R v Williams

HIS HONOUR: Damien Williams applies for bail. On 1 June 2017, he was arrested in Mount Morgan, Queensland and extradited to New South Wales on 7 June 2017 where he was charged with three counts of sexual intercourse with a person under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900. The alleged offences are said to have occurred between 1 May 2009 and 31 December 2009. Mr Williams was bail refused to the Central Local Court on 8 June 2017. On that day, he was granted conditional bail in that court. One of the bail conditions imposed was that he not be alone or in the company of any person under the age of 16 years. These matters are listed for trial at the Gosford District Court on 1 July 2019.

On 30 June 2017, police received information about a young female who was at Gosford Hospital after disclosing that she had been alone with Mr Williams. She was interviewed by police and revealed that she had been with Mr Williams at an address that was not the address he was required to live at, and that she had been smoking marijuana and had been seated on his lap. These were matters that were in breach of his then applicable bail conditions.

Also on this same day, Mr Williams was before the Gosford Local Court applying to vary his bail conditions in order to allow him to travel to Mount Morgan. That matter was adjourned to 4 July 2017. On that day, Magistrate Day heard evidence at length on an application by the Crown that Mr Williams’ bail be revoked. He concluded that Mr Williams had breached his bail conditions and that he posed a risk of endangering the safety of others. Bail was revoked. Mr Williams has remained in custody since then.

Subsequently, on 15 August 2018, Mr Williams was charged with four counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act. These offences are alleged to have occurred between 7 May 2001 and 7 May 2003. Mr Williams was aged between 13 and 15 in that period, having been born in February 1988. He is now 30 years of age. These matters are listed for mention at the Gosford Local Court on 19 November 2018.

The Crown opposes bail upon the basis of what are said to be a series of serious bail concerns. In advance of that, Mr Williams is required to show cause why his continued detention is not justified. That is because in this case Mr Williams is charged with a serious indictable offence that involves an allegation of sexual intercourse with a person under the age of 16 years by a person who is of or above the age of 18 years: see Bail Act 2013, s 16B(1)(b)(i). There is no show cause requirement that applies to the four earlier offences.

Mr Klees, who appears for Mr Williams, suggests two bases why Mr Williams continued detention is not justified. First, he contends that the Crown case is not strong and on one view must be considered to be weak. This is for the reasons that the offences are old, they were not the subject of contemporaneous complaint and they are substantially uncorroborated.

Secondly, Mr Klees submits that Mr Williams has been in custody now since as long ago as 4 July 2017 so that by the time of his trial he will have been in gaol on remand for in excess of two years. He submits that that is an unacceptable period of time standing alone, but is even more so having regard to his first submission contending that the Crown case is by no means certain of success.

There is no doubt that a delay of what will now be two years between Mr Williams’ date of arrest and the commencement of his trial is considerable. In a perfect setting, no person should be required or expect to remain in custody on remand for as long as two years. However, for better or worse it cannot be said that a delay of that length is unusual in New South Wales and it certainly cannot be said that it is extraordinary or unique. It is uncontroversial that these matters ought preferably to have been brought to trial before now but the fact that they have not does not in my opinion amount to a circumstance supporting the applicant’s obligation to show cause why his continued detention is not justified.

The issue of whether or not the Crown case is or is not weak requires some reference to the facts. Mr Williams is charged with an offence alleging that some time during the second half of 2009 he sexually assaulted an 8 year old male. The mother of the victim was at that time in a relationship with Mr Williams. The Crown alleges that the victim, his brother and mother attended a party at which Mr Williams was present. Mr Williams is said to have grabbed the victim around the neck and to have dragged him into a bedroom. Whilst there, the Crown alleges that Mr Williams pulled down the victim’s pants and underwear and engaged in penile/anal intercourse with him. Following this, the Crown alleges that Mr Williams forced the victim to perform oral sex on him before Mr Williams performed oral sex on the victim. This incident ended when knocking was heard at the door asking if the victim was in the bedroom. Following this incident the Crown alleges that Mr Williams told the victim not to tell anyone or he would kill him. The victim ran to his mother and brother. Mr Williams is alleged later to have turned up at the victim’s home and asked him to come out but the victim hid in his bedroom and refused to do so. The victim did not see Mr Williams again and did not disclose these offences until 2016 when he told his step-mother about them.

Part of the Crown brief includes a statement by Danielle Jackson who at one time formed a friendship with Mr Williams. It would appear that following Mr Williams’ release from gaol she attended a barbecue at which Mr Williams was also present. This is said to have been some time in 2009 or 2010. Doing the best I can, the Crown proposes to rely upon Ms Jackson’s evidence to support the proposition that Mr Williams had access to her son, the victim, on that occasion. Mr Klees draws attention to the fact that, if that is so, Ms Jackson makes no reference to any incident or behaviour tending to suggest that the victim was assaulted in the way the Crown contends.

In the nature of things, offences such as those alleged to have been committed by Mr Williams are notoriously uncorroborated. I am not prepared for present purposes to accept that any so-called absence of corroboration in this case demonstrates or even supports the contention that the Crown case is weak.

In my view the combination of the delay and the best view of the Crown case based upon an acceptance of Mr Williams’ submissions does not support his obligation to show cause why his continued detention is not justified.

It follows that bail must be refused.