An Application for Bail by Timothy Noel Allen

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Penfold J
• Judgment Date: 28 May 2009
• Docket Number: No. SCC 391 of 2008
• Date: 28 May 2009

[2009] ACTSC 64

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Penfold J

No. SCC 391 of 2008

In the Matter of an Application for Bail by Timothy Noel Allen

Counsel for the applicant: Mr K Archer

Counsel for the respondent: Mr S Drumgold

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

DPP v Tang (1995) 83 A Crim R 593

Mokbel v DPP (Vic) [No 2], (2000) 132 A Crim R 290

Bail Act 1992 ss 19(5)(b), 9C, 9G, 22

Bail Act 1977 (Vic) s 4(2)

Magistrates Court Act 1930 (ACT)

Crimes Legislation Amendment Act 2008 (ACT)

Macquarie Dictionary (2 ^nd ed, Macquarie Library, 1991)

The Australian Concise Oxford Dictionary (4 ^th ed, Oxford University Press, 2004)

CRIMINAL LAW — bail — jurisdiction to hear application — issues raised by bail applications adjourned and dealt with over extended periods — Bail Act 1992 (ACT), s 19(5)(b).

CRIMINAL LAW — bail — statutory presumptions — presumption against bail where applicant charged with attempted murder — applicant must show special or exceptional circumstances favouring the grant of bail — Bail Act 1992 (ACT), s 9C.

CRIMINAL LAW — bail — special or exceptional circumstances — weakness of prosecution case — relevance of alleged criminal conduct of complainants — relevance of failure to prosecute complainants — case not sufficiently weak to justify finding of special or exceptional circumstances.

CRIMINAL LAW — bail — special or exceptional circumstances — kinds of delay that might be a special or exceptional circumstance — standard delays would not usually amount to special or exceptional circumstances — inordinate delay, delay with special impact on applicant, or unacceptable delay by standards of community or standards of comparable jurisdictions might constitute special or exceptional circumstances — delay so far not sufficient to amount to special or exceptional circumstances.

CRIMINAL LAW — bail — special or exceptional circumstances — weaknesses in prosecution case combined with minor delays in bringing matter to trial not sufficient in this case to amount to special or exceptional circumstances — bail refused.

Reason for Judgment

Introduction

1 Timothy Noel Allen was arrested on 29 September 2008, charged with two charges of intentional wounding arising out of an incident at the Red Hill Flats earlier that day, and refused bail in the Magistrates Court the following day. He made a bail application to the Supreme Court on 7 October 2008, which was adjourned generally by Refshauge J on 28 November 2008 and by Gray J on 6 February 2009. Shortly after the November adjournment, the charges of intentionally wounding that had already been laid were supplemented with several new charges, including inflicting grievous bodily harm and attempted murder, all arising out of the same incident.

2 At his request, Mr Allen's bail application was re-listed for hearing on 6 March 2009, and came before me. The hearing was adjourned part-heard several times for different reasons, and concluded on 29 April 2009, at which point I refused bail. These are the reasons for that refusal.

Jurisdiction to deal with bail application

3 There is no information on file suggesting that any of the judicial officers who had previously dealt with this bail application had made a finding that the requirements of s 19(5)(b) of the Bail Act 1992 (ACT) had been satisfied or that there was any other basis on which the court had the power to consider the bail application.

4 Early in the hearing before me, possible ‘significant changes in circumstances’ since Mr Allen's unsuccessful bail application in the Magistrates Court were canvassed, including the delivery of some or all of the prosecution brief, the upgrading of the charges, the assault on Mr Allen while in custody, and changes to committal processes in the ACT. At a later stage of the proceedings it was put in passing that this was Mr Allen's first bail application since he had been charged with attempted murder and that therefore s 19(5) of the Bail Act was irrelevant; since the charge of attempted murder was laid after the bail application was made, this claim seems problematic in any event, and since the matter was not argued, I make no finding about whether this suggestion was correct either as a matter of law or as a matter of fact.

5 Most of the other identified changes in Mr Allen's circumstances had also happened after the bail application was initially lodged, but the question whether a bail application can be lodged in anticipation of relevant changes in circumstances was not argued before me, and counsel for the DPP did not oppose the court dealing with the application. In the event, the evidence called, and the submissions made, focussed on the question of special and exceptional circumstances for s 9C of the Bail Act, and I made my findings about special or exceptional circumstances without making any formal findings about the preliminary jurisdictional hurdle.

6 It is not clear to me whether the reference in s 19(5)(b) of the Bail Act to changes in circumstances ‘since the most recent application to a court for bail’ requires the court to look at the date the application was made or the date it was disposed of by the court. This question, usually unimportant for a bail application which is resolved quickly but possibly significant in relation to an application that has taken some months to finalise, may arise for decision on another occasion. However, the uncertain operation of that reference in such a case raises the question whether it might be in the best interests of an applicant who has made a premature bail application to withdraw the application rather than having it adjourned until it seems that a credible case can be made for the grant of bail.

Presumption against bail

7 Because Mr Allen has now been charged with, among other things, attempted murder, his application was subject to the presumption against bail set out in s 9C of the Bail Act. An initial submission on Mr Allen's behalf that s 9C did not apply to charges of attempted murder (as distinct from charges of murder) was abandoned having regard to the note to s 9C(1) of that Act.

8 Where s 9C applies, the court must not grant bail unless satisfied ‘that special or exceptional circumstances exist favouring the grant of bail’. Only when such circumstances have been established is the court permitted to consider the criteria for granting bail set out in s 22 of the Bail Act (see s 9G(3)).

Special or exceptional circumstances

Meaning of ‘special or exceptional’

9 As to the general meaning of special or exceptional circumstances, I respectfully adopt the remarks of Refshauge J in In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (19 December 2008), who said at [7] and [8]:

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.

That is to say, the applicant has, in my view, to establish that there is some unusual or uncommon circumstances [sic] which justify the granting of bail and those circumstances must relate to the granting of bail.

10 I would add to Refshauge J's comments the point that under s 9C of the Bail Act, the unusual or uncommon circumstances must not just relate to the granting of bail but must in fact favour the granting of bail.

Circumstances identified by applicant

11 The matters pointed to in this application as amounting to special or exceptional circumstances were:

• (a) the weakness of the prosecution case; and

• (b) likely delays before Mr Allen comes to trial.

12 A third matter was raised initially, relating to injuries sustained by Mr Allen in the Belconnen Remand Centre and the particular difficulties caused to Mr Allen by those injuries during any continued incarceration, but after one of the adjournments counsel for the applicant conceded that the medical evidence he had been hoping to tender would not be available, and accordingly this possibly special or exceptional circumstance was not pressed.

13 The question then was whether the weakness of the prosecution case, or likely delays before Mr Allen comes to trial, could be established and, if established, whether those matters, either alone or in combination, constituted special or exceptional circumstances favouring the granting of bail for the purposes of s 9C of the Bail Act, so as to permit me to move on to a consideration of the s 22 criteria for granting bail.

14 Apart from a doctor's letter about the assault on Mr Allen, evidence in the application consisted of evidence given by the police informant responsible for the charges against Mr Allen, a number of witness statements, including from the complainants, and recordings and transcripts of several phone calls between Mr Allen and his alleged co-offender. These phone calls had been made from the Belconnen Remand Centre and recorded in accordance with usual practice and as advised to inmates at the beginning of each phone call.

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