Bail Act 1992 (ACT)

Legal Aid ACT

1. The applicant applies for bail in relation to a number of offences which fall in to the category of a serious offence within the meaning of s 9D of the Bail Act 1992 (ACT), being offences punishable by imprisonment for five years or longer. Several of the offences are very serious offences, being an offence of robbery in company and an offence of unlawful confinement.

2. At this stage, the applicant has pleaded not guilty. The matters are listed for call-over on the 29 November 2013, and will most likely be heard in the central criminal listing period from late February to early April 2014.

3. The relevant history is that on 28 October 2012, the applicant committed a burglary and attempted theft offences. On 18 and 19 June 2013, it is alleged that the applicant committed the offences that are to be the subject of the trial. On 26 September 2013, the applicant was convicted and sentenced by the Magistrates Court in relation to the burglary and attempted theft offences. In respect of those and related matters he received an effective sentence of six months' imprisonment that dated from March to October 2013. The sentences were completed on 5 October 2013.

4. The applicant had been arrested in relation to the trial offences on 19 June 2013. It follows that, since 5 October 2013, the applicant has been in custody in relation to the trial offences alone. If he is not granted bail, he will remain in custody for a further period such that, at the date that his trial is heard, he is likely to have been in custody in respect of these matters alone for a period of approximately five months.

5. An initial question arises under s 9D of the Bail Act. That section provides:

9D(1) This section applies if

(a) a person is accused of a serious offence; and

(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.

In those circumstances a person who seeks bail will not be granted bail unless, inter alia, the Court is satisfied that "special or exceptional circumstances exist favouring the grant of bail."

6. The initial issue on this application is whether s 9D(1)(b) is satisfied as of today, 18 November 2013. It seems to me that it is satisfied. Section 9D(1)(b) looks first at the date when the serious offences the subject of the application are alleged to have been committed, in this case, on 18 and 19 June 2013. The second inquiry is whether, as at that date, there was another serious offence "pending or outstanding".

7. It is not disputed that offences of burglary and attempted theft are serious offences within the meaning of the provision because they carry maximum penalties exceeding five years. The issue is whether they were "pending or outstanding" as at June 2013. To my mind, they were "pending or outstanding". A matter is "outstanding" within the meaning of s 9D relevantly until the person is acquitted or found guilty by a court of the offence; s 9D subs (6)(a)(iv). As at June 2013, the applicant had neither been acquitted nor found guilty by a court in respect of the burglary and attempted theft offences committed in October 2012. Consequently, s 9D applies.

8. Therefore, the issue is whether there are special or exceptional circumstances favouring the grant of bail. If such circumstances are established, I am required to consider the provisions of s 22 of the Act.

9. The matter that has been advanced as a special or exceptional circumstance is that there is a family law hearing scheduled for tomorrow (19 November 2013) at 9:30 am in relation to which the applicant in the bail application is a respondent. In those proceedings, the maternal grandmother of two children seeks sole parental responsibility for the children and an order suspending orders made in July 2013 for the children to spend time with their both their mother and their father, individually. It is plain that the applicant will be affected by any orders that are made, particularly the order concerning "spending any time" with him. However, both the applicant and the respondent to the bail application have confirmed their understanding that the applicant will be able to participate in the family law proceedings via an audio/visual link. I accept that participation in any court proceedings via AVL is not as satisfactory as personal participation. However, it does enable full participation. In my view, the need for him to participate in proceedings via AVL, is not a special or exceptional circumstance.

10. The application is refused. I note that an appropriate warrant will be required for the applicant to attend the call over on 29 November.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.