An Application for Bail by SA

• Jurisdiction: Australian Capital Territory
• Judge: Penfold J
• Judgment Date: 23 September 2010
• Court: Supreme Court of ACT
• Docket Number: No. SCC 314A, B of 2009
• Date: 23 September 2010

In The Matter of an Application for Bail by SA

[2010] ACTSC 114

Judge:

Penfold J

No. SCC 314A, B of 2009

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW — bail — statutory presumptions — presumption against bail where person charged with serious offence while other serious offences pending or outstanding — applicant must show special or exceptional circumstances favouring the grant of bail — circumstances must be unusual or uncommon — Bail Act 1992 (ACT) s 9D.

CRIMINAL LAW — bail — special or exceptional circumstances — delay as a special or exceptional circumstance — whether delay of two years between alleged offence and trial is inordinate — delay not shown to amount to special or exceptional circumstances.

CRIMINAL LAW — bail — special or exceptional circumstances — Care and Protection Order made for applicant's son — no negative effect on son shown — effect of custody on applicant's ability to challenge Care and Protection Orders not shown to be special or exceptional circumstance.

DPP v Tang (1995) 83 A Crim R 593

In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (19 December 2008)

In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70 (26 June 2009)

In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64 (28 May 2009)

Mokbel v DPP (Vic) [No 2] (2002) 132 A Crim R 290

Bail Act 1992 (ACT), ss 9D, 9D(2), 9D(6), 19(5), 19(5)(b), 22

Children and Young People Act 2008 (ACT), ss 7, 8, 8(1), 9, 350, 350(1), 350(1)(a), 350(1)(b), 350(1)(c)

Crimes (Sentencing) Act 2005 (ACT)

Human Rights Act (2004) (ACT), ss 30, 18, 18(4), 28

Bail Act 1977 (Vic)

Productivity Commission, Report on Government Services 2010 (2010)

Counsel for the applicant: Mr K Archer

Counsel for the respondent: Mr S Drumgold

REASONS FOR JUDGMENT

THE COURT ORDERS THAT:

1. Bail was refused.

Introduction

1 SA filed an application for bail on 9 March 2010 and the application first came before me on 15 March. The application was adjourned several times to allow evidence to be produced and further submissions to be made. On 12 May 2010 I refused her application on the ground that she had failed to establish special or exceptional circumstances as required by s 9D of the Bail Act 1992 (ACT). In refusing her application I indicated that, because of the nature and significance of some of the issues that had been raised in the application, I would provide written reasons for my refusal. These are those reasons.

Background

2 SA was arrested on 13 May 2009 and charged with four offences, being allowing a dog to attack a person; assault occasioning actual bodily harm; unlawful confinement; and detaining a person. She was released on bail on 27 May 2009. On 13 June 2009, she was again arrested, and this time she was charged with three counts of trafficking in a controlled drug other than cannabis, namely methylamphetamine. SA was refused bail and remanded in custody on 16 June, and has been in custody ever since. She has been held in the Alexander Maconochie Centre ( AMC).

3 SA was refused bail by Higgins CJ on 19 June 2009. Since then she has made six more bail applications, three of which were listed before Higgins CJ (25 September, 23 October, 5 November 2009) and one of which was listed before Gray J (4 December 2009). Most of the applications were apparently withdrawn before being heard, but the application that came before Gray J on 4 December was then adjourned generally on 11 December 2009, with the comment ‘so it remains on foot’. Neither the reason for the repeated withdrawal of applications, nor the status of the December 2009 application, is clear to me.

Evidence

4 Most of SA's supporting evidence in her application was provided through an affidavit sworn by Kamyar Saeedi dated 9 March 2010. Some other material was tendered during the hearing, as will be discussed.

Jurisdiction to deal with bail application

5 As mentioned above, SA was refused bail by Higgins CJ on 19 June 2009, and another application was adjourned generally in December 2009. The application before me was a new application for bail.

Matters necessary to establish jurisdiction

6 Section 19(5) of the Bail Act is set out in the Appendix to this judgment. Under s 19(5)(b), SA first had to establish that the court had jurisdiction to hear her application, and to do that she needed to show:

• (i) that since the most recent application to a court for bail there has been a significant change in circumstances relevant to the granting of bail; or

• (ii) that there is fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application to a court for bail.

7 The matter relied on by SA to give jurisdiction for the application to be considered was the setting, on 10 March 2010 (the day after the bail application was filed) of a trial date for the first series of offences, being 27 June 2011. This was the first point at which there was any clear information about how long SA was likely to be in custody before coming to trial, and therefore the first point at which she was able to make a soundly-based argument for bail based on trial delays as a special or exceptional circumstance. For that reason I was willing, for the purposes of s 19 of the Bail Act, to accept the setting of the first trial date as providing a basis on which I could hear her bail application; I do not think that it matters in this case whether the setting of the date is categorised as a significant change in circumstances relevant to the granting of bail or the actual date set is treated as information of material significance to the granting of bail.

Special or exceptional circumstances

8 Section 9D of the Bail Act applies to persons charged with ‘serious offences’, defined in s 9D(6) as offences punishable by imprisonment for 5 years or longer. Because she has been charged with serious offences alleged to have been committed while charges for other serious offences were still outstanding, SA's application is subject to the presumption against bail effected by s 9D(2) (set out in the Appendix). To rebut that presumption, and enable the court to consider the criteria for the granting of bail set out in s 22 of the Bail Act, SA is required to show that there are special or exceptional circumstances favouring the granting of bail. The test of ‘special or exceptional circumstances’ for bail applications has been interpreted as requiring the court to find circumstances affecting the applicant that are in some way unusual or uncommon (see In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (19 December 2008) ( Massey [No. 1]) at [7] and [8], and In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64 (28 May 2009) ( Allen) at [9] and [10]).

9 The case initially put on behalf of SA at the bail hearing was different from the case that had been foreshadowed in her bail application, and changed further during the course of the hearing. Specifically, the matters relied on by SA to establish special or exceptional circumstances have developed during several adjournments of this application. The matters finally relied on were, in general terms:

• (a) SA's wish to pursue regaining the custody of her son; and

• (b) delays in bringing her to trial, given that her first trial date had been listed for June 2011 and no date had yet been set for her second trial.

10 The availability of a surety was also mentioned in Mr Saeedi's affidavit, but that was not apparently relied on as a special or exceptional circumstance in this application, and I cannot see that of itself it could amount to special or exceptional circumstances favouring the granting of bail (although in Massey [No. 1] at [30], and In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70 (26 June 2009) ( Massey [No. 2]) at [51], it was accepted as one of the elements that in combination amounted to special or exceptional circumstances).

The Massey applications

11 There is a superficial similarity between the matters raised by SA and those raised by Rebecca Massey in bail applications dealt with respectively in Massey [No. 1] in late 2008 and Massey [No. 2] in mid-2009. The matters raised in the two Massey applications were:

• (a) behavioural difficulties affecting Ms Massey's 8-year-old son, which were said to result from her continued detention;

• (b) the availability of a surety;

• (c) the weakness of the prosecution case, in particular having regard to the raising of self-defence and, in Massey [No. 2], the possibility also of a claim of diminished responsibility in reliance on Ms Massey's then recent diagnosis of bipolar disorder; and

• (d) past and expected delays between her arrest and likely trial.

12 Refshauge J in Massey [No. 1] found that none of those four matters individually amounted to special or exceptional circumstances, but, ‘with some hesitation’, found that the four matters taken together did amount to such circumstances.

13 In Massey [No. 2], I found that Ms Massey's son's behavioural difficulties did not amount to special or exceptional circumstances, and nor did the availability of a surety or any weaknesses in the prosecution case (which case if anything seemed to have become stronger since Massey [No. 1]). However, in relation to delays in bringing her matter to trial, I said at [50]:

I find that in this case the work of bringing this matter to trial does not seem to be being done at a reasonable pace. The investigation appears to be taking far longer than ought to be required, given the importance of the case and even accepting its complexity. Whether this is because of a shortage of resources, and whether some of the delays are attributable to this matter...