Lacey v DPP

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] THE COURT: On 11 October 2007 Martin J refused applications by each appellant for bail in relation to the charges for which they were then, and remain, in custody.[1]

[3]

(b) applies to this Court for bail in its original jurisdiction.

[4]

[3] The appellants face serious charges arising out of events which occurred, or are alleged to have occurred, in April and May 2007.

[5]

[4] Each appellant has been charged with murder and unlawful wounding in connection with the death of Kevin Palmer on 6 May 2007. When assessing the prosecution evidence in relation to these charges for the purposes of the bail applications, the learned primary judge noted that the evidence was circumstantial, but that the statements of the prosecution witnesses nevertheless established a "strong case" for the present purpose. The appellants did not contend that his Honour erred in this characterisation of the evidence in relation to those charges.

[6]

[5] Each appellant has also been charged with a series of offences, including attempted murder, various assault charges, torture and deprivation of liberty in connection with the alleged abduction of Owen Matthews. The alleged events are said to have occurred over some days following 21 April 2007 when, on the prosecution case, the appellants assaulted Matthews and one of the appellants discharged a firearm at him. It is said that the appellants then abducted Matthews and took him to an island where he was made to dig his own grave and his life was threatened. It is further alleged that Matthews was shot in the hand, and that the appellants continued to detain him for some days, during which time he was made to telephone his mother and tell her that he required $50,000 or he would be shot. The learned primary judge characterised the allegations in support of this tranche of charges as constituting a "strong case", and there was no submission to this Court that this was erroneous.

[7]

[6] It is uncontroversial that the nature of the charges against each appellant, and the circumstances in which the offences were allegedly committed, engaged the application of s 16(3) of the Bail Act 1980 (Qld), by which the learned primary judge was legislatively compelled to "refuse to grant bail unless the defendant shows cause why the defendant's detention in custody is not justified".

[8]

[7] The appeals were heard together, and the same arguments advanced in each. It is convenient for the appeals to be dealt with together.

[9]

[8] Mr Walker SC, who appeared for the appellants, accepted the burden of seeking to persuade this Court that the learned primary judge's discretion miscarried[2] in two respects:

[10]

(a) A failure to have "proper regard to the substantial delay prior to the trial of these charges"; and

[11]

(b) A failure to have any, or any proper, regard to the fact that both appellants surrendered themselves to police when they became aware that they were being sought for the charges arising out of the death of Palmer.

[12]

[9] When assessing the importance of the delay until trial in these matters, the learned primary judge said:

[13]

"I now come to the part of the applicants' case which was relied upon most heavily - the length of time which these applicants will spend in gaol awaiting trial if they are committed. On the available material, and taking into account the proposed length of the balance of the committal hearing, a trial of the murder charges would be unlikely to take place before late 2008 or the first half of 2009. The other charges would be heard some time after that with the slight possibility of not being heard until 2010. That is, as has been observed in the cases I have referred to above, a substantial consideration. But it is also a consideration which must, as Jerrard JA observed in Bakir be considered with those civil responsibilities which I take his Honour to have been referring, at the least, to those embodied in the Bail Act.

While it might be correct to say, as Sperling J did in Cain, that lengthy incarceration pending trial is inconsistent with modern concepts of civil rights, the Bail Act provides this Court with the primary considerations which it must take into account. The relevance of lengthy incarceration is, as I have referred to above, an important factor when an applicant attempts to show that detention is not justified. It is an important weight in the balance which must be observed." [3]

[14]

[10] The proposition on which the arguments for the appellants depend, as expressed in their written submissions, is that substantial delay before an accused person's trial "of itself 'shows cause', leaving the respondent to thereafter carry the onus of establishing s 16(1) risks." It was said orally that the error made by the learned primary judge was in treating the period of detention prior to trial as merely an "important factor" in the evaluative assessment which informs the exercise of the discretion to grant bail; his Honour should have regarded the length of detention as the "critical factor". In our respectful opinion, this argument cannot be accepted.

[15]

[11] First, it must be acknowledged that the learned primary judge's view that lengthy incarceration before trial was "an important factor" in relation to whether the onus on a prisoner under s 16(3) of the Bail Act is in conformity with the view expressed by Thomas JA, with whom McPherson JA agreed, in Williamson v DPP.[4] There is no support in authority for the appellants' argument that it is a "critical factor".

[16]

[12] Secondly, the appellants' proposition is a gloss upon, rather than an interpretation of, s 16(3) of the Bail Act. It may be accepted that lengthy detention without trial is not easily justified, but to say that it cannot be justified by the strength of the Crown case is a proposition not supported by any available reading of s 16(3).[5] Further, there may be several reasons for delay. In some cases, the delay may be due to the conduct of the accused. In some cases, it may be due to the conduct of the prosecution. In some cases, it may be due to the shortage of court resources to deal with a case involving many witnesses or a large mass of documentary evidence. In some cases, it may be due to a combination of all of the above. To the extent that the Crown is not intentionally, or by neglect, causing the delay, it becomes more difficult to accept that "delay of itself shows cause". Unacceptable risks of flight or witness tampering or further offending do not become acceptable because the case against the accused requires a lot of witnesses to be called and, therefore, a long time to get to trial.

[17]

[13] The length of delay, the reasons for that delay and the strength of the Crown case will always be matters of degree which must be balanced to arrive at a decision as to whether bail should be granted. Glossing the statute, in the manner urged by the appellants, substitutes for the balancing of competing factors required by the statute an evaluative exercise in which the length of detention is of overwhelming importance. Moreover, the differences in the character of each of those competing factors render an evaluative exercise of the type for which the appellants contend largely meaningless. The strength of a Crown case and the consequent risks of flight or interference with Crown witnesses do not diminish as the length of time to trial increases. On the other hand, in a case in which it is demonstrated that the time in custody on remand will likely exceed any custodial sentence which might be imposed after conviction, the relative importance of time may very well be regarded by the judge as outweighing the other relevant factors. The essence of the exercise of the judge's discretion is to balance competing considerations and to weigh the relative importance which the different factors bear in the context of the decision which needs to be made. That exercise of discretion is not an empirical exercise; there are no bright lines drawn to determine conclusively when one important factor outweighs another.

[18]

[14] In the present case, it was accepted by the appellants that the delays experienced in this matter did not result from any delay caused intentionally or neglectfully by the Crown. The delay is due to the difficulty experienced by the Southport Magistrates Court in which the committal proceedings are pending in accommodating the matter. Section 16(3) of the Bail Act cannot be read as if its operation was conditioned by a guarantee of a trial within a given timeframe. The appellants have failed to demonstrate that the decision of the learned primary judge was affected by error in his understanding of the relevance of delay in relation to the showing of cause under s 16(3) of the Bail Act.

[19]

[15] The submission that "his Honour's failure to mention the fact that the appellants handed themselves into police suggests that this feature was not taken into proper account, if at all" draws on an observation by Jerrard JA in DPP v Bakir[6] that, in the context of that case, the fact that the accused had surrendered himself at his solicitor's office on the day he was taken into custody was a circumstance which told in his favour. This was relevant to the assessment of his conduct for determining whether there was an acceptable risk that he would appear if granted bail.

[20]

[16] The circumstance that each of these appellants surrendered himself to police was certainly put to the learned primary judge, but not with the degree of significance this submission assumed in the argument to this Court. In that regard:

[21]

(a) In relation to the first appellant, the fact of his surrender to the investigating police was alluded to in the written submissions made on his behalf below in the context of a submission that he was not on bail when he was alleged to have committed the offences. In oral argument before the learned primary judge, the first appellant's counsel advanced consideration of his client's voluntary surrender as a matter which the judge would "take into account particularly in considering the issue of whether or not he is likely to appear as required".

[22]

(b) In relation to the second appellant, the learned primary judge had before him an affidavit sworn by the second applicant which outlined the circumstances of his voluntary surrender.

[23]

[17] In his reasons for judgment, the learned primary judge concluded that:

[24]

(a) "the material proffered by the applicants and the submissions made on their behalf do not satisfy me that there is an acceptable risk of flight of the applicants";[7] and

[25]

(b) "notwithstanding the length of time for which the applicants might be incarcerated before trial, it is not sufficient to outweigh the risks of flight, re-offending and interference with witnesses I have referred to above".[8]

[26]

It is evident from the transcript and material relied on before his Honour that, as his Honour recorded at [17] of his reasons, the part of the appellants' case upon which most reliance was placed was the length of time they would spend in jail awaiting trial if committed. That factor and the other factors identified by his Honour, namely risks of flight, risks of re-offence and risks of interference with witnesses, were the important factors which were weighed for the purposes of determining whether or not cause had been shown. The fact that the judge did not, in his reasons for judgment, expressly mention one element which contributed to his assessment of the strength of one of those factors does not, in our respectful view, lead to a conclusion that the exercise of his discretion miscarried. That is particularly so in the present case where, as we have mentioned, this element was not given any particular significance in the course of the hearing before him.

[27]

[18] An application to this Court for bail is unlikely to succeed unless the appellants show that there has been a material change of circumstances since the original failed applications.[9]

[28]

[19] The matters to which the appellants point as constituting changed circumstances are:

[29]

(a) updated listing information which, it is submitted, is suggestive of "even further delays before trial";

[30]

(b) the availability of electronic monitoring to ensure compliance with home detention or curfew conditions and the appellants' preparedness to be subject to such constraints;

[31]

(c) the availability of greater and specific sureties in respect of each appellant;

[32]

(d) the availability of more residential options for each appellant;

[33]

(e) the availability of more employment options for each appellant; and

[34]

(f) further information concerning detention conditions at the police watchhouse at Southport.

[35]

[20] In relation to most of these matters, it cannot be said that circumstances have changed in any material respect since the date of the original hearing. The position would more accurately be described by saying that the appellants have sought to lead further evidence which puts explicitly before the Court facts which could have been but were not advocated to the learned primary judge.

[36]

[21] Insofar as the appellants now seek to contend that the fitting of electronic monitoring devices may reduce the risks of flight and interference with Crown witnesses to an acceptable level, the position is the same as it was at the time of the original refusal of bail, namely that this form of constraint is not available in Queensland in respect of persons on bail. Provision for this form of constraint is made in the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld). Significantly, no such provision is made by the Bail Act, and the evidence is that the facilities necessary to electronically monitor persons on bail are not available. It is not to the point that the appellants have indicated a preparedness to wear such devices; the use of such devices for monitoring bail is not a practical option. It is pointless and impractical to impose a condition which cannot be monitored and enforced. As neither police nor Corrective Services personnel have been equipped by government to carry out the necessary monitoring, no such condition could be attached to a bail order.

[37]

[22] A decision as to whether bail should be granted would therefore be made on the basis that the condition proposed by the appellants as to the wearing of electronic monitoring devices will not, in fact, be satisfied. The appellants argue that, if they are to be kept in detention for a long period prior to trial, the failure of the State to make electronic monitoring devices available is an indication of the lack of proper justification of their continued detention. They say that, if the State cannot ensure a prompt trial, the State cannot justify their detention pending trial, by a failure to provide an alternative to detention in custody which addresses the risks of releasing them from detention. But the Bail Act requires the decision to be made on the basis that this alternative constraint is not an option available to the executive authorities to reduce to an acceptable level the risks of flight or interference with witnesses. It is not for the Court to call into question the wisdom of the position adopted by the legislature in this regard.

[38]

[23] The weight to be ascribed to the question of delay has been discussed above. On this fresh application for bail by each appellant, it is sufficient to say again that the question of delay, even the possible extended delay now referred to in the material, is an important factor to consider when determining whether the appellants have shown cause under s 16(3). We do not, however, consider that the weight of that important factor is sufficient to lead to a conclusion that the appellants have discharged the onus which rests on them.

[39]

[24] Similarly, the fact that greater and specific sureties have been offered for each appellant, and the fact that alternative interstate residential accommodation is now said to be available for each appellant, together with the prospect of some employment in Melbourne at least, do not, either individually or collectively, amount to changed circumstances which might properly be described as "material" since the original applications for bail were refused. Similarly, there is nothing in the requests made on behalf of the appellants for improvement of their detention conditions at the police watchhouse at Southport which constitutes a material change of circumstance.

[40]

(b) each application to this Court for bail be dismissed.

[41]

[1] Lacey v DPP [2007] QSC 291.

[42]

[2] In the sense identified in House v The King (1936) 55 CLR 499, 503.

[43]

[3] [2007] QSC 291 at [17]- [18].

[44]

[4] [2001] 1 Qd R 99, 104 at [23].

[45]

[5] Western Australia v Oates [2004] WASC 214 at [40].