An Application for Bail by Rebecca Massey

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 19 December 2008
• Court: Supreme Court of ACT
• Docket Number: No. SCC 317 of 2008
• Date: 19 December 2008

[2008] ACTSC 145

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCC 317 of 2008

In The Matter of an Application for Bail by Rebecca Massey

Counsel for the Crown: Mr S Drumgold

Counsel for the defendant: Mr J Pappas

DPP v Tang (1995) 83 A Crim R 593

Lunam v Western Australia [2007] WASC 73

Beljajev v DPP (1998) 101 A Crim R 362

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

Raad v DPP (2007) 175 A Crim R 240

DPP (Vic) v Cozzi (2005) 12 VR 211

Abbott (1997) 97 A Crim R 19

Bail Act 1992 (ACT), s 9C

Human Rights Act 2004 (ACT), s 18

ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

EX TEMPORE JUDGMENT

1 Following an altercation at the Charnwood shops, Charnwood, in the ACT on 25 July 2008, a female who had been stabbed in the incident was pronounced dead at the Canberra Hospital about an hour or so later. She apparently had three knife wounds in her torso and arms and other medical injuries consistent with a struggle. Later that night police arrested Rebecca Anne Massey and charged her with murder.

2 She was refused bail by a magistrate on 28 July 2008. Ms Massey has an 8-year-old son. Such a situation is inevitably tragic for all concerned. By application dated 12 August 2008, Ms Massey applied for a review of the magistrate's decision to refuse bail. The application came before the Chief Justice on 26 August 2008.

3 Under s 9C of the Bail Act 1992 (ACT) a court is prohibited from granting bail to a person charged with murder unless satisfied that special or exceptional circumstances exist favouring the grant of bail. Even if those circumstances exist, the court must still thereafter consider whether it is appropriate to grant bail, having regard to the criteria ordinarily applied to a grant of bail. His Honour did not consider that the material before him amounted to special or exceptional circumstances and permitted the application to be adjourned.

4 It does not appear that his Honour considered himself part-heard in the application. This would not normally be so where the adjournment is a general one for a reconsideration of the material supporting the application. This is especially so where the adjournment is for some time as judges take leave or are otherwise engaged in court business so that a re-listed application may be delayed. The approach of requiring the matter to be heard only by the judge before whom the application initially came before would have the potential to breach the rights of the applicant under s 18 of the Human Rights Act 2004 (ACT). Accordingly, the matter came before me on 17 December 2008.

5 I read the affidavits of Sarah Elizabeth Avery affirmed on 11 December 2008 and Anne Maree Fredrickson affirmed on 12 December 2008. I also heard oral evidence from Ms Fredrickson who is Ms Massey's mother. I adjourned the application to today for decision. In the meantime, I read the transcript of the proceedings before the Chief Justice.

6 Mr Pappas, who ably represented the applicant, submitted that there were four matters which amounted to special or exceptional circumstances favouring the grant of bail: the difficulties that Ms Massey's son was experiencing as a result of the continued detention of his mother, the availability of a surety, the weakness of the prosecution's case and the delay between arrest and trial.

7 The term ‘ special or exceptional circumstances’ has not been defined in the Bail Act. It is, however, a phrase commonly used in relation to bail. In DPP v Tang (1995) 83 A Crim R 593, Beach J said (at 596):

“Exceptional” is a word commonly used in legislation. One definition of it in the New Shorter Oxford English Dictionary is: “Of the nature of or forming an exception, unusual, out of the ordinary, special” (see vol 1, p 872). Webster's Dictionary contains the following definition: “Relating to or forming an exception, out of the ordinary course, unusual, uncommon, extraordinary”. In my opinion, it does not matter which of those definitions one chooses to adopt. I consider it was the clear intention of the legislature that any person charged with an offence falling within the provisions of s 4(2)(aa) bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail.

8 That is to say, the applicant has, in my view, to establish that there is some unusual or uncommon circumstances which justify the granting of bail and those circumstances must relate to the granting of bail. I will consider each matter in turn.

The difficulty being experienced by Ms Massey's child

9 As noted above, Ms Massey has an 8-year-old son. She also has a 17-year-old daughter. Unsurprisingly, the arrest and continued detention of Ms Massey has caused difficulties for her son. In her affidavit, Ms Fredrickson deposed as follows at [6]-[8]:

6.Approximately four weeks ago, I had a meeting at [the child's] primary school which was attended by the Principal … [the child's] teacher … [the child's] teaching aide and the school counsellor. During the meeting I was advised that since the applicant had been in custody, [the child] had experienced significant behavioural problems at school such as temper tantrums, disruptive behaviour, lack of concentration and refusing to comply with directions from teachers. I was advised of examples of [the child's] behaviour, including tipping up tables and chairs and a rack with cartons of Lego on it and damaging items in his classroom.

7. I was advised and verily believe that [the child's] behavioural problems at school began around the time when the applicant was remanded in custody. I was advised by [the principal] and verily believe that prior to the applicant being taken into custody [the child] attended school from 9.15 am to 3.15 pm and apart from some minor discipline problems, [the child] had not exhibited the behaviour problems he is now showing.

8. During the meeting referred to above, it was decided that [the child] would attend school for restricted hours only between 9.15 am and 11 am due to his disruptive behaviour.

10 Attached to Ms Avery's affidavit was a letter from the principal of the school attended by the child. In part it stated:

My observation of [the child] since 25th July 2008 indicate that he has become moody and sometimes very angry and finding it difficult to conform with directions given by the class teacher, teacher assistant and myself. He becomes defiant and is also reacting in a similar way with his grandmother, Mrs Anne Fredrickson. I can't say that this behaviour is related to his mother's current situation, however, it has to be remembered he is now living in a different home environment.

[The child] does react in a negative manner towards some of his friends in class and I believe this is due to his frustration and in built anger. I cannot relate the cause to a specific situation as I am not a psychologist or therapist. I would believe that it is a culmination of many circumstances happening in his current situation.

Currently [the child] attends school from 9.15 to 11 am daily, however, prior to 12th November 2008 he was able to attend school for the full day. He commenced getting upset and pushing and throwing objects within the classroom after this date and found himself hitting children whilst in the playground. His hours of school were reduced due to my concerns for his safety and that of his classmates.

11 The prosecution also raised the fact that on 24 March 2005, the Children's Court of New South Wales had ordered that Ms Fredrickson, Ms Massey's mother, be granted parental responsibility of the boy.

12 The submissions about this were quite frankly vague and unhelpful. If it was designed to suggest that Ms Fredrickson had no right to allow Ms Massey to care for the boy, then that is just wrong in law. If it was designed to suggest that the present behavioural problems simply had to be accepted because Ms Fredrickson had, by court order, the responsibility for parenting the boy, then that is also wrong in fact and in law.

13 It is not for the court to speculate on the relevant contribution to a submission of each matter in the case of a party before it; it is for the party to make out its case and say how each...