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[2015] ACTSC 139
Supreme Court of the ACT
2015-06-02
Mossop AsJ
Original judgment source is linked above.
The application for bail dated 27 May 2015 is dismissed.
BAIL - whether (ACT) applies - offence alleged in another jurisdiction - charge to be prosecuted summarily - whether 'punishable' in definition of 'serious offence' refers to maximum penalty or maximum penalty if prosecuted summarily - special or exceptional circumstances not established
Bail Act 1992 (ACT)
Crimes Act 1900 (ACT)
Firearms Act 1996 (ACT)
Supreme Court Act 1933 (ACT)
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Firearms Act 1996 (NSW)
In the matter of an application for bail by Taniela Pikula
In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64
1. By application dated 27 May 2015 Fakatounaulupe Ngata has applied for bail. The application is an application under s 20B(a) of the Bail Act 1992 (ACT) (the Act). Section 20C of the Act applies because Mr Ngata has made two or more applications for bail in the Magistrates Court on 13 February 2015 and 25 March 2015 respectively.
2. The applicant was arrested by the Australian Federal Police on 23 October 2014. He appeared in the Magistrates Court on the next day and was charged with the following offences:
(a) Unauthorised possession of a firearm in contravention of s 43(1)(a)(iii) of the Firearms Act 1996 (ACT) (CC2014/10513). This charge carries a maximum penalty of five years' imprisonment.
(b) Participation in a criminal group causing harm in contravention of s 653 of the Criminal Code 2002 (ACT) (CC2014/10514). This charge carries a maximum penalty of ten years' imprisonment.
(c) Affray in contravention of s 35A of the Crimes Act 1900 (ACT) (CC2014/10515). This charge carries a maximum penalty of two years' imprisonment.
3. On 9 January 2015 a charge of aggravated robbery in contravention of s 310(a) of the Criminal Code 2002 (ACT) (CC2015/700) was laid. This charge carries a maximum penalty of 25 years' imprisonment.
4. On 13 February 2015 a second charge of aggravated robbery in contravention of s 310(a) of the Criminal Code 2002 (ACT) (CC2015/1689) was laid against the applicant.
5. On 20 February 2015 a third charge of aggravated robbery (CC2015/1920) was laid against the applicant.
6. On 23 April 2015 the Director of Public Prosecutions offered no evidence on the first charge of aggravated robbery (CC2015/700) and this charge was dismissed by a Magistrate.
7. At the committal hearing on 11 May 2015 the Director of Public Prosecutions offered no evidence on the charge of unauthorised possession of a firearm (CC2014/10513) and this charge was dismissed.
8. The decision on the committal was made on 20 May 2015 and the applicant committed for trial on the second and third aggravated robbery charges (CC2015/1689 and CC2015/1920). The charges of being a member of a criminal group and affray (CC2014/10514 and CC2014/10515) were transferred to the Supreme Court as back-up charges pursuant to s 90B of the Magistrates Court Act 1930 (ACT). That section requires back-up and related charges to be transferred to the Supreme Court and dealt with pursuant to part 8 of the Supreme Court Act 1933 (ACT).
9. In summary, since the last bail application two charges have been dismissed, namely the charge of unauthorised possession of a firearm and one of the charges of aggravated robbery. I was told that the aggravated robbery charge that was dismissed was one which involved an allegation that Mr Ngata had possession of a firearm although this was not clear upon the material before me. I was further told that this charge and the unauthorised possession of a firearm charge were both dismissed because the prosecution accepted that it would not be able to establish that the item seen in Mr Ngata's hand on the CCTV of the incident was in fact a firearm. It was as a result of this that the prosecution instead laid the two charges of aggravated robbery which relied upon the applicant being in company as the aggravating feature. Two charges were laid because each charge relates to one of the two persons who are alleged to have been robbed.
10. Section 20C(2) provides, in a case such as this where two or more applications for bail have been made in the Magistrates Court:
(2) The court may only consider a further application for bail (other than a bail review application) by the person in the proceeding if the court is satisfied-
(a) that since the last application for bail there has been a change in circumstances relevant to the granting of bail; or
(b) that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.
11. Paragraph (2)(a) is a provision which is troublesome to apply in practice because there is no stated threshold of significance in relation to what constitutes 'a change in circumstances relevant to the granting of bail'. However in the present case that issue does not arise in its acute form. That is because having regard to the chronology set out above it is clear that since the last bail application the firearms possession charge has been dismissed. The dismissal of a charge, particularly one involving allegations relevant to and tending against a grant of bail, is in my view, a change of circumstances for the purposes of s 20C(2)(a).
Does the previous satisfaction of section 9D continue to have an effect?
12. Counsel for Mr Ngata submitted that s 9D of the Act was not a barrier to the grant of bail because on 9 January 2015 Mr Ngata had been granted bail in circumstances where s 9D of the Act applied and that the requirement for special or exceptional circumstances having been satisfied on that occasion it was not necessary for it to be satisfied again. No authority was referred to in support of this submission. I indicated during the hearing that I did not accept that submission for two reasons. First, the submission was inconsistent with the words of s 9D which place a clear prohibition on the court granting bail unless satisfied that special or exceptional circumstances exist favouring the grant of bail. That prohibition, in its terms, applies to the court dealing with the application for bail and requires that court to be satisfied for itself of the special or exceptional circumstances. Second, accepting the submission of Mr Ngata would mean that consideration of special or exceptional circumstances would be artificially fixed at a particular time, namely the first occasion on which it was satisfied, even though the circumstances of the applicant may change over time. That would give the section an arbitrary operation inconsistent with its apparent intention.
Does section 9D operate where a New South Wales offence is to be prosecuted summarily?
13. The second submission made by counsel for Mr Ngata was that s 9D had no application in circumstances where the earliest serious offence giving rise to its application was a New South Wales offence which was to be prosecuted summarily in a manner that meant that the maximum penalty that could be imposed was two years.
14. Mr Ngata faces two charges in New South Wales. The first charge is a charge of assault occasioning actual bodily harm in contravention of s 59(1) of the Crimes Act 1900 (NSW). Section 59(1) of the Crimes Act 1900 (NSW) provides: 'Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years'.
15. The second charge is unauthorised possession of ammunition in contravention of s 65(3) of the Firearms Act 1996 (NSW). This charge carries a maximum penalty of 50 penalty units.
16. Section 260 of the Criminal Procedure Act 1986 (NSW) provides that certain indictable offences may be dealt with summarily by the Local Court. Indictable offences listed in Table 2 to Schedule 1 of the Act are dealt with summarily by the Local Court unless the prosecutor elects in accordance with the Act to have the offence dealt with on indictment.
17. The evidence disclosed that no election has been made by the prosecutor that would require the charge of assault occasioning actual bodily harm to be dealt with on indictment. Where no such election is made the charges are dealt with summarily in the Local Court and the maximum term of imprisonment that may be imposed is two years: s 268(1A).
18. As a consequence, Mr Ngata submits that the charge of assault occasioning actual bodily harm is not a 'serious offence' for the purposes of s 9D and, as a result, the requirements for s 9D to operate in this case have not been met.
9D Bail for serious offence committed while charge for another pending or outstanding
(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.
(2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
serious offence means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor's election).
20. In In the matter of an application for bail by Taniela Pikula [2015] ACTSC 3 ('Pikula') Refshauge J considered whether or not an offence committed in New South Wales could be a serious offence for the purposes of s 9D or whether the definition of serious offence was limited to such an offence under a law of the Australian Capital Territory. In considering this issue his Honour gave particular consideration to the operation of s 374 of the Crimes Act 1900 (ACT) which is referred to in the definition of 'serious offence'. In particular, his Honour noted the anomaly that arises in relation to Commonwealth offences which, pursuant to s 4J of the Crimes Act 1914 (Cth), may be heard and determined summarily if both prosecution and defence consent. In those circumstances the maximum penalty is two years' imprisonment. It is, therefore, a provision very similar to s 374 of the Crimes Act 1900 (ACT). His Honour said:
21. In other words, his Honour proceeded on the basis that even where a procedural provision in the Crimes Act 1914 (Cth) permitted a charge to be dealt with summarily and limited the sentence which may be imposed to less than the threshold required by the definition of serious offence, s 9D would still operate. That approach is inconsistent with the submission that Mr Ngata made in this case and is consistent with the relevant period of imprisonment for the purposes of the definition of serious offence being the 'headline' maximum penalty rather than the maximum penalty which may be imposed pursuant to procedural provisions which permit the offence to be dealt with summarily. His Honour concluded:
22. Therefore his Honour found that an offence alleged to have been committed under a provision of the Crimes Act 1900 (NSW) which carried a maximum penalty of 25 years could be a 'serious offence' for the purposes of s 9D.
23. The decision in Pikula determines that an offence under a New South Wales statute may be a 'serious offence' for the purposes of s 9D. The obiter dicta of Refshauge J in relation to the operation of s 4J of the Crimes Act 1914 (Cth) are inconsistent with the submission made by Mr Ngata in the present case.
24. For the purposes of the present case the critical issue is what is meant by the word 'punishable' in the definition of 'serious offence'. If punishable refers to the maximum penalty identified as the penalty for that offence then the charge of assault occasioning actual bodily harm is clearly a serious offence for the purposes of the definition. If, on the other hand, 'punishable' means punishable in the circumstances of the case having regard to whether or not pursuant to any relevant procedural provision it is to be prosecuted summarily, then in this case the offence is not a serious one because, in the absence of an election by the New South Wales prosecutor the charge of assault occasioning actual bodily harm will proceed summarily and the maximum period of imprisonment that may be imposed is a period of two years.
25. In my view the existence of the carve out which refers to s 374 is an indicator that the word 'punishable' is a reference to the 'headline' period of imprisonment and not the period of imprisonment that is applicable if the matter is dealt with summarily, even if the charge will in fact be dealt with in that manner. Had 'punishable' been a reference to the maximum penalty that could be imposed having regard to procedural provisions that permit the offence to be dealt with summarily then the carve out referring to s 374 would not have been necessary. That is because upon the election being made under s 374 the offence would no longer be punishable by five years' imprisonment or longer and hence would, without the express carve out, be taken outside the definition of serious offence. Similarly, the existence of the carve out in relation to the prosecutor's election to have the proceedings dealt with summarily and the absence of any carve out in circumstances where the accused consents to summary jurisdiction is consistent with the term punishable referring to the headline punishment rather than the punishment available in the circumstances upon a summary conviction.
26. As Refshauge J pointed out in relation to Commonwealth offences and as the present case illustrates in relation to New South Wales offences, this interpretation means that there is what might be considered an anomaly in relation to such offences having regard to the apparent policy behind the definition of serious offence because it does not address the circumstances where, by the prosecutor's election or with the prosecutor's consent the proceedings are to be dealt with summarily and the maximum penalty limited. However the different approach to Territory and non-Territory offences does not in my view provide a proper basis for departing from the interpretation which I have outlined above.
Are there special or exceptional circumstances?
27. Because s 9D applies, bail may only be granted if the Court is satisfied that there are special or exceptional circumstances favouring a grant of bail. Counsel for Mr Ngata submitted that the Court should be satisfied that special or exceptional circumstances existed for three reasons:
(a) Having regard to the operation of s 9D the requirement for special circumstances only existed because of a lacuna in the legislation which failed to accommodate the effect of a prosecutor's election in relation to New South Wales offences in the same way as it was accommodated in relation to Territory offences.
(b) The Registrar of the Court had provided information to Mr Ngata's solicitor that the hearing of the charges was likely to occur in the November-December 2015 sittings and that this would be up to 14 months after the offences were alleged to have occurred; Mr Ngata had already spent 184 days in custody in relation to the charges and would, if bail was not granted, spend an additional five or six months in custody pending his trial.
(c) The fact that the persons alleged to have been robbed gave no evidence at the committal and having regard to their attitude were unlikely to give evidence at the trial was a special or exceptional circumstance.
28. In relation to those three reasons my conclusions are as follows.
29. I do not accept that the different operation of s 9D in relation to New South Wales (or, indeed, Commonwealth) offences when compared with Territory offences is a special or exceptional circumstance for the purposes of s 9D. The statute operates in accordance with its terms. The difference in treatment between offences of different jurisdictions could be characterised as an anomaly but it is not something which is so arbitrary, unreasonable or obviously unintended that it could be considered by the Court to be special or exceptional circumstances.
30. In relation to the period spent in custody and the likely delay prior to the hearing there are two points to be made. First, the time that it takes to bring the matter on for a hearing was not demonstrated to be out of the ordinary course of criminal procedure in this Court and as a result could not, of itself, be special or exceptional circumstances: In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64 at [39]. Second, the fact that an accused has spent a significant period in custody and will spend a further significant period in custody before his trial is obviously a significant matter in relation to bail but this is not a case where there would be such a disproportion between the period of time spent in custody pending trial and the possible sentence if the applicant for bail was convicted of the offence that it might amount to special or exceptional circumstances. In this case the record of Mr Ngata which is contained in the affidavit read in support of the application indicates that he has, amongst other convictions, convictions for kidnap and forcible confinement in 2011 for which he was sentenced to four years' and six months' imprisonment with a non-parole period of two years and 11 months. Having regard to the gravity of the current charges which he faces, which each carry a maximum penalty of 25 years' imprisonment, it could not be said that the period that he might spend in custody pending trial would be so disproportionate to any sentence that might be imposed if he was convicted that this would amount to special or exceptional circumstances.
31. The fact that the victims of the alleged robberies have declined to co-operate with police is not in my view a matter which demonstrates special or exceptional circumstances. Submissions based on this fact were made by the applicant at a contested committal hearing. In circumstances where both the applicant and the alleged victims are alleged to be involved with rival outlaw motorcycle gangs the position is not unsurprising. The fact that the victims declined to assist police might be a fact demonstrating the weakness of the Crown case which conceivably could amount to special or exceptional circumstances. However the situation has not changed since the contested committal hearing where, notwithstanding the submissions made on behalf of Mr Ngata based on the absence of any evidence from the alleged victims, the Magistrate considered that there was sufficient evidence to commit him for trial. That evidence included CCTV evidence of the incident. In my view, the submitted absence of evidence in support of the Crown case is not sufficient to amount to special or exceptional circumstances favouring the grant of bail.
32. Even considering these three factors together or in combination with the personal circumstances of Mr Ngata as outlined in the affidavit in support of the application for bail does not satisfy me that there are special or exceptional circumstances favouring the grant of bail.
33. Because I am not satisfied that special or exceptional circumstances exist favouring the grant of bail s 9D(2) precludes a court granting bail to Mr Ngata. It is therefore not necessary to consider the various factors that would otherwise need to be considered under s 22 of the Act.
The application for bail dated 27 May 2015 is dismissed.
I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.