s 9C of that Act became law, it was not at all uncommon for persons charged with murder to be granted bail. See, for example, Eastman v the Queen (1997) 76 FCR 9 at 38, Re an application for bail by Kurt [1999] ACTSC 91; (1999) 107 A Crim R 424, R v Yildiz & Yildiz [2002] ACTSC 41 at [12], Re an application for bail by Hillier [2003] ACTSC 50 and R v King [2004] ACTSC 82; (2004) 155 ACTR 55 at 80; [81]. None of these accused, at least, failed to attend to take their trial. In South Australia, bail was granted between 1997 and 2001 in 25 percent of cases where the accused was charged with murder: R v Hallas (2001) 81 SASR 1, 3; [8].

2. The common law provided that bail for persons charged with murder would only be granted in exceptional circumstances. In 1887, Innes J said in R v Borsboom (1887) 4 WN (NSW) 14 at 14-15:

It would require a very exceptional state of things to justify me admitting in the accused to bail when the accused has been charged with murder.

3. Of course at that time murder was a capital offence.

4. The rule has, however, outlasted that punishment: Lim v Gregson [1989] WAR 1 at 13-14. In the Bail Act, however, s 8, as first enacted, provided for a presumption in favour of bail for all except minor offences, where there was a right to bail. As to the right to bail, see R v Boney [2008] ACTSC 30 at [4]. The presumption was noted in Re an application of bail by Hillier at [11]. That changed with the amendment to the Bail Act by the Bail Amendment Act 2004 (ACT) (the 2004 Amending Act) based on the ACT Law Reform Commission, Report on the Laws Relating to Bail, Report No 19 (2001).

5. That Report stated (at [8]) that prominent cases, such as that of David Eastman, resulted in the community feeling as though the law was not adequately protecting them from violence. It is not at all clear what evidence there was on which that feeling was based. Nevertheless, the government was apparently persuaded that a presumption against bail should be introduced for the most serious offences, such as murder, due to the increased risk of absconding, interfering with witnesses, and, to a lesser extent, the risk of harm to other members of the community, and so introduced the amending legislation.

6. The 2004 Amending Act completely restructured Pt II of the principal Act relating to the availability of bail, in particular by introducing s 9C, which provided for presumption against bail in the case of persons accused of murder.

7. That has since been extended. Section 9C now relevantly provides:

(1) This section applies to a person accused of -

(a) murder

(2) A court or authorised officer must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -

(a) for an adult - the matters mentioned in section 22 (Criteria for granting bail to adults)

8. Section 9C largely restores the common law position for such an offence. This was explicitly stated in the Explanatory Statement: Explanatory Statement, Bail Amendment Bill 2003 (ACT). That provision has been the subject of critical examination and comment in Re an application for bail by Islam (2010) 4 ACTLR 235, where Penfold J held that the section was incompatible with the Human Rights Act 2004 (ACT). In response to the declaration of incompatibility made by her Honour, the government proposed amendments to the Bail Act, preceded by a consultation period.

9. It is worth noting that in the government's response of May 2012, the ACT Government said that the amendment would introduce a new test, but that:

[T]he new test in relation to a bail application from a person charged with a relevant offence [including murder] may have little or no substantive effect on the result in consideration of bail applications. It will instead clarify the process for the courts to assess bail applications under section 9C and provide further confidence that it is human rights compliant.

(1) This section applies if a court or authorised officer is required under this part to be satisfied of the existence of special or exceptional circumstances favouring the grant of bail to a person.

(2) A circumstance that would be an applicable bail criteria for the person is not a special or exceptional circumstance only because it is an applicable bail criteria.

(3) Also, the court or authorised officer must consider the applicable bail criteria for the person only after the court or authorised officer is satisfied of the existence of the special or exceptional circumstances.

11. In Re an application of bail by Massey [2008] ACTSC 145 at [8], I found that the meaning of "special and exceptional circumstances" was that where an application was required to disclose special or exceptional circumstances, the applicant had "to establish that there is some unusual or uncommon circumstances which justify the granting of bail and [that] those circumstances must relate to the granting of bail."

12. As noted in s 9C(2), they must favour the grant of bail: See Re an application for bail by Allen [2009] ACTSC 64 at [10]. I also held, following Director of Public Prosecution (Victoria) v Cozzi [2005] VSC 195; (2005) 12 VR 211 at 215, that even were a matter not sufficient in itself to amount to a special or exceptional circumstance, it, in combination with other matters, may, in totality, constitute special or exceptional circumstances.

13. In this case, I have now before me an application by Mr Luigi Costa for bail. Mr Costa has been charged with the murder on 22 July 2012 of Terrence John Freebody. He was committed to this Court for trial on 26 November 2012.

14. At common law, there was some controversy about whether successive bail applications can be made, and in what circumstances. The authorities were carefully analysed by Goldberg J in Cabal v United Mexican States (No 2) [2000] FCA 295; (2000) 171 ALR 305 at 312-6; [22]- [34], where his Honour concluded that there was, in Australia, a right to make successive applications for bail, following the Privy Council's decision in Eshugbayi Eleko v Officer Administrating the Government of Nigeria [1928] AC 459 at 468. As a practical matter, however, following cases such as Re Edwards (1988) 92 FLR 96 at 99, and Director of Public Prosecution v Kanfouche [1992] VicRp 9; [1992] 1 VR 141 at 144-5, it was necessary to show, at least, a change in circumstances since the last application for bail.

15. The question of jurisdiction has now, however, been heavily regulated by the Bail Act, especially following the amendments made by the 2004 Amending Act. Thus, it is now necessary to have regard to s 20B of the Bail Act:

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.

16. The material before me suggested that s 20B did not apply, for I was not asked to review a decision at the Magistrates Court under s 43A, which would in any event have required at least two bail applications before that Court and a review of the latter of those decisions and that requirement does seem to have been met. Thus, the question is whether s 20A applies.

17. Mr Costa has clearly been charged with the offence and was, on 26 November 2012, committed to this Court by the Magistrates Court. Under s 12B of the Bail Act, a proceeding for an offence is before the Supreme Court if, inter alia, the person to whom the proceedings relates has been committed to the Supreme Court for trial. Accordingly, I have jurisdiction to hear the application, subject to the other provisions of the legislation.

18. The statement of facts prepared by police alleges that, on 22 July 2012, Mr Costa invited his neighbours, Mr and Mrs Freebody, to his home for social drinks. They were said to have shared drinks with him before, but he did not know them well. The statement further alleged that Mr and Mrs Freebody came to Mr Costa's residence and they drank together about three or four bottles of wine, although Mr Freebody is said to have consumed only about three glasses of wine, and Mrs Freebody two.

19. As a result of the turn of the conversation, the statement continued, Mrs Freebody left at about 5:05pm and returned home. Shortly after that, police communications received an emergency call from Mr Costa, claiming that he had been the victim of an assault. Police attended his home and, after a brief inspection of the outside, entered through the open front door, announcing their presence.

20. The statement of facts further alleges that they then went into the dining room and found the body of Mr Freebody on the floor with blood pooled around his head. It said that it was evident to police that he was dead, having a deep cut of his throat and a number of other stab wounds. Mr Costa was located and nearby was said to be a knife with what appeared to be blood on the handle. Mr Costa was arrested and returned to the police station.

21. Mr Costa was considered too intoxicated to be interviewed, but was later offered an opportunity to participate in an interview with police, which he declined. He consented to the taking of his fingerprints and samples of saliva for DNA analysis. A bail application was made in the Magistrates Court, but was refused.

22. While in custody, Mr Costa has been the subject of mental-health examination. He has been assessed by clinical psychologist Dr John McMahon. Dr McMahon administered a battery of tests which he helpfully described. I do not need to detail them. He concluded that:

Mr Costa has impaired memory functioning, and this is in the severe range. This may represent a degenerative dementing process, such as in Alzheimer's Dementia, or due to some other inter-cranial pathology, or be purely attributable to alcohol consumption. Further evidence needs to be sought by way of radiological examination to clarify the presence and type of inter-cranial pathology that may account for the neuro-psychological impairment.

...

In my opinion, Mr Costa would have suffered impairment of memory and reduced executive functioning at the material time of the alleged offence, and this may have made him prone to poor planning and judgment, dis-inhibition of behaviour and possibly delirium in the context of alcohol intoxication at the time of the offence.

...

In my opinion, radiological examination is required to further clarify the clinical picture and examine for intracranial pathology that can differentiate the cause of the neuropsychological dysfunction.

In my opinion Mr Costa would benefit from review by gerontologist, neuropsychologist, or neurologist with an interest in dementias, for a review for prescription for anticholinergic-esterase inhibitor-type medication. People with Mr Costa's profile can benefit from a temporary plateauing of their cognitive decline with such medication. With regard to specific medical treatment I defer to the opinion of suitably qualified specialists.

There are no psychological treatments from which Mr Costa may benefit. A repeat neuro-psychological evaluation in 12 months is recommended to track the rate of cognitive decline.

23. He has had a CAT-scan and an MRI, though there were some regrettable and avoidable delays in arranging the latter. The latter did show some inter-cranial pressure. The results of the investigations are to be considered by Dr Stephen Allnutt, forensic psychiatrist, who is to provide assistance to Mr Costa in his defence to the charge. He is also expected to be examined shortly by a gerontologist.

24. The brief of evidence has been provided to Mr Costa's legal representatives, save for the results of forensic science examinations and analyses, and these are expected to be available next month. It does not seem to me that such issues are likely to play a significant role in the trial.

25. I was asked to take into account evidence that had been given before the Magistrate's Court by two psychiatrists, Dr Jorge Castro-Alvear, Consultant Psychiatrist of the AMC Mental Health Service, and Dr Adesina Adesanya, Consultant Psychiatrist of Hyson Green, the private mental health facility at Calvary Hospital. Dr Castro-Alvear had made a referral to Hyson Green for evaluation and, if available, admission of Mr Costa to that facility.

26. Dr Castro-Alvear's evidence was that Mr Costa suffered from dementia. He appeared to have had an evaluation, except for an occupational therapy assessment for activities for daily living, to determine the extent to which Mr Costa is able to live independently and to do so safely. In the letter of referral, Dr Castro-Alvear had said:

The main challenge has been obtaining an occupational therapy assessment to determine his ability to live independently when he returns, and it is not known when this will be at this time. I have been unsuccessful in obtaining such an evaluation while incarcerated, as public sector resources have not accepted our request for evaluation. It is his legal defence's hope that if he were to be admitted to a psychiatric ward, that the court may allow discharge from AMC for the purpose of evaluation and assessment in hospital. From there it would be determined if he may safely return to his home or if he needs to live in an assisted care institution. Once back in the community, public sector resources would then follow up his care.

27. His view was that the biggest risk of aggressive behavioural violence is from a combination of his dementing disorder combined with alcohol. While in the Alexander Maconachie Centre (the AMC) he has, of course, had no access to alcohol, nor would he at Hyson Green. Accordingly, his assessment was that if admitted to Hyson Green, Mr Costa would have a low risk of violent offending behaviour.

28. His view was that Mr Costa could not be properly assessed while at the AMC, but this seemed to be with regard to the occupational therapy assessment and an assessment for independent living. He had sufficient assessment and interaction with Mr Costa to make the relevant diagnosis.

29. Dr Castro-Alvear was asked about whether there was a risk of Mr Costa wandering, as happens with some, but not all, people suffering from dementia, especially at the more advanced stage of the condition. He asserted that there was no evidence of that, but that the custodial conditions under which he is presently held made it a little hard to determine that. It would appear, however, that the dementia is at an early stage and that wandering is not a significant issue at that stage of the condition.

30. Dr Castro-Alvear was questioned also about the cause of the alleged behaviour that led to Mr Costa's arrest and he agreed that it was not possible at this stage to say what that was. In particular, he was not able to say what type of dementia the condition was, as he had not been able to assess his apraxia. He had, however, found him to have memory problems and anomia.

31. The assessment of apraxia, his functionality, however, appears also to assist in determining the severity of the condition, and this was unable to be properly assessed in the AMC. On the other hand, Dr Castro-Alvear did agree that the need for an independent living assessment was based on the assumption that Mr Costa would one day be released from custody and live a normal life in the community, outside of custody. He added that, were he to remain in custody, it would presently be irrelevant though, over time his dementia would progress and he would need to be re-assessed.

32. Although there was some unclarity with his evidence, it did seem to me that, apart from the occupational therapy assessment, Dr Castro-Alvear considered that Dr Allnutt would be able to make his forensic assessment satisfactorily while Mr Costa was at the AMC.

33. Dr Adesanya also gave evidence. His concern for the inadequacy of the assessments made of Mr Costa, at the stage he was giving evidence, was that he had not then had the CAT scan or the MRI, nor the occupational therapy assessment. Of course, the first two have now been completed. All three could be provided at or through Hyson Green.

34. He agreed that Hyson Green was not a secure facility; the wards are not locked and, if a patient insisted on leaving, they could do so. He also spoke of a diagnostic, functional and risk assessment, which appeared to include specific blood tests, collateral information from Mr Costa's family and general practitioner, and observations of him longitudinally in hospital over, it appears, four weeks.

35. This may include a weak mental state examination and an assessment of Mr Costa's day in the wards. This would inform the future management of Mr Costa's condition, including whether he is a danger to himself or to other people and how to make provision for him going forward, especially with regard to his need for support resources, such as nursing homes, and the likelihood of independent living.

36. Dr Adesanya said that observations were undertaken of patients at Hyson Green every 30 minutes, and are not likely to be able to be made more frequently. He also accepted that there was no medication that would cure the dementia, although I note Dr McMahon's comment about medication that would plateau the cognitive degeneration.

37. The evidence, further, was that Mr Costa has substantial property assets. It was not clear from the evidence whether that was intended to suggest that a very substantial sum could realistically be set for bail. It was also said that a "significant surety" was available.

38. In Re an application for bail by Marsh [2013] ACTSC 16, I considered that, in determining whether there are special or exceptional circumstances, the Human Rights Act might require the court to have regard to whether there was a strong case for bail. Accordingly, I proceeded to hear evidence of matters that strictly fell within s 22 of the Bail Act. That section relevantly provides:

(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider -

(a) the likelihood of the person appearing in court in relation to the offence; and

(b) the likelihood of the person, while released on bail -

(i) committing an offence; or

(ii) harassing or endangering the safety or welfare of anyone; or

(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and

(c) the interests of the person.

2 the period that the person may be held in custody if bail is refused and the conditions under which the person would be held

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.

(3) In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including -

(b) the person's character, background and community ties; or

(e) the strength of the evidence against the person.

In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.

39. Mr F J Purnell SC, who appeared, with Mr S Gill, for Mr Costa, adduced evidence that Mr Costa was now 70 years of age and had no prior convictions. Extensive evidence was then given by Detective Senior Constable Kyle Williams of investigations he had carried out of Mr Costa's interactions with a large number of people. None of the investigations had resulted in charges being laid against Mr Costa, except in one instance where, subsequently, the prosecution declined to proceed before the hearing.

40. There had clearly been detailed and comprehensive investigations carried out. It was, of course, not possible for me to assess the credibility of the complainants in respect of the matters raised in that investigation; nor is it appropriate in the particular circumstances to detail or even summarise the substance of the matters. It is sufficient to say that they do raise some questions that would need to be considered carefully if a decision as to bail were to be made, so that it could not be said that a grant of bail would be inevitable and unarguable.

41. Finally, Mr Purnell submitted that the fact that a trial could not, on the present state of the Court's lists, be held before mid-2014, and, possibly, depending in part on the likely length of the trial, until 2015.

42. The first issue is whether there are special or exceptional circumstances relevant to bail and favouring a grant of bail. Mr Purnell relied on the following matters:

1. the need for a more complete medical assessment and the appropriate treatment for Mr Costa;

2. Mr Costa's prior conviction-free criminal record at age 70; and

3. the availability of a substantial surety in the capacity to set bail at a substantial sum.

43. Mr A Williamson, who appeared for the prosecution, submitted that none of these matters individually, nor all of them collectively, amounted to a special or exceptional circumstance.

44. I agree with Mr Williamson that not one of the matters raised by Mr Purnell would, by itself, amount to a special or exceptional circumstance, having regard to the factual context of each. Delay is not merely the passage of time, though the mere passage of time can amount to such unreasonable delay and that may amount to a factor that justifies a grant of bail.

45. In Re an application for bail by Allen at [27]-[28], Penfold J accepted, on the authorities, that an inordinate delay can amount to a special or exceptional circumstance. Her Honour then said (at [39]):

I am not convinced that the need to undertake the normal processes for dealing with a serious criminal charge, and the time taken by those processes in the normal course of events, could properly be described as delay. As long as the work of bringing the matter to trial in a proper way is being done at a reasonable pace, whether by investigating officers, forensic analysts, prosecuting authorities, court officials, magistrates or legal representatives, I cannot see that the matter is being delayed. Nor can I see that a reasonable wait for a court listing after the case is ready to be listed could amount to delay - it is clearly impossible to resource and run a court on the basis that a trial can be scheduled at a few days notice without risking a significant waste of the resources that would need to be kept available at all times in case the demand emerged.

46. Her Honour went further, however, in Re an application for bail by Massey (No 2) [2009] ACTSC 70, where her Honour said (at [50]):

I find that in this case the work of bringing this matter to trial does not seem to be being done at a reasonable pace. The investigation appears to be taking far longer than ought to be required, given the importance of the case and even accepting its complexity. Whether this is because of a shortage of resources, and whether some of the delays are attributable to this matter being one of the first to be dealt with under the new committal processes, does not seem to matter, and there is nothing before me to suggest that these delays are in any sense routine. For whatever reason, Ms Massey is currently being affected by what appear to be excessive or inordinate delays in bringing her case to trial.

47. While the period of time between arrest and trial is relevant to the consideration of delay and inordinate delay can amount to special or exceptional circumstances, I do not consider that the delay here is of such a length. It is not much more than Ms Massey was facing. She was arrested in July 2008 and her trial was estimated at the time of her bail application to be heard in 2010.

48. As to the transfer to Hyson Green, I am not satisfied that the relevant investigations are necessary for a proper defence of Mr Costa, nor that the treatment he would receive there is necessary, as distinct from preferable or of a better standard. There was no indication of what was necessary that was not being provided at the AMC. The assessment for independent living is only necessary if bail is to be granted, and if he is to be released generally into the community. That, in any event, is not what is being sought by Mr Costa.

49. In Re an application for bail by Anderson [2011] ACTSC 121, I considered the issue of a medical condition on a grant of bail. I said (at [7]-[8]):

In addition to the delay or the passage of time before the trial, there are other circumstances on which Mr Anderson relies and on which indeed in my view he is entitled to rely. He has a particular set of medical conditions which are exacerbated while he has been in custody, and I add that I have seen a report to this effect from his treating physician who compared the physical state that he saw him in before his arrest and more recently, showing that there has been some deterioration in his condition in custody.

In the light of the way in which these proceedings have proceeded, it is not necessary for me to make any particular finding about the level of assistance or treatment that Mr Anderson has been receiving in the Alexander Maconachie Centre. I have no reason to believe that the treatment required under the Corrections Health Plan is not being received by Mr Anderson, but nevertheless, the fact is that the circumstances of his medical conditions and the circumstances of his custody are such that the assistance he is receiving is clearly insufficient to address adequately all the circumstances that he is suffering.

50. The evidence in this case, however, is not at all in that category and does not come close to the evidence in that case. That Mr Costa has no criminal record is relevant, but not special or exceptional. It has to be put into a slightly less favourable context, with the complaints which Detective Senior Constable Williams outlined, which, although charges were not laid, were matters of conduct or behaviour that were not irrelevant.

51. It is true that there are not many 70 year old people with no criminal records in custody, but there are enough people who have lived for a long period of time crime-free who commit offences, some quite serious offences, many of whom are well known in the community, such that, of itself, it is not a special or exceptional circumstance.

52. As I said in Re an application for bail by Massey, the availability of a surety is not a special or exceptional circumstance.

53. Thus, as I have said, none of the matters relied on constitute special or exceptional circumstances in and of themselves.

54. It is more difficult to determine whether the combination of these matters is special or exceptional. Having given the matter careful and anxious thought and consideration, I do not consider that the combination of matters comes up to that standard.

55. Indeed, while Mr Costa's mental health is perhaps more impaired than many persons in custody, he was clearly functioning at a reasonable level in the community and there has been no evidence of any specific deterioration or problems while he is in custody.

56. Nevertheless, the combination of factors is in fact a combination that, in its terms and relative degree, are not such that they could be described in the necessary way as unusual or uncommon, such as to amount to special or exceptional circumstances.

57. In my view, there are no special or exceptional circumstances as required by s 9C of the Bail Act 1992 (ACT), and the application must be dismissed.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the defendant: Mr F J Purnell SC and Mr S Gill

Bail Amendment Act 2004(ACT)

Cabal v United Mexican States

At a glance

Court

Decision date

Before

Source

Judgment (111 paragraphs)

In the matter of an application for bail by Costa [2013] ACTSC 15 (21 January 2013)

Parties

Legislation Cited (6)

Cases Cited (6)