David Harold Eastman v DPP

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Rares J,Wigney J,Cowdroy AJ
• Judgment Date: 22 August 2014
• Date: 22 August 2014
• Docket Number: File Number: SC 222 of 2014

[2014] ACTSCFC 3

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Rares J, Wigney J, Cowdroy AJ

File Number: SC 222 of 2014

David Harold Eastman

and

Director of Public Prosecutions

Representation:

Counsel

Mr S Gill

Mr K Lee

Cases Cited:

Eastman v Director of Public Prosecutions [2014] ACTSCFC 2 referred to

In the matter of an Application for Bail by Luigi Costa [2013] ACTSC 15 referred to

Jess v Scott (1986) 12 FCR 187 applied

QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 applied

CRIMINAL LAW — application for bail under Bail Act 1992 (ACT) after conviction quashed and retrial ordered — presumption against bail in s 9(1) — special or exceptional circumstances exist favouring grant of bail under s 9C of Bail Act — where no opposition by Crown to bail being granted — where accused had history of answering bail — test of existence of grounds sufficient to justify a departure in the particular circumstances from the ordinary rule that bail not be granted

Decision:

See [11]

THE COURT:

1 Mr Eastman applied for bail, following the delivery earlier today of our reasons for judgment ( Eastman v Director of Public Prosecutions [2014] ACTSCFC 2). The Director of Public Prosecutions has not opposed the grant of bail subject to a number of conditions that he has proposed. Nonetheless, the Court must still be satisfied that the provisions of the Bail Act 1992 (ACT) have been met.

2 A person accused of murder, as Mr Eastman currently is, may not be granted bail unless the Court is satisfied that special or exceptional circumstances exist favouring its grant over and in addition to those in s 22 of the Act (s 9C(1)(a), (2)). The standard of proof required for the grant of bail is the balance of probabilities (s 55). No argument was directed to us on the construction of s 9C(2) or the test to be applied.

Consideration

3 In In the matter of an Application for Bail by Luigi Costa [2013] ACTSC 15 at [11], Refshauge J suggested that s 9C(2) required an applicant to establish that there had to be some unusual or uncommon circumstances that justified the granting of bail. His Honour noted that the ACT Law Reform Commission had suggested, in its 2001 Report on the Laws Relating to Bail at [8], that prominent cases like that of Mr Eastman had been the genesis of s 9C(2). However, Refshauge J added that it was not at all clear on what evidence the Commission had identified that the community had a ‘feeling’ that the then bail laws were not protecting the community adequately from violence.

4 Whether there are special or exceptional circumstances for the purposes of ss 9C(2) and 9G involves a question of whether there are grounds sufficient to justify a departure in the particular circumstances from the ordinary rule that bail not be granted: see Jess v Scott (1986) 12 FCR 187 at 195–196 per Lockhart, Sheppard and Burchett JJ; QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 per Tamberlin, Kiefel and Weinberg JJ at [6]–[7].

5 The Director made no suggestion in respect of Mr Eastman today of any present need for protection of the community from violence.

6 We are satisfied that the conditions proposed to obtain for the next three weeks by agreement between the parties are appropriate to satisfy the requirements of s 22 of the Act for an immediate grant of bail....