Hersi v Director of Public Prosecutions
[2006] QCA 37
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- Unreported Judgment
- Hersi v Director of Public Prosecutions[2006] QCA 37
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Hersi v Director of Public Prosecutions[2006] QCA 37
Hersi v Director of Public Prosecutions[2006] QCA 37
SUPREME COURT OF QUEENSLAND
CITATION: | Hersi v DPP (Qld) [2006] QCA 037 |
PARTIES: | HERSI, Abdi Shakur |
FILE NO/S: | Appeal No 1114 of 2006 |
DIVISION: | Court of Appeal |
PROCEEDING: | Miscellaneous Application - Civil |
ORIGINATING COURT: | Court of Appeal |
DELIVERED EX TEMPORE ON: |
|
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 February 2006 |
JUDGES: | Williams and Keane JJA and Muir J Separate reasons for judgment, of each member of the Court, each concurring as to the orders made |
ORDER: | Application refused |
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – GROUNDS FOR GRANTING OR REFUSING – BEFORE TRIAL – OTHER CASES – where application for bail in chambers refused – where no subsequent material change in circumstances – whether bail should be granted Bail Act 1980 (Qld), s 10 Supreme Court of Queensland Act 1991 (Qld), s 29(1) Ex parte Edwards [1989] 1 Qd R 139, cited Scrivener v Director of Public Prosecutions [2001] QCA 454; Appeal No 9094 of 2001, 23 October 2001, cited |
COUNSEL: | M J Woodford for the applicant M J Copley for the respondent |
SOLICITORS: | Doyle, Keyworth and Harris for the applicant Department of Public Prosecutions (Queensland) for the respondent |
WILLIAMS JA: I will ask Justice Muir to deliver his reasons first.
MUIR J: The applicant for bail is a 34-year-old man who on 28 December 2005 was arrested and charged with offences against three of his female step-children. The eldest of the step-children, born on 12 August 1986, is the complainant in respect of 23 offences, including four counts of assault occasioning bodily harm, five counts of deprivation of liberty and seven counts of rape. Three counts of indecent treatment of a child under 16 in the care or under the guardianship of the applicant have been charged in respect of each of the other two girls.
The applicant, a former resident of Somalia who emigrated to Australia in 1999, was employed as a taxi driver from January 2000 until the time of his arrest. He became an Australian citizen on 6 November 2002. This application comes to the court not by way of an appeal but as an originating application. An earlier application for bail to a judge in the applications jurisdiction was heard and refused on 7 February 2006.
This Court has power to entertain originating applications of this kind, see the Bail Act 1980 (Qld) section 10, Supreme Court of Queensland Act 1991 section 29(1) and Scrivener v Director of Public Prosecutions [2001] QCA 454.
Mr Woodford, who appears for the applicant, criticised in the course of his submissions the conclusion expressed in Ex parte Edwards [1989] 1 QdR 139 that a renewed application will ordinarily prove fruitless unless in the meantime there has been a material change of circumstances. His point is that this is an originating application not an appeal and stands to be considered on its merits. I suppose it is fair to say that his point is that even if there were renewed application to a single judge it would also be an originating application which calls for the exercise of the discretion of that judge on the material before him or her.
The proposition under challenge has been cited and relied on innumerable subsequent cases. It was reaffirmed in dicta in Scrivener v Director of Public Prosecutions. Having regard to the facts of this case, however, I do not regard it as necessary to review the correctness of the decision in Re Edwards. It is sufficient for present purposes to state that it is a relevant consideration on a hearing such as this, where no error in the reasoning of the Judge hearing the earlier application is disclosed, that there has been no material change of circumstances since the hearing of the earlier application.
I will now proceed to consider facts relevant to the merits of the application. The applicant commenced living with the mother of the complainants, Ms Ali, in January 2001. She had four children from a previous relationship or previous relationships, the three complainants and a boy now aged 13. Ms Ali and the applicant have a child who was born on 12 November 2001.
The relationship between the applicant and Ms Ali failed and they ceased to cohabit in January 2005. The termination of the relationship was accompanied by ill-feeling on both sides and led to proceedings in the Family Court over custody of the child of their relationship. On 15 March 2005 the applicant consented, without admissions, to the making of a temporary domestic violence order which required him to be of good behaviour towards Ms Ali and to not go within 100 metres of the premises in which she or her children were residing, staying or working.
On 26 July 2005 the applicant was arrested and charged with committing a public nuisance at a child care centre which he visited to see his son. He took exception to the condition of his son's state of health and clothing and demanded that his son be taken to a medical practitioner. The applicant contends that the circumstances which resulted in the charge to which he pleaded guilty arose from language difficulties and a communications failure. No conviction was recorded and the applicant was fined $100. That is the extent of his prior criminal history.
There is evidence that the applicant threatened to kill the eldest complainant in October 2005 should she make allegations against him and that she is in fear for her life. Ms Ali has also given a statement in which she reports an incidence of violence by the applicant against that complainant. She also speaks of complaints being made to her by her other children of violent conduct by the applicant and of frequently observing bruising on them.
There is an assertion in the objection to bail prepared by a police officer that the eldest complainant has been contacted and threatened on numerous occasions by the applicant, both personally and through third parties. The officer states also that the next eldest complainant has been approached by the applicant and threatened with violence should she make a complaint. That threat is separately confirmed by hearsay evidence in an affidavit filed on 16 February 2006.
The allegations of threats to the complainants are denied by the applicant who, as Mr Woodford points out, has not been charged with any offence relating to any alleged threat. Bail was refused by the judge who heard the 7 February 2006 application on the basis of the existence of an unacceptable risk of failure to appear and of interference with witnesses and, in particular, the three complainants.
The respondent resists this application on the same basis. The applicant's principle ties to Brisbane are his son and his employment as a taxi driver. The latter is a type of employment which the applicant could obtain elsewhere in Australia or, for that matter, out of the country. There is no reason to believe that the applicant is not attached to his son and concerned for his welfare but the offences with which he is charged are serious and conviction is likely to result in the imposition of lengthy terms of imprisonment.
The applicant seems to have no other substantial ties to Brisbane and in my view there is substance in the submission that there is a real risk of the applicant failing to appear should he be granted bail. There is greater support, in my view, for the conclusion reached by the judge on the earlier bail application that there is an unacceptable risk that the applicant would interfere with witnesses, particularly the complainants.
In addition to the matters I have already mentioned the circumstances surrounding the offences, if accepted on trial, evidence a callous disregard for the welfare of the complainants as well as a propensity for violent conduct.
It is true, as the applicant's counsel submits, that there are weaknesses in the Crown case arising from marked inconsistencies in the allegations made by the eldest complainant, but there is also some evidence which corroborates her allegations. That evidence includes the evidence of Ms Ali who, whilst not asserting that she herself observed any sexual misconduct on the applicant's part, gives evidence of the applicant's failure to deny allegations of rape made by the eldest complainant in the applicant's presence.
Mr Woodford takes issue, as I have already said, with some of this evidence and highlights in particular the limited nature of the initial complaint made by the eldest complainant. It will be possible after the committal hearing to form a better appreciation of the strengths of the Crown case. Depending on the outcome of the committal hearing and of the evidence led in the course of it it may be appropriate for another bail application to be made.
Having regard to the foregoing I am satisfied that there is an unacceptable risk that the applicant, if released on bail, would endanger the safety or welfare of one or more of the complainants or interfere with a Crown witness. I would refuse the application.
WILLIAMS JA: I agree.
KEANE JA: I agree.
WILLIAMS JA: The order of the Court is that the application is dismissed.