His Honour orders that Daniel Jones be granted bail with the following conditions:

(a) that he reside at [Redacted];

(b) that he not enter the suburb of Bonner;

(c) that he not assault, threaten, harass, intimidate or contact, directly or indirectly, [Redacted];

(d) that he not assault, threaten, harass or intimidate [Redacted];

(e) that he not assault, threaten, harass or intimidate Sarah Jane Parkinson and that he not contact her directly or indirectly except through a solicitor;

(f) that he not interfere in any way with [Redacted] ability to live at [Redacted], except through family law proceedings or other litigation;

(g) that he not approach or be within one hundred metres of [Redacted]except at court;

(h) that he not approach within one hundred metres of the Australian Catholic University, 223 Antill Street, Watson, ACT;

(i) that he not approach within one hundred metres of [Redacted].

CRIMINAL LAW - JURISDICTION, PRATICE AND PROCEDURE - Bail - Suspicions as to credibility of complainant - Such weakening of the prosecution case amounts to special and exceptional circumstances - Bail granted with conditions

Bail Act 1992 (ACT), s 5D, s 9D

Application for Bail by Whiteside [1999] VSC 413

1. On 24 December 2013, an indictment was filed against Daniel Paul Jones, charging him with nineteen offences, including twelve counts of assault occasioning actual bodily harm, three counts of sexual intercourse without consent, one count of sexual assault in the second degree, one count of an act of indecency, one count of unlawful confinement, one count of threat to kill and six counts of contravention of a protection order. These proceedings are listed for callover on 1 September 2014, and a pretrial application is listed to be heard on 20 October 2014.

2. On 21 March 2014, Mr Jones was arrested and charged with a further five offences. Due to the earlier charges, he was subject to operation of s 9D of the Bail Act 1992 (ACT), which required special and exceptional circumstances to justify a grant of bail for those further offences. He did not apply for bail and was remanded in custody where he has remained since that time. The complainant in respect of each of these offences is a former partner of Mr Jones. In many cases, she appears from the police Statement of Facts to be the main or only witness to the events the subject of the particular charges.

3. Since Mr Jones has been in custody, the complainant has been making further allegations against him and his family, suggesting that they have engaged in various activities interfering with her and her property, including burglary, trespass, harassment and property damage.

4. Police, however, have instigated various inquiries as a result and, as a consequence, installed a number of surveillance devices in her property, including her motor vehicle. This resulted in suspicions about three complaints made by the complainant. As a result of the investigation, she has now been charged with two counts of making a false allegation of an offence and one count of causing public mischief.

5. This, it is said, raises significant suspicions as to credibility of the complainant, which, for the reasons to which I have already referred, would be very relevant to the charges faced by Mr Jones. This is said to raise significant questions about the strength of the Crown case and the reliability of the evidence to support the charges preferred. The Crown, however, has not advised of any view it has formed at this stage as to whether it proposes to proceed with the charges against Mr Jones, and that is a position that one would expect in the circumstances, at least until a final decision has been made.

6. It is, however, a relevant factor in the circumstances that I have to consider. There is then a live issue as to the strength of the Crown case and the position of Mr Jones. In the circumstances, Mr Jones has now applied for bail. He submits that the change to the credibility of the complainant has an effect on the charges against him and that this so weakens the Crown case, at least possible that it amounts to special and exceptional circumstances; Application for Bail by Whiteside [1999] VSC 413 at [15].

7. The Crown does not oppose bail. The Crown also concedes that the matters to which I have referred do amount to special or exceptional circumstances.

8. Such a concession does of course not bind me, and I am required to make up my own mind about the matters and, in particular, whether there are special or exceptional circumstances such that bail should be granted notwithstanding the operation of s 9D of the Bail Act.

9. A copy of the police Statement of Facts for the three charges laid against the complainant was tendered, and I have carefully read that statement of facts. It does seem to me that if proved those facts will have a capacity to substantially undermine the credibility of the complainant and in a relevant way, namely, in relation to matters that do impinge upon the position of Mr Jones given the subject matter of the complaints that the complainant has made.

10. While it is inappropriate for me to make any finding as to the facts in either of the series of cases, I do note that the surveillance evidence that is said in the police Statement of Facts for the charges laid against the complainant appears to be strongly supportive of the case against the complainant proposed by the prosecution. In my view, that amounts to a substantial weakening of the Crown case and that amounts to special or exceptional circumstances.

11. In the time available to me, I have not had the opportunity to give this matter a great deal of thought or to research the issue, but I am satisfied that in the circumstances sufficient has been shown to justify special or exceptional circumstances being made out such as to entitle Mr Jones to be considered for bail.

12. Nothing has been put in opposition to bail. I am prepared to grant bail.

13. Accordingly, Mr Jones will be granted bail on the following conditions:

(a) that he reside at [Redacted];

(b) that he not enter the suburb of Bonner;

(c) that he not assault, threaten, harass, intimidate or contact, directly or indirectly, [Redacted];

(d) that he not assault, threaten, harass or intimidate [Redacted];

(e) that he not assault, threaten, harass or intimidate Sarah Jane Parkinson and that he not contact her directly or indirectly except through a solicitor;

(f) that he not interfere in any way with [Redacted] ability to live at [Redacted], except through family law proceedings or other litigation;

(g) that he not approach or be within one hundred metres of [Redacted]except at court;

(h) that he not approach within one hundred metres of the Australian Catholic University, 223 Antill Street, Watson, ACT;

(i) that he not approach within one hundred metres of [Redacted].

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.