Director of Public Prosecutions (NSW) v Leahy

Court of Criminal Appeal (NSW)|2014-02-28|Before: Hoeben CJ, Adams J, Hulme J, Barr AJ

Judgment 1HOEBEN CJ at CL: I agree with the reasons of R A Hulme J. 2ADAMS J: I agree with R A Hulme J. 3R A HULME J: On Friday 28 February 2014 the Court heard an application by the Director of Public Prosecutions (NSW) for the review of a decision of Barr AJ on 25 February 2014 granting conditional bail to the respondent. At the conclusion of the hearing the Court made orders revoking that decision and refusing bail. The following are my reasons for joining in the making of those orders.

The alleged offences 4The respondent was charged on 25 July 2013 with an offence contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) of causing grievous bodily harm with intent and a further offence of contravening an apprehended domestic violence order pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The former is an offence carrying a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. The latter carries 2 years imprisonment or a fine of $5,500 or both. The alleged victim of the s 33(1)(b) offence is Ms Melanie Dunbar. Ms Dunbar is also the person protected by the order the respondent is alleged to have breached. 5The respondent had been held in custody bail refused since being charged and the matter is next listed for mention before the Local Court at Albury on 10 March 2014.

Review of bail decisions 6Section 45(1)(b) of the Bail Act 1978 (NSW) provides that the Court of Criminal Appeal may review any decision in relation to bail of, inter alia, the Supreme Court. Such a review is conducted as a hearing de novo: R v Petroulias [2010] NSWCCA 95 at [13]; R v Chehab [2013] NSWCCA 62 at [2].

Alleged facts 7The complainant and respondent had been in a relationship for the past six years or so. They had been living at an address in West Albury for two years. They have various children who reside elsewhere. The police facts assert that there had been a history of domestic violence incidents, some of which had been reported to police but also some which had not. 8On 23 January 2013 an Apprehended Domestic Violence Order (ADVO) was made which included a condition that the respondent not assault the complainant. On 4 July 2013 the complainant is said to have returned to the home after visiting two of her children. The respondent was in the lounge room and is alleged to have been intoxicated. Also present was the 12 year old daughter of the respondent from a previous relationship. 9There was a conversation concerning where the complainant had been and an argument ensued. This culminated in a physical struggle which included the respondent striking the complainant with a closed fist to her face causing her to fall to the floor. The respondent is then said to have kicked her in the head a number of times with so much force that her body rolled over. The police assert that the respondent was wearing work boots at the time. 10As the respondent was kicking the complainant his daughter was yelling at him to stop. At this point "a witness" entered the premises and observed certain injuries including that the complainant had one of her eyes half closed. The witness and the respondent then left the premises without attempting to seek any medical attention for the complainant. 11The complainant did not report the matter to police but attended hospital and sought medical treatment. No significant injury was detected at that stage but there is a question as to the thoroughness with which she was examined. She thereafter continued to experience pain and consulted a general practitioner who referred her to a maxillofacial surgeon. A CT scan indicated a comminuted depressed left zygomatic arch fracture. The complainant underwent surgery on 2 August 2013 where the fracture was surgically opened and reduced. It is said that the procedure was entirely successful. The surgeon, Dr Hennessy, asserts in his statement that, "this sort of injury is consistent with a blow of substantial force and if the direction or site of the blow could have been different the outcome could have been catastrophic". 12The respondent attended the Albury Police Station on 25 July 2013. (It is not entirely clear but it appears that the complainant reported the matter sometime between 19 July and that date.) He agreed to be interviewed by police. He is said to have told the officers that he had no memory of the assault and that he was intoxicated at the time. He also told the police that he and the complainant had engaged in numerous domestic violence incidents since the death of their son in 2010 and he admitted to having made threats to kill her. 13Finally, the police facts assert that the victim had not returned to the home "due to fears she holds for her safety and the safety of her children".

Subjective features 14The respondent was born in 1982 and so he is now aged 31. 15He has a criminal history but has not previously been in gaol. The history includes that on 25 October 2005 he was fined and placed on bonds in the Albury Local Court for assaulting and resisting a police officer in the execution of the officer's duty. On 16 August 2011 he was fined in the Wodonga Magistrate's Court for threatening to inflict serious injury. 16On 1 March 2012 the respondent was convicted of contravening an ADVO. The respondent had been served with an ADVO on 29 August 2011. The conditions included that he not approach the complainant when intoxicated and that he not enter or loiter about premises where she lived. On 29 February 2012 he went to the complainant's home at her invitation and spent time with her and the children. Sometime during the evening he accused the complainant of cheating on him and an argument ensued over a number of hours. In the early hours of the following morning he went to the kitchen and obtained knives and proceeded to cut his wrists and thereafter damaged various items in the kitchen including punching a hole in the wall. The complainant tried to call the police but he smashed the phone. She found another phone and took it to her eldest son and asked him to call the police. The police attended and found the respondent to be moderately affected by alcohol. In respect of this matter he was fined and placed on a two year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with a condition that he accept supervision by the Probation and Parole Service and obey reasonable directions concerning various things including drug and alcohol rehabilitation. 17On 10 October 2012 a warrant was issued for the respondent's arrest for having breached his bond. He was arrested and dealt with on 12 November 2012 when a further two year s 9 good behaviour bond was imposed. 18On 23 January 2013 the respondent was called up again for having breached his bond and once again was placed upon a two year s 9 good behaviour bond; again with conditions requiring him to obey directions of the Probation and Parole Service in relation to drug and alcohol rehabilitation. On the same occasion the respondent was also convicted of two charges of damaging property and placed on further two year s 9 good behaviour bonds. 19For reasons which are not apparent, further warrants were issued on 9 July 2013 for the arrest of the respondent for being in breach of an order. On 10 July 2013 he was once again dealt with for having breached the good behaviour bond relating to the offence of contravening an ADVO. Yet again he was placed upon a two year s 9 good behaviour bond. 20The police bail report in respect of the respondent includes two entries of having breached bail, namely on 22 October 2012 and 4 November 2012. The latter breach involved a failure to report to police as required on three occasions in late October/early November 2012. 21The position then was that as at 4 July 2013 when the subject offences were alleged to have been committed the respondent was subject to a ADVO and three good behaviour bonds.

The bail determination of 25 February 2014 22Barr AJ granted bail on very strict conditions. They included a residential condition with a curfew; that the respondent report to police each day; that he not enter West Albury and not make any attempt to approach the complainant or their child; that he not consume alcohol or any illicit drug or enter any premises where alcohol is sold. There was also a condition that an acceptable person enter into an agreement without security to forfeit $5,000 if he failed to comply with his bail. 23The address to which the respondent was bailed was his mother's home in Lavington. There was material before Barr AJ indicating that Ms Leahy was prepared to have her son live with her and that she acknowledged the need for him to comply with strict bail conditions. Further similar material was placed before the Court last Friday. Also before the Court was a letter from the respondent's father confirming his preparedness to be the acceptable person and also generally indicating his support for his son.

Submissions 24It was common ground that the present matter was one for which the Bail Act did not provide any presumption for or against bail. 25The Crown submitted that in relation to the support the respondent had from his parents, it might reasonably be supposed that he had enjoyed that support through the years of his relationship with the complainant and it had not served to discourage him from engaging in domestic violence. 26It was submitted that the history of breaching an ADVO and good behaviour bonds gave little confidence in the respondent's capacity to comply with court orders. In short, he had ignored court orders on so many occasions in the past that there was no reason to think that he would not do so in the future. 27The primary concern raised in opposition to bail was the safety of the complainant. The submission was put quite bluntly: "whilst the respondent is at large Ms Dunbar is in danger". This danger was said to be now magnified by her being in a position of being a important witness against the respondent in relation to serious charges which carry the maximum penalties set out earlier and, in the case of the s 33 offence, a standard non-parole period of some significance. 28It was submitted that the Crown case was a strong one. The respondent did not deny that he was present in the home on the night the complainant sustained her serious injury. He did not deny assaulting her but merely claimed a lack of memory. He admitted having observed bruising when he awoke the following morning. The strength of the Crown case was said to provide an additional concern as to whether the respondent would appear in court with the likelihood being that a significant custodial sentence would be imposed if convicted. 29For the respondent it was observed that he had never failed to appear in court in the past and had never been sentenced to a term of imprisonment. He has now spent a period of about seven months in custody. This would serve as disincentive for him to fail to comply with his bail and run the risk of being returned to custody. 30In relation to the prosecution's concern for the protection of the complainant, it was submitted in addition to the matter just mentioned that the nature of the alleged offending was of a gravity significantly beyond anything that had occurred in the past and in that sense should be regarded as being "somewhat out of character and not likely to be repeated". Further, it was submitted that in the past the incidents of domestic violence had occurred when the complainant and respondent were under the one roof whereas the conditions of bail imposed by Barr AJ required the respondent to live some nine kilometres away, abide by a curfew, not have any contact with the complainant, and not enter West Albury. The bail regime imposed by his Honour was such that the police had an ability to monitor the respondent's compliance with his obligations. A further matter put in this context was that the involvement of respondent's parents would also help to ensure separation of the respondent from the complainant and compliance generally with his bail. 31In relation to any concerns about interference by the respondent with the complainant or witnesses, it was submitted that this was based upon nothing more than a theoretical capacity to interfere and no more. 32An important matter, it was submitted, was the fact that the respondent had attended the hearing of the prosecution's application which served to illustrate that he was not a flight risk. 33Arguments were raised as to the strength of the Crown case. Whether the injuries sustained by the complainant amounted to grievous bodily harm was said to be controversial. But Mr Quilter, counsel for the respondent, with commendable candour, drew the Court's attention to Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331. In that case Johnson J, McCallum J agreeing, Beazley JA (as her Honour then was) dissenting, held that it was open to a jury to be satisfied beyond reasonable doubt that a similar type of injury amounted to grievous bodily harm. 34The delay in the resolution of the matter was also the subject of submissions. The matter commenced with the respondent being charged on 25 July 2013 and it is still pending in the Local Court. The next listing on 10 March 2014 is only for mention. The Court was informed that, at best, it could be hoped that the matter might come on for trial in the October sittings of the District Court at Albury. The delay in the matter has apparently been occasioned by negotiations which have been proceeding between the respondent's representatives and the prosecution as to whether a plea to some lesser charge might be accepted.

Consideration 35The safety of the complainant is a significant consideration in a case such as this. There is a demonstrated history of domestic violence between the respondent and the complainant which, on his own admission, has involved him even threatening to kill her. The allegation in relation to the incident in question is troubling in that the respondent is alleged to have perpetrated a very brutal assault, involving as it did kicking the complainant a number of times in the head when she was on the ground whilst he was wearing work boots. The injury she sustained, on any view, was a significant one. 36The respondent's history of breaching an ADVO, repeatedly breaching a good behaviour bond, and being subject to both an ADVO and a number of good behaviour bonds at the time of the alleged commission of the present offences is equally troubling. 37The proposal that the applicant be subject to strict conditions but still live in the general vicinity of where the complainant resides provides little comfort in terms of her safety. Not only is there the history of domestic violence between the pair, there is now the additional inherent incentive for the respondent to interfere with the complainant on the basis that she is the principal witness against him in respect of a matter for which if he is convicted he will likely be sentenced to a significant term of imprisonment. 38The respondent's history does not raise any great concern about his attendance in court although it must be said that his past history has involved matters far less serious than the present. 39The delay in the resolution of the matter is a concern. My consideration of the matter has proceeded with an assumption that if the matter does proceed to trial it will do so in the latter part of this year. If it did emerge that the matter was likely not to be resolved until 2015 then there would be further serious concern about the time the respondent will have been held in custody. If that should eventuate I would suggest that the question of bail should be revisited. 40In conclusion, in the light of the history of violence at the hands of the respondent and his demonstrated preparedness to flout court orders, I am concerned for the safety of the complainant: s 32(1)(b1)(i) of the Bail Act. I was not persuaded that even conditions as strict as those imposed by Barr AJ would adequately mitigate the risk of the further violence befalling her. For those reasons I joined in the making of the following orders which I formally set out as follows:

Revoke the order of Barr AJ of 25 February 2014 granting the respondent bail.
Bail is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2014

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