Applicant v Respondent

1 Yesterday afternoon, 13 September 2018, I heard and granted an urgent application for bail by Brock Hall. I gave ex tempore reasons but indicated I would publish more detailed reasons at a later time. These are those more detailed reasons.

2 It is alleged that, at about 10:20 p.m. on 10 September 2018, Mr Hall was found drunk by police at a public place, namely the Harbour Town Tram Stop in Docklands. It is also alleged that he was in breach of a curfew condition of his previous bail, fixed about three weeks earlier on a charge of public drunkenness, which required that he remain at his home address between the hours of 9:30 p.m. and 7:00 a.m.

3 He was then arrested by Constable Nico Pangemanan and charged with two summary offences - being drunk in a public place[1] and contravening a conduct condition of bail, namely a curfew condition.[2] He was remanded into custody.

4 The next day, he was brought before the Melbourne Magistrates' Court, where he applied for bail. That application, however, was refused.

5 Mr Hall is now 37 years of age, being born on 21 May 1981. His funds are managed by the State Trustees and his mother is his legal guardian. He is a registered client of Disability Services.

6 I have before me three reports from psychiatrists who have dealt with Mr Hall over the years: Associate Professor Peter Doherty (14 April 2011); Dr Anthony Cidoni (14 August 2012); and Professor Paul Mullen (23 March 2013). In summary, the reports disclose the following.

7 Mr Hall was born with a rare affliction called the Smith-Magenis syndrome, which is a genetic developmental disorder caused by a chromosomal abnormality. He has been diagnosed with a mild to moderate intellectual disability. He has an alcohol abuse problem and, it seems, is a fairly regular drinker. He lost his biological father to suicide when he was only 13 and was raised by his mother and stepfather.

8 When he was growing up, Mr Hall attended a number of special schools. He was taken into occasional respite care because of behavioural problems. Ultimately, the arrangement became permanent and he has remained housed in various locations managed by the Department of Health and Human Services ("DHHS") over the years.

9 Mr Hall has been found unfit to stand trial on a previous occasion. That state of unfitness is thought to be permanent.

10 His level of intellectual disability is described by Associate Professor Doherty in his report in these terms:

[H]is level of mental retardation ... significantly reduces his awareness of his external environment [and] causes him an inability to focus his attention and prioritise his concentration. His understanding of societal rules and his ability to express himself are so severely impaired by his intellectual disability that he would not be able to understand the nature of the charge [he was then facing], follow the nature of a trial and give sufficient instructions to his legal practitioner.

His intellectual disability has been lifelong. It will not improve. Education, support, re-training and the like will not improve his inability to stand trial.

11 Mr Hall currently resides at 3 Henderson Court, Bundoora. That is a property managed by the DHHS Disability Accommodation Services. It is a fully-supported type of accommodation. Mr Hall has a case manager from the DHHS and he receives assistance from other staff onsite at his accommodation.

12 In his report, Dr Cidoni opined that Mr Hall would be "unable to cope" in a custodial setting.

13 Mr Hall has a limited criminal history comprising mainly public drunkenness offences. The vast majority of these charges have been dismissed under s 76 of the Sentencing Act 1991 (Vic), whereas in six cases he has simply been convicted and discharged. He has never been sentenced to a term of imprisonment.

14 Mr Hall has two sets of outstanding matters. First, he has about 22 public drunkenness charges listed for mention at Melbourne Magistrates' Court. Secondly, on 11 February 2019, he will face charges of indecent assault allegedly committed on separate victims in public while drunk in October 2016 and October 2017. His only bail condition on those matters is that he reside at his current address. It will be submitted at that hearing that he is unfit to plead to those charges. An agreement has been reached with Melbourne Prosecutions that the outstanding public drunkenness charges are to be adjourned to a date after the expected determination date of the County Court matter, and that an application to withdraw those summary charges will be made at that time if he is found unfit to plead.

15 In 2013, the Director of Public Prosecutions entered a notice of discontinuance in the County Court in respect of charges against Mr Hall where there was the same concern about his fitness to plead.[3]

16 The (extremely) unusual thing about this case is that, despite the very modest level of charges he faces, Mr Hall is in what is called an 'exceptional circumstances' position with respect to bail - which means that bail must be refused unless Mr Hall demonstrates exceptional circumstances exist that justify the grant of bail.[4] This is the highest threshold for granting bail that the law imposes in this State. It is the same threshold that applies to a person charged with murder or a terrorism offence or other very serious offences.

17 How could this be so? It arises in this way. When Mr Hall was released on bail from a police station on a public drunkenness charge a few weeks back, one of the conditions of bail imposed by the police was that he have a 'conduct condition' of bail, namely a (night) curfew. Some days later, he was charged again with public drunkenness and, for the first time, with an additional charge of contravening a conduct condition of bail, the latter of which is a 'Schedule 2 offence' because it is an offence against the Bail Act.[5] Then, having been charged with that type of offence again whilst on bail for a Schedule 2 offence, the law deems the new charge to be a 'Schedule 1 offence', which attracts the exceptional circumstances threshold.[6]

18 In addition, even if exceptional circumstances are established, bail must still be refused if the prosecution establishes there is an unacceptable risk that, if released on bail, Mr Hall would commit an offence while on bail.[7]

19 It was submitted by Ms Lenthall, who appeared for Mr Hall on this application, that a combination of the following matters give rise to the existence of exceptional circumstances. First, if Mr Hall were able to plead guilty to the offences with which he was charged, he would not receive a term of imprisonment. I agree, he would not. But, of course, it is unlikely that he could enter a plea because of his history of being unfit to plead.

20 Secondly, as I said before, while Mr Hall faces indecent assault charges in the County Court in February 2019 and 22 other public drunkenness charges in the Magistrates' Court, it is likely, given his history of being found unfit to plead, that that is what will occur again and that, in consequence, the public drunkenness charges (including the current charges) will ultimately be withdrawn. Again, I agree.

21 Third, Ms Lenthall submitted that the alleged offences the subject of this application for bail are not serious in nature and do not put the public at risk of harm. I agree. What these alleged offences do, and what his previous behaviour of the same type has done, is create a nuisance value and a lot of hard work for the police, because it is they who, when they find him drunk and urine-soaked on the street, somehow have to deal with him - whether it be by putting him in the cells to sleep it off, or whether they arrange for him to be picked up by the DHHS or work out some other temporary solution. But, yes, as has been submitted, the risk of harm to the public in such behaviour is extremely low.

22 Fourth, Mr Hall has already spent three nights in custody and tonight would be his fourth.

23 Fifth, as I indicated earlier, Mr Hall has been diagnosed with Smith-Magenis syndrome and has a mild to moderate intellectual disability. These factors make him vulnerable in the confines of a custodial environment. I agree. As a result of his particular afflictions and conditions, a custodial environment would be more onerous on Mr Hall than the usual prisoner or remandee.

24 Sixth, it was submitted that Mr Hall has stable, fully-supported, disability-specific accommodation with on-site supports. Similarly, he is case-managed by a case worker from the DHHS. Again, I accept that that is so.

25 Seventh - and this is a matter which goes also to the question of unacceptable risk of offending whilst on bail - while the likelihood of committing public drunkenness offences on bail is conceded to be high, the court must consider, amongst other things, the magnitude of the harm that may result were he to reoffend. In Ms Lenthall's submission, the risk of that type of offending is not serious enough to warrant his continued detention in custody. I agree. The notion of unacceptable risk as it applies to bail does not concern merely any risk of reoffending. Rather, it is a question of whether such risk as there might be is unacceptable. The law recognises situations in which a comparatively low level of risk of some very serious crime might amount to the relevant level of unacceptable risk to require a refusal of bail. But, equally, a high risk of the occurrence of something comparatively minor might not amount to an unacceptable risk, because it is a risk that the community will tolerate. In Mr Hall's case, that type of risk has been tolerated a long time, with great inconvenience to the police no doubt, but nevertheless it is something which has to be tolerated, because the alternative is not acceptable. The alternative is that a man like him remains in custody for days, weeks, or months on end, for something which does not even warrant gaol in the first place. Common sense says that we cannot keep locking people up in those circumstances.

26 Finally, another factor that goes to both the presence of exceptional circumstances and the absence of an unacceptable risk in this case is the attitude of the prosecution. Whilst, when the material was filed initially in this case, it was plain that the police opposed bail, the matter has now been taken over by the Solicitor for Public Prosecutions, who have briefed counsel of experience, Ms Mahady, to consider the matter. Her instructions are that there is no opposition to bail, despite the exceptional circumstances threshold.

27 What is more, Ms Mahady agrees with the submission made by Ms Lenthall to the effect that, if bail is granted, there are no conditions that could be put in place that would sensibly curtail the risk of Mr Hall offending whilst on bail yet at the same time be conditions that he could comply with. In other words, if the type of condition that is already in place on the earlier bail - such as a curfew or perhaps a condition that prevented him from riding on public transport - were imposed, then it is virtually certain that such conditions would be breached by Mr Hall within a short space of time and that the parties would all be back in court having the same or similar arguments over again.

28 So, responsibly and sensibly, in my view, the prosecution have taken a position that bail should not be opposed and that there should be no conditions other than the static residential condition.

29 Thus, for the foregoing reasons, I am satisfied that there are exceptional circumstances that justify a grant of bail. Further, while I am satisfied that there is a substantial risk that, if bailed, Mr Hall will commit a further offence or offences of public drunkenness while on bail, I am not satisfied that that is an unacceptable risk in all of the circumstances.

30 In addition, I agree with counsel's submission that there is no point in imposing conduct conditions of the type imposed previously.

32 Mr Hall will be admitted to bail upon his own undertaking and with the following conditions:

a) Mr Hall is to reside at 3 Henderson Court, Bundoora, in the State of Victoria, which place of residence is to be varied only by order of a court; and

b) Mr Hall is to appear at the Magistrates' Court of Victoria at Melbourne on 28 February 2019 and thereafter as directed by that court.

33 Finally, I note that Ms Lenthall indicated that her client would make an application to vary his earlier bail so as to remove the conduct condition (i.e. the curfew). (Indeed, Mr Hall's counsel on an earlier application in the Magistrates' Court had tried to arrange such an application, but, unfortunately, was unable to do so for reasons that are not presently relevant.) Ms Mahady indicated that her instructions are to support such an application (again, sensibly and responsibly, in my view).

34 While it will be a matter for the Magistrates' Court, in my respectful opinion, it is plain that, for the proper management of Mr Hall in the future, that condition must be removed. If I had the power to do so, I would remove it now. If it is not removed, were Mr Hall to be picked up for public drunkenness again during the curfew period, he would have to show exceptional circumstances in order to be granted bail, which would be likely to engage the court process. Clearly, that would be a silly, wasteful state of affairs.

35 I should add that, given the opinions expressed in the three reports I have read, and having made my own observations of Mr Hall at the bail hearing, not only am I satisfied that it is very unlikely that he is capable of complying with a conduct condition of bail, I also doubt that he has sufficient mental capacity or concentration adequately to understand such a condition for the purposes of entering into in undertaking of bail with such a condition.

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[1] Contrary to s 14 of the Summary Offences Act 1966 (Vic).

[2] Contrary to s 30A(1) of the Bail Act 1977 (Vic).

[3] As I understand it, the reports of Associate Professor Doherty, Dr Cidoni and Professor Mullen were all directed at that particular matter.

[4] See s 4A of the Bail Act 1977 (Vic).

[5] See clause 30 of Schedule 2 of the Bail Act 1977 (Vic).

[6] See clause 3(a) of Schedule 1 of the Bail Act 1977 (Vic).

[7] See ss 4C and 4E of the Bail Act 1977 (Vic).