_B v Police

Supreme Court of the ACT|2008-12-03|Before: Refshauge J

Bail is a matter of balancing the right of a person to liberty as enshrined in s 18 of the Human Rights Act 2004 (ACT), and the legitimate power of the State to restrict that right by keeping in custody people who are charged with committing criminal offences.
That power does not breach the Human Rights Act 2004 (ACT), so long as the decision to detain such people is not arbitrary and is on a ground and in accordance with procedure as established: s 18(2). The Court of Appeal in New Zealand had occasion to consider these issues in the context of the New Zealand Bill of Rights Act 1990 in _B v Police (No._2) [1999] NZCA 205; [2000] 1 NZLR 31. The court said at 34:

These grounds, of course, mirror the provisions of s 22 of the Bail Act 1992 (ACT). In this case the applicant, Paul Blundell, has sought a review of a decision of Mr G Lalor, Magistrate, refusing bail on 31 October 2008. Mr Blundell had been arrested for and charged with two counts of burglary and one count of theft, alleged to have occurred on 30 October 2008, apparently, I am told, during daylight hours.
These offences were alleged to have been committed within less than two months after being released on parole in respect of a sentence imposed on 28 May 2008, for similar offences relating to dishonesty with property, namely receiving stolen property, burglary and theft. Mr Blundell has a long and unenviable criminal record.
He is first recorded as having been before the courts in 1993 for larceny and has been convicted of at least 64 offences of dishonesty with property, together with a number of convictions for assaults, traffic matters, drug offences and other charges such as trespass. All in all he has been before the courts 29 times and spent time in prison for some of these offences.
This is a bad record and insofar as past behaviour is a predictor of future conduct, that record in itself, but particularly when added to it is the fact that Mr Blundell clearly has a problem with the misuse of drugs, would entitle a court to find that Mr Blundell is, if released, likely to commit further offences. I am mindful of what was said by the Full Court of the Federal Court of Australia in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 where Madgwick J said at 174:

It is a wrong to approach to deny a person bail in an effort to eliminate the risk that such a person might commit offences if free to do so. There is no legislative warrant for preventative detention based on a fear that the worst possibility will come to pass. The question posed by the Bail Act is whether the court is satisfied that any risk is sufficient to justify the court denying the accused person a legal right, the right the bail established by s 8

In my view, it is wrong to approach the issue under ss 8(2) and 22(1)(c) on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not: see the explanation by Deane J in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees Union [1979] FCA 85; (1979) 42 FLR 331 at 346-348. If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.

It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.

This approach was approved by the ACT Court of Appeal in Collins v The Queen [2003] ACTCA 17 at 28.

In this case, Mr Blundell has sought to have the decision of the Learned Magistrate reviewed on the basis that he has a job and that he commenced the Methadone Program on 8 November 2008 and that his relationship with his partner will encourage him to remain crime free. The first two of those matters were, it seemed to me, sufficient to justify a reconsideration under s 43 of the Bail Act 1992 (ACT) of the decision to refuse to grant him bail.
I am, however, still required to consider the criteria under s 22 to determine whether bail should be granted.
As I noted, Mr Blundell, has relied really on three grounds:
(1) Employment

This issue has caused the most difficulty. Mr Blundell first produced a letter from Mr David Knott, self described as a sub-contractor to Allied Pickford, which stated that Mr Blundell was "a good hard worker". He added, "due to increasing workload I look forward to Mr Blundell starting back at work". Enquiries revealed that Mr Knott had not worked for Allied Pickford for over 15 months.

Subsequent investigations showed that a Mr Shane MacDonald, who works for that company in its office relocation business, was prepared to have Mr Blundell work with him. The hours were not necessarily full-time. Mr MacDonald is reported to have told the inquiring police officer that "Some weeks Paul can work about 50 - 60 hours and other times he would be lucky to pick up 10 hours". He further stated "He is still happy for Paul to be employed with them and he would welcome him back".
This was followed up with the Branch Manager of the company who stated that, "Mr MacDonald does work in the office relocations, but is contracted by Allied to do the work. Mr MacDonald would hire Paul independently because he is a contractor for Allied Pickfords".
The information is a little mixed and certainly does not offer the regular, steady, full-time work that may be be appropriate to give Mr Blundell the structure that he will need if he is to turn his back on a life of crime which has been fuelled by his drug addiction.

Tendered to me was a letter stating that Mr Blundell commenced on the Methadone Program on 8 November 2008. He also has an appointment with the ACT Health, Alcohol and Drug Program this afternoon. Ms Tessa Oakley-Bowes of that Program stated "Paul has always proved to be very reliable in attending appointments in the past, so I would not anticipate any problems with this".

I note however, that when appearing before Higgins CJ on 28 May 2008, the following exchange occurred;

HIS HONOUR: You ignored your family, you ignored your own prospects for rehabilitation and you went out and committed that crime. Not content with that, of course, you were then released on bail in respect of that, that is, that one lapse, and maybe that could have been overlooked. But having been released on bail, when you were on bail in respect of that matter, you then went out and committed the last burglary and the last theft for which you remain, and have remained, in custody.

HIS HONOUR: What is your excuse for that? You came off the methadone?

THE ACCUSED: I do not really have any excuse, your Honour.

HIS HONOUR: I do not think you do, no, you are quite right. There was no excuse at all. You were on a methadone program, you did not need money to buy drugs, did you?

HIS HONOUR: Again you placed your family at risk by going and committing that further offence.

HIS HONOUR: You have had opportunities before to go to rehabilitation and you have not taken them. Maybe you will in the future. Your counsel urges upon me that you might. However, you have to understand that your offences have been committed in such circumstances and are of such seriousness that they cannot simply be overlooked.

It appears that Mr Blundell has tried a Methadone Program recently and, indeed, it has not worked. That gives me no great confidence that further commitment to the Methadone Program will work in the future, although I am aware that it is necessary to keep trying to manage one's drug addiction and that many efforts with failures are the sorry state of people trying to put crime behind them and to come to terms with their drug addiction.
(3) Relationship

His partner has given him, "one last chance". In a letter tendered to me, she stated, "If Paul is given the opportunity of bail, he has ONE LAST chance to prove that he wants to be a part of our family. If he returns to drug use or crime, he has left me with no choice but to end our relationship for the sake of our two children".

While this is compelling, I have to treat it with some reserve, for the reasons Mr Thomas suggested, namely, that close relationships can make people more forgiving when it actually comes to the decision of parting.
I am also concerned that there are warrants issued from New South Wales for Mr Blundell's arrest. He states that they relate to 2002 matters and it is certainly true that he has been before the New South Wales courts since then and apparently no action has been taken. He has also been in prison in New South Wales since then and no action has been taken.
There is, even in those circumstances, a risk that if released he will be extradited to New South Wales and any regime I implement may be brought undone.
I was told from the Bar table by Mr Thomas, that the warrants, in fact, relate to 2006 matters and therefore the amelioration that is suggested by Mr Blundell and referred to above, does not apply.
That makes it somewhat more problematic for a release on bail. I accept that Mr Blundell wishes to be reformed and get over the drug habit that he has - which he implies has generated his criminality. Certainly he deserves some opportunity. Having regard to all the matters that I have referred to, however, I am not convinced that the grant of bail at this time would be appropriate in all the circumstances.
In my view, a more structured program such as might be offered by a deferred sentence order when Mr Blundell comes actually to face the reality that he must deal with the charges for which he has been charged presently comes to pass. I am told that those charges are supported by strong evidence and if that is so then Mr Blundell should face the prospect that he needs to resolve those issues now and deal with them.
If he can continue with the Methadone Program, continue with counselling at the Belconnen Remand Centre, continue contact with his partner for the period of time that must elapse before he can be dealt with for those offences, then that may well provide a good basis for a deferred sentence order to allow him to show that he has, in a structured way which may require continual review at regular intervals of that situation, a real opportunity to put into practice what he says to me he desires, namely, to reform and to put his drug addiction behind him.
Accordingly the application is dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Zealand Bill of Rights Act 1990

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