it was only an hour's drive back to Canberra and if he were in Adelaide, he would have to fly or drive back to Canberra which would result in him being in Canberra for some considerable time and there would be some risk to the complainant and Mr Seears' estranged wife. He submitted that I should be sceptical about Mr Seears' apparent and recent realisation that the marriage is now over. He submitted that this was convenient when in the five years previously, he had apparently not been able to come to terms with it. He drew my attention to the fact that one of the earlier offences of violence was a road rage showing that Mr Seears was somewhat volatile, with difficulty containing his emotions. This was relevant for the risk of reoffending. He relied on the significant injuries sustained by the complainant, as shown by the photograph I saw. He also submitted that Mr Seears was on bail when the offence was committed which, of course, aggravates the seriousness of the offence.

16. Mr McLaughlin also relied on the earlier offence of assault occasioning actual bodily harm which had some similarity to this offence. I take the following statement of facts from the sentencing remarks of Penfold J in R v Seears (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 2 October 2008):

One morning on February 2006, a close friend of Mr Seears received an offensive phone call which had been recorded on his answering machine and was listened to by the friend's 11 year old child. The call was not an isolated incident, and it seems that Mr Seears and his friend had become frustrated by what they saw as a lack of response by both the police and Telstra to repeated complaints of what was described in court as 'a pattern of activity of a harassing nature'.

Later that day, after further unrewarding contact with the police and Telstra, Mr Seears and his friend went to the home of the person they thought was responsible for the calls. Mr Seears was armed with a baseball bat and after entering the home, used the bat, to hit one of the occupants on the lower back, causing some soft tissue injury for which he was treated in a hospital Emergency Department.

17. I note that in the Pre-Sentence Report tendered on that occasion, the author expressed some concerns about Mr Seears' attitude to that offence, noting:

He does not consider himself to be a violent man but the details of the offence at least suggest that he is prepared to condone violence in his quest to achieve justice for his family or loved one s... unless he changes his attitude towards authority, particularly the police, he will remain at a risk of [re-offending].

18. As her Honour said, what was of concern was that, after receiving no apparently satisfactory response from the police or Telstra, Mr Seears felt he was "entitled to take the law into his own hands". There is some similarity in this case. On that occasion, Mr Seears was sentenced to imprisonment for three months backdated to take account of pre-sentence custody and then immediately suspended with a good behaviour order for 18 months.

19. Mr McLaughlin also referred to an outstanding charge to which Mr Seears had pleaded guilty, namely driving as a repeat offender with a level 4 concentration of alcohol. That matter was to be dealt with in the Magistrates Court on 22 August 2013. As a result, I adjourned the proceedings to see the outcome of that offence which may impact on the outcome of the bail application.

20. The results of the proceedings in the Magistrates Court were, in fact, that Mr Seears entered a plea of guilty to three offences, a common assault involving apprehension rather than battery, driving with the prescribed concentration of alcohol at level 4, and driving whilst unlicensed. The learned Magistrate, however, indicated that he was prepared to make a good behaviour order with a community service order condition as being the appropriate penalty for the offences if Mr Seears were to be granted bail by me. The matter will return to the Magistrates Court after I have dealt with it here.

21. As was the position at common law (Limb v Gregson [1989] WAR 1 at 12), there is a presumption in favour of bail for Mr Seears (see s 9A of the Bail Act 1992). In Dunstan v Director of Public Prosecutions [1999] FCA 921; (1992) 92 FCR 168, Gyles J analysed the presumption in favour of bail at 182-4; [44]-[53]. In summary, his Honour held that:

The [applicant] was entitled to bail unless the court was satisfied, on the balance of probabilities, that having regard to the applicable matters referred to in s 22, the court was justified in refusing bail.

22. The two matters relied on by Mr McLaughlin as justifying a refusal of bail were the likelihood of interfering with witnesses and the risk of reoffending, the latter really being related to the former since, he submitted, that there was a risk that Mr Seears would act violently towards the complainant or his estranged wife. That, however, requires some evidence beyond mere assertion.

23. Further, it seems to me that both these matters are likely to be resolved satisfactorily were Mr Seears to be required to reside in Cooma or in Adelaide until the proceedings involving him are conducted. He will then be physically separated from the complainant and his estranged wife and therefore the risk that Mr McLaughlin not unreasonably raised will be substantially resolved, if not eliminated.

24. The risk of reoffending needs to be considered quite carefully. It is perhaps too easily asserted and possibly even relied on by the courts. As was said in Dunstan v Director of Public Prosecutions, there is no warrant, even in the Bail Act, for preventative detention. Further, as Gyles J, with whom Whitlam and Magdwick JJ agreed, said in Dunstan v The Director of Public Prosecutions at [56]:

[R]efusal of bail upon the basis of [protection of the community, including the likelihood of committing further offences] alone, is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.

25. This approach has been followed in this jurisdiction on many occasions (see Re an application for bail by Hillier [2003] ACTSC 50 at [17]; Re an application for leave to appeal by Collins [2003] ACTCA 17 at [28]; Re an application for bail by Blundell [2008] ACTSC 138 at [6]; Re an application for bail by Breen [2009] ACTSC 172; (2009) 172 ACTR 21 at 27; [60] and R v Rubino at [44]-[45].

26. A risk of committing offences while on bail has been a consideration at common law in respect of bail for many years. In Re Whitehouse (1951) 35 Cr App R 8 at 11, Lord Goddard CJ said:

[A]s we have pointed out in cases in the Court of Criminal Appeal, bail ought to be sparingly granted in cases where prisoners have long records of conviction since it very often results, when such a person obtains bail, he commits offences while on bail, sometimes telling the Court afterwards that he did it so as to get money to enable him to be represented at Quarter Sessions, in other cases saying that he had to make some provision for his wife and children while he was in prison.

27. This authority has been followed in Australia in R v Light [1954] VicLawRp 25; [1954] VLR 152 at 157, R v Clancy (1958) 75 WN(NSW) 142 at 143 and R v Pascoe (1961) 75 WN(NSW) 59 at 63. On the other hand, Fox J, in Burton v The Queen (1974) 3 ACTR 77 at 78, did express some caution about the extent to which such a factor was relevant, saying:

It is not normally a factor of any great weight adverse to the granting of bail that an accused person may possibly commit a crime while he is on bail. It should not readily be assumed that he might commit an offence or further offence. If he does, he can be dealt with by the criminal law. There are, however, situations in which the consequences of any crime he commits while on bail may be so serious and have such widespread effect that the possibility that he may commit a crime while on bail is an important consideration.

28. This issue is one of complexity. Some of the problems have been addressed in very relevant terms in the useful publication, B Donovan, The Law of Bail: Practice, Procedure and Principles (Legal Books Pty Ltd, 1981) at 108-11. Nevertheless, this factor is now a statutory criterion in s 22(1)(b)(i) of the Bail Act and so I am obliged to consider it. It has, however, been held to be a criterion that is compliant with human rights as, for example, under the Human Rights Act 2004 (ACT). See R v Morales (1992) 77 CCC (3d) 91 at 118-9, though on quite narrow grounds. Further, the European Court of Human Rights has also upheld such a provision (see Matznetter v Austria (1979-80) 1 EHRR 198 at [9]; 210-1). The danger, however, must be "a plausible one" and have regard to the past history and personality of the applicant. As the court said in Clooth v Belgium [1991] ECHR 71; (1992) 14 EHRR 717 at [40]; 734, the court must consider whether any previous convictions are "comparable, either in nature or in the degree of seriousness, to the charges preferred against the accused".

29. Thus, the fear of future offending must not be assumed merely from the applicant's antecedents (Muller v France [1997] ECHR 11 at [44]) and the view of the risk must be reasonably held (Clooth v Belgium at [40]; 734). This will require a court not merely to assess the risk of reoffending but also to consider other avenues such as bail conditions which may achieve the end desired, namely public safety, which must be made effective. It is not merely a function of viewing the criminal record of the applicant but looking at all the circumstances and coming to a view of the statutory test, namely "the likelihood of committing an offence", particularly having regard to the well-known difficulty in making exact predictions of recidivism and dangerousness.

30. While Mr Seears has an unenviable record, it does not seem to me that it by itself justifies refusal of bail. Over half of his convictions are motor traffic convictions, though including some of the more serious kind, namely driving with the prescribed concentration of alcohol. Mr Seears, however, is not facing such a charge in this court. The likelihood of further offending imports a standard higher than just a possibility. I am not satisfied also that it necessarily includes any possible offence (see Re an application for bail by Asmar [2005] VSC 487 at [25]).

31. The violence offences on his record are of concern but the most recent is being challenged on appeal, though I have no information as to the strength of that appeal. I must in the meantime pay due regard to the apparently regular finding of the court which convicted him. There are four others but spread over some 40 years. The most recent is over two years ago and the most serious nearly five years ago.

32. Whilst past behaviour is a relevant factor in trying to assess future behaviour, I am not satisfied that, if the appropriate protections are put in place, that is, distance between himself and the complainant and his estranged wife, that Mr Seears would be in a position where there is a likelihood of a risk of reoffending. The risk of interfering with witnesses really amounted to a further interaction between Mr Seears and the complainant and his estranged wife. Again, the terms of bail are, I am satisfied, sufficient to resolve that.

33. Accordingly, I will grant Mr Seears bail on 23 August 2013 to appear in the ACT Magistrates Court on a date to be notified to him by the Registrar on the following conditions:

(i) that he reside at flat (address omitted for legal reasons).

(j) that he report to the officer-in-charge of Cooma Police Station every day between the hours of 8:00 am and 8:00 pm, the first reporting day being 24 August 2013.

(k) that he accepts supervision of the Director-General or her delegate and comply with all reasonable directions of the person delegated to supervise him.

(l) that he not enter the suburbs of Campbell, Charnwood, Manuka or Kaleen.

(m) that he not contact, directly or indirectly, or approach within 100 metres of, or assault, threaten, intimidate or harass, Mr Mark Edward Gow, Ms Christiane Seears or Mr Andrew Shegog, but it is noted that this condition is not breached by Mr James Seears attending at (address omitted for legal reasons) on 23 August 2013 to collect personal effects of the applicants, including making a telephone contact with the applicant while at those premises.

(n) that upon taking up residence in Cooma, he not return to Canberra except

(iv) for the purpose of conferring with his lawyers, which must be by prior appointment and the date and time to be notified to the Director of Public Prosecutions not less than 24 hours prior to the appointment.

(o) that, if he returns to Canberra in accordance with condition (f), he remain in Canberra no more than one day and travel directly to and from the court or his lawyer's office.

(p) that he notify the court if he changes his solicitors.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge

Solicitor for the Applicant: Director of Public Prosecutions (ACT)