The Queen v Edwards [2016] VSC 672

9 The matter was most recently before the Magistrates' Court at Dandenong on 27 September 2016. It has been adjourned for further mention today, 28 October 2016. According to the Supporting Affidavit, it is unknown when the matter will be listed for a contested hearing.

10 If the Applicant is to be released on bail, it is proposed that the Applicant reside with his mother. I was told that the Applicant was agreeable with this.[6]

11 According to the Supporting Affidavit, the Applicant's mother has sought and obtained an intervention order against the Complainant. Further, the court was informed that the Applicant has an offer to work as a roof tiler, his previous employment, if bail were granted.

12 With respect to the matters in the preceding paragraph, the Applicant's mother also gave oral evidence in support of the bail application. In contradiction to the Supporting Affidavit, she gave evidence that in fact she had not obtained an intervention order against the Complainant. She gave evidence that an application had been made, but it had been deferred for reasons it is not necessary to go into. A further application in this regard is pending.

13 Further, as to the evidence about the Applicant being offered work as a roof tiler, a letter was tendered in support of this position. The weight to be given to that letter must be affected by the fact that it is not dated, nor signed by the proposed employer. Although the letter is on the letterhead of the firm concerned, no proper explanation was given as to why the letter was not dated or signed.

14 Furthermore, the letter stated that it was company policy that it would not allow the Applicant to continue his employment "the minute he receives a jail term for a criminal charge". The Applicant has already served a gaol term with respect to a criminal charge. This seems to suggest the Applicant's history was not disclosed to the author, or that the letter was created before the Applicant's previous incarceration. Whatever the case, on the state of the evidence, there must be serious doubts about the ability of the Applicant to be gainfully employed if bail were granted.

15 The Report listed the Psychologist's registration number with the Australian Health Practitioner Regulation Agency. At the time of this application, the Psychologist was not registered. This matter was raised with the parties before the bail application was made. In response, the court was informed, by email from the Applicant's solicitor, that the Psychologist was now 75 years old, and that his registration lapsed last year as he is now retired. These matters having been put forward, there was no opposition to the Applicant's reliance upon the Report.

16 There are a number of observations to make about the Report:

(1) The Report refers to sources of information upon which reliance was said to be placed, only 1 of which was provided to the court.[7]

(2) The Psychologist met with the Applicant on 8 July 2014. There is no suggestion that there has been any further consultation after mid 2014.

(3) The Psychologist also met with the Applicant's mother, who, according to the Report, was present at the interview with the Applicant. The mother provided background information and assisted in the presenting of questions "in a form that her son could comprehend".

(4) Based on the information provided to the Psychologist, some of the Applicant's history was set out. This included:

(a) The fact that a family violence intervention order had been taken out against the Applicant because of an incident involving his immediate ex partner, with whom he has a child.[8]

(b) The Applicant was initially placed on a community correction order on 4 December 2012, and subsequently reoffended on 2 concurrent orders.

(c) The Applicant's family was "extremely dysfunctional and the children were exposed to frequent acts of violence perpetrated by their father [who had 'chronic' alcohol related issues] against their mother, and to a lesser extent the children".

(d) The Applicant's relationship with his siblings was conflictual and was "described by his mother as 'difficult - he often engages in physical and verbal aggression with his younger siblings' to (sic) his case manager, Cheryl Hodgson (Disability Client Services), and she [stated] he has a 'history of fractured family relations'".

(e) Without setting out each of the instances, the Applicant engaged in threatening and sometimes physical conduct when he got into a state of anger. With respect to 1 of the instances, the Psychologist referred to the Applicant's "uncontrollable anger".

(f) In 2014, the Applicant's cognitive function was assessed as "Mild Intellectual Disability but his presentation and reports suggest that he is at the lower level of the range".

(5) Reference was made to a community correction order assessment outcome report dated 4 December 2012, in which it was stated:

Although the writer notes that [the Applicant] is intellectually disabled [he] demonstrated little insight into his offending behaviour - presented with almost no regard for consequences of his offending behaviour.

17 The Report was initially relied upon in 2014 to support the Applicant when he was facing a custodial sentence. It concluded with a summary and opinion that included the following:

[The Applicant] has a significant intellectual disability that resulted in special school placement but he failed to achieve basic numeracy and literacy, and verbal comprehension [is] most inadequate. Consequently he is confused by not only complex material but in the circumstances of apprehension and questioning by police, the validity of his admissions is questionable.

Critical to his disability is his incapacity to reason and sequential thinking and in conjunction with poor attention span, memory and impulsivity related to diagnosed ADHD condition, results in a distinct disability to learn from the consequences of his actions and has contributed to repeated offending. The [Disability Client Services] case manager had reported '[the Applicant] has a lack of insight in relation to social norms and he can be impulsive in his decision-making without considering the implications or consequences of his actions', but not to be considered decision-making per se.

(Emphasis added.)

18 The Applicant's counsel submitted that the Report needed to be considered in its entirety and that matters should not be viewed in isolation. He submitted that when this was done, the Report demonstrated that the Applicant was vulnerable, including because of his mental disability. Whilst this may be accepted, it is also irrefutable, based on the Report, that the Applicant has serious anger management issues which have, on occasion, resulted in conduct giving rise to convictions and court orders. The history set out in the Report, which is far more extensive than what is set out above, also demonstrates a difficulty with complying with court orders. Further, the conclusions expressed suggest there are serious issues with the Applicant being able to comprehend the consequences of his actions.

19 On 21 October 2016, the informant, Constable James Cameron ("the Informant"), affirmed an affidavit in opposition to the application ("the Opposing Affidavit"). The Opposing Affidavit sets out a detailed summary of the alleged conduct giving rise to the present charges. Without descending to the particular detail, the summary alleges the Applicant was engaged in violent conduct towards the Complainant in her home, including physical assaults and threats to kill. The police having been called to the Complainant's home (at which the Applicant was also living at the time), observed the Complainant lying on the floor near the front window screaming. It was also observed that when the Complainant left the house she was hysterical. I note, however, that the Complainant did not have any visible injuries at the time and was not conveyed to hospital.

20 The Opposing Affidavit exhibited a statement from the Complainant made 27 August 2016. Again without descending to particular detail, the statement, given with an acknowledgement concerning the penalties of perjury, referred to the alleged incident on 27 August 2016 and stated in substance, amongst other things:

(1) The Applicant grabbed the Complainant's hair at the back of her head and dragged her from the front door to the lounge room.

(2) The Applicant yelled at the Complainant saying that she had to listen and that the Complainant would send him back to gaol.

(3) The Applicant again grabbed the Complainant's hair and dragged her across the couch.

(4) The Complainant was scared, fearing for her life.

(5) The Applicant repeatedly told the Complainant he was going to kill her, and on saying this on 1 occasion the Applicant said "I'm going to kill you, I'm going to hook you and give you a home abortion".

(6) During the course of the altercation, the Complainant managed to call her father so that he could listen to what was occurring, with the phone, at 1 point, being placed on speaker so the Applicant could hear the Complainant's father's voice.

(7) At 1 point the Complainant's father called the Applicant.

(8) The Applicant caused property damage to the furniture and the house during the course of the altercation, "he was raging and breaking things".

(9) The Applicant shut all the windows to the house and all the blinds and continued to say that the Complainant was not leaving.

(10) When the police arrived the Applicant climbed into the roof and the Complainant went straight out the front door and collapsed in hysterics.

(11) When the Applicant spoke to the Complainant's father he said that he had a gun, but the Complainant did not know where the gun was.

21 Also exhibited to the Opposing Affidavit was a chronology of the calls made to 000. The audio of those calls was played in court. With respect to the call made by the Complainant, much of it was inaudible. However, it could be discerned that at 1 point a male voice said that he would not hit the Complainant if she would just listen. The audio of the call also demonstrated that the Complainant was very upset and, at times, distraught.

22 It is further alleged that an inspection of the Applicant's mobile phone revealed text messages to several people asking to get a gun and stating that the Applicant had wanted one for a long time. This fact alone does not establish the messages were sent by the Applicant. Further, there is no suggestion a gun was ever found at the Complainant's house. In short, there is no probative evidence before the court that the Applicant was in possession of a gun at any relevant time, other than the Complainant's account of what the Applicant was alleged to have said. Further, in the 2 emergency calls made by the Complainant's father to 000, he made no reference to any assertion by the Applicant that he had a gun, even when asked directly by the operator if the Applicant had a weapon.

23 The Complainant has stated to the Informant that she:

(1) Remains in fear of the Applicant and believes if he is released on bail he would carry out the threats made against her and their unborn child.

(2) Believes that if police had not attended that the Applicant would have killed her.

(3) Is concerned for the safety and welfare of her 4 year old son.

(4) Is still shaken from the incident that occurred on 27 August 2016 and believes that the Applicant will attempt to make contact due to her being pregnant with the Applicant's child.

(5) Has spoken to neighbours after the incident and asked them to either call police or herself if they were to see the Applicant near the Complainant's home.

(6) Is considering getting closed circuit television and changing the locks at her address to prevent the Applicant from returning should he be granted bail.

24 I note that the relationship between the Applicant and the Complainant is now at an end. The Informant has expressed a concern of a heightened danger in these circumstances, no doubt by reference to the Applicant's previous relationship break up.[9] In summary, bail was opposed by reason that the Informant alleges the Applicant has:

(1) Shown a disregard for compliance with instructions and orders including:

(b) persistently contravening family violent orders;

(e) contravening conduct regarding conditions of bail.

(2) Shown no regard for the safety of the Complainant or the unborn child.

(3) A substantial history of committing violent offences and appears to have an anger management problem.

(4) Failed to rehabilitate despite previous treatment and rehabilitation opportunities.

(5) Demonstrated a desire to access both firearms and ammunition and is a prohibited person.[10]

(6) Failed to appear on bail at the Dandenong Magistrates' Court on 4 December 2012 and 1 December 2015.

25 In addition to providing the Opposing Affidavit, the Informant gave oral evidence and was cross-examined. He accepted that many of the allegations made by the Complainant lacked independent corroboration. However, he also said that the 3 emergency calls made to "000" recorded a male voice yelling and screaming in the background.[11] He gave evidence of attending at the premises in response to the 000 calls and hearing the Applicant yelling and screaming at that time. The Informant gave evidence that the male voice was proximate and it sounded like the Applicant was in the same room as the Complainant, although the blinds blocked his view of that room and he could only see the Complainant lying in a foetal position against the window at the time.

26 The Informant acknowledged that the Complainant has now obtained an intervention order against the Applicant, so there is a protection for the Complainant that previously did not exist. The Informant also acknowledged that prior to the report of the incident on 27 August 2016, there had been no previous reports of any incidents as between the Applicant and the Complainant.

27 The Informant further acknowledged that, to date, the Informant had not obtained the telephone records to corroborate the account given by the Complainant with respect to calls between herself and the Complainant's father. The Informant indicated that such records had been sought and were expected to be obtained shortly, but he could not say when.

D. Further material in support - evidence from the Applicant's family

28 The Applicant's mother gave extensive evidence about the Applicant's position, both now and in the past. By way of a general observation, Ms Moon was plainly a caring and dedicated mother who has gone to exceptional lengths to try and assist the Applicant throughout the course of his life. There is no doubt that she is extremely supportive and would do her utmost to assist the Applicant if bail were granted.

29 The evidence given by the Applicant's mother included the following:

(1) The Applicant was in a previous relationship which lasted about 2 years. The woman in question is the mother of the Applicant's child. According to the Applicant's mother, there was nothing negative raised about the behaviour of the Applicant until towards the end of the relationship when things were coming to an end. She stated that the woman in that relationship also had mental health issues and that she made assertions about things that did not happen.

(2) The Applicant's mother volunteered that the Applicant did not have an everyday understanding of the consequences of his actions. The Applicant was diagnosed with attention deficit hyperactivity disorder ("ADHD") at 8 years of age and was sent to a special school from grade 2.

(3) The Applicant had tried to "commit suicide" on many occasions when he was young. This included lying on train tracks or jumping in front of cars. After these incidents, the Applicant informed his mother that he did these things because he thought he would never be hurt.

(4) Although, as a result of the Applicant's ADHD, he had outbursts at home from time to time, he was never violent.

(5) If the Applicant engaged in inappropriate conduct, the consequences did not hit him unless it was dealt with right away. She said that if there was some delay between the inappropriate conduct and it being addressed by someone, then the Applicant would not understand why he was being chastised because for the hour or 2 after the inappropriate conduct he had been behaving well.

30 The Applicant's mother gave evidence about the numerous convictions with respect to the Applicant driving without a licence. She said she had given the Applicant "a thousand lectures, maybe a million lectures about what can happen - he can get locked up", however the Applicant would drive away with his friends as a passenger and then become the driver when he was out of his mother's sight.

31 The Applicant had been the subject of a number of justice plans,[12] but he had never completed them. The Applicant's mother indicated that with respect to the last justice plan he was successful in complying with the corrections order for 11 months before things went awry.

32 The Applicant has informed his mother that on about 28 August 2016, while in the cells at the Melbourne Magistrates' Court, he was threatened by Freeman. She also gave evidence that the Applicant informed her that Freeman was located at Port Phillip Prison and that the Applicant had seen him there. She said that the Applicant was the subject of numerous threats either directly or indirectly from Freeman and that he feared for his life.

33 With respect to issues concerning Freeman, although I accept the Applicant's mother's evidence of what she was told by the Applicant, there must be serious doubts about the accuracy of what the Applicant has stated to her in this regard. In light of the evidence referred to above from the Prison Management Unit concerning the movements of Freeman,[13] it seems likely that the Applicant is mistaken about Freeman's location.

34 The Applicant's counsel said the emails tendered with respect to Freeman's location should be given little weight and that a formal remand history report should have been presented if the evidence concerning Freeman was to be challenged.

35 In the circumstances where the only evidence led by the Applicant concerning Freeman's location was hearsay evidence,[14] the court cannot be satisfied that Freeman is or was located in the places the subject of the Supporting Affidavit and the Applicant's mother's evidence. This is particularly so in light of the emails referred to above.[15]

36 With respect to the other issues related to the Applicant's condition in prison, the Applicant's mother gave evidence that the Applicant was not receiving his medication for anxiety and for ADHD, despite repeated requests. Whilst this is a most unfortunate situation, it was not submitted that it was directly relevant to the question of whether or not the Applicant posed an unacceptable risk.

37 The Applicant's mother expressed the opinion that the Complainant also had mental issues. She said that when the Complainant and the Applicant argued they had "to keep going and going and going and going, you know, with the mental health issue, it doesn't just stop until someone else can sort of come in and make one of them see the right thing and then reason with them and try and do whatever's happening". In substance, she said that they were not "big enough to walk away from the argument".

38 The Applicant's mother said if bail were granted she would be there to support the Applicant, as she had always done. She gave evidence she does not work and therefore can be there for the Applicant "24/7".

39 She also said the Applicant now does not possess a mobile phone and therefore would not be in a position to send any threatening messages to the Complainant.

40 In preparation for the possibility of bail being granted, the Applicant's mother has approached a medical practitioner to arrange a patient assessment. The form produced as a result of this step records it is intended the Applicant be treated for "anger issues - impulsive - HO ADHD".

41 In light of the conflict between the Applicant's mother's evidence and the account contained in the Report about what the Applicant's mother had said to the Psychologist concerning whether the Applicant engaged in violent conduct at home, the Applicant's brother, Bradley, was also called to give evidence. Bradley is approximately 12 months older than the Applicant. Bradley stated that he had no concerns about the Applicant's behaviour and that he had never engaged in physical violence at home or thrown any objects. He said he had seen the Report a few times with his mother. The contents of the Report did not alter Bradley's evidence.

42 Bradley gave evidence that if the Applicant found himself in a position where he thought he could not control it, he would walk outside screaming and yelling. Contrary to his mother's evidence, he suggested that the Applicant did not use abusive language on those occasions.

43 Bradley also gave evidence that when the Applicant's relationships breakdown he gets frustrated and has outbursts. He said there were numerous occasions when the Applicant and the Complainant had argued and Bradley had gone to pick the Applicant up and bring him home.

44 Without being exhaustive, the criminal record of the Applicant includes the following:

(1) Contraventions of family violence orders for which he was convicted on 27 September 2016, 22 October 2015 (which involved 3 threats to kill and 2 contraventions of conditions of bail) and 1 December 2014 (which included a threat to kill).

(2) Contraventions of community correction orders on 22 October 2015, 1 December 2014 and 4 December 2012.

(4) Driving whilst disqualified or without a licence on 12 separate occasions from 15 August 2008 to 1 December 2014.[16]

In addition, it was common ground that the Applicant is a prohibited person as that term is defined in s 3 of the Firearms Act 1996 (Vic).[17]

45 The court was informed that the current charges against the Applicant are to be dealt with summarily in the Dandenong Magistrates' Court. Further, the Dandenong Prosecutions Unit has indicated that there was availability on 24 November 2016 for 1 day, or if further days were needed for the contest, there was general availability to hear the contest of these charges in December 2016. Counsel for the Applicant stated there could be no certainty about this timing in circumstances where the phone records and the statement from the Complainant's father were still not available, particularly in light of the absence of a definite timetable for this further material.

46 Much of the evidence set out above speaks for itself. However, there is a need to address the conflicting evidence concerning the Applicant's behaviour at home. As already noted above, the Applicant's mother and brother have given evidence that he was never violent at home. This is in direct contrast to what the Applicant's mother apparently told the Psychologist as recorded in the Report. In the circumstances where the court was informed by email that the Psychologist was available to give evidence, and he was not called, it is difficult to reduce the weight to be attached to the relevant contents of the Report.

47 Even proceeding on the basis that the account given by the Applicant's mother and brother to this court was correct, that evidence still demonstrated that the Applicant has serious issues controlling himself. In the supportive environment of the family home, his frustrations give rise to him needing to leave the house in order to control himself. Further, however he acts in the family home, it is clear from his criminal history that, at the very least, in an environment where he is dealing with fractious relationships, he has engaged in numerous occasions in making very serious threats to partners or former partners.

48 Further, although the Applicant's mother is completely committed to assisting the Applicant, the court cannot be satisfied that her being available at all times for the Applicant will prevent the Applicant from reoffending. As the evidence demonstrates, even when the Applicant was in the home environment and was directly lectured by his mother about what he should or should not do, those lectures were ignored from time to time.

49 In closing submissions, the Applicant's counsel addressed each of the matters referred to in s 4(3) of the Bail Act. The first of those is the nature and seriousness of the offence.[18] Although counsel accepted that making threats to kill, threatening to inflict serious injury and false imprisonment were "relatively serious offences", he emphasised that no injury related charges were laid and there were no charges with respect to the use of a weapon. The Applicant's counsel submitted that, when the circumstances of this case were looked at, the charges were at the lesser end of the spectrum of seriousness.

50 Whilst there are clearly more serious offences than those the subject of these charges, in my view the charges are very serious. The evidence presently available suggests there is a strong case that the Complainant was very distraught as a result of, at the very least, serious verbal abuse by the Applicant. Further, whatever occurred, it is not in dispute that the events took place in the Complainant's home when she was alone with the Applicant.

51 As for the character, antecedents, associations, home environment and background of the Applicant,[19] much of this is set out above and need not be repeated. In summary, although he has a very supportive home environment and there is no suggestion of any inappropriate associations, the character and antecedents of the Applicant leave a lot to be desired.

52 With respect to the history of any grants of bail,[20] there have been 3 occasions when there have been infractions (as set out above).[21]

53 Considerable time was spent by the Applicant's counsel on the strength of the evidence against the Applicant.[22] As part of this approach, the Complainant's credit was attacked in a number of respects. This included leading evidence from the Applicant's mother as to the problems and unreliability of the Complainant. Further, reference was also made to a report to the police on 3 October 2016 by the Complainant in which she stated she was receiving calls from the Applicant, the Complainant asserting that the Applicant had been released from prison.

54 As to the latter of these issues, there is still an ongoing police investigation as to the source of the calls or messages received by the Complainant. There was scant detail before the court on these issues, and there is simply no means of assessing whether the Complainant had a proper basis for reporting to the police as she did earlier this month. Further, evidence from the Applicant's mother concerning the Complainant's character must be dealt with considerable circumspection in the circumstances, including the absence of any corroborative evidence.

55 As to the strength of the evidence, it is sufficient to say that I am satisfied that, leaving aside the charge under the Wildlife Act, there is a serious case for the Applicant to answer.

56 Next, a submission was put that the mere fact that the Applicant had contravened family violence orders and community corrections orders did not demonstrate the Applicant's disregard for compliance. It was submitted that the Informant had no basis for drawing such a conclusion in the absence of investigating the particular circumstances of each contravention. Further, it was submitted that on each occasion that a contravention was proven, the court did no more than confirm the order without imposing further penalty.

57 These submissions would have some force if there were only 1 or 2 contraventions. However, given the numerous contraventions an inference is properly drawn that the Applicant appears to have shown disregard for compliance.

58 As to the other conclusions of the Informant relating to the Applicant as set out above,[23] in my view there was a proper basis for each of them with the exception that, on the evidence before the court, it has not been demonstrated that the Applicant has a desire to access firearms and ammunition.

59 In all the circumstances, I do not consider the Informant has established that there is an unacceptable risk that the Applicant will fail to surrender himself into custody in answer to his bail.

60 However, in my view, notwithstanding the evidence of the Applicant's mother and brother, the above matters demonstrate that there is an unacceptable risk[24] that, if bail were granted, the Applicant would commit an offence whilst on bail, or would interfere with witnesses (that is, the Complainant) or, would otherwise obstruct the course of justice or endanger the safety or welfare of members of the public. With respect to the members of the public, I refer not only to the Complainant but also to the Complainant's unborn child and to the woman concerned with the charges that were before the court on 27 September 2016.

61 The reasons for the unacceptable risk, as identified, include the following:

(1) The Applicant's criminal record, which includes convictions for breaching family violence orders and community correction orders, including by making threats to kill on 4 previous occasions.

(2) His history of an inability to cope with the breakdown of a relationship and that circumstance giving rise to violent behaviour.

(3) His apparent inability to properly understand the consequences of his behaviour.

(4) His anger management issues and his inability to control his conduct, on occasions, when angry.

(5) The direct evidence of the Informant of what he witnessed at the time he attended at the Complainant's premises on 27 August 2016 concerning the hysterical and distressed state of the Complainant and, when considered with the other corroborative evidence of the 000 call made by the Complainant, the likelihood it was caused by the Applicant's conduct.

(6) The inability of the Applicant to act in accordance with the law even when under direct instructions from his mother as to how to behave.

62 Accordingly, the application for bail must be refused. However, this decision has been made on the basis that the charges are likely to be dealt with this year. If there is any further delay in the progress of this proceeding, the Applicant may have a basis to revisit the issue of bail.

[1] The charge did not properly identify the relevant provision of the Wildlife Act. During the course of closing submissions, it was agreed the application would proceed without consideration of any charge under this Act.

[2] The parties accepted s 4(4) of the Bail Act did not apply.

[3] Bail Act, s 4(2)(d)(i).

[4] This is a reference to the Applicant's need to have assistance because of his intellectual disability.

[5] See par 33-35 below.

[6] It was also suggested, belatedly, that the Applicant could reside with his father, who lives in Frankston, which is further from the Complainant's home. However, this would be an entirely unsatisfactory arrangement in light of the history between the Applicant and the father: see par 16(4)(c) below. Further, there was no evidence the father had agreed to such an arrangement.

[7] This was a Justice Plan and Client Overview Report dated 30 November 2012.

[8] The Report also refers to an intervention order taken out by another woman with whom the Applicant had a relationship, and who the Applicant believed was pregnant to him. However, this was not the subject of any other evidence on this application, and the Report suggests related charges were dropped. Accordingly, this part of the Report is footnoted to do no more than demonstrate it has not been overlooked.

[9] See par 29(1) below.

[10] See par 44 and fn 17 below.

[11] This was obviously an error, as only the call made by the Complainant recorded the Applicant's voice. The other 2 calls were made by the Complainant's father from a different location.

[12] See Sentencing Act 1991 (Vic), s 80.

[13] See par 8 above.

[14] There was no explanation from the Applicant as to why the relevant records were not the subject of a subpoena.

[16] Some of these driving offences were committed by the Applicant when he was a child and were dealt with in the Children's Court.

[17] The court was not told the basis upon which the Applicant is a prohibited person, or for how long he has had that status. I note that, on 15 August 2008, charges of assault with a weapon and possession of a controlled weapon without excuse against the Applicant were dealt with, and the Applicant was placed on 12 months' probation.

[18] Bail Act, s 4(3)(a).

[19] Bail Act, s 4(3)(b).

[20] Bail Act, s 4(3)(c).

[21] See pars 24(6) and 44(3) above.

[22] Bail Act, s 4(3)(d).

[23] See par 24 above.

[24] See In the matter of an application for bail by O'Hea [2005] VSC 126, [10]-[13] (Kaye J).