In the matter of an application for bail by Rodrigues [2008] ACTSC 50 (14 May 2008)

(4) Not to absent himself from his place of residence between 9pm and 6am daily, unless on the specific and detailed direction of his father, Antonio Rodrigues, and in his company;

(5) To abstain from the use of illicit drugs and alcohol;

(6) To submit, as and when required, to urinalysis;

(7) To report to the officer in charge of Tuggeranong Police Station every day between the hours of 8am and 8pm;

(8) Not to contact directly or indirectly or approach whether personally or by telephone Philip Terrence Avis, Sheree Bonfine or Carol Pyke;

(9) To attend the ACT Magistrates Court on Thursday 22 May 2008 and Thursday 5 June 2008 and as and when required;

(10) Upon release attend forthwith upon Corrective Services at Eclipse House for the purpose or arranging supervision;

(11) To submit to an assessment by CADAS and to consent to that assessment being provided to ACT Corrective Services for consideration of what treatment or counselling he should be directed to undertake.

1. Mr Nuno Rodrigues, the applicant, has been charged with three series of charges, two of which include a charge of trafficking in amphetamines and the third a charge of possession of amphetamines. There are other charges in each series but these are the most serious. In the case of all the other charges, there is either what is said to be a presumption in favour of bail under s 9A of the Bail Act 1992 (ACT) (`Bail Act') or an entitlement to bail under s 8 of the Bail Act. In relation to the two trafficking offences, there is no presumption for bail (but not a presumption against bail) and in relation to the possession offence, there is a presumption in favour of bail.

2. I do not need to detail the facts in this case though a broad explanation is important.

3. The applicant has a bad, but not particularly long, history of criminal offences commencing in 1994 when he was released on a non-conviction bond for the offence of theft. Judging by the terms of the bond, it was not a trivial or minor offence. He has, since then, seven convictions for drug offences, including most recently, though in 2002, one for possessing a traffickable quantity of methamphetamine for which Crispin J sentenced him to four years imprisonment with a non-parole period of one year.

4. Before me, he gave evidence that he had remained drug free for some years after his release from prison but frankly acknowledged that he had relapsed into drug use again in early 2007. He linked this with the diagnosis that his uncle had cancer. His uncle subsequently died.

5. He stated that his father had been diagnosed about three months ago with rectal cancer and that this "gutted" him. His evidence was to the effect that the prognosis was grim and that the cancer was expected to be terminal in three to six months, although this is not stated in the affidavit sworn by his father tendered in this application.

6. His father, in his affidavit, deposed that he was undertaking chemotherapy sessions fortnightly on Monday and Wednesday at The Canberra Hospital. He lives in Gordon in the Australian Capital Territory. He is too weak after these sessions to drive; his wife does not have a driving licence and as he is not currently working, he does not have enough money for taxis to these sessions.

7. He said he catches the bus to the chemotherapy sessions, but that he has to wait "a considerable time" and it takes him much longer to get home. There was no material to suggest what effect this had on the applicant's father; many people have to travel by bus and wait for them. This then cannot be a strong argument for bail in itself, though one must have sympathy for the applicant's father.

8. The applicant gave oral evidence that he had been on bail for two periods of six months prior to being sentenced to imprisonment by Crispin J and under strict conditions. He became drug free during that time.

9. The applicant first came to the notice of the police on 26 March 2008 in respect of the offences he now faces. His car was searched, with his consent, and the police allege that a white tablet bottle containing brown powder and numerous small white tablets were found in it together with $5,500 bundled in separate parcels of $1,000 and one of $500. It is alleged that a further $1,200 was found on the front driver's seat, adjacent to a pencil case containing three small clip seal bags containing white powder. The applicant was informed that he would be summonsed in relation to these matters.

10. On 1 April 2008 the applicant came to the notice of police again. Police allege he had a number of capped syringes in his jacket and that he told them that he had "had a hit two hours ago". He is alleged also to have thrown a small plastic bag over his shoulder and that, when retrieved, it contained a white crystalline substance. It was alleged he had $3,000 in notes in his wallet. In an interview with police, duly recorded, he is said to have admitted using crystal methamphetamine on a regular basis and that he had thrown the bag away because he did not want police to find it. During the interview he denied selling the drugs, or giving them to other persons, and that he buys larger quantities for personal use as it is cheaper.

11. It appears that he was then arrested and charged but bailed to appear in the Magistrates Court on 15 April 2008. He was apparently bailed then by that court.

12. The facts alleged by police in relation to the third series of charges had commenced earlier in February when police obtained a telephone intercept warrant in relation to a Philip Terence Avis. During the intercepts under that warrant, it is alleged that the applicant wrote a text message to Mr Avis that said "150 packets for a "g" and 500 each. If interested works out to be 5.60 packet". There was a further conversation that could fairly be construed as the applicant offering to sell Mr Avis drugs in exchange for a phone.

13. Subsequently, it is alleged that a search warrant was executed on the Rodrigues household and items were seized, including a phone of the type apparently offered by Mr Avis, some white crystalline substance and money. In interview, the applicant is said to have claimed the phone was his own and denied knowledge of the crystalline substance.

14. He was arrested and charged. A few days later, when he was before the court on 6 May 2008, presumably on adjournment, the charges, the subject of the events of 26 March 2008, were proffered in court rather than being the subject of a summons.

15. On that day, Magistrate Burns refused bail and it is from that decision that this review is taken.

16. Because of the way in which the charges were preferred, s 9D of the Bail Act did not apply, but as Mr Pappas, who appeared for the applicant, properly accepted, the fact that offences were preferred after the applicant had come to the notice of police and advised that a summons was to be issued at least is relevant to the determination of bail.

17. I was informed that the question of the illness of the applicant's father was referred to by counsel for the applicant, Mr Ben Aulich, before his Honour and the reliance of the father on the applicant but that counsel "was not in a position to provide evidence from the applicant's father to confirm his difficulties in travelling to and from The Canberra Hospital after chemotherapy sessions and that he relies on the applicant to drive him".

18. Unfortunately, Mr Aulich does not explain why he was unable to do this, a matter that would have been relevant if that were to be substantially relied upon as justifying the review I am asked to undertake under s 43 of the Bail Act. These matters were fully canvassed and the affidavit of the applicant's father tendered on this hearing.

19. The first issue is whether I have jurisdiction to review the decision of Magistrate Burns. My power is set out in s 43 of the Bail Act which provides:

43 Power of Supreme Court to review

(1) The Supreme Court may, on application under this division, review any decision of an authorised officer, the Magistrates Court or the Supreme Court (however constituted) in relation to bail.

(2) However, the Supreme Court may review the decision only if the application for review is based on -

(a) a significant change in circumstances relevant to the granting of bail; or

(b) the availability of fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application in relation to bail.

(3) The power of the Supreme Court to review a decision under this section may be exercised whether or not any power to review the decision under s 38 or s 42 has been exercised or has been sought to be exercised.

20. Mr Pappas further submitted that while on its face the terms of the section provide a high threshold to be met by applicants for a review, the provision had to be interpreted in the light of s 18 of the Human Rights Act 2004 (ACT) and that the effect of this would be to moderate the strictness with which the threshold was to be applied. I have said before that, in my view this is a strong submission. I have not had the opportunity to consider it in detail. It is clear that the Human Rights Act 2004 (ACT) does not prevent pre-trial custodial detention and does not mandate bail in every case. I have not had an opportunity to give the interaction between the two Acts detailed consideration and, given the time available to me, will not do so now.

21. The change in circumstances relied on was the fact that the applicant's father was now prepared to undertake the obligation of a surety under s 25(1)(b) of the Bail Act.

22. The applicant also gave evidence, and this made it clear that he was in a position to return to his father's home, that he had previously complied with strict bail conditions that had kept him from committing offences and helped him manage his addiction. While this is not fresh evidence in a strict sense, it is new evidence in the sense that it adds to my understanding of the circumstances surrounding the arrangements for the applicant's father to act as surety.

23. On this basis, I consider that, although not a strong basis and finely balanced, it was sufficient for me to assume jurisdiction to review the decision in relation to bail.

24. Mr Drumgold, who appeared for the prosecution, submitted that bail should be refused because of the risk of re-offending. This is a factor that the legislature requires me to take into account under s 22(1)(b) of the Bail Act. His submissions were cogent and powerful. Despite the absence of an available reliance on s 9D of the Bail Act, there is, on the evidence of the police, clear continual offending. As Mr Pappas noted, addiction is a powerful driver to do so.

25. Although flight is not submitted as a ground to refuse bail in this case, especially since there is no history of failure to answer bail nor of failure to comply with court orders, I must say that if the offences charged are to be proved the applicant will almost certainly be sentenced to a lengthy term of imprisonment.

26. I find this decision a very difficult one to make. Section 22(3) permits me to have regard to the likely effect of a refusal of bail on the person's family or dependents. Clearly that is not a strong factor but just tips the balance in this case.

27. With considerable hesitation, I am prepared to grant bail. I would not have done so on the material before Magistrate Burns. The fact that a surety is now available is, in the circumstances, on the evidence before me, relevant, but only if it has not been produced to the Supreme Court just to give jurisdiction or when it was available but not mentioned to the Magistrates Court. That is not suggested here. The liberty of the subject is extremely important, and the legislature makes it clear that the primary responsibility for this lies with the Magistrates Court in circumstances such as this and review is only available on a limited basis. Thus, the profession must make the best case that they can to the Magistrate and not keep arguments fresh for the review if bail is refused.

28. I propose to grant bail, however, on very strict conditions. The applicant knows that if he breaches them, even in a small way, he is likely to be returned to custody and bail will be very unlikely to be granted again.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the defendant: Ben Aulich and Associates

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