MBB v Director of Public Prosecutions (Qld)
[2000] QCA 515
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- Appeal Determined (QCA)
- MBB v Director of Public Prosecutions (Qld)[2000] QCA 515
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MBB v Director of Public Prosecutions (Qld)[2000] QCA 515
MBB v Director of Public Prosecutions (Qld)[2000] QCA 515
COURT OF APPEAL
McMURDO P
DAVIES JA
McPHERSON JA
CA No 10865 of 2000
MBB
v
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)
BRISBANE
DATE 14/12/2000
JUDGMENT
THE PRESIDENT: The appellant has been charged with four counts of rape between 7 July 2000 and 5 August 2000. The complainant in each case was the appellant's partner from 1979 until 1984. Two children were born of that relationship. In 1992 the appellant married the complainant's mother with whom he has cohabited since.
The police prosecutor objected to bail on the first mention date in the Magistrates Court and bail was refused. The appellant was also refused bail by the Supreme Court Chamber Judge who concluded that because of the appellant's prior convictions for rape in 1974 and 1985, there was an unacceptable risk that if he were released on bail he would, while released, commit an offence or offences. The appellant appeals from that refusal of bail.
The appellant's committal is listed for hearing on 21 March 2001 at the Beenleigh Magistrates Court. Assuming he is committed for trial, his trial will be unlikely to proceed until the second half of 2001. Section 9 of the Bail Act 1980 ("the Act") requires the Court to grant bail to a person charged but not convicted "subject to this Act".
The case does not come within the category of matters set out in section 16(3) of the Act requiring the appellant to show cause why his detention in custody is not justified. Section 16(1) of the relevant Act requires a Court to refuse to grant bail if the Court is satisfied:
(a)That there is an unacceptable risk that the defendant if released on bail would:
(ii)while released on bail -
(A)commit an offence;"
Section 16(2) sets out the matters to which the Court shall have regard in determining this issue namely:
"(a)the nature and seriousness of the offence;
(b)the character, antecedents, associations, home environment, employment and background of the defendant;
(c)the history of any previous grants of bail to the defendant;
(d)the strength of the evidence against the defendant."
The charges are, of course, most serious but did not involve weapons and fortunately the complainant was not seriously physically injured.
The appellant's material discloses that the appellant will be defending the charges which, not unusually in such cases, turn solely on the complainant's evidence.
The appellant and his wife own their home unencumbered. He is self employed as a handyman and gardener.
The appellant has a criminal history of some significance commencing in 1974 with relatively minor offences of dishonesty. He has some convictions for driving offences including dangerous driving in 1981. More importantly, he was sentenced to four years imprisonment for rape in 1974 and to 12 years imprisonment for rape in 1985 when he was also convicted of two counts of deprivation of liberty, unlawful assault, discharging a loaded firearm in the night-time with intent, assault occasioning bodily harm and unlawful use of a motor vehicle.
These two rape offences, particularly the latter offence, were extremely serious. The complainant in those offences was not the complainant in these offences.
The appellant was released from prison in 1993 and has not been convicted of any other offences since. The appellant's criminal history does not suggest that in the past he has failed to meet his bail requirements or that he has committed offences whilst on bail.
It is impossible to accurately predict whether someone will, if released on bail, commit an offence. As Thomas JA noted in Williamson v DPP [1999] QCA 356; Appeal No 7123 of 1999, 27 August 1999:
"No grant of bail is risk free. A grant of bail however is an important process in civilised societies which reject any general right of the Executive to imprison a citizen upon mere allegation or without trial. It is a necessary part of such a system that some risks have to be taken in order to protect citizens in those respects... Recognising that there is always some risk of misconduct when an accused person, or for that matter any person, is free in society one moves to consideration of the concept of unacceptable risk."
I am conscious that this is an appeal from a judicial exercise of discretion and this Court can only interfere if there has been some error in its exercise: see House v The King (1936) 55 CLR 499, 504-505.
On the one hand the offences are serious and the appellant has convictions for like offences in 1974 and 1985. On the other hand the appellant owns his home unencumbered, is in employment, has met his prior grants of bail, has not committed offences whilst on bail in the past and has not offended since 1993.
Taking into account all these matters it is, in my view, difficult to be satisfied that there is an unacceptable risk that the appellant, if released on bail, would, whilst released on bail, commit an offence.
The appellant's absence of convictions since his release from prison in 1993 strongly suggests that he is able to resist offending, especially whilst carrying the added burden of bail undertakings for these most serious offences.
In my view, the learned primary Judge erred in placing too much emphasis on the appellant's prior convictions and in reaching a contrary conclusion.
The complainant claims that after the appellant was charged with these offences he approached her; he was really scared and said, "Oh, please Sonia, I just want to talk to you I don't want to go back to gaol, I will get life, I will do anything, I will give you money, I will do anything."
The concern that the appellant may wrongfully interfere with the complainant can, in my view, be met by special bail conditions.
I would allow the appeal and grant the appellant bail on his own undertaking on each count on the usual conditions, together with the special condition that the appellant not attempt to speak to, associate with, nor approach the complainant in any way and a further special condition that the appellant report each Monday and Friday to the officer in charge of police at Woodridge Police Station between the hours of 8.00 am and 8.00 pm unless he receives a written consent of the Director of Public Prosecutions to do otherwise.
DAVIES JA: I agree.
McPHERSON JA: I agree. I re-affirm my agreement with what was said by Mr Justice Thomas in Williamson v DPP [1990] QCA 356 about the importance in our society of maintaining the right in proper cases to bail pending trial.
Plainly we do not wish to emulate the state of affairs that is said to prevail in one European country, where 40 per cent of the prison population consists of individuals who are awaiting trial, or are under investigation pending a decision to prosecute them.
The difficulties of preparing and of financing an offence to a charge while in prison are notorious. Granting or withholding bail is, however, a matter for the discretion of the Judge before whom the application comes and the decision, once made, is not lightly disturbed on appeal.
The question here is whether, having regard to the appellant's two prior convictions for this offence, there is an unacceptable risk that the appellant may re-offend in the same way in the period pending trial which is expected to take place, at earliest, in September next year, or possibly at some later date.
To express it more accurately, the question is whether his Honour was wrong in inferring from the fact of those two prior convictions that there was such an unacceptable risk of that kind as to deprive the appellant of his expectation that, pending his trial, he should be at liberty in the ordinary way.
Because none of us is able to predict the future, the question is not one that is easily answered. However, I have come to the conclusion that his Honour gave too much weight to the fact of the appellant's two prior convictions to the same effect. The circumstances in which the current offences were alleged to have been committed do not suggest that the applicant is, or continues to be, a risk to women in the community in general.
The complainant is someone with whom he has previously had a prolonged relationship in the past, and she remains, even if not a resident of his house, a member of his and his wife's immediate family.
It is not submitted that she herself is specifically at risk of becoming the victim of further such offences. Indeed, the fact that the current charges against him involve allegations of offences on three, or it may be four different dates or occasions over a period of some six weeks suggests that any risk of a recurrence may be avoided if the appellant and complainant were not to be alone together in the period pending the trial.
I agree with the order proposed by the President in this matter.
THE PRESIDENT: The order is as I have proposed.