No.
1414
of
2005
- This is an application for bail by Peter Alan Heenan. Mr
Heenan is charged with the following offences:
- attempted murder
- intentionally causing serious injury
- assault
- rape
- making threat to kill - 2 counts
- false imprisonment
- aggravated burglary
- The offences are alleged to have occurred in the early morning
of 1 January 2005. The principal victim of the alleged offences
was the
applicant's estranged wife, Helen Heenan.
- The principles applicable on this application are as
follows:
(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]
- 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."
- 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.
- 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.
- 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.
- 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.
- 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.
- 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..."
- 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]
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Mr Albert submitted that the applicant had demonstrated a
history of not complying with requirements placed on him by the law.
- 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]
- 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.
- 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.
- The applicant has a very extensive history of driving
offences.
- 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.
- 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.
- In more recent years his behaviour appears to have
deteriorated.
- 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.
- 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.
- 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.
- 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.
- On 12 October 2000 he failed to appear at the Heidelberg
Magistrates' Court and a warrant was issued.
- 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.
- On 17 January 2002 he failed to appear at Ringwood
Magistrates' Court and a warrant was issued.
- 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.
- 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.
- The offences with which the applicant is now charged allegedly
occurred whilst he was serving the intensive corrections order.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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."
- 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.
- 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.
- 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.
- The application is dismissed.
---
---
[1] DPP v Harika [2001] VSC 237 at [46].
[2] Affidavit of Theo Magazis, 16 February
2005, para 22(d).
[3] Transcript p. 11.
[4] Transcript p. 13.
[5] Exhibit A to the affidavit of Matthew
Francis Addison sworn 23 February 2005, para 54.
[6] [2001] VSC 237 at [63]- [64].
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