DPP v Yeaman [2025] ACTSC 338

1. Julian Leslie Yeaman has made an application for bail following being remanded in custody since 2 August 2022, almost three years. That is a long time to be held in custody on remand. It calls for some explanation.

2. There are four proceedings travelling through the court and two in the Magistrates Court. They deal with a number of outstanding charges, including two charges of an act of indecency, one of assault occasioning actual bodily harm, one of breach of a family violence order, two charges of aggravated threat to kill, two charges of arson and one charge of assaulting a frontline community service provider.

3. Two of those proceedings were heard by Taylor J in 2024 in a judge alone trial. They concern whether the court should make a finding of not guilty by reason of mental impairment. It is not disputed that the accused has schizophrenia. Judgment has not yet been delivered because it is awaiting a further two matters that are listed for hearing before Taylor J in September 2025 with the same issue under consideration in relation to different offences. The accused has pleaded not guilty in respect of those matters and the parties do not appear to have sought expedition in relation to that hearing date, notwithstanding the lengthy time this accused has spent in custody on remand.

Previous applications for bail in the Supreme Court

4. There are two previous applications for bail in the Supreme Court, each of which was unsuccessful. The first was heard by Loukas-Karlsson J on 24 March 2023. The second was heard more recently by Elkaim AJ on 30 June 2025.

5. The present application is affected by those previous applications because of s 20C of the Bail Act 1992 (ACT) (Bail Act). The relevant part of that provision is s 20C(2), which applies where an application for bail has previously been made in the Supreme Court: (2) The court may only consider a further application for bail (other than a bail review application) 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.

6. As stated by McCallum CJ in R v Ezekiel [2022] ACTSC 98 (Ezekiel) at [3]: … The test established by s 20C poses a relatively low bar. The fresh evidence or change of circumstances does not have to be such as to warrant a grant of bail, but only “relevant to the granting of bail” or “of relevance to the granting of bail”.

7. However, it is important that the threshold to assuming jurisdiction is not so low as to amount effectively to ignoring the statutory restriction but nor so high that the requirement to construe the legislation consistently with the Human Rights Act 2004 (ACT) cannot be met: R v Rubino [2012] ACTSC 157 (Rubino) at [17]-[24]. In Rubino, Refshauge J discussed the approach, stating at [20]-[21]: 20․ It is clear, of course, that the change of circumstances has to be a relevant change in relevant circumstances as so described by Roberts-Smith J in Pinkstone (2000) 119 A Crim R 462 at 464; [15]. In Edwards (1988) 35 A Crim R 465, McPherson J had to consider a similar provision and what was required, and said (at 471): A persuasive and satisfying case is ... required, and not one in which the differences disclosed by the additional material go only to matters of mere detail, or to considerations which, although not previously raised, would not have been likely to alter the balance to one favouring the grant of bail. 21․ That approach was followed by White AUJ in Musarri v The Queen [2001] WASC 200 at [12], where his Honour said: Accordingly, I hold that the matters raised [in the equivalent to section 20C of the Bail Act] in order to enliven the jurisdiction ... be matters that would have been likely, if known to the judge who previously refused bail, to alter the balance in favour of bail.

8. The accused relied on both limbs of s 20C and their arguments are considered below.

9. The Director of Public Prosecutions (Director) submitted that nothing that had been raised by the accused was properly characterised as constituting a change in circumstances relevant to the granting of bail, or fresh evidence relevant to the grant of bail that was unavailable at the last application for bail in June 2025. To the extent that there was any additional information that might be categorised as fresh evidence or information, such matters were not of relevance to the granting of bail.

10. This application was heard on a duty basis, with the accused self-represented on this occasion. It transpired that there was no transcript of the previous bail applications before the court. I indicated to the accused that the court would reserve judgment so as to obtain the transcript of at least the most recent bail application, in order to properly consider the accused’s argument and see whether any part of the application overcame the threshold stipulated in s 20C.

Serious offence charged while charge for another serious offence is pending

11. In the event that the accused’s circumstances met the threshold in s 20C, there is a further hurdle for the accused, arising from the fact that they have been charged with further offences while in custody.

12. Section 9D of the Bail Act applies where a person is accused of a serious offence and is alleged to have committed that offence while a charge against the person for another serious offence is pending or outstanding: s 9D(1). A “serious offence” is defined: serious offence means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900 …)

13. In the present case, the accused is accused of, among other things, an aggravated threat to kill which is an offence punishable by imprisonment of up to 25 years, and while in custody, further charges have been laid involving arson, which is an offence punishable by imprisonment for up to 15 years.

14. It is thus not controversial that this additional hurdle must be overcome. What constitutes “special or exceptional circumstances” has been considered in cases such as Bail by Massey [2008] ACTSC 145 at [7]-[8] and R v Cockburn [2015] ACTSC 297 at [23].

15. The court generally considers whether the circumstances are in some way unusual or uncommon, either by themselves or in combination. They do not need to be unique or rare, and they can include having regard to the circumstances in which an accused is detained, as DPP v Alexander (a pseudonym) [2024] ACTSC 161 at [74] demonstrates.

16. Ordinarily, family hardship will rarely amount to special or exceptional circumstances: Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 (Sherd) at [67]. In Director of Public Prosecutions v Waverly (a pseudonym) [2022] ACTSC 329 at [17], Kennett J made the point that an inability to support one’s family (I interpolate, whether that be financial or otherwise) is an almost inevitable consequence of being remanded in custody, which the legislature must have had in contemplation when enacting the Bail Act. His Honour went on to state that illness of a relative is also a far from uncommon experience although the desire of an accused to support their family was understandable.

17. It may well be that family or personal hardship could tip the balance and justify bail if other considerations are finely balanced: Sherd at [68].

18. The court looks to the circumstances that exist at the time the court is considering the application for bail: DPP v Hiscox [2025] ACTSC 17 at [11].

19. Here, the accused submitted that their stepfather was very unwell and living in an aged care home in Canberra. They were close to their stepfather and did not know how much time their stepfather had left. They wanted to spend time with their stepfather doing things they know their stepfather likes to do.

20. In addition, they stated that their own father was very unwell and had just had a transient ischemic attack (TIA). Their father was caring for their stepmother, who was wheelchair bound. They feel that they need to help out with their family. The accused explained that they were not aware of their father having a TIA and that this had only happened in the past couple of days. Accordingly, this represented a change of circumstances.

21. They alleged other conduct that has occurred to them in prison, which they did report but did not ultimately pursue. It is unnecessary for the purposes of this judgment to go into the detail of those matters.

22. The accused explained that they accept that they have a mental illness, being schizophrenia, but felt that they were in positive mental health at the moment.

23. An equally important reason why the accused was seeking bail was because they are in the process of transitioning while in custody from identifying as a male to identifying as a female. They were about to commence hormone replacement therapy and will be pursuing medical transition further. They had received a recommendation that the process of transitioning occur not in prison, as those circumstances can adversely affect the outcome of the transition’s success. Understandably, they wanted a full opportunity to transition with the best care they could receive. This latest medical advice was also said to constitute a change in circumstances.

24. They also mentioned that they are currently enrolled in a double degree in business and IT and cannot complete this while in custody due to operational factors outside their control.

25. Further material was available in the event that the statutory thresholds discussed above were overcome and the accused did make other submissions about where they would live and other matters associated with the s 22 considerations of the Bail Act. However, I indicated to the accused that I would take the bail application in two stages, and that further material would be accepted if the court reached a stage where consideration of the matters identified in s 22 of the Bail Act became appropriate.

26. As indicated above, the Director’s position was that all of these matters were raised before the court in June 2025. Elkaim AJ did not consider there to be special or exceptional circumstances under s 9D.

27. Having read the transcript of the hearing that occurred before Elkaim AJ, I am satisfied that the majority of the matters upon which the present application was based were properly before the court and were thus not changed circumstances, as opposed to being additional detail in relation to an issue that was previously raised.

28. I accept that the evidence of a down-turn in the health of the accused’s father may be a change of circumstances, in terms of evidence that was not before the court on the last occasion. However, from the information provided and applying the principles above in relation to health matters of family members, this is not a case where the additional information is a matter that is relevant to the grant of bail in the sense of being likely to alter the balance. But even if the ill health of family members combined with the updated medical position on the accused’s decision to transition were considered under the lower threshold articulated in Ezekiel so as to constitute a change in circumstances, these matters do not, either individually or cumulatively, amount to special or exceptional circumstances. Even accepting that the desire to transition while in custody is an uncommon occurrence, it is not the case that the option is unavailable in custody. It is more that the preference would be for the process to occur in the community. The disparity between medical services available and likely better outcomes in the community versus those available in a custodial setting is, regrettably, a common experience.

29. In relation to the accused’s family members, this is not a case where the accused is the only support person for their father or stepfather, nor did the evidence establish that this was a case where there was any suggestion that the accused’s father or stepfather was in fact close to death. Rather, they are generally in poor health. The material and submissions before the court did not establish a particular need for this accused to be involved, and even having regard to the other circumstances already mentioned, I am not persuaded that the personal hardship or family hardship falls into the category where I could fairly say that the circumstances of the accused were special or exceptional, either individually or cumulatively.

30. Accordingly, as the statutory thresholds have not been overcome, there is no discretion available to the court and I must not consider the application.

Conclusion

31. For the above reasons, the order of the Court is as follows:

(1) The application for bail is dismissed. I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: