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FILE NO: Appeal No 6876 of 2009 / SC No 4863 of 2009

DIVISION: Court of Appeal

PROCEEDING: Appeal from Bail Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 31 July 2009

DELIVERED AT: Brisbane

HEARING DATE: 14 July 2009

JUDGES: McMurdo P, Fraser JA and Chesterman JA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – MURDER CASES – where appellant was charged with murder and refused bail – where appellant challenged refusal of bail – whether trial judge gave adequate consideration to the factors listed in s 16 of the Bail Act 1980 (Qld) – whether appellant should have been granted bail / Bail Act 1980 (Qld), s 9, s 16 / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / R v Hughes [1983] 1 Qd R 92, considered / Lacey v DPP (Qld) [2007] QCA 413, cited

COUNSEL: A J Glynn SC for the appellant / G P Cash for the respondent

SOLICITORS: Robertson O'Gorman for the appellant / Director of Public Prosecutions (Qld) for the respondent

1. McMURDO P: This appeal from the primary judge's refusal of the appellant's application for bail should be dismissed.

2. The appellant was charged with murdering Phillip Steven Halipilias at Alexandra Hills on 2 May 2009. Section 16(3)(b) Bail Act 1980 (Qld) displaced the usual position under s 9 Bail Act as to the granting of bail and instead put the onus on the appellant to show cause why his detention in custody is not justified. Chesterman JA has set out the finely balanced competing factors in this case, some of which supported the granting, and some of which supported the refusal, of the appellant's bail application.¹

3. The primary judge referred to the apparent strength of the prosecution case and that "even if convicted of manslaughter … [the appellant] faces a very substantial period of imprisonment". It is true that, hypothetically, if the appellant were convicted of manslaughter rather than murder, s 16(3)(b) would not apply. But even if that were the ultimate outcome of the case against the appellant, he is alleged to have killed the deceased with a knife. Under s 16(3)(c) Bail Act, the alleged use of a knife in the charge brought against him, even were it manslaughter and not murder, once more displaces the usual position in s 9 and puts the onus on the appellant to demonstrate why he should be granted bail, even were the charge manslaughter rather than murder.

4. The finely balanced competing considerations in this case could have resulted in the judicial exercise of the discretion under s 16(3) to either grant or refuse the appellant's bail application. The appellant has not demonstrated any error in the primary judge's careful analysis of the relevant factors under s 16(2) Bail Act or in his Honour's reasoning leading to his refusal of the bail application. It follows that this appeal must be dismissed.

5. FRASER JA: I agree with the reasons of Chesterman JA and with the order proposed by his Honour**.**

6. CHESTERMAN JA: The appellant was, on 6 May 2009, charged with the murder of Phillip Steven Halipilias at a nightclub attached to the Alexandra Hills Hotel early in the morning of 2 May 2009. His application for bail pending trial was dismissed by Applegarth J on 17 June 2009. He has appealed against the dismissal.

7. Section 16 of the Bail Act 1980 provides:

“(1)... a court ... shall refuse to grant bail ... if ... satisfied –

(a)that there is an unacceptable risk that the defendant if released on bail –

(i)would fail to appear and surrender into custody;

(ii)would while released on bail –

(A)commit an offence; or

(B)...

(C)interfere with witnesses ...

…

(2)In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court ... shall have regard to all matters appearing to be relevant and in particular ... to ... the following ... –

(a)the nature and seriousness of the offence;

(b)the character, antecedents, associations, home environment, employment and background of the defendant;

(c)…

(d)the strength of the evidence against the defendant

(e)...

(3)Where the defendant is charged –

…

(b)with an offence to which section 13 applies ...

the court ... shall refuse to grant bail unless the defendant shows cause why (his) detention in custody is not justified”.

Murder is an offence to which s 13 of the Bail Act applies.

8. In R v Hughes [1983] 1 Qd R 92 Connolly J, giving the judgment of the Full Court, pointed out (95):

“The common law rule ... was one which led to the refusal of bail in the case of murder unless the applicant made out exceptional circumstances. Now s. 16 of the Act deals in detail with the refusal of bail, positively requiring such refusal if the Court is satisfied that there is an unacceptable risk of certain eventualities one of which is that the defendant if released on bail would fail to appear and surrender himself into custody. … that ... represents the substantial reason for the development of the approach at common law.”

9. The Court considered, and rejected, a submission that the “common law rule” applied to applications for bail by persons accused of murder. Connolly J said (96):

“... the Bail Act provides an exhaustive statement of the manner in which the discretion to grant bail is to be exercised in relation to all offences in Queensland;

This is not to say that in most cases the result will not be very much the same. ... the nature of the offence, if no more appeared, would be sufficient to raise an inference which would satisfy s. 16(1)(a)(i) if coupled with a prima facie strong case.”

10. The learned primary judge made the provisional assessment that there was a strong case of manslaughter against the appellant and a relatively strong case of murder. Senior counsel for the appellant accepts the categorisation as accurate noting, as one must, that the judgment is made on incomplete materials and can only be provisional.

11. The respondent, at first instance and on appeal, described seven considerations which pointed to the appellant’s guilt. They are:

1.The appellant was on the dance floor of the nightclub when a fight broke out and the deceased was stabbed, the knife blade penetrating to his heart.

2.The appellant took a knife with him to the hotel and used a false identification card to enter the club notwithstanding that he was 18 and could lawfully enter under his own name.

3.The appellant became a willing participant in the fight that broke out on the dance floor and may have had knowledge of a prior arrangement to instigate the fight.

4.The appellant went immediately to the toilets on leaving the dance floor.

5.The appellant’s knife was found hidden in the male toilet of the hotel after the homicide.

6.The appellant lied to police and attempted to conceal his involvement in the homicide.

7.The appellant made statements admitting, or which give rise to an implication that he admitted, stabbing the deceased.

12. The evidence relevant to the last consideration was that though the appellant initially denied involvement in the circumstances which caused the death, after his arrest he was detained in the watch house. While there the appellant requested a further interview with investigating detectives. He told them, “I didn’t mean to do it”: expressed remorse and said that he “meant to stab (the deceased) in the arm” but was jostled by the crowd and the knife “collided with his chest”.

13. The primary judge found that any risk that the appellant might re-offend if granted bail, or attempt to interfere with witnesses, was within acceptable limits and did not justify the appellant’s continued detention.

14. It was the third risk, that the appellant might fail to appear at his trial which Applegarth J thought was unacceptable. That conclusion inevitably led to the refusal of the application.

15. His Honour said:

“... the Crown opposes bail specifically due to the seriousness of the offence and the strength of the case against the (appellant). ... it is submitted that there is an unacceptable risk of the (appellant) failing to appear.”

His Honour then reviewed the evidence concerning the appellant’s character, family circumstances and employment history and went on:

“... I acknowledge that the (appellant) doesn’t present the kind of flight risk that would be presented by someone with previous criminal history or sophistication or connections which would readily facilitate flight. The Crown submits that if convicted of murder the applicant will face a mandatory term of (life) imprisonment. That risk of flight is increased because of the strength of the Crown case. It submits that even if convicted of manslaughter the (appellant) still faces a substantial period of imprisonment. It’s submitted that given his youth and some actions in attempting to cover up his involvement ... there’s an unacceptable risk that if released on bail he will not appear.

The Crown acknowledges that the (appellant) has ties to the jurisdiction ... and notes that his grandparents have offered a very substantial surety...

The (appellant) emphasises that his ties are strong and that being ... young ... he’s likely to be influenced by his family support network ... . It’s submitted that ... his age makes him less of a flight risk than someone of more mature years, and that he’d be ... influenced by advice ... by his family and ... lawyers not to ... flee.

The fact remains, however, that even with all of the support and encouragement that the (appellant) would obtain from his family and his knowledge that fleeing would imperil his grandparents offer of a surety of $100,000, he does face the most serious offence under the Criminal Code and even if convicted of manslaughter ... he faces a very substantial period of imprisonment. I am of the view that despite the ties and the offer of a surety ... he does present a risk of failing to appear because of the strength of the Crown case on ... murder and the likely duration of any sentence if convicted of manslaughter.”

16. The learned judge then turned his attention to the length of time that might elapse before trial. It appears that it will be at least 12 months and maybe as much as 18 months. His Honour noted that the appellant’s detention for such a period was “an important matter” which had to be balanced against the competing considerations he identified, but did not outweigh them. This approach was endorsed by Lacey v DPP (Qld) [2007] QCA 413, to which the judge referred.

17. At the time of his arrest the appellant lived with his grandparents, mother and sister. Those had been his living arrangements for about seven years. His mother had bipolar disorder and was in need of familial assistance.

18. The appellant’s grandparents had offered a very substantial surety for the appellant’s bail: $100,000 or a larger, unspecified, sum if the Court required it.

19. The appellant had left home for about two months in 2008. He went to Mackay where he had secured employment and lived with an aunt. He returned to Brisbane when his mother’s health suffered a decline.

20. The material showed, and the primary judge accepted, that the appellant had a close and affectionate relationship with his family. It was proposed on his behalf that if admitted to bail he live with his grandparents, report personally to the officer in charge of the nearest police station three days a week, remain at home between the hours of 8 pm and 6 am each day and that his grandparents provide a surety of $100,000, or thereabouts. The case put on the appellant’s behalf was that he was young and unsophisticated without connections outside Queensland. He did not have a passport. He had strong ties to the jurisdiction and no practicable means of fleeing.

21. Mr Glynn SC who appeared for the appellant submitted that this combination of circumstances reduced the risk that the appellant might not appear at trial if granted bail to within acceptable limits, and that to conclude otherwise, as the primary judge did, was wrong. The submission was:

“There were no features of the evidence which could raise any real concern about the Applicant appearing for trial. There was of course, the concern applicable in all cases or murder, that an accused has incentive not to appear ... because he ... faces the possibility of a very lengthy sentence. However, in this case, that is overborne by his strong ties to his family, the availability of a surety, and other suggested conditions of any bail order and the likely delay in the matter coming to trial.”

22. The appeal is against the exercise of judicial discretion conferred and circumscribed by the terms of s 16. To succeed the appellant must demonstrate error of the kind described in House v The King (1936) 55 CLR 499 at 505. The appellant must establish some misunderstanding of the law or misapprehension of the facts on the part of the primary judge, or point to a judgment so patently unreasonable as itself to provide evidence of some error of law or misunderstanding of fact. The immediate difficulty for the appellant is that it is not suggested that there is any such error. Clearly the dismissal of the application, for bail in the case of murder, is not on its face unreasonable. It is plain that the learned primary judge correctly described the legal principles and rehearsed the relevant facts, neither omitting anything nor having regard to irrelevancies. The appellant did not contend otherwise.

23. The appellant’s argument is that the primary judge must have been persuaded by the facts that the risk of flight was not unacceptable, and not to regard the facts as leading to that conclusion was wrong. In the absence of any identified or inferred error in the exercise of the discretion, the argument cannot succeed. It comes down to an assertion that the discretion could only have been exercised one way. But there must always be a risk that an accused charged with murder may flee and s 16 requires the court to assess whether the risk is acceptable. Unless the process was affected by error the assessment should stand.

24. The appellant showed substantial grounds for thinking that he would remain in the jurisdiction if granted bail. On the other hand the apparent strength of the Crown case on a charge of murder with the prospect of life imprisonment provides a strong incentive for the appellant to take his chances and run. His youth and unworldliness which are argued as showing dependence on his family so tying him to the jurisdiction; may on the other hand make him irresponsible. The assessment of the relative strengths of those competing considerations was undertaken by Applegarth J in accordance with correct legal principles and by reference to the relevant evidence. There is no basis for a conclusion that his Honour was wrong, or that the discretion miscarried.

25. One last point might be mentioned. That is the length of time that might pass before the appellant is tried. This is always an important factor as is recognised by this Court in Lacey but it is not a factor which outweighs all others as that authority explains. The learned primary judge rightly appreciated the importance of the point but considered that the prospect of delay did not justify the appellant’s release on bail. That assessment cannot be criticised in the circumstances of this case. Given the appellant’s admissions the case against him on manslaughter is very strong. If convicted, it is very likely that a substantial period of imprisonment will be imposed. Pre-trial custody will, of course, be declared to have been time served under the sentence, thereby eradicating any unfairness there might otherwise have been in the appellant’s detention.

26. The appeal must be dismissed.