In the matter of an application for bail by Allen [2009] ACTSC 64 (28 May 2009)

4. Early in the hearing before me, possible "significant changes in circumstances" since Mr Allen's unsuccessful bail application in the Magistrates Court were canvassed, including the delivery of some or all of the prosecution brief, the upgrading of the charges, the assault on Mr Allen while in custody, and changes to committal processes in the ACT. At a later stage of the proceedings it was put in passing that this was Mr Allen's first bail application since he had been charged with attempted murder and that therefore s 19(5) of the Bail Act was irrelevant; since the charge of attempted murder was laid after the bail application was made, this claim seems problematic in any event, and since the matter was not argued, I make no finding about whether this suggestion was correct either as a matter of law or as a matter of fact.

5. Most of the other identified changes in Mr Allen's circumstances had also happened after the bail application was initially lodged, but the question whether a bail application can be lodged in anticipation of relevant changes in circumstances was not argued before me, and counsel for the DPP did not oppose the court dealing with the application. In the event, the evidence called, and the submissions made, focussed on the question of special and exceptional circumstances for s 9C of the Bail Act, and I made my findings about special or exceptional circumstances without making any formal findings about the preliminary jurisdictional hurdle.

6. It is not clear to me whether the reference in s 19(5)(b) of the Bail Act to changes in circumstances "since the most recent application to a court for bail" requires the court to look at the date the application was made or the date it was disposed of by the court. This question, usually unimportant for a bail application which is resolved quickly but possibly significant in relation to an application that has taken some months to finalise, may arise for decision on another occasion. However, the uncertain operation of that reference in such a case raises the question whether it might be in the best interests of an applicant who has made a premature bail application to withdraw the application rather than having it adjourned until it seems that a credible case can be made for the grant of bail.

7. Because Mr Allen has now been charged with, among other things, attempted murder, his application was subject to the presumption against bail set out in s 9C of the Bail Act. An initial submission on Mr Allen's behalf that s 9C did not apply to charges of attempted murder (as distinct from charges of murder) was abandoned having regard to the note to s 9C(1) of that Act.

8. Where s 9C applies, the court must not grant bail unless satisfied "that special or exceptional circumstances exist favouring the grant of bail". Only when such circumstances have been established is the court permitted to consider the criteria for granting bail set out in s 22 of the Bail Act (see s 9G(3)).

9. As to the general meaning of special or exceptional circumstances, I respectfully adopt the remarks of Refshauge J in In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (19 December 2008), who said at [7] and [8]:

The term "special or exceptional circumstances" has not been defined in the Bail Act. It is, however, a phrase commonly used in relation to bail. In DPP v Tang (1995) 83 A Crim R 593, Beach J said (at 596):

'Exceptional' is a word commonly used in legislation. One definition of it in the New Shorter Oxford English Dictionary is: 'Of the nature of or forming an exception, unusual, out of the ordinary, special' (see vol 1, p 872). Webster's Dictionary contains the following definition: 'Relating to or forming an exception, out of the ordinary course, unusual, uncommon, extraordinary'. In my opinion, it does not matter which of those definitions one chooses to adopt. I consider it was the clear intention of the legislature that any person charged with an offence falling within the provisions of s 4(2)(aa) bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail.

That is to say, the applicant has, in my view, to establish that there is some unusual or uncommon circumstances [sic] which justify the granting of bail and those circumstances must relate to the granting of bail.

10. I would add to Refshauge J's comments the point that under s 9C of the Bail Act, the unusual or uncommon circumstances must not just relate to the granting of bail but must in fact favour the granting of bail.

11. The matters pointed to in this application as amounting to special or exceptional circumstances were:

12. A third matter was raised initially, relating to injuries sustained by Mr Allen in the Belconnen Remand Centre and the particular difficulties caused to Mr Allen by those injuries during any continued incarceration, but after one of the adjournments counsel for the applicant conceded that the medical evidence he had been hoping to tender would not be available, and accordingly this possibly special or exceptional circumstance was not pressed.

13. The question then was whether the weakness of the prosecution case, or likely delays before Mr Allen comes to trial, could be established and, if established, whether those matters, either alone or in combination, constituted special or exceptional circumstances favouring the granting of bail for the purposes of s 9C of the Bail Act, so as to permit me to move on to a consideration of the s 22 criteria for granting bail.

14. Apart from a doctor's letter about the assault on Mr Allen, evidence in the application consisted of evidence given by the police informant responsible for the charges against Mr Allen, a number of witness statements, including from the complainants, and recordings and transcripts of several phone calls between Mr Allen and his alleged co-offender. These phone calls had been made from the Belconnen Remand Centre and recorded in accordance with usual practice and as advised to inmates at the beginning of each phone call.

15. In submissions on this matter, counsel referred only to the charge of attempted murder, and I agree with the implicit assumption that since in this case only the charge of attempted murder gives rise to a requirement to show special or exceptional circumstances before bail can be considered, only the strength or weakness of that charge could be relevant in this immediate context.

16. The assessment of the strength or weakness of the case in respect of attempted murder was complicated by some uncertainty about the part of the incident to which the charge related. The understanding of the informant given in evidence, and the view of the Director of Public Prosecutions (DPP) advised to the court by counsel for the DPP, did not seem to be the same.

17. The incident from which all the charges faced by Mr Allen arose involved a confrontation between Mr Allen and two other men, Mr Elliott and Mr McKinnon (the complainants), parts of which also involved, or were witnessed by, other people including associates of Mr Allen. The first part of the confrontation took place in and around two vehicles, one occupied by the complainants and the other belonging to Mr Allen. Mr Allen allegedly attacked both the complainants while they sat in their vehicle. At a later point, Mr Allen allegedly chased Mr McKinnon along the street and again attacked him.

18. The police informant gave evidence that he understood the second alleged attack on Mr McKinnon to be the basis of the attempted murder charge, while counsel for the DPP indicated that the basis of that charge was in fact the alleged attack on Mr McKinnon while he was in the vehicle. This discrepancy might suggest that neither of the two attacks was a glaringly obvious basis for a charge of attempted murder, but equally it could suggest that they both were. I do not think any inferences useful to the applicant can be drawn from the apparent confusion.

19. In seeking to establish the weakness of the prosecution case on this charge, counsel raised two matters. He questioned whether the complainants' evidence would be believed, and also whether the charge could be made out even if the complainants' evidence were believed.

20. As to whether the complainants' evidence would be believed, counsel challenged the reliability of the complainants, pointing to several parts of their witness statements that he suggested were inherently unbelievable, and emphasising aspects of those statements suggesting that the incident from which all the charges arose may have started with criminal activity by the complainants for which, it seems, they have not yet been charged. Having regard to the complainants' witness statements, it seems likely they were engaged in criminal activity, and the failure to charge them might raise questions. However, neither of these matters seems to be directly relevant to whether their evidence is likely to be believed in Mr Allen's trial.

21. Some parts of the complainants' statements may be inherently unbelievable, as suggested by counsel for Mr Allen, but there is nothing inherently unbelievable about their accounts of the attacks to which Mr Allen's charges relate. If anything, those who engage in criminal behaviour may be more at risk of attack than other members of the community - certainly their criminal behaviour does not render an attack on them inherently less likely. When they are attacked, they retain the same right to the protection of the authorities as any law-abiding member of the community (apart from anything else, a violent attack on any member of the community is a threat to the whole community, whoever the victim). Thus, a suggestion that the victim of an alleged attack was himself engaged in a different kind of criminal activity does not render his report of the attack inherently less believable. Equally, possible incongruities in the exercise of the prosecutorial discretion do not as such cast doubt upon the strength of any particular case that is pursued in the exercise of that discretion.

22. It is true that these matters, in particular the implication that the complainants have not told the truth about other elements of the incident because of the light it would shed on their own activities, may, at a trial, be raised as part of a larger challenge to the credibility of the complainants. However, there were other witnesses to several parts of the incident, and even noting the risks relating to the complainants' evidence, it is impossible to say at this stage that the prosecution will struggle to have its version of events accepted, or that the case is fairly weak.

23. The charge of attempted murder as advised by counsel for the DPP relates to the alleged stabbing of Mr McKinnon as he sat in the passenger seat of Mr Elliott's vehicle. It seems that no significant stab wounds were inflicted, but Mr McKinnon suffered a cut to the webbing of his hand which he claims was caused when he grabbed and held onto the knife with which Mr Allen was trying to stab him.

24. I accept that Mr McKinnon's descriptions of the attack on him do not convey a particularly dramatic picture of an encounter with a murderous assailant. On the other hand, the fact that no serious injury was inflicted does not render it impossible that the attack could amount to attempted murder. Counsel for Mr Allen did not point to any element of the offence charged that is apparently missing from the accounts of the attack on Mr McKinnon, and nor is the case only circumstantial.

25. It is, as already discussed, possible that the complainants will not be believed when they give evidence, but it is also possible that an explanation of the attack, and Mr Allen's possible intentions towards Mr McKinnon, may emerge from other evidence so as to strengthen the prosecution case as a whole.

26. Counsel suggested, in the course of his submissions about the weakness of the prosecution case, that the charge of attempted murder is unlikely to "make it onto the indictment". He expressly disclaimed any intention to suggest bad faith on the part of the DPP and, accepting that, I am not sure that his suggestion adds anything to his more general submission that the prosecution case is weak. Furthermore, if any claim of misuse of the prosecutorial discretion were to be made, I do not see that a bail application would be the proper place in which to pursue it.

When can delay amount to an exceptional circumstance?

27. DPP v Tang (1995) 83 A Crim R 593 involved an application covered by s 4(2) of the Bail Act 1977 (Vic), which imposed a presumption against bail unless "exceptional circumstances exist which justify the grant of bail". In that case Beach J said at 596:

In my opinion the normal delay which occurs in this State between arrest and committal, and committal and trial, cannot of itself amount to an exceptional circumstance. I do not say that delay per se may not amount to an exceptional circumstance. If there is inordinate delay, it very well may.

28. In Mokbel v DPP (Vic) [No 2][2002] VSC 312; , (2000) 132 A Crim R 290, Kellam J at 294 said, also in relation to the requirement under the Bail Act 1977 (Vic) to show "exceptional circumstances" before bail could be granted:

It is clear that the delay between arrest and final disposition can of itself constitute an exceptional circumstance. A civilised society, as we profess to be, cannot tolerate its citizens being detained for inordinate periods without the allegations made being determined by the process of trial.

29. There are two possible meanings for "delay" in this context, and the distinction is not always clearly drawn. In normal use, "delay" generally has a negative connotation, conveying the impression of time lost beyond the time ordinarily required for an activity. For instance, the Macquarie Dictionary (2nd ed, Macquarie Library, 1991) at 469 gives the following relevant definitions:

1. to put off to a later time; defer; postpone. 2. to impede the progress of; retard; hinder. ... 3. to put off action; linger, loiter: don't delay! ... 4. the act of delaying; procrastination; loitering. 5. an instance of being delayed.

30. The definition in the Australian Concise Oxford Dictionary (4th ed, Oxford University Press, 2004) at 365 is relevantly as follows:

● v. 1. ...Postpone; defer. 2. ... make late ... 3. ... loiter; be late... ● n. 1. the act or an instance of delaying; the process of being delayed. 2. time lost by inaction or the inability to proceed. 3. a hindrance.

31. However, in this context, "delay" sometimes seems to be used to refer simply to the period that will in the normal course of events elapse between the bail applicant's arrest and his or her trial. In one sense, whether the word "delay" is used according to a dictionary meaning does not matter - what matters is whether the timeframes for which "delay" is used as shorthand can amount to special or exceptional circumstances. However, if "delay", a word with generally negative connotations, is routinely accepted as a synonym for "elapsed time", there is a risk that potential elapsed time will be treated as a special or exceptional circumstance when there is nothing special or exceptional about it, and so as to nullify the clear legislative intention that a grant of bail in certain categories of cases should not be the norm.

32. Mr Allen was arrested on 29 September 2008 and has been in custody for seven months.

33. The main part of the prosecution brief was served on 8 December 2008 and the last parts of the prosecution brief appear to have been served on 22 April 2009. Counsel for the DPP advised that those recently served parts of the brief consisted of certificates relating to forensic tests and material arising from intercepted telephone calls made after the alleged offences. Counsel also advised that the results of the forensic tests had apparently been disclosed to the defence some time before the certificates were provided, and that the police had not become aware of the contents of the intercepted telephone calls until sometime after they were made.

34. There will not be a case management hearing in the Magistrates Court until 5 June 2009. After that, there will be a form of committal process before a trial date can be set, and the trial date will almost certainly be at least several months later again (probably late this year or early in 2010), although if Mr Allen remains in custody it would be expected that he would be given an earlier rather than a later trial date.

35. Counsel submitted that the timing set out in [32] to [34] above amounted to delay that in turn, either alone or taken with the asserted weakness of the prosecution case, constituted special or exceptional circumstances.

36. Counsel's original submissions about delay seemed to be based on anticipatory concerns about the impact of new committal processes that come into force on 30 May 2009 as a result of amendments made to the Magistrates Court Act 1930 (ACT) by the Crimes Legislation Amendment Act 2008 (ACT). These concerns included a suggestion, admitted by counsel for Mr Allen to be "a guess", that it would be some months before a date would be available for cross-examination of prosecution witnesses in the Magistrates Court, assuming permission to cross-examine was given under the new scheme once it had commenced. However, the defence's concerns about the new committal processes were not developed in detail, and as the hearing progressed, counsel refined his submissions to the effect that the elapsed time between Mr Allen's arrest and his likely trial date would be excessive, irrespective of whether it was in any way out of the ordinary for such matters in this jurisdiction.

37. In particular, counsel for Mr Allen pointed to the fact that the prosecution brief had only been served on the defence in the previous week, nearly seven months after the alleged offences were committed. He pressed this "delay" despite (and without challenging) the clarification from counsel for the DPP that, as set out in [33] above, most of the prosecution brief had been served much earlier, and despite (and again without challenging) counsel's comments about the circumstances of the later service of the other parts of the brief.

38. Apart from the assertion that the prosecution brief had taken nearly seven months to complete (which, given the complexity of the case and the fact that much of the brief had been served considerably earlier than the date specified, did not seem of itself to establish that the brief had been inordinately delayed), counsel did not point to any other delays currently anticipated beyond the likely standard elapsed times for each stage in the process of bringing a matter to trial.

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.

40. Even if there is a sense in which the word "delay" could appropriately be used to describe periods normally required for the normal processes, it is hard to see that the likely passage of that time could amount to special or exceptional circumstances. The examples in s 9G of the Bail Act indicate that special or exceptional circumstances are not constituted by matters that are likely to be common to most or even many bail applicants (for instance, that an applicant has a family to support or may lose his job as a result of remaining in custody). On this basis, it is hard to see that the standard timeframes for the standard criminal processes within the jurisdiction could, without more, amount to special or exceptional circumstances for a particular participant in those processes. I do not consider that this approach is inconsistent with the views of Kellam J and Beach J quoted at [27] and [28] above in relation to "inordinate" delay.

41. In reaching the conclusion that the standard timeframes for standard criminal processes, without more, would be unlikely to amount to special or exceptional circumstances, I do not rule out the possibility that the standard timeframes, in conjunction with other circumstances particular to an applicant, might in fact amount to special or exceptional circumstances. This would particularly be the case if those other circumstances raised special concerns about the impact of those standard timeframes for that applicant (for instance, if an applicant were terminally ill). It is also possible to imagine a situation in which, perhaps because of a significant shortage of resources within the criminal justice system or during a transitional period while an earlier set of procedures was being replaced by a new and different set of procedures, the normal elapsed time between arrest and trial blows out so as to exceed substantially that which has previously been regarded as acceptable, or which is currently regarded as acceptable in comparable jurisdictions. In such a situation, a court might come to the view that most or all accused persons were being subjected to inordinate delays, and therefore that special or exceptional circumstances applied to most or all accused persons being held in custody (with potentially dramatic results for bail applications).

(a) establish inordinate delay in dealing with his particular case; or

(b) point to circumstances that would change the impact of the standard timeframes in his particular case; or

(c) establish that the current standard timeframes were so excessive as in themselves to constitute special or exceptional circumstances in general.

43. There was some disagreement about how the contents of the intercepted phone calls should be interpreted. It did not seem to me that there was anything in them that could support Mr Allen's claim about the weakness of the case against him, and nor were they relevant to the question of delay. Aspects of the calls might have been relevant to any consideration of the general criteria for granting bail set out in s 22 of the Bail Act, but in the event this did not need to be considered.

(a) that the prosecution case on the charge of attempted murder, while not overwhelmingly strong, was not so weak as to amount to a special or exceptional circumstance for the purpose of s 9C of the Bail Act; and

(b) that the applicant had not established any kind of delay, or any other aspect of the current timeframes for his case, that amounted to special or exceptional circumstances for the purposes of s 9C; and

(c) that to the extent that weaknesses in the prosecution case were identified, and that some arguable tardiness in the prosecution's finalising of the brief was pointed to, those weaknesses and minor delays did not together amount to special or exceptional circumstances for the purposes of s 9C.

45. Having failed to find special or exceptional circumstances favouring the granting of bail, s 9G of the Bail Act excluded any consideration of the criteria for granting bail set out in s 22 of that Act, so I refused the bail application.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 6, 11, 18 March, 1, 24, 29 April 2009