The Queen (Crown) v Matthew Shaun McGrail (Accused)

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 06 June 2016
• Date: 06 June 2016
• Docket Number: File Numbers: SCC 34 of 2016

[2016] ACTSC 142

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Numbers: SCC 34 of 2016

SCC 49 of 2016

The Queen

(Crown)

and

Matthew Shaun McGrail

(Accused)

Representation:

Counsel

Ms E Beljic (1 June 2016) and Mr M Fernandez (2 June 2016) (Crown)

Mr P Edmonds (Accused)

Cases Cited:

Bedford v Earle [2015] ACTSC 306

Clooth v Belgium (1992) 14 EHRR 717 (1992) 14 EHRR 717

Dainer v Foster; Ex parte Tange (1984) 14 A Crim R 327

Dunstan v Director of Public Prosecution (1999) 92 FCR 168 (1999) 92 FCR 168

Govinden (1999) 106 A Crim R 314

Hertfordshire Justices; Ex parte Larsen [1926] 1 KB 191 [1926] 1 KB 191

In the Matter of an Application for bail by Massey (No. 3) [2010] ACTSC 52

J by his Litigation Guardian Vardanega v ACT (No 2) [2011] ACTSC 36

O'Brien (1991) 57 A Crim R 80

Re an Application for Bail by Kim [2009] ACTSC 129

Re an Application for Bail by Merritt (No 2) [2010] ACTSC 7

Re Pikula (2015) 293 FLR 115 (2015) 293 FLR 115

R v BB [2013] ACTSC 92

R v Beibic (Unreported, New South Wales Court of Criminal Appeal, Samuels JA, Nagle CJ at CL, Cantor J, 20, 28, 29, 30, 38, 39 of 1981, 27 May 1982)

R v Benbrika & Ors (No. 25) [2008] VSC 451

R v Boney [2008] ACTSC 30

R v Celeski (No 2) [2016] ACTSC 140

R v Connors (2012) 268 FLR 91 (2012) 268 FLR 91

R v Eiginson [2014] ACTSC 234

R v Goodwin (2009) 233 FLR 473 (2009) 233 FLR 473

R v Hoang [2015] ACTSC 195

R v Ho Hoi [2010] ACTSC 60

R v Monfries (No. 3) [2011] ACTSC 210

R v Ogilvie [2015] ACTSC 296

R v Peehi (1997) 41 NSWLR 476

R v Pikula [2015] ACTSC 380

R v Reeves [2011] ACTSC 140

R v Shiels [2015] ACTSC 73

R v Wilkins [2015] ACTSC 8

R v Williams [2015] ACTSC 15

Western Australia v Sturgeon (2005) 158 A Crim R 34

Legislation Cited:

Bail Act 1992 (ACT), ss 5, 5(2), 5(2)(a), 6, 6(2)1), 9A, 20(1)(b), 20B, 20B(a), 20C, 20C(1)(a), 20C(1)(b), 20C(2), 20C(2)(a), 22, 23, 23A, 33, 54A, 56A, 56A(4), 56A(4)(a), Pt 3

Crimes (Sentence Administration) Act 2005 (ACT), ss 11, 16

Evidence Act 2011 (ACT), s 136

Human Rights Act 2004 (ACT), ss 18(1), 30

Legislation Act 2001 (ACT), s 180

CRIMINAL LAW — Jurisdiction, practice and procedure — Bail — repeat application for bail — s 20C of the Bail Act 1992 (ACT) — “in custody” — “custody of the court” — arrest does not automatically lead to revocation of bail — appearance in court after arrest for breach of bail does not automatically lead to revocation of bail — appearance in court after arrest will justify application to revoke bail — application for revocation of bail does not constitute application for bail — acceptance that bail should continue does not constitute application for bail — remand in custody constitutes change in circumstances

CRIMINAL LAW — Jurisdiction, practice and procedure — Bail — insufficient evidence — adjournment to seek further evidence — mere assertion insufficient — drug and alcohol abuse — applicant seeking rehabilitation — history of breaching bail — reoffending — consumption of alcohol — failure to report

Decision:

• 1. Matthew Shaun McGrail be granted bail on Tuesday 7 June 2016 to attend his trial on 5 September 2016 and appear in court at any other time on any date to be notified by the Registrar on the following conditions:

  • a. That he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him, including as to undertaking an anger management course.

  • b. That he reside as directed by the person supervising him.

  • c. That he notify the Registrar of the Supreme Court in writing each address at which he is directed to reside within 2 working days of any direction.

  • d. That he commence the SMART Recovery Program at 10.30 am on 7 June 2016 at the offices of Directions, Level 6, Cosmopolitan Building, Woden and attend at least 2 sessions each week until he commences his trial.

  • e. That he consents to the Officer-in-Charge of Directions providing to the person supervising him any information reasonably requested as to his attendance at and progress in the SMART Recovery Program.

  • f. That he not consume alcohol or illicit substances.

  • g. That he provide a sample of breath, blood or urine for analysis if directed by the person supervising him.

  • h. That he report to the Officer-in-Charge of Civic Police Station each Monday, Thursday, Saturday and Sunday and, on reporting, provide a sample of his breath for analysis if requested by the police officer to whom he reports.

  • i. That he not contact (directly or indirectly), approach, assault, threaten, harass or intimidate NP or BQ.

  • j. That he not contact (directly or indirectly) TD except with her consent, evidenced in writing, save that he may have contact with her through his mother or his solicitor concerning the welfare of or his access to the child UD.

  • k. That he not approach TD except with her consent, evidenced in writing, or in accordance with a court order when having access to UD.

  • l. That he not assault, threaten, harass or intimidate TD.

  • m. That he be at his place of residence between 8.00pm and 7.00am each day, except in the case of a medical emergency or in accordance with a direction of the person supervising him.

  • n. That he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4:00pm on 7 June 2016.

Refshauge J

1 The applicant, Matthew Shaun McGrail, was, it appears, arrested on 24 January 2015. He was charged with two counts of engaging in sexual intercourse with a 15 year old person, one count of attempting to engage in sexual intercourse with a 15 year old person and three counts of committing an act of indecency on a 15 year old person.

2 My attention has been drawn to the Case Statement filed by the Crown and which, as I have pointed out in R v Goodwin (2009) 233 FLR 473 at 478–9; [26]–[35], is very useful to give a summary of the Crown allegations. From it, I see that the Crown say that the charges arose out of acts that are said to have been committed on the same complainant in the same incident.

3 The day of his arrest, 24 January 2015, was a Saturday and it appears that Mr McGrail was refused bail by the police in the Watch House, as he appeared in the Magistrates Court on 26 January 2015 while in custody. He did not apply for bail and was remanded in custody.

4 In the circumstances set out below, Mr McGrail was granted bail but, on 9 May 2016, Burns J revoked his bail and remanded him in custody when he appeared, having been arrested for failing to comply with a condition of his bail undertaking.

5 He has now applied for further bail before me.

Chronology

6 It is appropriate to set out some of the history of Mr McGrail's involvement with the criminal justice system and of this matter before dealing with the present bail application.

7 Mr McGrail has a relatively short history of offending dating from 2011. Between then and today, he has been convicted of 13 offences and found guilty, but without conviction, of a further two offences. None were offences of dishonesty, which are often associated with an out of control drug addiction. They include, however, offences of damaging property and drink driving, which are often associated with alcohol abuse. He has also a conviction for driving while an illicit drug was present in his blood.

8 Relevantly, he was convicted, on 21 November 2013, of failing to appear after entering into a bail undertaking when, it appears, he failed to appear that day to answer a charge of possessing a declared substance without authorisation. On sentence, he was made subject to a Good Behaviour Order for 12 months.

9 He breached that Order when, on 16 July 2014, he committed three offences of damaging property. No action was taken on the breach, however, but he was convicted of those three offences and, on 4 November 2014, made subject to a Good Behaviour Order for two years for each offence. The Order included a probation condition and a requirement to provide samples of breath, blood or urine for alcohol and drug testing.

10 He was, as noted above (at [1]), then arrested for the current offences on 24 January 2015. The Court before whom he was taken heard that, in the previous 12 months, he had breached bail conditions on four occasions. It heard further that he had said to police that he proposed to speak to the complainant. As also noted above (at [3]), he was refused bail and remanded in custody on 26 January 2015. The proceedings were mentioned a number of times in court and, on 10 April 2015, Mr McGrail applied for bail. Over the opposition of the prosecution, he was granted bail with strict conditions as to residence, a curfew, supervision by ACT Corrective Services, non-contact with the complainant and a prosecution witness and a prohibition on him consuming intoxicating liquor or illicit drugs.

11 On 20 May 2015, he attended Woden Police Station intoxicated and voluntarily surrendered to police because his consumption of alcohol was in breach of his bail conditions. A screening test showed his breath alcohol concentration was 0.22 grams of alcohol to 210 litres of breath. He appeared in the Magistrates Court on 21 May 2015. A continuation of his bail was not opposed and it was continued.

12 At the time of his surrender to police, Forensic Services of ACT Health assessed him and the assessment was admitted into evidence. It described Mr McGrail as having a

[s]ignificant history of alcohol and polysubstance abuse and [a] past history of drug induced psychosis in the context of amphetamine use and mild mood disturbance in [the] context of drug use.’

13 There were no noted health concerns, however, and he was ‘[f]riendly,...