R v JM

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 31 August 2011
• Date: 31 August 2011
• Docket Number: No. SCC 26 of 2009 No. SCC 363 of 2009 No. SCC 128 of 2011 No. SCC 129 of 2011
• Court: Supreme Court of ACT

[2011] ACTSC 157

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCC 26 of 2009

No. SCC 362 of 2009

No. SCC 363 of 2009

No. SCC 128 of 2011

No. SCC 129 of 2011

R

and

JM

Counsel for the applicant: Ms T Warwick

Counsel for the respondent: Mr C Todd

Crimes Act 1900 (ACT), s 315A

Legislation Act 2001 (ACT), s 84

Bail Act 1992 (ACT), s 9D

CRIMINAL LAW — jurisdiction, practice and procedure — bail — no trial date set — applicant awaiting an appeal of a fitness to plead finding — time spent in custody — factor in the determination of a bail application — bail granted.

CRIMINAL LAW — jurisdiction, practice and procedure — bail — special and exceptional circumstances — combination of circumstances can amount to special and exceptional — bail granted.

ORDER

THE COURT ORDERS THAT:

1. JM be granted bail to appear in the Magistrates Court on 6 October 2011 and in this court on a date to be notified to him by the Registrar of the Supreme Court, on the following conditions:

• (a) there be a surety in the sum of $200.00, [name provided] being declared a suitable person for that surety;

• (b) that he reside at [address provided];

• (c) that he accepts the supervision of the Director General or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to participation in cognitive skills programs or alcohol and drug counselling or vocation and employment training, including his attendance at the Canberra Institute of Technology to enrol in and, if accepted, to participate in the Yurana Program;

• (d) that he report to the officer in charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 8.00 am and 8.00 pm;

• (e) that he not approach within 100 metres of [address provided];

• (f) that he not approach or contact, directly or indirectly, [names provided]; and

• (g) that he report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City ACT forthwith for the purpose of arranging supervision.

2. The matter be listed at 9.30 am on 18 October 2011 for a bail review.

AND THE COURT NOTES THAT:

3. On 18 October 2011, if JM is enrolled in the Yurana Program and is progressing well in that program, a reduction of the reporting requirements will be viewed favourably by the court.

EX TEMPORE JUDGMENT

1 JM was, on 19 January 2009, committed for trial to this court on charges of aggravated robbery, the circumstances of the aggravation being that he was in company, and two counts of dishonestly driving a motor vehicle without consent, which are alleged all to have occurred on 16 October 2008.

2 On 27 May 2009, I found JM unfit to plead to these charges, see [citation suppressed for legal reasons]. I was, however, not able to find whether JM would be likely to become fit to plead within twelve months, as required by s 315A(4) of the Crimes Act 1900 (ACT).

3 As a result, a further hearing had to be conducted and, in the course of that further hearing, it became clear that a real question arose as to whether JM was then fit to plead. After hearing evidence and further argument, I held that JM was fit to plead, though I held that special measures had to be taken to ensure that JM would be properly able to follow any proceedings: [citation suppressed for legal reasons].

4 JM, as he is entitled to do, sought leave to appeal against my decision. It was unclear from the file whether leave had been granted. It would appear that as an interlocutory decision from which the appeal is being taken, leave would be required on that ground, but also that it appears that the application was made out of time and leave would be required on that account as well.

5 I do not, however, need to consider those matters further except for one reason. The reason is that the appeal will clearly delay finalisation of the matters in which JM is involved. Until the question of his fitness to plead is resolved it is not possible to proceed either with a trial or a special hearing.

6 As well as these proceedings, JM has been committed to this court on a number of other charges, being:

• (a) a burglary and theft from a residential property on 6 September 2006, for which he was committed to this court on 30 March 2011 for trial;

• (b) assault occasioning actual bodily harm and damage property on 7 April 2010, for which he was committed to this court also on 30 March 2011 for trial;

• (c) a burglary and theft of a residential property on 16 August 2007, for which he was committed to this court on 12 October 2009 for trial;

• (d) an aggravated burglary of residential premises, the circumstances of aggravation being that he was in company, and theft of property from those premises on 12 August 2008, for which he was committed to this court also on 12 October 2009 for trial; and

• (e) a burglary of residential premises on 11 August 2008, for which he was also committed to this court on 12 October 2009 for trial.

7 There is a discrepancy between the court's records and those attached to the affidavit of JM's lawyer, Mr John C Baker, made 10 August 2011. In the affidavit he refers to a charge of aiding and abetting a burglary at commercial premises on 29 November 2009 as part of file No SCC 129 of 2011. It is suggested that this charge was committed to this court on 30 March 2011. I have carefully perused the court file and no such documents are on it. It appears, however, that this charge may, in fact, be on a different court file, No. SCC 128 of 2011.

8 There are other matters which are relevant. JM is facing the following three charges in the Magistrates Court:

A recent charge of driving whilst unlicensed was apparently dealt with in the Magistrates Court on 11 May 2011. I do not know what the result was. I also do not know the stage at which the other proceedings in the Magistrates Court have reached.

• (a) unlawful possession of a stolen bicycle on 11 August 2009;

• (b) resisting a Commonwealth public official, namely a police officer on 30 September 2009; and

• (c) an assault on 14 April 2010.

9 On 21 April 2010, JM appeared before Magistrate Doogan, and bail was refused. JM then applied for bail, or made an application for review to this court; it is not entirely clear which. That came before the court on 18 August 2010 and was adjourned generally.

10 The application before me, it was agreed, was for further...