CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - Change of circumstances - Crown has strong case - Likelihood that accused will commit further offences - Accused likely to face custodial sentence if convicted - Accused entitled to bail but refusal of bail justified - Bail refused

Bail Act 1992 (ACT) ss 20B, 20C, 22(1), 22(2), 22 (3), 22(1)(b)(i), 9A

Crimes Act 1900 (ACT) s 26

Human Rights Act 2004 (ACT) s 18

Magistrates Court Act 1930 (ACT) s 90AB

Application for Bail by Whiteside [1999] VSC 413

B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31

Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338

Burton v The Queen (1974) 3 ACTR 77

Holder v Brennan [2014] ACTSC 195 at [64]- [66])

Ilijkov v Bulgaria [2001] ECHR 489

In the Matter of an Application for Bail by Eiginson [2014] ACTSC 234

In the Matter of an Application for Bail by Jones [2014] ACTSC 248

Johnson v Buchanan (2012) 223 A Crim R 132

Letillier v France [1991] ECHR 35; (1991) 14 EHRR 83.

R v Connors (Unreported, Australian Capital Territory Supreme Court, Burns J, 8 August 2014)

Re an Application for Bail by Rodriguez [2008] ACTSC 50

R v Hamilton (1993) 66 A Crim R 575

Saka v The Queen [2001] WASC 92

Toth v Austria [1991] ECHR 72; (1991) 14 EHRR 551.

1. On 4 May 2014, Stanley Connors, the applicant, went with another person to a residence in Red Hill and entered it. Two complainants were present at the time, one female and one male. The circumstances of his entry to the premises are in dispute, as appears below.

2. As a result of that incident, however, and also later contact with the male complainant, Mr Connors and the other person were charged jointly with aggravated burglary with intent to commit an offence threatening to cause harm (s 312 of the Criminal Code 2002 (ACT)) and Mr Connors was also charged with theft (s 308 of the Criminal Code) as he is alleged to have taken a mobile phone and wallet when leaving the residence. He was later charged with common assault (s 26 of the Crimes Act 1900 (ACT)) and minor theft (s 321 of the Criminal Code).

3. Mr Connors was arrested on 5 May 2014 and appeared in the Magistrates Court later that day. He was refused bail and remanded in custody.

4. On 14 July 2014, Mr Connors was committed to stand trial in this court on the charges of aggravated burglary and theft.

5. He has applied for bail. That application is opposed both because it is said that the Court has no jurisdiction to entertain it and also because, if the Court has Jurisdiction, it should nevertheless not grant it, particularly because of the likelihood of Mr Connors re-offending.

6. Under s 20B of the Bail Act 1992 (ACT), this Court has power to make a bail order where the proceedings are before the Court. When proceedings are before the Court is defined by s 12B to include where the applicant has been committed to the Court for trial. Thus, I have power to make a bail order under this section.

7. Mr Connors, however, made a prior application for bail to the Court on 8 August 2014. He filed his own application. While every person detained in custody because they are refused bail has, and must have, the right to apply for bail, which seems to me to flow from s 18 of the Human Rights Act 2004 (ACT), the terms of the Bail Act can create some problems for applicants because of the restrictions on subsequent applications.

8. The application made by Mr Connors came before Burns J on 8 August 2014: R v Connors (Unreported, Australian Capital Territory Supreme Court, Burns J, 8 August 2014). His Honour refused the application because of his extensive and serious history of offending, especially convictions for complicity in an aggravated robbery, and for theft, burglary, riding in a motor vehicle without consent and aggravated robbery with an offensive weapon.

9. As a consequence, s 20C of the Bail Act requires that this Court may only consider a further application for bail by Mr Connors if satisfied that

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

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

10. Mr D Rutherford, who appeared ably for Mr Connors, submitted that, since the earlier bail application, he had received both a transcript of the cross-examination of the complainants on 14 July 2014 and the Crown's Case Statement. A Case Statement in criminal proceedings is described in R v Goodwin (2012) 269 FLR 473 at 478-80; [26]-[40]. These documents, he submitted, constituted fresh information relevant to the granting of bail as the substantial ground of the application was the weakness of the Crown case and this was to be demonstrated from the way in which the Crown put its case in the light of what the complainants had said.

11. Mr M Fernandez, who appeared for the respondent, submitted that this did not satisfy the requirement of s 20C of the Bail Act. The cross-examination, he pointed out, had actually taken place prior to the hearing of the last bail application.

12. As I stated in R v Rubino [2012] ACTSC 157 at [17]- [24], the threshold to assuming jurisdiction should not be 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 cannot be met. See Re an Application for Bail by Rodriguez [2008] ACTSC 50 at [20].

13. The material relied on, it was submitted by Mr Rutherford, went to an important matter, namely the strength of the Crown case. He submitted that this was relevant to bail and significant in this application.

14. The strength of the prosecution case was factor in bail decisions at common law, although in a somewhat indirect way. As Cross CR QS said in R v Wakefield (1969) 89 WN (NSW) (Pt1) 325 at 330

But if the Crown case is an apparently powerful one an accused person may find bail harder to obtain than where the Crown case appears weak. The principle that a man is presumed innocent until proved guilty is not violated by the court on a bail application making an assessment of probability of conviction. The principle that a man is presumed innocent until proved guilty is a principle which, with other principles, is applied by the tribunal at the accused's trial in determining criminal liability. But the court on the bail application is entitled to see the nature of the evidence which the Crown intends to call to determine whether at the trial the presumption of the innocence of the accused is likely to be easily rebutted.

...

Of course, the assessment of the probability of conviction is material only, if the circumstances embrace one or more of the other matters I have mentioned, i.e. criminal record, gravity of the offence, etc., which is likely to attract a sentence of some severity which in turn might induce an accused to flee. The materiality of some of these matters is referred to in R v Montgomery [(1958) 75 WN (NSW) 233 at 234] by Ferguson J: 'The subject charges are very serious, involving heavy penalties. The evidence, apart from alleged admissions of guilt, is very strong against him - in fact, he was caught red-handed. He has every reason to fear a conviction and, if convicted, a long sentence. In the circumstances it seems to me that the applicant has every incentive to abscond if granted bail.' Again, in R v Clancy [(1958) 75 WN (NSW) 142 at 143] the court said: 'The offence with which he is charged is a very serious one and it carries a maximum penalty of ten years' penal servitude. The evidence against the applicant also is very strong and in my opinion it is very likely that he will be convicted of it. In view of those facts and the fact that there are other serious charges pending against him it seems to me that the applicant has every reason to abscond should he be given the opportunity.'

15. The common law approach seems also to align with the approach to be taken consistently with the requirements of the Human Rights Act. See B v Police (No 2) [1999] NZCA 205; [2000] 1 NZLR 31 at 34; Ilijkov v Bulgaria [2001] ECHR 489 at [81]; Letillier v France [1991] ECHR 35; (1991) 14 EHRR 83.

16. This factor has now been expressly included in the Bail Act. The matters that the court must take into account are set out in s 22(1) and (2) and, in s 22(3), identifies the relevant matters to which the court may have regard for consideration of them are set out. These provisions are as follows:

22 Criteria for granting bail to adults

(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.

(a) the need of the person for physical protection

(b) 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 -

(a) the nature and seriousness of the offence; or

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

(c) the likely effect of a refusal of bail on the person's family or dependants; or

(d) any previous grants of bail to the person; or

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

Example

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.

17. As can be seen, the strength of the prosecution case is a relevant matter under s 22(3). See, for example, Application for Bail by Whiteside [1999] VSC 413 at [15] and In the Matter of an Application for Bail by Jones [2014] ACTSC 248 at [5]-[6].

18. The strength of the Crown case is clearly a relevant factor that I must consider if properly raised in the application. I also accept that it is often necessary to confirm the actual evidence by reference to transcript, especially when assessing the strength of the evidence to be adduced against an accused person.

19. The grounds of the application were that, as a result of the relevant material coming to hand, the Crown case is shown to be very weak and further that, contrary to the assertion of the Crown, Mr Connors is unlikely to reoffend. I shall first deal with the question of the strength of the Crown case.

20. It is often difficult to determine whether a case is strong or weak from the summaries provided by the Crown. Here, in addition to the Case Statement, I had a copy of a recorded interview between the complainant and police.

21. In this case, that has been supplemented. Despite the limitations on cross-examination at committal hearings imposed by s 90AB of the Magistrates Court Act 1930 (ACT), the two complainants were permitted by the Court to be cross-examined. It is accepted that the evidence led at committal may well affect whether a defendant be granted bail. See Saka v The Queen [2001] WASC 92 at [13].

22. While the actual cross-examination occurred before the bail application heard by Burns J, I accept that it would have been appropriate to scrutinise the evidence with care which may reasonably require a transcript to be perused. This is often at least desirable when it is necessary to assess the strength of the evidence against the accused.

23. Although by itself that may not be sufficient as fresh evidence or information, the linking and comparing that transcript with the Case Statement seems to me to be fresh information of the kind that would meet the requirements of s 20C of the Bail Act.

24. The Case Statement alleged that Mr Connors and Nicholas Watson violently entered the home of the two complainants on 4 May 2014. The male complainant then hid.

25. It is further alleged that Mr Connors and Mr Watson entered the lounge room where the female complainant was. The female complainant said to Mr Connors and Mr Watson, "What the fuck are you doing in my house Stanley? What the fuck are you doing in my house Nick Watson? Get the fuck out of my house".

26. The complainant saw Mr Watson brandishing a gun at eye level to her, which made her scared for her life. She saw that Mr Connors was swinging a putter-style golf club, with which she thought he was going to hit her.

27. The Case Statement further alleged that the two intruders demanded to know where the male complainant was, but the female complainant said, "I haven't been with [him] for days ... He's not here, get the fuck out of my house". Mr Connors continued to wave the golf club around and then picked up a wallet and a mobile phone and left the house, taking the items with him.

28. The male complainant then ran out of the house but a motor vehicle drove up beside him and Mr Connors got out of the vehicle carrying an item which resembled a golf club. Mr Watson also got out of the vehicle and approached the male complainant. He struck him on the right side of his face with his closed left fist and followed with three further punches to the male complainant's face with a closed right fist. Mr Connors was standing ready carrying the golf club in an intimidating manner. Mr Connors then kicked the male complainant to the inside of his left knee, causing him pain. Mr Watson and Mr Connors then left.

29. The offence of burglary (s 311 of the Criminal Code) requires proof that a defendant enters into or remains in premises as a trespasser. Authorities such as Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 show that a person is a trespasser if they:

(a) enter into premises without the permission of the lawful occupier;

(b) enter into premises with the permission of the lawful occupier but for purposes other than those for which permission to enter is granted;

(c) remain in premises after permission to enter has been withdrawn.

30. See the helpful discussion of trespass in Johnson v Buchanan (2012) 223 A Crim R 132 at 144-7; [57]-[66].

31. It was the submission of Mr Rutherford that, on the material now available to Mr Connors, the prosecution case was very weak, that Mr Connors was likely to be acquitted and that accordingly he should be granted bail.

32. The female complainant was interviewed by police. The transcript did not say on what date the interview took place, but the police officer referred in it to making enquiries about "an assault that occurred ... this evening", meaning presumably the charge of common assault that said to have been committed on the male complainant on 4 May 2014. I will assume that the interview commenced at about 9:06 pm on 4 May 2014.

33. The female complainant was also cross-examined at the committal on 14 July 2014.

34. In the interview, the female complainant told police:

Well, I was in bed at home at my premises. I heard a knock on the door. [The male complainant] goes what the fuck? Because the [male complainant] was lying in bed next to me, just came in and lied beside me. And then I heard the bang and then the door being booted in ... I then told [the male complainant] to hide. I walked up to the lounge room and closed all doors behind m. I went out to the lounge room where I seen Stanley and Nick Watson going through my whole house, asking for [the male complainant]. I said, "He's not here. He's not here, so get the fuck out of my house, get out, get out." Nick was the first one to leave my house. Stanley kept going on and on and on. I told Stanley, "Get the fuck out "because they kept saying, "Where's [the male complainant]?" They - like, went back out to the silver Ford that was parked outside. They got in the car. Nick Watson's screamed out "I'm going kill [the male complainant]" By that time, they had left, I had walked down to the shop. I'd called police.

35. In the cross-examination, the female complainant was asked about a number of issues.

36. The first issue was about the weapons that Mr Connors and Mr Watson had with them. While relevant, it was not an element of the offence with which Mr Connors was charged. Aggravated burglary under s 312 of the Criminal Code is burglary with a circumstance of aggravation. The circumstance may be either that the burglary was committed in company (as to which see Holder v Brennan [2014] ACTSC 195 at [64]- [66]) or when the offender had with him or her an offence weapon (as to which see R v Hamilton (1993) 66 A Crim R 575 at 577). In this case, however, the indictment charged the circumstances of aggravation that Mr Connor was in company.

37. In the cross-examination the female complainant gave the following evidence:

Do you think Zyprexa, your medication, might have affected what you told the police in your interview?---Yes.

Do you think it might have made you exaggerate things. Do you know what exaggeration means?---Yes.

Do you think that might have happened?---Well, I told them some things.

And maybe that something wasn't exactly what happened?---The gun, you're talking about. The gun.

...

You said "the gun". Do you remember telling the police about the gun?---All I said is I seen something black that looked like a gun and, no, Stanley wasn't holding it. All Stanley had in his hand was a golf club and Nick had something in his hands.

HIS HONOUR: ... I know it's difficult for you, but I can hear what you're saying?---All Stanley had in his hand when he entered the house was a golf club.

But Mr Lalor was asking you questions about a gun?---Yes. And all I said is I seen something in Nick's hand that looked like a gun. It was black. He was holding it like that. Because I just woke up, I just thought it was a gun and I started screaming because he had something black in his hand.

Are you talking about the other person?---Yes.

38. She was asked about her statement given to police as she said she wanted to make amendments to it. She was asked about the amendments and said:

MR LALOR: Do you want to tell us now what amendments - - -?---There wasn't a gun. It was a golf club.

It wasn't a gun? It was a golf club?---No. It was a golf club and something black.

So there was no gun at all?---Only what I seen was black which I thought was a gun, and then when I started thinking about it, I did want to change my statement.

Is that because your memory's better now that it was at the time?---Yes.

So just so I get it straight in my mind ... there's no gun at all?---No. Only a golf club.

39. At committal the Crown prosecutor pointed out that, in her statement, the female complainant had said that she thought what Mr Watson had was "something like a gun". Her evidence then was that she had previously seen a gun in the possession of another person not relevantly connected with these offences and her evidence continued:

So is that the gun that you saw?---I didn't see a gun, I just seen something that looked like a gun that was black ...

40. There was more cross-examination about the issue but, in substance, the female complainant could not say definitely that Mr Watson had a gun.

41. In her cross-examination, however, the female complainant seemed clear that Mr Connors had a golf club, which she described as "like a putter", like those she had seen used to play "putt putt golf".

42. Mr M Lalor, counsel for Mr Connors at committal, sought then to cross-examine the female complainant about whether she had permitted Mr Connors to be in the house. This was because in the interview with police, she said of the attendance of Mr Connors at her house.

[Mr Connors] just kept, like, raging on about ... his mum's boyfriend, about hitting him and stuff. And I said, "Look, you know, you can stay here, Stanley. Like you know, you're my little brother. You're my cousin, like, I love you and everything," but it just - he's just got off the rails lately. And then, yeah, they just kept screaming [the male complainant].

43. The female complainant gave the following evidence in cross-examination:

MR LALOR: I just want to ask one more question. It's about the relationship between [the female complainant] and you said the Friday before this happened you found out that Stanley was your brother. Is that right?---No. He is like my brother, like we've grew up together since we were younger.

You said to him that he could come and stay at your house because his stepfather - - -?---He's like family, He's like - - -

44. The Crown prosecutor objected that the question was not within the issues for which leave had been granted for cross-examination (s 90AB(2) of the Magistrates Court Act). Application was then made for leave to cross-examine on that issue but it was refused.

45. Nevertheless, the inference that could be drawn from this material was the basis for the assertion that the Crown was weak.

46. Thus, it was submitted that the offence was not as serious as suggested by the Crown, because of the absence of a gun, and also that there was no trespass because the female complainant had permitted Mr Connors to remain in the premises.

47. Having considered this material, I am not satisfied that Mr Connors has made out the submission that the Crown's case is weak. I accept that the question of whether Mr Watson had a gun is not clearly made out, but that is really collateral to the Crown's case. The possession of a weapon as the circumstance of aggravation is not pleaded in the count of aggravated burglary on the indictment and so is not required to be proved.

48. Further, the female complainant was relatively clear that Mr Connors himself had a golf club that he was banishing, clearly making it an offensive weapon.

49. No challenge, however, was made to the pleaded circumstances of aggravation namely the presence of another person - "in company".

50. As to whether there was a trespass, the evidence seem to be relatively clear, though this cannot bind the trial, of course, for I have not heard all the evidence. Nevertheless, I accept that there is some uncertainty about whether Mr Connors is the female complainant's "brother", and, as such, was permitted to be in the premises, this is not likely because what the female complainant said when she first saw him, as set out above (at [25]).

51. It is very clear in the statement of the female complainant, however, that such a licence was withdrawn as Mr Connors was told to get out which he did not do, at least not immediately, but kept raging around. That would constitute the necessary trespass for the purpose of the offence.

52. Further to what the female complainant first said, what I have set out above (at [34]) which is inconsistent with her response that he could stay, relied on by Mr Connors also set out earlier (at [42]), the female complainant did, after Mr Connors and Mr Watson had left, telephone the police and say in her words, "I'd just been home invaded and a gun ..." she had earlier in the interview also repeated a number of times that she had said "get the fuck out of my house" though she said on later occasion that they were directed at Mr Watson, but it is very difficult to accept that she would have allowed Mr Connors to stay when he had a golf club with him and wanted to attack the male complainant who was in the house at the time though she had denied to Mr Connors that he was there.

53. In my view of the material presented on the application, the Crown has a strong case; the Crown case is not a weak one.

54. The common law does not appear to have placed as much weight on the risk of an applicant for bail re-offending as has been placed on this factor in more recent times.

55. In Burton v The Queen (1974) 3 ACTR 77 at 78, Fox J said

It is not normally a factor of any great weight adverse to the granting of bail that an accused person may possibly commit a crime while he is on bail. It should not readily be assumed that he might commit an offence, or further offence. If he does, he can be dealt by the criminal law. There are, however, situations in which the consequences of any crime he commits while on bail may be serious and have such widespread effect that the possibility that he may commit a crime while on bail is an important consideration.

56. Since then, however, s 22 (1)(b)(i) of the Bail Act has specifically required the court to consider that issue. Nevertheless, the Federal Court pointed out that the Court is not to use such a requirement for the purposes of preventative detention.

57. As I said in In the Matter of an Application for Bail by Eiginson [2014] ACTSC 234 at [90]

This is an easy ground of objection to bail to assert but not easy to prove, even on the balance of probabilities. As Gyles J, with whom Whitlam and Madgwick JJ agreed, said in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 at 184; [55]- [56]:

In my view, it is wrong to approach the issue under s 8(2) and s 22 (1)(c) on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not (see the explanation by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 346-8; [1979] FCA 85; 27 ALR 367 at 380-382. If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.

It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative 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 and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.

58. In the jurisprudence of the European Court of Human Rights, it is permissible to take into account when determining an application for bail whether the applicant will re-offend and, if so, this will justify remanding him or her in custody. See Matznetter v Austria (1969) 1 EHRR 198. Consistently with what fell from the Federal Court, the risk of repetition of offending must, it is said, be genuine: Toth v Austria [1991] ECHR 72; (1991) 14 EHRR 551.

59. One of the highly relevant matters to consider in this regard is the criminal history of an accused person. Mr Connors has an extensive criminal history.

60. He has committed an aggravated robbery with an offensive weapon and aided and abetted an aggravated robbery; he has also been convicted of common assault. He has been dealt with for sixteen offences of dishonesty, including four offences of burglary. He has been convicted of nine traffic offences including three offences of dangerous driving and one offence of dangerous driving following a police pursuit. Altogether, he has twenty-nine offences on his record. It is relevant, however, that the most recent offence (though not his most recent appearance in court) was committed on 21 February 2011.

61. On 22 May 2013, however, he was sentenced to a term of imprisonment of thirteen months to commence on 24 August 2012 and suspended on 22 May 2013; a good behaviour order was then made for a period of eighteen months. The current offences, if proved, would constitute a breach of that good behaviour order. The allegation of offending, though not proved, while at conditional liberty is a very relevant factor when considering bail so far as the likelihood of re-offending is concerned.

62. I also have regard to the nature of these current alleged offences, which show a degree of aggression and lack of self-control towards the male complainant for unexplained reasons. The statement suggests that, at the time of the alleged offences, Mr Connors was affected by alcohol and drugs. There is also a suggestion that Mr Connors has a drug debt. There is no suggestion that he is addressing his alcohol and drug issues.

63. These are worrying matters that, in my view, do form a reasonable basis for a finding that there is a likelihood of re-offending.

64. I am, of course, not making any finding that Mr Connors has committed these offences; that is a matter for the trial. I have, however, found that the Crown case is a strong one which causes me the concern I have expressed.

65. I take into account the likelihood of re-offending, the serious nature of the offences and the likelihood that, if convicted, Mr Connors will face a custodial sentence of imprisonment.

66. Though Mr Connor has an entitlement to bail (s 9A of the Bail Act), I am satisfied that a refusal of bail is justified.

I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.