Lacey v DPP [2007] QSC 291

[1] MARTIN J: Jade Michael Lacey and Dionne Mathew Lacey each seek bail in relation to the charges pending against them.

[2] There are 14 charges against Jade Lacey. They are:

• Acts intended to maim/disfigure/disable (2 counts);

• Assault occasioning bodily harm whilst armed in company;

• Demanding property, benefit or performance of services with threats;

[3] There are 11 charges against Dionne Lacey. They are:

• Acts intent to maim/disfigure/disable (2 counts);

• Demanding property, benefit or performance of services with threats.

[4] Each applicant has to show cause why his detention in custody is not justified in accordance with s 16(3) of the Bail Act 1980 (Qld) because each of them has been charged with murder (s 16(3)(b)) and each of them has been charged with offences where it is alleged that each of them used a firearm or offensive weapon (s 16(3)(c)). Jade Lacey is also in a show cause position because it is alleged that he committed indictable offences while on bail for another indictable offence (s 16(3)(a)). It is accepted by the applicants that each of them is required to show cause.

[5] Before I turn to the prosecution case brought against the applicants and their personal circumstances, I should set out what appear to be the guiding principles in relation to applications of this sort. I commence with the observations of Thomas JA in Williamson v DPP [1999] QCA 356 where, at [21], his Honour said:

"No grant of bail is risk-free. The grant of bail however is an important process in civilised societies which reject any general right of the executive to imprison a citizen upon mere allegation or without trial. It is a necessary part of such a system that some risks have to be taken in order to protect citizens in those respects. This does not depend on the socalled presumption of innocence which has little relevance in an exercise which includes forming provisional assessments upon very limited material of the strength of the Crown case and of the defendant's character. Recognising that there is always some risk of misconduct when an accused person or for that matter any person, is free in society, one moves to consideration of the concept of unacceptable risk."

[6] In the following paragraph - [22] - his Honour also observed, relevantly for this case:

"The length of incarceration before trial is an important factor when a defendant attempts, as this appellant must, to show that his detention in custody is not justified."

[7] Another decision which has been frequently cited in respect of applications such as this is that of Sperling J in R v Cain (No 1) [2001] NSWSC 116; (2001) 121 A Crim R 365 where, at 367, his Honour said:

"As to the interests of the applicant, he has a legitimate claim to be at liberty to go about a lawful life and to be with his family pending trial. He has been in custody for over a year. I am told by the Crown that the present charges might not come to trial [for] a further year. The prospect that a private citizen who has not been convicted of any offence might be imprisoned for as long as two years pending trial is, absent exceptional circumstances, not consistent with modern concepts of civil rights."

[8] Those remarks were referred to by Jerrard JA in DPP v Bakir [2006] QCA 562 where, after considering part of the prosecution case, his Honour said (at [12]):

"That proposition stated by Sperling J is very true, but there are also civil responsibilities."

[9] The decision by Sperling J in Cain was based upon the provisions of s 8A of the Bail Act 1978 (NSW) which is relevantly the same as s 16(3) of the Bail Act.

[10] Further consideration can be found in the reasons of Tobias JA (with whom Ipp JA agreed) in Cth DPP v Germakian [2006] NSWCA 275 where, at [9]-[11] the following appears:

"[9] The principles applicable to an application for bail (before conviction) and to which s 8A applies are, in my view, accurately set forth in the judgment of Hall J at [29]-[36]. In setting out those principles, his Honour applied the following statement of Hunt CJ at CL in R v Kissner (Unreported, 17 January 1992) where, in following an earlier decision of Wood J, his Honour said:

'The presumption against bail expressed in s 8A imposes a difficult task upon an application to which the section applies. Its effect is not merely to place an onus upon the applicant to establish his entitlement to bail. He must satisfy the court that bail should not be refused. Wood J said (and I agree) that the presumption expresses a clear legislative intention that persons charged with the serious drug offences specified in the section should normally - or ordinarily - be refused bail ... Wood J also adopted (as I do) the views expressed by Badgery-Parker J in a series of cases that, by the presumption against bail enacted by s 8A, the Legislature intends the courts to place less weight upon the circumstances which are common to all applicants, and more weight upon the strength of the Crown case against the applicant in the particular case under consideration.

The strength of the Crown case has become the prime consideration where s 8A applies: see for example: Regina v Michael Youssef Toubya (15 November 1990); Regina v Garry Roy Morton (15 May 1990); Regina v Antonio Franco (23 July 1991); Regina v David Clyde Brown (25 July 1991), all unreported. Common to all bail applications are the circumstances that the applicant's continued incarceration will cause a serious deprivation of his general right to be at liberty, together with hardship and distress to himself and his family, [and] usually with severe effects upon the applicant's business or employment, his finances and his abilities to prepare his defence and to support his family. Also common to most bail applications by persons charged with the offences to which s 8A applies is the availability of sureties prepared to forfeit (with or without security) large sums of money to ensure that the applicant will answer his bail; an application would otherwise be unlikely to be considered in relation to such serious matter. The Legislature has, notwithstanding all those particular circumstances, enacted the presumption against bail in these cases, so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail which s 8A has erected. As Badgery-Parker J said: if the Crown case is a strong one, the applications for bail in which they will be sufficient to do so must necessarily be somewhat special, and the task of the applicant to overcome the presumption that bail is to be refused will ordinarily be a difficult one. On the other hand, if the Crown case is not a strong one, the circumstances to which I have referred in the last paragraph will ordinarily be given greater weight, and the task of the applicant (although still a substantial one) will be correspondingly less difficult.'

[10] The foregoing statement of Hunt CJ at CL was followed and applied by the Court of Criminal Appeal in R v Masters (1992) 26 NSWLR 450 at 473, by Kirby P in R v Brown (Unreported, 15 March 1994) and by this Court in Budiman at 550.

[11] More recently, in R v Iskandar [2001] NSWSC 7; (2001) 120 A Crim R 302 at 305 [14], Sperling J, having cited the authorities to which I have referred, summarised the position in the following terms:

'In view of the authorities binding on me, I proceed on the basis that where s 8A applies, an application for bail should normally or ordinarily be refused. A heavy burden rests on the applicant to satisfy the court that bail should be granted. The strength of the Crown case is the prime but not the exclusive consideration. Countervailing circumstances common to applications for bail in the generality are to be accorded less weight than in the ordinary case. The application must be somewhat special if the Crown case in support of the charge is strong.'"

[11] The assessment of the prosecution case, which must be made in any bail application before conviction, is, necessarily, made on limited material, without any opportunity to assess the credit of witnesses and without any evidence being challenged in an adversarial context. An applicant is, of course, able to point to perceived weaknesses or shortcomings in the prosecution case.

[12] It is said against the prosecution that the case is circumstantial but a circumstantial case can still be a strong one. It is said that there must be doubts as to whether the applicants were present at the time of the shooting of Palmer. There are witnesses who place both applicants at the scene of the murder at the relevant time. Their evidence is criticised as being unreliable but that cannot be assessed at this stage. I agree with the submissions of counsel for Dionne Lacey that it is difficult to assess the actual strength of this case. But it still has to be done. I do not think it appropriate that I go into great detail about the state of the prosecution case. Suffice to say that there is evidence which, if accepted, places both applicants at the scene of Palmer's shooting. There is, as has been made clear, an absence of some forensic evidence but the evidence relating to the cartridge case and its connection to the applicants is important, and I consider the statements of the prosecution witnesses establish a strong case for these purposes.

[13] I acknowledge, of course, that these are only allegations at the moment and the applicants are presumed innocent.

[14] The allegations about the Matthews' incident also constitute a strong case. The applicants' criticism of the makers of the statements relied upon by the Crown as being unreliable is one upon which it is difficult to form a useful view. That is not a judgement I can make now on the available material nor is it a judgement I should try to make.

[15] 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. The conditions proposed by the applicants in their draft orders, while onerous, do not outweigh the obvious fact that the prospect of life imprisonment is not an easy one to face. See R v Hughes [1983] 1 Qd R 92.

[16] As to whether or not there is a risk of re-offending or interference with witnesses if bail was granted, I consider that there is, in the material relied upon by the Crown, sufficient to show that all the circumstances demonstrate an unacceptable risk of both occurring. The evidence with respect to the charges relating to Matthews discloses conduct which shows that the applicants are prepared to resort to violence to achieve their ends and to do it in a callous and calculated way. The risks would not be sufficiently diminished by the applicants' proposed bail conditions.

[17] 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.

[18] 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.

[19] The applicants also gave evidence of the conditions which they experienced in the Southport watch house during earlier parts of the committal hearing. The effect of those conditions will be exacerbated by the length of time to be taken by the resumed committal hearing.

[20] In the draft orders proposed by the applicants there are some onerous conditions including the provision of large sureties and the imposition of curfews but these, and the other proposed conditions, fall within the "circumstances" referred to by Tobias JA in Germakian: "The Legislature has, notwithstanding all those particular circumstances, enacted the presumption against bail in these cases, so that such circumstances will not ordinarily be sufficient to overcome the barrier to bail which s 8A has erected."

[21] I find, though, that, 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. The other conditions proposed are also insufficient to discharge the onus upon the applicants under s 16(3) of the Bail Act.