In the matter of an application for bail by Massey (No 3) [2010] ACTSC 52 (17 June 2010)

3. In June 2009, Penfold J heard a further application and indicated that bail would be granted: In the matter of an application for bail by Rebecca Massey (No 2) [2009] ACTSC 70.

4. On 14 July 2009, bail was granted to Ms Massey with strict conditions. There were, in fact, 13 conditions, though I cannot say that they were all onerous. They included, for example, surrender of her passport, not to carry a knife or prohibited weapon in a public place, and not to be in the precincts of the Charnwood Shopping Centre.

5. There were other more significant conditions. One condition included that she not threaten, harass, intimidate or contact directly or indirectly certain people whose names and dates of birth were set out in a schedule annexed to the bail form. I am not sure that it was appropriate to include dates of birth of those people on such a form.

6. The form contained 69 names. I understand these to be a list of the Crown's witnesses. One of the people on the list was Michael David Marshall.

7. Despite new arrangements for the conduct of committal proceedings enacted in the Crimes Legislation Amendment Act 2008 (ACT) which commenced on 30 May 2009, effectively requiring committals to be conducted by tendering of statements, commonly known as "paper committals", unless a magistrate can be convinced otherwise, the committal in this matter did include some cross-examination and oral evidence.

8. Ms Massey was committed to this court for trial on the count of murder on 23 April 2010. She appeared before the court for directions under the arrangements set out under r 4733 of the Court Procedures Rules 2006 (ACT) on 6 May 2010 and orders were made for delivery of a draft indictment, case statement, a list of witnesses, and questionnaire by the prosecution on 17 June 2010, a longer period than usual, and by the defence on 4 July 2010, also a longer period than usual.

9. Ms Massey's bail continued broadly in the same terms by virtue of s 33 of the Bail Act 1992 (ACT).

10. By application dated 25 May 2010, Ms Massey applied for a variation of her bail. There were three proposed variations:

• to delete the condition requiring her to reside at a particular address, which was currently that of her mother, "or otherwise as directed by ACT Corrective Services", and simply to require her to notify this court of any change within 24 hours;

• to change the police station at which she was required to report from Belconnen Police Station to Gungahlin Police Station;

• to delete Mr Marshall from the list of persons with whom she is not to have contact.

11. The application came before Gray J on 2 June 2010 and his Honour made the second amendment broadly as requested and, in respect of the first specified a particular, but different address. The application so far as the third amendment was concerned was adjourned generally.

12. On 5 June 2010 Ms Massey was arrested for breaching her bail when police attended at her residence and found Mr Marshall present there. She was brought before Penfold J on 7 June 2010 who adjourned the matter to be heard by me on 8 June 2010.

13. Thus, I had effectively two applications before me. Ms Massey applied for bail because she had been arrested on the breach of bail, and she also applied for that bail not to include the condition that she not have contact with Mr Marshall.

14. Mr Marshall describes Ms Massey in a police statement of 26 July 2008 as his "girlfriend". He said that, "[o]ff and on for about the last three months I have been staying", with her at her then home in Charnwood.

15. Mr Marshall also participated in two interviews with police that were electronically recorded. The first interview was conducted at premises in Charnwood where Mr Marshall showed police where he apparently hid a knife which in the interview he acknowledged was used in the stabbing death of the female referred to above. In the second interview conducted at the City Police Station, he acknowledged that he had voluntarily agreed to show police where he had hidden the knife. He also said that Ms Massey had asked him to hide the knife and that the knife he had hidden and then shown to police was the knife Ms Massey had given him. He made other statements in that long interview which may be regarded as inculpatory of Ms Massey.

16. At the hearing I received oral evidence from Detective Senior Constable Nicholas Maguire who was the informant for the charge of murder that Ms Massey faced. He explained the circumstances whereby he came to arrest Ms Massey. I do not need to detail them here. It appears that from inquiries he has made that this contact with Mr Marshall may not have been the only contact that there was between the two of them, though I had no further evidence about that.

17. He did say, however, that Mr Marshall was initially hostile to police and that it was only when Ms Massey had been in custody for some time that his attitude to police changed and he became co-operative with them. Detective Senior Constable Maguire expressed concern that if Mr Marshall resumed contact with Ms Massey, he would become unco-operative again and that this may adversely affect the trial. He was concerned that Mr Marshall's evidence not be tainted.

18. He informed me that a similar application had been made to Chief Magistrate Burns who had declined to permit contact with Mr Marshall as requested.

19. He also indicated that Ms Massey had, in her dealings with the criminal justice system, failed to comply with requirements made of her and he considered, from his experience, that she would not comply in the long term with the various conditions of her bail as, indeed, this incident showed had already occurred.

20. Under cross-examination, he confirmed that, at the committal, Mr Marshall had sworn that the interviews and statements referred to above had been made by him and that they were tendered on that basis. He also confirmed that Mr Marshall had visited Ms Massey when she was on remand and that no attempt had been made to prevent this.

21. His evidence, as I understood it, was that Mr Marshall's hostility to police coincided with periods when his relationship with Ms Massey had been suspended or terminated, that is, when they, "split", as he put it, rather than being temporally related to the time when Ms Massey was in custody.

22. Breaching bail is a serious matter. A failure to attend court in answer to a bail undertaking will ordinarily result in a term of imprisonment. Compliance with bail is an important part of the integrity of the criminal justice system.

23. A breach of a condition of bail will ordinarily result in the arrest and immediate incarceration of the bailee. The trust that the court places in the accused to be permitted at liberty on the conditions imposed is breached by the failure to comply with the conditions and it is only by compliance with the conditions imposed that the accused is to be at liberty.

24. Certainly, many breaches do not result in continued detention. It is not infrequent that an accused person has on one or two occasions failed through forgetfulness to report to police as required. There are often minor breaches occasioned by the understandable frailty of human memory.

25. This breach, however, was more deliberate and to some extent goes to the heart of the criminal justice system for it has the potential to interfere with the evidence that is to be brought before the court in respect of the charge.

26. I cannot find, of course, that Ms Massey initiated the encounter, she may have, but I can not so find. I cannot find that there were more breaches than the one of which I have evidence; there may have been, but I can not so find.

27. This shows the significance of the place of trust in the bail system. Neither the courts, police or corrective services officers can monitor compliance with the bail conditions at all times. But, if the court has no confidence that the conditions will be complied with then the only recourse is to refuse to grant or continue bail.

28. The prosecution is also concerned about the integrity of Mr Marshall's evidence. To a large extent this is now preserved. He has made the statements that he has. His action in leading police to the knife and the circumstances under which it came to be hidden are recorded on video. He has, it appears, accepted that these statements were made by him and effectively adopted them in sworn evidence at the committal.

29. Even were Mr Marshall to be an unfavourable witness at the trial, Mr Pappas, who appeared for Ms Massey, submitted that the statements and interviews would be admissible, certainly under s 66 of the Evidence Act 1995 (Cth). That would appear to be so, and, if admitted, because Mr Marshall gave inconsistent evidence, they would be available for the truth of the contents of them to be before the court under s 60 of that Act.

30. Had Mr Marshall not made these statements, then the position would clearly have been different. In addition, if there were to be further investigations to be carried out into what Mr Marshall could say about the offence, and with which Ms Massey is charged, then that, too, would alter the situation.

31. I am also aware that Mr Marshall faces a trial in November for a charge of concealing evidence, namely the knife. While I suppose there is some risk of the concoction of evidence relating to that, no actual risk of how that trial might be compromised was articulated before me.

32. My initial reaction to this situation was to adjourn the application so that Ms Massey would remain in custody and could contemplate the apparently flagrant breach of the condition of her bail. That, however, would not be proper. I have no power to punish her for breach of her bail condition and should not indirectly do what I cannot do directly. I need either to remand her in custody or grant her bail.

33. I am also concerned that she may see a grant of bail on conditions that do not prevent her having contact with Mr Marshall as having somehow benefited her from her acknowledged and flagrant breach of the conditions that has to now prevented that.

34. I also note that under s 9C of the Bail Act 1992 (ACT) a court is prohibited from granting bail to a person charged with murder unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

35. Penfold J held that the delay in having the trial conducted amounted to such circumstances. Although the committal has been held, no trial date has been set and it is unlikely to be listed before 2012 unless significant changes in the court system are made well before then.

36. In my view, the position is finely poised. Ms Massey has seriously breached the obligations that permitted her to be at liberty. The court would be well justified in refusing to give her further liberty.

37. Ultimately, however, I am prepared to grant her bail again, despite severe reservations. I do note, however, that in my view, any further breach of any bail condition other than a trivial or excusable breach should result in her being denied further bail, notwithstanding any delay in the trial date.

38. This breach substantially undermines her credibility as a candidate for bail, both because of the flagrant nature of it, but also because it clearly had, as she knew, a capacity to interfere with the integrity of the criminal justice system. A further breach cumulates that to the point where I would no longer consider she was entitled to bail.

39. As to whether she should be granted bail on condition that she have no contact with Mr Marshall, that too is a difficult decision. It seems to me, however, that contact simpliciter is not the risk, but rather his attitude to her. He was not prevented from contacting her while she was earlier on remand. I consider that now the risk to the system on the information presented to me is not such that it cannot be prevented or overcome.

40. Accordingly, I will grant Ms Massey bail on the same conditions as have currently attached to her bail, save that the condition requiring her not to threaten, harass, intimidate, or contact directly or indirectly the persons named in the schedule that should accompany her bail undertaking do not include Mr Marshall.

41. I emphasis to Ms Massey, however, that she is now at a real risk of being remanded in custody should she fail to comply strictly and carefully with every one of her bail conditions in every respect.

I certify that the preceding forty - one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Prosecution: Director of Public Prosecutions (ACT)