In the matter of an application for bail by Shane William Sebbens

CRIMINAL LAW - Bail - Jurisdiction of Supreme Court to hear a bail application - Meaning of "change of circumstances" - Information known to the Applicant but not adduced in a bail application cannot be relied upon as a change of circumstances in a subsequent bail application - Court has no jurisdiction to hear the application - Application for bail refused

Bail Act 1992 (ACT), ss 20, 20A, 20B, 42A, 43A

Bail Amendment Bill 2010 (ACT)

Evidence Act 2011 (ACT), s 4(1)(a)

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

Burton v The Queen (1974) 3 ACTR 77

Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435

Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 107 A Crim R 358

Federated Engine Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268

Minister for Immigration and Multicultural and Indigenous Affairs v B [2000] FCA 930; (2000) 105 FCR 304

Re an Application for Bail by Day [2008] ACTSC 121

Re an Application by JS (also known as JM) [2011] ACTSC 72

Re an Application for Bail by Marsh [2013] ACTSC 16

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

Re an Application for Bail by Seears [2013] ACTSC 187

Re Application for Bail by Holmes [2011] ACTSC 187

Re Application for Bail by Lokevic [2012] ACTSC 37

Re Application for Bail by Mokbel [2002] VSC 127

R v BB [2013] ACTSC 92

R v Kristiansen [2008] ACTSC 83

1. The Bail Act 1992 (ACT) has created significant changes to the law of bail and imposed procedural constraints on applications for bail and, in 2011, further significant amendments were made which imposed further significant restrictions on bail applications. One effect of these changes was to limit substantially the ability of a person in custody to make successive bail applications. This requires applicants now to ensure that, so far as is possible, they make a comprehensive and considered application and not, as persons in custody are understandably wont to do, to make applications as quickly and as often as possible.

2. In this context, Shane William Sebbens, an applicant for bail, has found himself confronted by procedural hurdles which are difficult, if not impossible, to surmount because of the number and nature of the prior applications he has made.

3. On 23 May 2014, police attended at a disturbance at the Northbourne Flats on Forbes Street, Turner, and spoke to the then partner of Mr Sebbens. She told police that she had been punched in the nose by Mr Sebbens. Police arranged for an ambulance to attend to examine her injuries. Police later photographed her injuries.

4. Sometime after that, Mr Sebbens called police, informing them that his partner had hit him with a brick but he was not willing to tell police where he was. He was, however, arrested two days later at his partner's flat at 7:44 am and charged with assault on his partner occasioning her actual bodily harm. He appeared in court the next day. It is not clear to me why he was not put before the court on the day of his arrest. He made a bail application to the court but it was refused. He has remained in custody since then. Mr Sebbens has pleaded not guilty to the charge he is facing and the hearing of the charge has been listed in the Magistrates Court on 14 August 2014. The proceedings are, therefore, to be conducted wholly within the Magistrates Court.

5. He has now made a bail application to me. For jurisdictional reasons, however, I must trace the history of his bail applications. This is because of the requirements placed in the Bail Act on successive bail applications. The relevant provisions are ss 20, 20A, 20B, 42A and 43A of the Bail Act. Those sections are in the following terms:

20 Power in relation to bail - Magistrates Court

(1) The Magistrates Court has power to make a bail order in relation to an accused person only if a proceeding for an offence with which the person is charged -

(a) is, or is about to be brought, before the Magistrates Court; or

(b) is before the Supreme Court, and the following apply:

(i) the Magistrates Court or the Supreme Court has granted bail to the person in the proceeding;

(ii) the person is in custody because the person has been arrested under section 56A (Arrest without warrant of person on bail) and has not been brought before the Supreme Court in relation to the reason for the arrest;

(iii) the day on which the application for bail is made is not a Supreme Court sitting day, and is a day on which a magistrate is sitting in relation to another proceeding before the Magistrates Court.

(2) In this section:

Supreme Court sitting day means a day other than a Saturday, a Sunday or a public holiday.

20A Repeat application for bail - Magistrates Court

(1) This section applies to an application for bail (other than a bail review application) by an accused person in a proceeding if -

(a) the proceeding is one in which the Magistrates Court has power to make a bail order under section 20 (1)(a); and

(b) the accused person has made 2 applications in the Magistrates Court for bail in the proceeding.

(2) The court may only consider a third or subsequent application for bail by the person in the proceeding if the court is satisfied -

(a) that since the last application for bail there has been a change in circumstances relevant to the granting of bail; or

(b) that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.

20B Power in relation to bail - Supreme Court

The Supreme Court has power to make a bail order in relation to an accused person only if -

(a) a proceeding for an offence with which the person is charged is before the Supreme Court; or

(b) if the proceeding is not before the Supreme Court - section 43 (Power of Supreme Court to review - decision of authorised officer) or section 43A (Power of Supreme Court to review - decision of Magistrates Court or Supreme Court) apply.

...

42A Power of Magistrates Court to review - decision of Magistrates Court

The Magistrates Court may, on application under this division,

review any decision of the court (however constituted) in relation to

bail for an accused person, only if -

(a) the court has power to make a bail order under section 20 (1) (a) (Power in relation to bail - Magistrates Court); and

(b) the court is satisfied that the applicant has shown -

(i) a change in circumstances relevant to the granting of bail since the court's decision; or

(ii) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision; and

(c) for an application made by the accused person - the person has made 2 applications for bail in the Magistrates Court in the proceeding to which the bail relates.

...

43A Power of Supreme Court to review - decision of Magistrates Court or Supreme Court

(1) This section applies if a decision in relation to bail for an accused person has been made by -

(a) the Magistrates Court in accordance with section 42A (Power of Magistrates Court to review - decision of Magistrates Court); or

(b) the Supreme Court.

(2) The Supreme Court may, on application under this division, review the decision of the court, only if the court is satisfied that the applicant has shown -

(a) a change in circumstances relevant to the granting of bail since the court's decision; or

(b) the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision.

6. The effect of these provisions may be summarised as follows:

1. For proceedings where the person charged is before the Magistrates Court, he or she may apply for bail.

2. An applicant for such bail may make two applications without restriction.

3. Such an applicant, however, may make a third or subsequent application but the Magistrates Court can only consider it if:

(a) there has been a relevant change in circumstances since the last application for bail, or

(b) there is fresh evidence or information that was unavailable at the last application for bail.

I refer to these two restrictions as "variation conditions".

4. The Magistrates Court may conduct a review of a bail decision by that Court but only if the variation conditions are met and the applicant has made two prior applications for bail.

5. Such an applicant may seek a review of a bail decision of the Magistrates Court by the Supreme Court only if the Magistrates Court has conducted a review of a bail decision of that court and even if such a review resulted in a refusal to review. See Re Application for Bail by Lokevic [2012] ACTSC 37.

6. The Supreme Court has only jurisdiction to review a decision as to bail where the matter is before the Magistrates Court if the variation conditions are met and may not otherwise make an independent decision as to bail.

7. Turning to the present case, I note that Mr Sebbens made what, in the affidavit of his solicitor, were referred to as "applications for bail" in the Magistrates Court on 26 and 30 May 2014 and 24 June 2014. The Bail Act does not provide any helpful criteria, procedural or substantive, to distinguish between the hearing of a subsequent application for bail or a review of a bail decision. As Burns J pointed out in Re Application for Bail by Holmes [2011] ACTSC 187, whether an application is a third or subsequent application for bail (see s 20A of the Bail Act) or an application for a review of a bail decision (see s 42A of the Bail Act) may be difficult to identify.

practitioners take care to identify to the Magistrates Court the nature of any application concerning bail made to the court. Magistrates should also take care to enter onto the bench sheet as the record of the court the legal nature of the application.

9. Failure to do so may mean that the jurisdiction of the Supreme Court under s 20B of the Bail Act cannot be satisfactorily ascertained and may lead the Supreme Court to decline to accept jurisdiction.

10. Despite the unhelpful description of the hearing in relation to bail on 24 June 2014, as an "application for bail" with no reference to a review as to section 42A of the Bail Act, counsel for the respondent did not object to jurisdiction on that account. The consent of the parties cannot confer jurisdiction on a court, as Rares J pointed out in Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 at 290-1; [92]. A concession about jurisdiction will not bind a court: Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 at 231; [196]. Since without jurisdiction the court has no authority to decide or adjudicate on the application (see Minister for Immigration and Multicultural and Indigenous Affairs v B [2000] FCA 930; (2000) 105 FCR 304, it is of central importance that a court has and can be clear that it has jurisdiction before embarking on the hearing and determination of a matter.

11. I accept that the third hearing in the Magistrates Court was a review. Counsel for the respondent did not take the point before me, despite vigorously contesting the application, including on a jurisdictional ground.

12. His office, the Office of the ACT Director of Public Prosecutions, was present at the third hearing. Earlier applications in this court were heard by Master Mossop, who has had considerable experience as a magistrate and who would have been aware of the processes in that Court. The most relevant and decisive piece of information, however, was found by me on the court file, but not in papers for this application. This was a copy of the bench sheet from the Magistrates Court which showed the annotation by the learned chief magistrate on 24 June 2014 as "BAF/BO-review sought", which I interpret as "bail applied for/bail opposed - review sought".

13. In the circumstances, I consider that it was appropriate to look at this information since neither party was prejudiced and it was important for me to confirm my jurisdiction, even though, as the issue was not contested, "very slight inquiry" may be adequate. See Federated Engine Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398.

14. Applicants should, however, be aware that the issue is not one that can be ignored and that it will not be sufficient merely to point to three occasions when the Magistrates Court has considered the issue of bail where it cannot be shown that the third occasion is a review under s 42A of the Bail Act and not merely a third application as to bail as contemplated by s 20A of that Act.

15. The next jurisdictional issue, however, about which there was fierce contest between the parties, concerned the variation conditions. The history of the proceedings is very relevant to this.

16. On 1 July 2014, Mr Sebbens made his own application for bail to this Court and it was, as noted above, heard by Master Mossop. Mr Sebbens was, however, represented at the hearing. His Honour dismissed the application, as he held that the evidence given orally by Mr Sebbens' daughter was not "fresh evidence or information" as required to entitle the court to hear the application. Mr Sebbens then made his own further application returnable on 11 July 2014. It was again heard by Master Mossop. He was again represented at the hearing.

17. In this most recent application, Mr Sebbens asserted that the change in circumstances was that he had "a change of address", and had a surety available to him. By "change of address" it appears that it was meant that his son was prepared to have him live with him, whereas previously his accommodation was uncertain. The availability of a surety not previously available has been considered as a change in circumstances relevant to bail. See, for example, Re an Application for Bail by Day [2008] ACTSC 121. I would be satisfied that a satisfactory place of residence where such a residence was not previously available would also be a relevant change in circumstances.

18. That application, however, was also dismissed. The circumstances are set out in the affidavit of the lawyer for Mr Sebbens as follows

On 11 July 2014, Master Mossop determined that there was no evidence before the court constituting a "change of circumstances" pursuant to s 43(2)(a) [of the ] Bail Act. On that application the applicant sought to rely on the fact that his son ... was able to provide him with accommodation to live in. There was no evidence before the court of that fact as no affidavit had been filed and [Mr Sebbens' son] was unable to attend court due to work commitments. An application to adjourn the bail application in order to obtain that evidence was refused.

19. I did not have a copy of the transcript of the reasons for his Honour's decision, but a detailed note of the bench sheet was as follows

The solicitor for the applicant made an application to adjourn the bail application so that evidence could be provided but, in the view of [his Honour], this was not an appropriate course. Applications for bail need to proceed in an orderly manner. It is not appropriate, in [his Honour's] view, for partied to test the waters of the Court as to whether or not various thresholds of evidentiary matters are satisfied and then, having received an adverse ruling, seeking to have the matter adjourned so that these issues can be addressed.

As a consequence, the threshold in s 43A(2) of the Bail Act 1992 is not met and the application for bail must be dismissed.

20. In this regard I note that there has been a change to the regime for hearing bail applications with the enactment of the Evidence Act 2011 (ACT) whereby under s 4(1)(a), the evidentiary rules of that Act are made to apply to proceedings that relate to bail and there is no exemption as I have described in Re an Application for Bail by Merritt (No 2) [2010] ACTSC 7 at [41].

21. In the application to me, Mr Sebbens relied on the same two matters that had been relied on before Master Mossop on 11 July 2014, commenting that they met the variation conditions; that is, he relied on the offer of a surety and the offer of a residence. On this occasion, however, those matters were set out in an affidavit of the son of Mr Sebbens who was the person offering to undertake the responsibility of a surety and to provide accommodation for his father. He was, however, the person who had been prepared to offer these matters on the occasion before Master Mossop.

22. The question then was whether the matters now met the variation conditions. The respondent, represented by Mr M Thomas, submitted that they did not because one or more of the following:

(a) they did not address the issue of re-offending which had been the reason why bail had previously been refused;

(b) they did not constitute a change in circumstances since the last application for bail; namely, that before Master Mossop on 11 July 2014;

(c) the affidavit only contained evidence that had been available at the date of the last application for bail.

23. As to the first issue, I reject the inferred requirement that the change in circumstances or fresh evidence or information required by the variation conditions must address the reason or reasons given by the Court when earlier refusing bail. The consideration of whether to grant bail requires a balance of a number of factors, including the right to liberty referred to and protected by s 18 of the Human Rights Act 2004 (ACT). A factor in favour of the grant of bail may well outweigh another factor against the grant of bail, notwithstanding that it does not negate that issue.

24. For example, where bail has been refused because of, inter alia, a risk that the applicant may commit further offences, it may later, nevertheless, be proper to grant bail where there has been a delay by the prosecution in progressing the proceedings such that the period during which the applicant has been in custody well exceeds any sentence that could reasonably be imposed on the applicant were he to be convicted of the evidence in respect of which bail has been refused. That appears to me to be so notwithstanding that that delay would not undermine or answer the risk of re-offending.

25. As to the second issue, Mr H Jorgensen who appeared for Mr Sebbens, submitted that a liberal interpretation of the variations conditions was required. That may be so under s 30 of the Human Rights Act because of the right to liberty expressly protected by that Act. See R v Kristiansen [2008] ACTSC 83 at [20] and Re an Application for Bail by Marsh [2013] ACTSC 16 at [20]. Such an interpretation could lead to the result that a change in circumstances not able to be adduced at the last bail application would not be precluded from being raised subsequently. That would have the attraction, too, that a change in circumstances which, as at the last bail application, was not known to the applicant, could be a matter on which the applicant could subsequently rely, even if it occurred prior to the last application.

26. For example, if a complainant had moved interstate so that she was unlikely to be subject to any interference or risk from the applicant but had, unknown to the applicant, done so prior to the last application, it would seem very unfair to deny the applicant the opportunity to rely on that change in circumstances. Although there is some attraction to that approach, I do not accept it. The terms of the provision are very clear. This hard case that I have hypothesised would not necessarily be such an unfairness, for the information that the complainant had moved interstate could properly be introduced under the second limb of the variations conditions, namely, as fresh information unavailable as at the last decision. That is to say, the information should be unavailable to the applicant, not necessarily be of a fact that had not then happened.

27. Alternatively, it may be that the change in circumstances should be read as a change in circumstances known to or reasonably ascertainable by the applicant. I do not, however, need to consider that construction, for Mr Sebbens clearly knew at 11 July 2014 that these changes in circumstances, which indeed he'd put forward, had been made at the date of the application on 11 July 2014. That they were not admitted or admissible in that application does not seem to me to negate the fact that they were not changes which temporally occurred after the last court consideration of his bail.

28. This interpretation is supported by the explanatory statement for the Bail Amendment Bill 2010 (ACT) which became the Bail Amendment Act 2011 (ACT) and which introduced the relevant provisions. In respect of the first limb, the explanatory statement referred to what Kellam J had said in Re Application for Bail by Mokbel [2002] VSC 127 at [39], where his Honour said:

The applicant must satisfy the court that new facts or circumstances have arisen since the making of the previous order before the court may proceed to hear the application.

29. That makes it clear that it is the fact that the changes have occurred or been made at a time after the earlier application that is relevant. Accordingly, I do not think that these matters meet the second issue, the first limb of the variation conditions.

30. As to the third issue, that is the second limb of the variation conditions, Mr Jorgensen submitted that, as the evidence of the son of Mr Sebbens had not been admitted in the hearing, presumably because of the informal way it was asserted, namely, from the bar table, it was unavailable within the meaning of the second limb of the variation conditions. The evidence or information, however, was available because it was rejected by the court.

31. It is said further that because Mr Sebbens' son was at work and could not attend Court, that made the evidence unavailable. The difficulty with that submission is to be seen in the current application where an affidavit by the son has been filed. This would, in these circumstances, be the way to meet the suggested unavailability of the evidence. There was no explanation as to why an affidavit could not then have been used for the relevant information on 11 July 2014. While I do not consider that the second limb of the variation conditions should be interpreted in the somewhat strict way as "fresh evidence" is interpreted by the High Court in Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435 at 444-5, it does not seem to me that unavailability encompasses evidence or information that was not able to be adduced for such reasons as this.

32. It does not seem to me that it included evidence that was available to the applicant but simply not adduced, whether by choice or by court order. Again, the explanatory statement to which I have referred above (at [28]) is relevant. It refers to the general purpose of the 2011 amendments when it states, inter alia:

First applications for bail by accused people are frequently made at the initial appearance following arrest. This provides limited opportunity to properly prepare the application and gather all the available supporting evidence that could lead the Magistrates Court to conclude that bail should be granted. The result is that the application is properly refused by the Magistrate.

Further applications for the granting of bail in contrast made at a point when further relevant evidence in support is available and provide an accused person with the best possible case for bail.

33. It is clearly contemplated that the proper preparation for bail applications is to be encouraged and the relevant and available evidence be made properly available though it allows an applicant one chance first without having to do so.

34. In my view, it would be inconsistent with the approach of the Act and the amendments to suggest that evidence or information, of which the applicant was aware but which for reasons such as choice or failure to use available procedures is not adduced, is not unavailable evidence or information. Accordingly, Mr Sebbens has not met the variation conditions and, in my view, this Court has no jurisdiction to hear the application.

35. I did, however, hear evidence and argument on the application in the event that I found I had jurisdiction, and so should direct some short remarks to that.

36. The principal ground of objection to bail was that there was a risk that Mr Sebbens would re-offend. This is a ground that must be treated with care, for, as Gyles J, with whom Whitlam and Madgwick JJ agreed, said in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 107 A Crim R 358 at 374; [56]

... refusal of bail upon the basis of [protection of the community, including the likelihood of committing further offences] alone is tantamount to preventive 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 or speculation. Discussion of this matter in terms of risk is calculated to encourage that basis.

37. This is an approach that has been followed many times in this jurisdiction. See Re an Application for Bail by Seears [2013] ACTSC 187. Nevertheless, there were here proper grounds for such a submission. The criminal record of Mr Sebbens shows that he has been found guilty of assaulting the present complainant on a prior occasion.

38. He also has, though, as Mr Jorgensen properly points out, nearly ten years ago, a conviction for assault occasioning actual bodily harm on a previous partner. He also has two convictions for breaching apprehended violence orders and convictions for assaulting a female in 1987. He has five convictions for assault and one earlier conviction for assault occasioning actual bodily harm. The record justifiably raises real concerns about the likely behaviour of Mr Sebbens were he to be granted bail. I do not need to analyse these convictions in detail and have not done so. The complainant has also tried to withdraw her complaint, which makes her particularly vulnerable at this time.

39. In my view, there may well have been sufficient grounds on this basis for refusal of bail, but the ground would have to be considered more carefully than I have had the opportunity to do. I note further that the hearing of the charge on which Mr Sebbens has been refused bail is listed for hearing on 14 August 2014. Though that is nearly three weeks away it is a relevant factor. While it clearly does not come within the time frame that was dealt with by Fox J in Burton v The Queen (1974) 3 ACTR 77 at 79, where it was possible that the charge there could be heard within a week, it remains relevant.

40. His Honour, in fact, considered that if the charge was not heard within the week, a further application could be made. See also R v BB [2013] ACTSC 92 at [19]. Nevertheless, as I have said, the proximity of the hearing is a relevant matter.

41. I accept that a surety is available, but a surety is simply a guarantee that Mr Sebbens will attend to take his trial. See Re an Application by JS (also known as JM) [2011] ACTSC 72 at [11]. It may well deal with the likelihood of absconding that the proximity of the hearing date may raise for concern. A surety, however, has no responsibility for the behaviour of the applicant otherwise, and in particular, no responsibility for the applicant's compliance with bail conditions, as I have set out in Re an Application by JS.

42. In any event, it is clear that the proposed surety has significant work obligations which prevented his prior attendance at court and which could be of limited value in restraining any conduct by Mr Sebbens.

43. It was also put that the proposed residence was at Red Hill which is some distance from Turner where the complainant lives. While not a very great distance, I accept that such a separation would have some reasonable constraint on Mr Sebbens approaching the complainant physically.

44. In all the circumstances, it seems to me that the bail application may well have not succeeded even if I had jurisdiction to entertain it, which, in the circumstances, I do not, but I do not express any final view on that bail application. As I found that I do not have jurisdiction, the application is dismissed.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.