In the matter of an application for bail by Anderson [2011] ACTSC 121 (20 July 2011)

e) not to assault, intimidate, threaten, or harass [name supplied];

f) not to contact [names supplied] except in accordance with an order made under the Family Law Act;

g) not to approach within 200 metres of [names supplied] except in accordance with an order made under the Family Law Act;

h) not to approach the maternity section of the Canberra Hospital;

i) not to approach within 100 metres of Sacred Heart Primary School, Pearce;

j) not to approach within 100 metres of Stromlo High School;

k) not to contact or approach any prosecution witnesses as listed on the list of witnesses filed in these proceedings on 11 July 2011; and

2. A copy of the list of witnesses be stapled to the bail undertaking.

1. Before me is an application for grant of bail by Mark Lesley Anderson. Mr Anderson was arrested following an incident that is said to have occurred at premises in Farrer on 17 June 2010. On 5 March 2011, he was committed to this court for trial on charges of attempted murder, make a threat to kill, assault occasioning actual bodily harm and contravention of a protection order made under the Domestic Violence Protection Orders Act 2008 (ACT).

2. On 11 July 2011, a draft indictment was served as required under the

Court Procedures Rules (ACT) and the following charges were included in that indictment: attempted murder, burglary, assault occasioning actual bodily harm and a breach of a protection order under a different section of the Domestic Violence and Protection Orders Act 2008 (ACT).

3. Mr Anderson has been in custody since he was arrested on 18 June 2010. On the present state of the lists and having regard to the availability of witnesses, it appears that the trial of these charges will not take place until August or October 2012 and, on the statement of the prosecutor in this matter, more likely in October 2012.

4. The necessity of a special or exceptional circumstance arises because of the nature of the charges that call into play s 9C of the Bail Act.

5. While under decisions of this court, in particular In the matter of an application for bail by Rebecca Massey (No 3) [2010] ACTSC 52 and In the matter of an application for bail by Timothy Allan [2009] ACTSC 64, delay in the prosecution of a matter can be a special or an exceptional circumstance for the Bail Act 1992 (ACT) (the Bail Act) where it is not in the ordinary course of proceedings. In the light of the current lists it has to be said that it is difficult for the court to rely on what is the ordinary course of the proceedings alone, although that will not necessarily mean that those circumstance can last forever.

6. If the lists continue to blow out because the resources available to meet those lists are not adequate then the point may be reached where it is so unreasonable for pre-trial custody to be served by a person awaiting trial that bail may be one of the options available.

7. 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.

8. 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 Maconochie 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.

9. That may be an inevitability in custody and, of course, my provisional finding, as such this must be about his current situation, can have no bearing on any ultimate sentence or the circumstances of which, or whether, he is to be sentenced, if such arises, ultimately from any finding of guilt should that follow the trial.

10. The other two factors that are relevant are that Mr Anderson was a police officer and that has, for obvious reasons, also aggravated his circumstances in custody and I have had, extremely unusually, not just in bail applications, but in pre-trial circumstances, a detailed analysis of the evidence that is to be adduced on behalf of Mr Anderson to the extent that he has given a detailed account of the approach that he will take and the evidence that he is likely to give together with detailed expert evidence that will be called on his behalf. That shows that there are serious challenges that can legitimately be made by Mr Anderson to the prosecution's case.

11. It is always difficult on a bail application for a court to assess the strength or otherwise of a Crown case even though, as is required in this jurisdiction, a full and detailed case statement has been prepared and I have read it. Nevertheless, it seems to me that on the basis of the material in the case statement there will be issues of credibility which it is impossible to assess on a bail application and I am prepared to accept that this is not a case other than one where the prosecution has, as required, made an assessment that there are, in accordance with the prosecution policy, reasonable prospects of a conviction.

12. Nevertheless, there are serious, legitimate and strongly arguable challenges that, on the material I have before me, are available to Mr Anderson to make to the Crown case and it is certainly not a case that the Crown case is in that sense, having regard to the material filed in support of the bail application by Mr Anderson, a particularly strong case and while that does not, probably in the circumstances, in itself justify a grant of bail, when added to the passage of time and the other two matters, namely Mr Anderson's personal status and his medical conditions, in my view, they add up together to special and exceptional circumstances which justify the grant of bail.

13. Accordingly, I will grant Mr Anderson bail to appear at the Supreme Court on a date to be notified on the following conditions:

a) he accept supervision by the Director-General or the Director- General's delegate and obey all reasonable directions of the officer delegated to supervise him;

c) to report to the officer-in-charge of Tuggeranong Police Station every week day - well perhaps I will say every Monday, Tuesday, Wednesday, Thursday and Friday, between the hours of 8 am and 8 pm;

d) other than to travel directly through the area to reach a destination outside it, not to enter within the area bounded by the intersection of the following roads, Sellwood Drive, Erindale Drive, Long Gully Road, Mugga Lane, Monaro Highway, Tharwa Drive, Drakeford Drive and Athllon Drive between Drakeford Drive and Sellwood Drive which encompasses the suburbs of Oxley, Wanniassa, Fadden, Macarthur, Chisholm, Gilmore, Richardson, Calwell, Isabella Plains, Monash and Gowrie;

e) not to assault, intimidate, threaten, or harass [name supplied];

f) not to contact [names supplied] except in accordance with an order made under the Family Law Act;

g) not to approach within 200 metres of [names supplied] except in accordance with an order made under the Family Law Act;

h) not to approach the maternity section of the Canberra Hospital;

i) not to approach within 100 metres of Sacred Heart Primary School, Pearce;

j) not to approach within 100 metres of Stromlo High School;

k) not to contact or approach any prosecution witnesses as listed on the list of witnesses filed in these proceedings on 11 July 2011; and

14. I will also direct that a copy of the list of witnesses be stapled to the bail undertaking.

I certify that the preceding thirteen (14) 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

Solicitor for the defendant: Herring and Associates Lawyers