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[2010] ACTSC 114
defendant. Bail refused; SA's application for bail dismissed for failure to establish special or exceptional circumstances under s 9D Bail Act 1992 (ACT) (para 1, para 57).
SA, remanded since June 2009 on serious drug charges allegedly committed while other serious charges were outstanding, sought bail after a trial date was listed more than two years after the alleged offence. Under s 9D Bail Act a presumption against bail applied; to rebut it she had to show special or exceptional circumstances. She relied on delay to trial and her inability while detained to challenge a Care and Protection Order for her son. Penfold J accepted jurisdiction to hear the application but found no evidence that the child's welfare was harmed and no evidence that the listing delay was inordinate or systemic. Ordinary consequences of custody and an unsupported claim of lengthy delay did not suffice as 'special or exceptional' circumstances. Bail was refused (paras 7–8, 24–27, 36–46, 57–60).
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6 cited instruments linked from this judgment.
SA was arrested in May–June 2009 and charged with a series of offences. After initial non-drug charges in May 2009 and release on bail, she was arrested again on 13 June 2009 and charged with three counts of trafficking methylamphetamine (para 2). She was refused bail on 16 June 2009 and detained at the Alexander Maconochie Centre (AMC) from that time (para 2). Multiple bail applications followed; some were refused or adjourned (para 3). On 9 March 2010 SA filed a fresh bail application to the Supreme Court of the ACT (Penfold J). The next day, 10 March 2010, a trial date was listed for 27 June 2011 for the first series of offences, a fact relied on by SA as fresh material under s 19(5) of the Bail Act (paras 1, 7).
Penfold J accepted jurisdiction under s 19(5) because the listing provided the first clear information about how long pre-trial custody might continue (para 7). The statutory presumption against bail in s 9D(2) applied because SA was charged with a serious offence allegedly committed while other serious charges remained outstanding (para 8). That presumption could only be rebutted by demonstrating "special or exceptional circumstances", a test the court interpreted in line with prior ACT authority to mean circumstances that are unusual or uncommon (para 8).
SA's final case at hearing relied primarily on two grounds: (a) delay in bringing her to trial (first trial more than two years after the alleged offending; possible second trial still later), and (b) her incarceration preventing her from effectively challenging Care and Protection Orders concerning her younger son (paras 9–10, 16–24, 36–37). Penfold J examined each ground against precedent and statutory materials, including the Children and Young People Act 2008 (CYP Act) and authorities on delay and bail (paras 11–14, 28–35, 43). The judge found there was no evidence the child was suffering in his placement (the proposed Care Plan stated his needs were being met) and that the parental disadvantage in contesting the care orders was an ordinary consequence of custody rather than a special or exceptional circumstance (paras 19–27, 34–35). On delay, the judge distinguished this case from Massey [No. 2], in which prosecutorial preparation was not proceeding at a reasonable pace; here there was no evidentiary material demonstrating inordinate or systemic delay, and a bare assertion that two years is 'too long' did not suffice (paras 13, 36–46, 59). Consequently, Penfold J refused bail (para 1, 57–60).
Three main legal and factual strands drove the decision.
The statutory framework and burden under s 9D Bail Act 1992 (ACT). Section 9D(2) creates a presumption against grant of bail where a person is accused of a serious offence committed while other serious charges are pending or outstanding (para 8; Appendix). To overcome that presumption, the accused must show special or exceptional circumstances. Penfold J relied on ACT precedent (Massey No. 1, Massey No. 2, Allen) that interpreted the phrase to require circumstances that are unusual or uncommon (para 8). Because the onus rests on the accused, the judge required cogent evidence establishing that threshold.
The child's welfare evidence (or lack of it). SA's counsel framed the childcare point mainly as an inability to challenge Care and Protection Orders from detention, thus denying SA the practical capacity to regain custody (paras 18–24). Penfold J examined the CYP Act's focus on the child's best interests and the care and protection principles (paras 29–33), but emphasised that these statutory priorities do not displace the operation of other legislation such as the Bail Act (para 33). Critically, the material before the court (including a proposed Care Plan dated 11 January 2010) stated the child was in a kinship placement where his physical and emotional needs were being fully met (para 19). In the absence of evidence that the child was suffering because of the arrangements, the judge concluded that what was shown was a deprivation to the parent, not to the child, and ordinary parental disadvantage through remand is not "special or exceptional" (paras 24–27, 34–35).
Delay and the requirement for inordinate/systemic delay to qualify. Penfold J scrutinised SA's contention that a trial date more than two years after the alleged offence was itself a special or exceptional circumstance. She distinguished that from her earlier decision in Massey [No. 2], where delay was shown to arise from prosecuting authorities not progressing a matter at a reasonable pace (paras 13, 36–37). Drawing on the analysis in Allen and Victorian authorities (DPP v Tang; Mokbel), she reiterated the distinction between routine elapsed time necessary for proper preparation and genuinely inordinate delay attributable to systemic failings (paras 43, 39–41 as quoted in the judgment). Because SA produced no material demonstrating that the delay was inordinate or that prosecutorial/court systems were responsible for exceptional delay, the judge concluded that a bare assertion that 'two years is too long' was unsupported (paras 43–46, 59). The announced but as-yet-unquantified prospect of additional judicial resources (acting judges) further weakened the delay argument (para 56).
Collectively, these findings meant the statutory presumption remained unrebutted and the court could not proceed to consider bail under the s 22 criteria. Bail was refused (paras 57–60).
Before this decision:
After this decision:
In short, the decision reinforced a careful, evidence-led approach to rebutting s 9D's presumption, especially where applicants rely on delay and family-care impacts.
Para 7: "I was willing... to accept the setting of the first trial date as providing a basis on which I could hear her bail application..."
Para 8: "SA's application is subject to the presumption against bail effected by s 9D(2)... To rebut that presumption... SA is required to show that there are special or exceptional circumstances..."
Para 26: "An inability to provide day-to-day care... is almost always an inherent feature of incarceration... To that extent it could not be a special or exceptional circumstance as such."
Para 34: "There was no evidence before me that SA's son was being negatively affected by his new care arrangements."
Para 59: "The submissions... have foundered on a failure to provide either evidence or submissions in support of statements like 'two years is just too long'..."
This decision will be persuasive in cases with the following features:
Conversely, this precedent is less binding where applicants can adduce evidence that:
Within this judgment Penfold J follows and applies prior ACT authority (Massey No. 1, Massey No. 2, Allen) and cites Victorian authorities on the concept of inordinate delay (DPP v Tang; Mokbel) in support (paras 8, 11–14, 43). Penfold J also distinguishes an earlier bail grant in Taylor (her prior decision) as not establishing a general rule that a given chronological delay automatically amounts to a special circumstance (para 45). The judgment thus sits within a consistent ACT approach that requires concrete, unusual factual material to rebut the s 9D presumption.
Practitioners should expect courts to insist upon evidence showing either:
Where such evidence is lacking, later courts are likely to treat Penfold J's reasoning as persuasive: mere numeric delay or ordinary parental disadvantage will not suffice.
Quantitative thresholds for 'inordinate delay': Penfold J rejected a bare two-year benchmark absent supporting evidence (paras 43–46, 59). The decision leaves open how statistical or comparative evidence about average listing times, or jurisdictional comparisons, should be marshalled to show inordinate delay. The judge noted difficulties with comparative data (para 44–45) and suggested a listing policy might be helpful (para 55). Future litigants will need to supply focused evidence about listing practices, resource constraints, and comparative timelines to press this ground successfully.
The evidentiary standard for child-impact claims: The decision shows that the court expects evidence of actual detriment to the child before treating parental inability to litigate as 'special or exceptional' (paras 19, 34–35). It remains open what precise kinds of evidence (professional reports, welfare assessments, expert opinion) and what level of probative detail will suffice to establish that parental detention materially harms the child's welfare.
Interaction with the Human Rights Act: SA's counsel initially invoked s 18(4) of the Human Rights Act (right to be tried within a reasonable time or released) but did not press a full HRA argument (paras 40–41). Penfold J did not resolve how an HRA claim might operate in practice to influence a s 9D inquiry. It remains a live question whether and how credible HRA-based evidence of unreasonableness (including comparative jurisdictional analysis) could supplement a s 9D application.
Systemic remedies versus individual bail relief: Penfold J expressed concern about using bail to remedy listing backlogs and suggested administrative measures (listing policy, added judicial resources) may be a preferable route (paras 55–56). The tension between corrective individual bail relief and systemic reform remains unresolved: under what circumstances should courts use bail decisions to address systemic listing problems?
Role of sureties and conditional bail under s 22: Although Penfold J noted that a surety alone rarely amounts to a special circumstance (para 10), prior ACT decisions accepted surety availability as a contributory element in combination with other factors (para 10). The precise combinatory calculus, how much weight a surety or tailored conditions should have when added to other factors such as delay or family hardship, remains context-dependent and open to future refinement.
Conclusion: Penfold J's reasons emphasise an evidentiary, fact-specific approach to rebutting s 9D's presumption. Applicants must adduce particularised, uncommon facts demonstrating either serious prejudice to others (notably children) or inordinate/systemic delay; ordinary consequences of custody or unsupported chronological delay will not suffice.
IN THE MATTER OF AN APPLICATION FOR BAIL BY SA [2010] ACTSC 114 (23 September 2010)
CRIMINAL LAW - bail - statutory presumptions - presumption against bail where person charged with serious offence while other serious offences pending or outstanding - applicant must show special or exceptional circumstances favouring the grant of bail - circumstances must be unusual or uncommon - Bail Act 1992 (ACT) s 9D.
CRIMINAL LAW - bail - special or exceptional circumstances - delay as a special or exceptional circumstance - whether delay of two years between alleged offence and trial is inordinate - delay not shown to amount to special or exceptional circumstances.
CRIMINAL LAW - bail - special or exceptional circumstances - Care and Protection Order made for applicant's son - no negative effect on son shown - effect of custody on applicant's ability to challenge Care and Protection Orders not shown to be special or exceptional circumstance.
Human Rights Act (2004) (ACT), ss 30, 18, 18(4), 28
Bail Act 1977 (Vic)
DPP v Tang (1995) 83 A Crim R 593
In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (19 December 2008)
In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70 (26 June 2009)
In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64 (28 May 2009)
Mokbel v DPP (Vic) [No 2] [2002] VSC 312; (2002) 132 A Crim R 290
Productivity Commission, Report on Government Services 2010 (2010)
No. SCC 314A, B of 2009
) No. SCC 314A, B of 2009
1. SA filed an application for bail on 9 March 2010 and the application first came before me on 15 March. The application was adjourned several times to allow evidence to be produced and further submissions to be made. On 12 May 2010 I refused her application on the ground that she had failed to establish special or exceptional circumstances as required by s 9D of the Bail Act 1992 (ACT). In refusing her application I indicated that, because of the nature and significance of some of the issues that had been raised in the application, I would provide written reasons for my refusal. These are those reasons.
2. SA was arrested on 13 May 2009 and charged with four offences, being allowing a dog to attack a person; assault occasioning actual bodily harm; unlawful confinement; and detaining a person. She was released on bail on 27 May 2009. On 13 June 2009, she was again arrested, and this time she was charged with three counts of trafficking in a controlled drug other than cannabis, namely methylamphetamine. SA was refused bail and remanded in custody on 16 June, and has been in custody ever since. She has been held in the Alexander Maconochie Centre (AMC).
3. SA was refused bail by Higgins CJ on 19 June 2009. Since then she has made six more bail applications, three of which were listed before Higgins CJ (25 September, 23 October, 5 November 2009) and one of which was listed before Gray J (4 December 2009). Most of the applications were apparently withdrawn before being heard, but the application that came before Gray J on 4 December was then adjourned generally on 11 December 2009, with the comment "so it remains on foot". Neither the reason for the repeated withdrawal of applications, nor the status of the December 2009 application, is clear to me.
4. Most of SA's supporting evidence in her application was provided through an affidavit sworn by Kamyar Saeedi dated 9 March 2010. Some other material was tendered during the hearing, as will be discussed.
5. As mentioned above, SA was refused bail by Higgins CJ on 19 June 2009, and another application was adjourned generally in December 2009. The application before me was a new application for bail.
6. Section 19(5) of the Bail Act is set out in the Appendix to this judgment. Under s 19(5)(b), SA first had to establish that the court had jurisdiction to hear her application, and to do that she needed to show:
(i) that since the most recent application to a court for bail there has been a significant change in circumstances relevant to the granting of bail; or
(ii) that there is fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application to a court for bail.
7. The matter relied on by SA to give jurisdiction for the application to be considered was the setting, on 10 March 2010 (the day after the bail application was filed) of a trial date for the first series of offences, being 27 June 2011. This was the first point at which there was any clear information about how long SA was likely to be in custody before coming to trial, and therefore the first point at which she was able to make a soundly-based argument for bail based on trial delays as a special or exceptional circumstance. For that reason I was willing, for the purposes of s 19 of the Bail Act, to accept the setting of the first trial date as providing a basis on which I could hear her bail application; I do not think that it matters in this case whether the setting of the date is categorised as a significant change in circumstances relevant to the granting of bail or the actual date set is treated as information of material significance to the granting of bail.
8. Section 9D of the Bail Act applies to persons charged with "serious offences", defined in s 9D(6) as offences punishable by imprisonment for 5 years or longer. Because she has been charged with serious offences alleged to have been committed while charges for other serious offences were still outstanding, SA's application is subject to the presumption against bail effected by s 9D(2) (set out in the Appendix). To rebut that presumption, and enable the court to consider the criteria for the granting of bail set out in s 22 of the Bail Act, SA is required to show that there are special or exceptional circumstances favouring the granting of bail. The test of "special or exceptional circumstances" for bail applications has been interpreted as requiring the court to find circumstances affecting the applicant that are in some way unusual or uncommon (see In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (19 December 2008) (Massey [No. 1]) at [7] and [8], and In the matter of an application for bail by Timothy Noel Allen [2009] ACTSC 64 (28 May 2009) (Allen) at [9] and [10]).
9. The case initially put on behalf of SA at the bail hearing was different from the case that had been foreshadowed in her bail application, and changed further during the course of the hearing. Specifically, the matters relied on by SA to establish special or exceptional circumstances have developed during several adjournments of this application. The matters finally relied on were, in general terms:
(a) SA's wish to pursue regaining the custody of her son; and
(b) delays in bringing her to trial, given that her first trial date had been listed for June 2011 and no date had yet been set for her second trial.
10. The availability of a surety was also mentioned in Mr Saeedi's affidavit, but that was not apparently relied on as a special or exceptional circumstance in this application, and I cannot see that of itself it could amount to special or exceptional circumstances favouring the granting of bail (although in Massey [No. 1] at [30], and In the matter of an application for bail by Rebecca Massey [No. 2] [2009] ACTSC 70 (26 June 2009) (Massey [No. 2]) at [51], it was accepted as one of the elements that in combination amounted to special or exceptional circumstances).
11. There is a superficial similarity between the matters raised by SA and those raised by Rebecca Massey in bail applications dealt with respectively in Massey [No. 1] in late 2008 and Massey [No. 2] in mid-2009. The matters raised in the two Massey applications were:
(a) behavioural difficulties affecting Ms Massey's 8-year-old son, which were said to result from her continued detention;
(c) the weakness of the prosecution case, in particular having regard to the raising of self-defence and, in Massey [No. 2], the possibility also of a claim of diminished responsibility in reliance on Ms Massey's then recent diagnosis of bipolar disorder; and
(d) past and expected delays between her arrest and likely trial.
12. Refshauge J in Massey [No. 1] found that none of those four matters individually amounted to special or exceptional circumstances, but, "with some hesitation", found that the four matters taken together did amount to such circumstances.
13. In Massey [No. 2], I found that Ms Massey's son's behavioural difficulties did not amount to special or exceptional circumstances, and nor did the availability of a surety or any weaknesses in the prosecution case (which case if anything seemed to have become stronger since Massey [No. 1]). However, in relation to delays in bringing her matter to trial, I said at [50]:
I find that in this case the work of bringing this matter to trial does not seem to be being done at a reasonable pace. The investigation appears to be taking far longer than ought to be required, given the importance of the case and even accepting its complexity. Whether this is because of a shortage of resources, and whether some of the delays are attributable to this matter being one of the first to be dealt with under the new committal processes, does not seem to matter, and there is nothing before me to suggest that these delays are in any sense routine. For whatever reason, Ms Massey is currently being affected by what appear to be excessive or inordinate delays in bringing her case to trial.
14. Noting that the issue of delay as it stood in mid-2009 tended to favour the granting of bail to a significantly greater extent than it did when Refshauge J considered the matters in late 2008, I went on to find that, taken together, the four matters raised by Ms Massey did amount to special or exceptional circumstances favouring the granting of bail.
15. It is against this background that I considered SA's application, which as mentioned was argued on the basis that special or exceptional circumstances could be found in the circumstances of the new care arrangements for her younger son, combined with the time that would elapse before she will be tried for the offences with which she has been charged.
16. The nature of the claim in relation to SA's son was not easy to pin down.
17. Her son, who is now 11 years old, had been living with SA until she was arrested in June 2009. Shortly thereafter he was taken into emergency care as a result of emergency action under s 406 of the Children and Young People Act 2008 (ACT) (the CYP Act). Two days after SA's arrest, an application for interim and final Care and Protection Orders was made. In February 2010 a final Care and Protection Order was made, expressed to operate until the boy turns 18. The effect of the order was to transfer long-term responsibility for the boy's care, including the power to make decisions about his living arrangements and the people he may have contact with, to the Chief Executive of the Department of Disability, Housing and Community Services (the Department). There was no evidence before me supporting the proposition that the Care and Protection Orders had only been sought because SA was in custody, and indications in some material referred to that there were in fact other grounds involved.
18. Counsel made several attempts to articulate the nature of the special or exceptional circumstance in relation to SA's son.
19. There was no substantive case put on behalf of SA that the welfare of her son had been negatively affected by her incarceration or by the care that is being provided for him through the Department. On the contrary, the most recent document in evidence that addresses the son's current circumstances was a proposed Care Plan dated 11 January 2010 attached to the final Care and Protection Order, which says that the boy:
...is currently in a Kinship placement where his physical and emotional needs are being fully met.
20. Rather, counsel focussed on the effect of SA's incarceration on any challenge to the Care and Protection Order, but he had difficulty in identifying that as a problem for SA's son rather than a deprivation for her.
21. At various points during the hearing, counsel described the circumstance as follows:
(a) that SA's incarceration meant that she was not able to put to the child protection authorities information suggesting that the best interests of her child would be served by a different disposition in relation to his care;
... has not had an opportunity to properly put a position that would see her restored to the position of the mother of the children ...
(c) that SA had lost the opportunity to ventilate in court issues such as the best interests of the child, the interests of parents in relation to providing an environment that attends to the care and protection of children, and the care and protection principles; and
It is a practical issue concerning her capacity to agitate matters of a contradicting nature in relation to the proceedings that have been taken in relation to the children and there is the fact that the proceedings have been brought because she is in custody.
22. Counsel's references to "children" reflect the fact that SA also has an older son who has not turned 18, but his position was not the subject of any evidence or specific submissions in the application.
23. Having regard to these various descriptions, it is useful to consider what the circumstance actually amounted to.
24. Counsel pointed out that as a practical matter, SA's incarceration had already deprived her of the opportunity to challenge the application for the Care and Protection Orders, and that her continued incarceration prevented her from seeking to overturn the final order now that it has been made. This was because being in custody:
(a) inhibited her ability to put together a case for overturning the order, including by gathering the evidence that she would need in support of her case; and
(b) prevented her including as part of that case a claim that she was able to offer day-to-day care to her son.
25. Clearly it was correct that SA's ability to mount any kind of case against the Care and Protection Order was seriously compromised by her continued incarceration. In particular, SA's remand in custody has deprived her of the ability to play a direct role in providing a home for her son, and it may also be correct that it inhibited her more generally in mounting a challenge to the final order. However, this does not seem to amount to a special or exceptional circumstance for the purposes of the Bail Act.
26. An inability to provide day-to-day care to a family member is almost always an inherent feature of incarceration, and it is a feature which affects the significant proportion of prisoners who have, before being taken into custody, been part of a family unit. To that extent it could not be a special or exceptional circumstance as such.
27. I note, however, that there are cases in which the particular needs of a family member may provide, or contribute to, a basis for finding special or exceptional circumstances, as for instance in Massey [No. 2], or perhaps a case in which the arrangements that had been made for the temporary care of a child whose parent was in custody were clearly unacceptable in the longer term.
28. In general support for the argument that SA's ability to challenge the final Care and Protection Order deserved recognition in consideration of a bail application, counsel for SA pointed to the provisions of the CYP Act, in particular ss 7, 8, 9 and 350.
29. Under s 7 of the CYP Act, the objects of the Act include:
(a) providing for, and promoting, the wellbeing, care and protection of children and young people in a way that -
(i) recognises their right to grow in a safe and stable environment; and
(ii) takes into account the responsibilities of parents, families, and the community and the whole of government for them; and
(b) ensuring that children and young people are provided with a safe and nurturing environment by organisations and people who directly or indirectly, provide for their wellbeing, care and protection; and
...
(e) ensuring that services provided by, or for, government for the wellbeing, care and protection of children and young people -
(i) are centred on the needs of children and young people; and
(ii) are informed by processes which engage children and young people, wherever possible, and take their views and wishes into account; and
In making a decision under this Act in relation to a particular child or young person, the decision-maker must regard the best interests of the child or young person as the paramount consideration.
31. Section 9 of the CYP Act sets out the principles applying to the Act; they deal with the significance of preserving and enhancing a child's sense of racial, ethnic, religious, individual and cultural identity; encouraging and not interrupting the child's education, training or lawful employment; considering the child's age, maturity, developmental capacity, sex, background and other relevant characteristics; and avoiding delay in decision-making. None of them seems to be directly relevant to counsel's argument.
32. Section 350 of the CYP Act sets out the care and protection principles:
(1) In making a decision under the care and protection chapters in relation to a child or young person, a decision-maker must apply the following principles (the care and protection principles) except when it is, or would be, contrary to the best interests of a child or young person -
(a) the primary responsibility for providing care and protection for the child or young person lies with the child's or young person's parents and other family members;
(b) priority must be given to supporting the child's or young person's parents and other family members to provide for the wellbeing, care and protection of the child or young person;
(c) if the child or young person does not live with his or her family because of the operation of this Act - contact with his or her family, and significant people, must be encouraged, if practicable and appropriate;
...
(e) if the child or young person does not live with the child's or young person's parents because of the operation of this Act - the safety and wellbeing of the child are more important than the interests of the parents;
33. It is apparent that the CYP Act focuses on the interests of children and young people, and that any conflict between the interests of a child or young person and those of his or her parents must be resolved in favour of the child or young person. To the extent that the CYP Act addresses the role of parents, it is in terms of their responsibilities to their children rather than their rights. I cannot see that SA could call in aid the CYP Act in the absence of any suggestion that her son's interests and needs are threatened by her continued custody. Nor can I see that the CYP Act is intended to override the relevant provisions of other legislation such as the Bail Act or indeed the Crimes (Sentencing) Act 2005 (ACT), both of which permit and in some cases require courts, in pursuit of other aims, to make decisions that will necessarily divide parents from children.
34. As well, I was not satisfied that the arrangements for the care of SA's son were a problem for anyone except SA. As noted at [19] above there was no evidence before me that SA's son was being negatively affected by his new care arrangements. The negative effect of SA's incarceration seemed to be on her asserted rights as a parent.
35. In the absence of any evidence that SA's son was suffering as a result of his new care arrangements, I could not see any basis for accepting that special or exceptional circumstances were constituted by the constraint on SA's ability to pursue the custody of her son or even by the possibility that, if released, SA would be able to propose a better care arrangement for him.
36. Much material was produced concerning the origins of the application for the Care and Protection Orders, including material obtained or prepared by or on behalf of the Department for the purposes of that application. Some of that material was the subject of submissions about whether it was properly produced to the Court or was subject to non-publication or confidentiality rules. In the end, that material was not exhibited. I do not propose to comment on those submissions, or on the detailed contents of any of the documents, except to say that nothing that I saw in them would seem to have enhanced SA's claim to be granted bail.
37. Counsel pointed to the fact that SA's first trial had been set for a date more than 15 months away from when the bail application first came before me (which would be more than two years after the date of the alleged offences), and submitted that it could probably be assumed that the second trial would be set for an even later date, which might be up to two and a half years from the date of the alleged offences. The estimate of two and half years was reached by adding to the two year "delay" before the first trial another six months, to recognise apparently slower progress in getting the second matter ready to be listed for trial and the possibility that the Supreme Court lists could have blown out further by the time it was ready. Counsel correctly said that "two and a half years ... would be a very long time".
38. Counsel made several attempts to establish that these time frames should be treated as special or exceptional circumstances, some of which he abandoned during the hearing and none of which was successful.
39. As mentioned at [13] above, my decision in Massey [No. 2] about the significance of delay related not to the setting of a distant trial date but to the fact that the prosecuting authorities were not making appropriate progress in preparing the matter for trial and were apparently quite unable even to predict when they would be ready for the matter to be listed for trial. No such submissions were made in this case.
Effect of Human Rights Act 2004 (ACT)
40. Counsel for SA pointed to s 18(4) of the Human Rights Act 2004 (set out in the Appendix), which says that anyone who is arrested "has the right to be tried within a reasonable time or released". He submitted that in assessing whether delay was "reasonable" for that purpose:
one can look at the bare fact of the delay and then compare that outcome to outcomes that are seen in other jurisdictions, and one can see that not only is there a big delay in the ACT, but comparatively that delay is greater than other jurisdictions, in fact all other jurisdictions, and not insignificantly so.
41. Counsel ultimately declined to press a Human Rights Act argument, saying:
Delay does not need the Human Rights Act. Delay is delay, and it's going to be two and a half years before she gets a trial. That doesn't need the Human Rights Act wrapped around it, that's simply a delay that's unacceptable in any jurisdiction, it's just unacceptable.
42. However, the arguments about delay that counsel for SA initially raised in the Human Rights Act context may in any case be relevant to special or exceptional circumstances quite apart from any Human Rights Act argument.
43. In Allen, I considered the circumstances in which delay in bringing a matter to trial could constitute special or exceptional circumstances. I referred at [27] and [28] to Victorian cases arising under the Bail Act 1977 (Vic), in which the courts distinguished between "normal" delays and what was described as "inordinate" delay (see: DPP v Tang (1995) 83 A Crim R 593 at 596 and Mokbel v DPP (Vic) [No 2] [2002] VSC 312; (2002) 132 A Crim R 290 at 294). At [29] to [31] I noted the dictionary meaning of "delay", and at [39] to [41] concluded:
[39] I am not convinced that the need to undertake the normal processes for dealing with a serious criminal charge, and the time taken by those processes in the normal course of events, could properly be described as delay. As long as the work of bringing the matter to trial in a proper way is being done at a reasonable pace, whether by investigating officers, forensic analysts, prosecuting authorities, court officials, magistrates or legal representatives, I cannot see that the matter is being delayed.
...
[40] Even if there is a sense in which the word "delay" could appropriately be used to describe periods normally required for the normal processes, it is hard to see that the likely passage of that time could amount to special or exceptional circumstances.
...
[41] It is ... possible to imagine a situation in which, perhaps because of a significant shortage of resources within the criminal justice system or during a transitional period while an earlier set of procedures was being replaced by a new and different set of procedures, the normal elapsed time between arrest and trial blows out so as to exceed substantially that which has previously been regarded as acceptable, or which is currently regarded as acceptable in comparable jurisdictions. In such a situation, a court might come to the view that most or all accused persons were being subjected to inordinate delays, and therefore that special or exceptional circumstances applied to most or all accused persons being held in custody (with potentially dramatic results for bail applications).
44. Counsel began the process of seeking to establish that ACT delays were unacceptable by comparison with other jurisdictions. Initially he tendered without objection an unattributed document that, he said, set out some relevant statistics from a Report on Government Services 2010 (ROGS 2010) prepared and published by the Productivity Commission, together with what he called "implicit commentary" (the document became Exhibit C). That information, counsel said, demonstrated that delays in the ACT Supreme Court were substantially longer than those in the courts of other Australian jurisdictions. Pressed to provide a provenance for the document and in particular for the commentary, he withdrew Exhibit C and tendered a second document, being Table 7A.17 from ROGS 2010, and proposed making oral submissions about the interpretation of that material. Later, however, he abandoned his reliance on the ROGS 2010 material without making any such submissions, on the basis that the comparisons that could be made with ROGS 2010 data for other Supreme Courts were problematic, given the differences in jurisdiction between the ACT Supreme Court and Supreme Courts in jurisdictions also having District Courts. In abandoning reliance on the ROGS 2010 material, and, implicitly, reliance on my comments in Allen, counsel said that his submission was simply that in absolute terms a delay of more than two years for a trial on offences of the kinds allegedly committed by SA was too long, and therefore of itself amounted to special or exceptional circumstances.
45. Counsel sought to rely on the matter of a bail application made by one Matthew Taylor in March 2010. Mr Taylor was also affected by the special or exceptional circumstances requirement imposed by s 9D of the Bail Act, having been charged with burglary and theft committed in 2007 and then an aggravated robbery committed in 2009 while on bail in respect of the burglary and theft. In that case I had granted Mr Taylor bail to attend a residential rehabilitation program, the availability of which had been identified by his counsel as special or exceptional circumstances (as well as being relied on for the purposes of s 19(5) to permit consideration of the bail application). In bailing Mr Taylor to residential rehabilitation, I noted that the special or exceptional circumstances in Mr Taylor's case were "largely ... the delays in bringing people to trial", having regard to the fact that Mr Taylor's cases appeared to be neither complex nor necessitating a long trial but that it appeared that it would be at least 20 months before a trial could be held. I do not consider that the decision on Mr Taylor's application can be treated as a precedent on which to base a general claim that any particular period between arrest and trial can without more be identified as "too long".
Conclusions - delay not shown to be special or exceptional circumstance
46. Accordingly, counsel did not make out his argument that the likely delays in bringing SA to trial amounted to special or exceptional circumstances permitting me to consider her bail application further.
47. It is, however, useful to refer briefly to DPP submissions about whether more than two years was simply too long for an offender to have to wait in custody for a trial.
48. Counsel for the DPP noted the possibility that current timeframes for trial listings were so excessive as to constitute special or exceptional circumstances that might support the granting of bail more generally (as mentioned in Allen at [41] and quoted at [43] above), and asked, perhaps rhetorically, "Do we then throw open the gates of the AMC to what is, in effect, the most dangerous category of offences because the trial dates have blown out?". He argued that my comments in Allen at [41] "simply cannot be given that interpretation because it would be too dangerous to the Territory to be given that interpretation".
49. In support of this argument, counsel submitted:
(a) that the Bail Act involves a balancing act between personal liberties and the protection of the community;
(b) that whether delays in bringing people to trial were too lengthy needed to be assessed on a case by case basis having regard to:
and that this remained the case even if the time-lags had become longer in general; and
(c) that special or exceptional circumstances could not arise on the basis of circumstances that are beyond "all of our control and beyond community control".
50. As already indicated, I did not need to address the DPP's submissions directly. I propose, however, to make several general comments on those submissions.
51. First, there would be no question of simply "throwing open the gates of the AMC" to a category of alleged serious offenders as a result of a finding that delays in bringing matters to trial had become generally inordinate, such that all relevant alleged offenders could show special or exceptional circumstances. All such a finding would mean would be that bail applications from such alleged offenders would be assessed against the s 22 criteria, including having regard to the nature and seriousness of the alleged offences.
52. Secondly, the strength of a case and the risk of an accused person offending may independently constitute or contribute to special or exceptional circumstances, and they are certainly relevant to the criteria set out in s 22 of the Bail Act, but they do not seem to me to be relevant to assessing, in an inquiry into special or exceptional circumstances, whether delays are inordinate or not.
53. Thirdly, the likely sentence an accused person would receive on conviction may be a reason for identifying as inordinate a delay that is likely to exceed that sentence. However, I cannot see that an assessment of likely sentence, by itself, could justify a finding that a delay is not inordinate. The proposition that an accused person who is presumed to be innocent can properly be held in custody without trial for as long as the likely sentence on conviction for the offence charged seems to be in fundamental conflict with that presumption of innocence (on which our criminal justice system is based) and in my view must therefore be wrong in principle.
54. Finally, listing delays arising from limits on court or other resources are rarely beyond human or community control, and the undoubted need to protect the community could not in my view be used to justify, by reference to such resource limits, indefinite restrictions on the liberty of accused persons who are presumed to be innocent.
55. Counsel for SA noted that the Supreme Court has no published policy providing for priority to be given to listing the trials of people who are in custody ahead of those who are on bail; I agree that this is a matter that could usefully be further pursued.
56. Before this application was finalised, the ACT Government announced that provision would be made in the 2010-11 Budget for the appointment of Acting Judges to the Supreme Court for part of that financial year. The effect of such appointments on reducing backlogs in trial listings in this court was obviously unknown at that stage, but it had to be recognised as a possibility that forthcoming criminal trials, even those already listed for 2011, might be able to be listed earlier than had previously been available. The strength of SA's claim was also to some extent undermined by that announcement. Necessarily, the possibility that SA would not in fact have to wait two years for her trials further reduced the impact of already unsupported arguments that "two years is just too long".
57. In summary, no special or exceptional circumstance favouring the grant of bail was made out on behalf of SA.
58. Counsel's submissions in relation to the care arrangements for SA's son did not persuade me that her son's welfare was being negatively affected by her inability to take over his care. Indeed counsel did not even seek to persuade me of that particular matter so much as that, in some very general sense, the welfare of children is inseparably connected with the ability of their parents to seek to have or regain day-to-day care of them - a proposition of which I was also not persuaded.
59. The submissions made in relation to the delays in bringing SA to trial have foundered on a failure to provide either evidence or submissions in support of statements like "two years is just too long" to wait for trial, even when such evidence or submissions were invited. This is not necessarily a criticism of counsel; I suspect that it is not easy to find valid statistics (either for the ACT in the past or other jurisdictions in the present) about questions such as the average time between trials of particular kinds being ready to be listed and the dates for which those trials are then listed. Nor, probably, would it be easy to construct a set of statistics showing the range of sentences imposed in the ACT on conviction for offences of the kind SA is charged with, on which to found a claim that she is at risk of spending more time on remand than she would be sentenced to serve if convicted (see [53] above). Certainly such work would absorb resources beyond what would generally be available to pursue a bail application.
60. Those were my reasons for refusing SA's application for bail.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Solicitor for the respondent: ACT Director of Public Prosecutions
Bail Act 1992 (ACT)
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.
Claude is served with a summons to attend the Magistrates Court to answer a charge that he has committed the offence of taking a motor vehicle without consent (punishable by 5 years imprisonment under the Criminal Code, section 318 (1), and so a serious offence for this section). Before the court date, Claude is arrested and charged with having committed an aggravated robbery the day after being served with the summons (punishable by 25 years imprisonment under the Criminal Code, section 310, and so also a serious offence for this section). At the time of the alleged aggravated robbery, the charge of taking a motor vehicle without consent was still pending. This section will apply to any decision about the grant of bail to Claude in relation to the aggravated robbery charge.
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) 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.
(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering -
(a) for an adult - the matters mentioned in section 22 (Criteria for granting bail to adults); or
(b) for a child - the matters mentioned in section 23 (Criteria for granting bail to children).
(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence - bail by authorised officer).
(5) This section does not affect the application of section 9F (4) and (5) to the accused person if -
(a) the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence; and
(b) an authorised person grants bail to the accused person.
outstanding - a charge against a person for an offence is outstanding -
(a) until the charge is finally dealt with in any of the following ways:
(iii) the person is discharged by the Magistrates Court following a committal hearing;
(iv) the person is acquitted or found guilty by a court of the offence; and
(b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal - from the date the new trial is ordered until the earliest of the following happens -
(i) the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);
(ii) the order for the new trial is reversed on a further appeal.
(see Legislation Act, dict, pt 1).
pending - a charge against a person for an serious offence is pending if the person has not yet been charged with the offence, but the person has -
(a) been arrested for the offence (unless the person is later released without being charged with a serious offence); or
(b) been served with a summons to appear before a court to answer a charge for the offence; or
(c) at the invitation of a police officer, signed an agreement to attend court to answer a charge for the offence.
serious offence means an offence punishable by imprisonment for 5 years or longer.
(5) If a court has made a decision in relation to an application for bail by an accused person, a court may only consider a further application for bail by the accused person if -
(a) the accused person was not represented by a lawyer at the hearing of his or her first application to a court for bail in relation to the offence with which the person is charged; or
(i) that since the most recent application to a court for bail there has been a significant change in circumstances relevant to the granting of bail; or
(ii) that there is fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application to a court for bail.
Human Rights Act 2004 (ACT)
(4) Anyone who is arrested or detained on a criminal charge -
(a) must be promptly brought before a judge or magistrate; and
(b) has the right to be tried within a reasonable time or released.
Bail refused; SA's application for bail dismissed for failure to establish special or exceptional circumstances under s 9D Bail Act 1992 (ACT) (para 1, para 57).