Todd William Elphick v The Queen

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 16 December 2014
• Court: Supreme Court of ACT
• Docket Number: File Number(s): SCC 183 of 2013
• Date: 16 December 2014

[2014] ACTSC 372

HUMAN RIGHTS ACT

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCC 183 of 2013

Todd William Elphick

(Applicant)

and

The Queen

(Respondent)

Representation:

Counsel:

Mr R Livingston (Applicant)

Mr T Hickey (Respondent)

Cases Cited:

Burton v The Queen (1974) 3 ACTR 77

In the matter of an application for bail by Massey [2008] ACTSC 145

Re an Application for Bail by Allen [2009] ACTSC 64

R v Smith (2012) 269 FLR 233

Legislation Cited:

Bail Act 1992 (ACT), ss 9A, 9B, 9D, 22, 23A, 43

Human Rights Act 2004 (ACT)

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Bail — Presumption of bail — Accessory after the fact not an offence of actual or threatened violence — Applicant breached previously imposed bail conditions — Applicant breached court orders — Whether totality of factors amounts to ‘special or exceptional circumstances’

Decision:

The application be dismissed.

Refshauge J

1 Following a trial by jury, Todd William Elphick was acquitted of one count of causing damage to a building by fire, namely arson, and one count of threatening to damage a building by fire, which building belonged to another person, namely a threat of arson.

2 He had, however, earlier pleaded guilty to other charges which broadly arose out of the same circumstances. These charges were two counts of contravening a protection order to which he was subject, stalking and attempted arson. He is to be sentenced for these offences on 12 February 2015.

3 Mr Elphick was arrested for the arson offence and also for one of the counts of contravening protection order on 10 July 2013 and has remained in custody since then.

4 Following the findings of the jury acquitting him of the two charges to which I have referred, he has now applied for bail.

5 It is necessary, briefly, to set out the statutory circumstances in which this bail application is to be made.

6 At the time of Mr Elphick's arrest on 10 July, 2013 for the charge of arson and one of the counts of contravening a protection order he was on bail for a serious offence. Ultimately, that serious offence did not proceed, but he was convicted and sentenced for being an accessory after the fact of a more serious offence when he assisted Kai Yuen, of leaving the scene of a murder for which Mr Yuen was later convicted, Mr Elphick believing that Mr Yuen had committed a related offence of intentionally and unlawfully using an offensive weapon against another person likely to endanger human life and with the intention of allowing Mr Yuen to escape apprehension or prosecution.

7 On 30 July 2013, Mr Elphick was sentenced to seven months and sixteen days' imprisonment, backdated to 15 December 2012, which appears to have represented all the pre-sentence custody, although it included some twenty days during which Mr Elphick was in custody also for the current offences.

8 As a result, Mr Elphick, is subject to s 9D of the Bail Act 1992 (ACT), which provides that he may not be granted bail unless I am satisfied that special or exceptional circumstances exist favouring the grant of bail. I shall deal with that shortly.

9 The question was also raised as to whether there was a presumption in favour of bail (s 9A of the Bail Act), or whether there was no presumption for bail (s 9B of the Bail Act. This is because, under s 9B of the Bail Act, the presumption in favour of bail does not apply where a person charged with contravening a protection order has, in the previous ten years, been found guilty of an offence involving violence or threat of violence.

10 The only relevant offence on Mr Elphick's record is the offence of being an accessory after the fact. The question arises as to whether that is an offence of violence or threatened violence.

11 In R v Smith (2012) 269 FLR 233 at 241–4; [45]–[61], I considered the meaning of ‘an offence involving actual or threatened violence’. The question here is whether the assistance to a person who has already committed an act of violence or threatened violence is, itself, an act ‘involving’ violence or threatened violence.

12 The point is not an easy one to resolve and I have not, given the time available for the application, been favoured with detailed submissions on the issue. Not without some hesitation, I am not satisfied that the offence of accessory after the fact, even where the principal offence involved significant violence, is an offence ‘involving violence or the threat of violence’, it seems to me that in this context ‘involving’ must mean some direct relationship between the actual offence and the violence or threatened violence.

13 This would be a consistent interpretation with a value placed by the Human Rights Act 2004 (ACT) on the liberty of persons. Accordingly, it seems to me that there is, under s 9A of the Bail Act, an entitlement to bail for Mr Elphick, unless I am satisfied that refusal is justified considering the matters mention in s 22 of the Bail Act.

14 Evidence was given by Mr Elphick and by his step-father. His step-father was currently living at Banora Point in Northern New South Wales and proposed that Mr Elphick should travel with him to his home there and reside with him during the remand period. He said he had spoken to Mr Elphick a number of times about that proposal and Mr Elphick was keen to do so.

15 Relevantly, but understandably, Mr Elphick's step-father was supportive of Mr Elphick and keen to do whatever he could to help. He had, in fact, arranged an airline ticket for Mr Elphick to fly to the nearest airport for the purposes of taking him home should bail be granted.

16 In cross-examination, he agreed that it would not be realistic for him to prevent Mr Elphick from having access to telephones or making contact with the victims of the outstanding offences. He believed, however, that Mr Elphick had no intention of making such contact. He also agreed that, should bail be granted on conditions, he would make contact with the relevant authorities should Mr Elphick breach any of these conditions.

17 Mr Elphick said that, if he was granted bail, he intended to live with his mother and step-father, thus affirming the evidence of his step-father. He intended to obtain employment and recognised that he would have some difficulty because he had no driver license. He indicated, however, that employment in his industry as a roofing contractor usually commences at about 7:00 am and his mother and step-father commence work at 8:00 am, so they would be able to transport him to work. He had already arranged for his tools of trade to be transferred to the home of his mother and step-father.

18 He said that he had given careful thought to the attitude and behaviour he showed to the victims and he recognised that he should only make contact with them through the proper channels. He certainly intended to continue with the proceedings in the Federal Circuit Court to obtain access to, and care of, his daughter, but he had no intention of making direct contact with the victims.

19 In cross-examination, he acknowledged that he had breached his bail and that prior to his arrest he had, despite the court issued protection order, contacted the victims in excess of fifty times. He also agreed that the proceedings over access to...