R v Heenan [2005] VSC 49

(1) The Court starts with the presumption of innocence and, in relation to bail, also starts with a general right to bail as provided for in s 4(1) of the Bail Act 1977.

(2) In some circumstances the right to bail is abrogated. Section 4(4) of the Act provides that where a person is charged with certain types of offences " ... the Court shall refuse bail unless the accused person shows cause why his detention in custody is not justified". One circumstance where this provision applies is where the accused is charged with aggravated burglary: s 4(4)(c).

(3) If the accused does show cause why his detention is not justified the Court shall nevertheless refuse bail if the Court is satisfied that there is an unacceptable risk that if released he would fail to surrender himself, would commit an offence, would endanger the public, or would interfere with a witness: s 4(2)(d)(i).

(4) In assessing the issue of unacceptable risk the Court is to have regard to all relevant matters, and without limiting that enquiry to such of the following as appear relevant: the nature and seriousness of the offence; the character, antecedents and home environment of the accused; the history of prior grants of bail; the strength of the evidence against the accused; and the attitude of the victim: s 4(3).

(5) Where s 4(4)(c) applies the initial burden is on the accused to show cause why his detention is not justified. If he does show cause, the burden of establishing unacceptable risk is upon the Crown. The factors relevant to the two enquiries will overlap in many cases. The factors relevant to unacceptable risk also have to be weighed when considering whether the applicant for bail has shown cause.[1]

21. The charges against Mr Heenan arise out of events which occurred after Mr Heenan apparently decided to pay a visit to the home of his estranged wife at approximately 5.30 am on New Year's Day. He found her there with a man, one Steve Igantiadis. The events which occurred thereafter are in dispute. Suffice to say for present purposes that there was a confrontation as a consequence of which Mrs Heenan was left with extensive facial bruising, a nose which was swollen and deformed and subsequently found to be broken, bruised and swollen ears, multiple bruises to her neck, bruising on her hands and forearms, multiple areas of bruising to her chest, abdomen and buttocks, and bruising and abrasion to her knee. Professor David Wells from the Victorian Institute of Forensic Medicine who examined Mrs Heenan shortly after the incident concluded:

"There is objective evidence that the subject has sustained extensive soft tissue and bony injuries. The injury pattern is highly suggestive that the injuries are the result of repeated applications of significant blunt force sustained in an assaultive manner."

25. Mrs Heenan has told police she was subjected to digital rape by the accused. Professor Wells did not find physical evidence of trauma to the external genitalia and an internal examination was not conducted. He expressed the opinion that penetration with part of a fist or fingers could occur without producing any objective signs of trauma.

28. The applicant has been in custody since the events in question. He applied for bail at the Melbourne Magistrates' Court on 4 January 2004 and that application was refused. A committal mention of the matter is fixed for 29 March 2005.

31. The applicant is 51 years of age. At the time of the alleged offences he was residing at 263 Beaconsfield Parade, Middle Park. The applicant and his estranged wife have four children aged 13, 12, 10 and 9. They resided together until July 2004, when Mrs Heenan and the children left the Beaconsfield Parade house. The nature of the relationship prior to Mrs Heenan's departure is a matter of controversy.

34. The applicant has been married on two prior occasions and has four children by those two marriages. His oldest child is his son Alan, who is 31 years of age.

37. The applicant and his son, Alan, are involved in a business together which, I was told on this application, has been very successful. Alan Heenan is prepared to offer a surety in the sum of $100,000 in support of the application for bail.

40. Whilst in custody the applicant has been seen by a psychologist, Mr Jeffrey Cummins. A report by Mr Cummins dated 7 February 2005 has been exhibited to an affidavit sworn by the applicant's solicitor. Mr Cummins expresses the opinion that Mr Heenan does not present as a person having any personality disorder. He expresses the opinion that the events of 1 January 2005 were "specifically reflective of the immediate situational circumstances". In relation to those events, Mr Cummins records the following:

"Mr Heenan maintains he will challenge the charges he currently faces. In this regard he did concede, however, he did end up pushing his wife although he said his actions in this regard were not intentional..."

44. The affidavit sworn by the applicant's solicitor indicates that on 11 January 2005 Mrs Heenan obtained an interim intervention order against the applicant. A final order was made on 25 January 2005. A copy of that order has been exhibited. The order names both Mrs Heenan and their four children as aggrieved family members and prohibits the applicant from having any contact with them. The applicant's solicitor deposes that the interim order was made on 11 January 2005 with the applicant's consent.[2]

47. Mr Dane QC, who appeared on behalf of the applicant, said that in this case there was no real issue as to the applicant's ability to show cause. He referred to the applicant as a man of means, steady employment, fixed accommodation, and strong connections to Melbourne. He submitted that the real issue was whether there was an unacceptable risk of either a failure to surrender on bail, the commission of offences whilst on bail, or interference with witnesses.

50. Mr Dane frankly conceded that the applicant had a poor history of traffic offences but submitted that the charges he now faces are of an entirely different character. He submitted that the applicant was a successful businessman who had demonstrated throughout his life significant social and business commitment. I suggested to him that his driving history might be seen by some as demonstrating a contempt for legal restraints. He said that the applicant had been preoccupied in the past with his business and had not treated the driving matters in the way that they ought to have been treated. He emphasised, however, that the charges he now faces are entirely different and that the applicant now faced the possibility of serving a sentence of eight years' imprisonment. He said the applicant needed bail to prepare for "the fight of his life". He submitted that there was no risk of offences being committed whilst on bail as any contact with his wife would be blatantly contrary to his own self-interest. He outlined the applicant's view of the marriage breakdown but, as I indicated to him in argument, Mrs Heenan in her police statements gives a very different account of the circumstances and it is not possible for me to determine on this application which of them is correct.

53. I referred Mr Dane to the prior occasions on which the applicant had failed to appear in relation to driving matters and he again emphasised that this was an entirely different circumstance.

56. In relation to the strength of the case against him, Mr Dane submitted that "there clearly was an attack",[3] but that the case on attempted murder and rape "does not amount to an overwhelming case at all."[4] He submitted that the police investigation had been one-sided. He conceded that the victim had expressed apprehension about the applicant's possible release on bail but submitted that that had already been addressed by the intervention orders and could be further addressed by conditions which could be imposed on his bail.

59. Mr Dane submitted that the applicant had little prospect of his case being heard until some time next year. He submitted that the children would be suffering terrible embarrassment as a result of their father being in prison and that his presence in prison meant he could not properly prepare for his trial.

62. Mr Albert, who appeared on behalf of the Crown, submitted that the applicant had not shown cause why his detention was not justified and that in any event there was an unacceptable risk of him committing further offences and interfering with witnesses, in particular his wife and children.

65. I suggested to him that it seemed to me that the case against the applicant on the charge of intentionally causing serious injury appeared strong but that the strength of the case on the other charges would depend upon the credibility of the evidence given by Mrs Heenan. Mr Albert did not seek to dissuade me from that general assessment.

68. Mr Albert submitted that the applicant had no real insight into what he had done. He referred in this respect to the description he had given to Mr Cummins of the circumstances of the assault which was, he submitted, in marked contrast to the injuries suffered by Mrs Heenan. Mr Albert relied upon the applicant's prior history of driving offences, and upon what he submitted was likely to have been a breach of the intervention order. The material filed on behalf of the Crown suggested the intervention order had been served at 4.00 pm on 13 January 2005. The applicant has sent letters to his wife and children. One of those letters is post marked 16 January 2005.

71. Mr Albert submitted that the applicant had demonstrated a history of not complying with requirements placed on him by the law.

74. Mr Albert submitted that Mrs Heenan is very fearful of the applicant and believes that if released he will seek her out and kill her.[5]

77. Both Mr Dane and Mr Albert canvassed a number of conditions which might be imposed upon the applicant if I were disposed to grant bail. Those conditions included daily reporting, a condition as to residence, and conditions reflecting the intervention orders.

80. I have reviewed the applicant's prior criminal history. On 30 July 1997 he appeared at the Melbourne Magistrates' Court charged with unlawful assault, assault police, and other charges. He was dealt with by fines without conviction. The material relied upon by the Crown on this application indicates that the charges arose out of circumstances involving the excessive consumption of alcohol and a confrontation between the applicant, his son (Alan Heenan) and another male person on the one hand and various security staff of a café at Southbank on the other which then became a confrontation between the applicant and his son and police officers who attended. The incident occurred on 5 December 1996.

83. The applicant has a very extensive history of driving offences.

86. Prior to 1994 he had been convicted of exceeding .05 three times, of driving whilst disqualified twice, and of driving whilst unlicensed once. He had also been convicted of speeding and of other traffic offences. He was already demonstrating a pattern which was to become pronounced in later years. The pattern is the commission of offences both whilst awaiting the hearing of other charges and immediately after other charges have been dealt with.

89. For example, approximately two weeks after he was convicted of exceeding .05 and disqualified for two years on 14 August 1991, he committed offences of attempting to obtain property by deception and driving whilst disqualified on 2 September 1991; offences which were subsequently dealt with at Heidelberg Magistrates' Court on 22 October 1993. Whilst those matters were pending, on 2 July 1993 he again was apprehended driving whilst disqualified and was also charged on that occasion with disobeying a traffic control signal. These matters were eventually dealt with at the Frankston Magistrates' Court in February 1994.

92. In more recent years his behaviour appears to have deteriorated.

95. On 1 May 1998 he committed an offence of unlicensed driving, which was subsequently dealt with at the Ringwood Magistrates' Court on 9 December 1998. In committing this offence he was not only ignoring the requirement to be licensed, he was also effectively ignoring orders previously made when he had been disqualified that he was not to be re-licensed except on the order of a magistrate.

98. On 6 April 2000 he was again apprehended driving unlicensed and was also found to be in excess of .05. These offences were eventually dealt with at the Ringwood Magistrates' Court on 22 May 2001.

101. Four months later, on 16 August 2000, and whilst the offences of 6 April 2000 remained to be dealt with, he was again apprehended driving unlicensed and was again found to be in excess of .05. On this occasion his reading was .221. These offences were eventually dealt with at the Ringwood Magistrates' Court on 30 August 2004.

104. Less than one month later, on 13 September 2000, whilst the two unlicensed driving and two exceed .05 matters were pending, he committed offences including refusal of a breath test, leaving the scene of an accident, careless driving, and unlicensed driving, together with a number of other offences. These offences were eventually dealt with at the Ringwood Magistrates' Court on 30 August 2004.

107. On 12 October 2000 he failed to appear at the Heidelberg Magistrates' Court and a warrant was issued.

110. On 22 May 2001 he was dealt with on the unlicensed driving and exceed .05 charges that he had been committed on 6 April 2000. His licence was cancelled for 30 months and he was ordered not to be re-licensed except by order of a magistrate.

113. On 17 January 2002 he failed to appear at Ringwood Magistrates' Court and a warrant was issued.

116. On 13 March 2004 he was again apprehended driving unlicensed. This matter was eventually dealt with at Ringwood Magistrates' Court on 30 August 2004. Amongst other things, he was again effectively ignoring an order previously made upon his disqualification that he was not to be re-licensed except on the order of a magistrate. In what I assume must be the same incident, although the record describes it as occurring on 14 March 2004, he was driving whilst exceeding .05.

119. On 13 August 2004 the offences he had committed on 16 August 2000, 13 September 2000, and 13 and 14 March 2004 (which I assume were the one incident), together with a charge of failing to answer bail were dealt with. He was sentenced to an effective term of imprisonment of six months to be served by way of an intensive corrections order commencing 1 September 2004. He was disqualified from driving for a period of eight years. A number of fines were imposed.

122. The offences with which the applicant is now charged allegedly occurred whilst he was serving the intensive corrections order.

125. Whilst it is true, as Mr Dane submits, that the offences with which he is now charged are quite different in character from those in his prior history, with the exception of the assault charges arising out of the incident at the Southbank cafe, it is also true in my view, as Mr Albert submitted, that the applicant has a demonstrated history of failing to comply with requirements placed upon him by the law.

128. Mr Dane's submission was that the matter should primarily be approached by an assessment of whether the applicant constituted an unacceptable risk of committing further offences, of failing to appear, or of interfering with witnesses. Approaching the matter on that basis the position seems to me to be as follows.

131. The offences are of a most serious nature. The applicant is charged with rape and attempted murder. He is also charged with intentionally causing serious injury. Mr Dane in his submission indicated that there clearly was an attack. This attack was made upon Mrs Heenan in the early hours of the morning in her own home. The case against the applicant on the intentionally causing serious injury charge seems to me to be strong.

134. Whilst there may be positive aspects of the applicant's character, his prior history includes a prior violent incident, six prior convictions for exceeding .05, and a large number of offences of driving whilst unlicensed and whilst disqualified. He has demonstrated a resolute refusal to comply with legal restrictions on either his driving or drinking and driving. His wife's police statements allege violence against her in the past.

137. It was submitted that his home environment was a positive factor in his favour and in that respect Mr Dane indicated that he would reside with his son Alan. I accept that stable accommodation is available to the applicant. Notwithstanding his prior failures to appear on the driving matters, I do not think there is an unacceptable risk of failure to appear here, given the nature of these charges, Mr Heenan's connections and interests, and the surety offered.

140. The material filed on behalf of the Crown indicates that the principal victim of these alleged offences, his estranged wife, Helen Heenan, is very fearful of the consequences of his release.

143. In my view there is an unacceptable risk here that the applicant would commit offences whilst on bail and would interfere with a witness, namely his estranged wife. His counsel concedes there was an attack. Given the injuries suffered, that attack was of a serious character. Mr Heenan's history of involvement with the law strongly suggests to me that he is contemptuous of legal restraints upon his behaviour.

146. Approaching the matter, then, on the basis that Mr Dane contends for, in my view bail ought to be refused as there is an unacceptable risk that he would commit offences or interfere with a witness.

149. The position is, however, that the applicant is charged with aggravated burglary and pursuant to s 4(4)(c) he must show cause why his detention is not justified. He has not shown cause why his detention is not justified. In DPP v Harika[6] Gillard J observed that in considering whether an applicant had shown cause that his detention was not justified it would be necessary to consider the background of the applicant, his prior convictions, the strength of the case against him, and the history of previous grants of bail. He went on:

"His detention would not be justified if it was established that the risk of repeat offending was extremely remote, that the case against him was weak, that the probabilities were that he would not be sentenced to a term of imprisonment, that the use of violence was completely out of character, and that the possibility of re-offending, using a weapon, was remote."

153. No issue of use of a weapon arises here, however, in my view the risk of repeat offending is not remote. The case against him is not weak, and in relation to the offence of intentionally causing serious injury appears to me to be strong. If he is convicted of the charges the probabilities are that he will be sentenced to a term of imprisonment. The use of violence is not completely out of the applicant's character, even if one entirely discounts the evidence of prior violence towards Mrs Heenan. He has had a prior violent confrontation involving police and security staff at a restaurant. His past driving history reveals him to be a person with no respect for legal restraints upon his conduct.

156. Further matters were put forward on behalf of the applicant including the possible deleterious effect of incarceration upon his business, the delay which is likely to be experienced prior to trial, and the love which it is said the applicant still has for his estranged wife and children, as expressed in a letter sent to his estranged wife dated 12 January 2005, a copy of which was handed to me in the course of the hearing. I have had regard to all of those factors but none of them seem to me to sufficiently address the matters which have led me to conclude that there is an unacceptable risk of the applicant committing further offences and interfering with a witness, and to conclude that the applicant has failed to show cause why his continued detention is not justified.

159. A committal mention is fixed for 29 March 2005. It may be that after the committal a better assessment of both the incident and the relationship with the victim will be possible. Bail can, of course, be reconsidered in that context, and in the light of any further developments to that point. Reference was made in this hearing to the prospect of anger management counselling. It would seem to me that some attention might also be directed to the behaviour which has resulted in his extraordinary history of alcohol-related driving offences.

[1] DPP v Harika [2001] VSC 237 at [46].

[2] Affidavit of Theo Magazis, 16 February 2005, para 22(d).

[5] Exhibit A to the affidavit of Matthew Francis Addison sworn 23 February 2005, para 54.

[6] [2001] VSC 237 at [63]- [64].