MacBain v DPP [2002] VSC 321

5. The offences are alleged to have been committed on 6 June 1999 against an 80 year old woman near to the Williamstown Beach Station at approximately 6.36 pm. In short substance what is contended is that both the accused and the victim were travelling on the same train and both alighted at the station, and that shortly afterwards the accused attempted unsuccessfully to steal the victim's bag and purses and in the process used such force upon the victim as to fracture the victim's left hip, thus causing serious injury as defined within the Crimes Act.

8. I have before me an affidavit and other material which demonstrates a long path of events leading up to the applicant's arraignment and trial. Having regard to what has occurred, I think it is sufficient to say that on 10 October 2000 the applicant was arraigned before a jury in the County Court at Melbourne and pleaded not guilty but the jury was discharged during the hearing of the evidence.

11. On 27 November 2000, the applicant was again arraigned before a jury and pleaded not guilty, but that jury was also discharged during the hearing of evidence.

14. On 29 November 2000, the applicant was again arraigned before a jury and pleaded not guilty and the trial proceeded to verdict. On 30 November 2000, the jury returned verdicts of guilty on the count of attempted theft, not guilty on the count of recklessly causing serious injury, but guilty of causing injury recklessly.

17. After a sentencing hearing during which the applicant admitted 90 prior convictions from 15 previous court appearances, on 18 January 2001 his Honour Judge Kimm sentenced the applicant to three years' imprisonment on the first count and 12 months on the second, to be served concurrently, with a non-parole period of two years, and with a declaration that 25 days' presentence detention be reckoned as already served pursuant to sub-s. 18(4) of the Sentencing Act 1991.

20. By notices dated 22 and 23 January 2001 respectively, the applicant sought leave to appeal against both conviction and sentence, and on 17 July 2002 the Court of Appeal allowed the applications for leave to appeal, treated the appeals for leave as appeals instanter, allowed the appeals, quashed the convictions and sentence, and ordered a retrial, remanding the applicant in custody to await retrial.

23. Unfortunately that retrial has not yet been re-listed, although it is said it is likely to be listed for February or March of 2003. In the result, and notwithstanding that she has not been convicted of the offences with which she is charged, the applicant has now served slightly more than 18 months of the two years which was thought to be the minimum period which she should serve if convicted.

26. In the affidavit sworn by the applicant's solicitor on 25 July 2002 in support of the application for bail, it is deposed that if bail is granted, the applicant proposes to reside with her mother at 12A Hall Street, Newport, and that she would be prepared to report to the officer in charge of the Williamstown Police Station on a basis to be determined by the court. It is also deposed that the applicant would resume the care of one of her children, Dylan James MacBain, who is only five years of age and for the present lives with the applicant's mother.

29. In a sworn statement dated 5 August 2002, the informant, a Sergeant of Police, nevertheless opposes the grant of bail and points to the applicant's prior convictions for intentionally causing injury, unlawful assault, assault in company, possessing a prescribed weapon, recklessly causing injury, and to the applicant's history of convictions dating back to 1986, including several drug convictions and at least once for failure to appear to answer bail. He expresses the view strongly that if the applicant were released, the applicant would almost certainly return to a drug habit and perhaps commit further offences to finance it.

32. The informant's statement also casts doubts upon the probability of the applicant living with her mother and attending to her child, if released. The informant alleges that at the time of the applicant's arrest for the offences, she was not living with her mother or caring for either of her children, and that there is a history of incidents investigated by the Department of Human Services of the applicant failing to attend properly to the welfare of her children.

35. When the matter first came before me the Crown also opposed bail, but it has since been made plain by Mr McArdle QC, who appears for the Crown, that the opposition is not so much to the grant of bail but rather to anything less than conditions submitted by the Crown to be necessary to ensure that there is not an unsatisfactory risk of the applicant failing to appear.

38. Section 4(1) of the Bail Act 1977 provides that any person held in custody in relation to an offence may be granted bail, but s. 4(2)(d) provides that bail shall be refused if the court is satisfied that there is an unacceptable risk that the accused person, if released on bail, would fail to surrender herself into custody to answer her bail or commit an offence whilst on bail or endanger the safety or welfare of members of the public.

41. In my opinion there is a risk that if the applicant is released on bail she may fail to surrender herself into custody in answer to her bail and she may commit an offence whilst on bail. I think it less likely that she would endanger the safety or welfare of members of the public. But having regard to the criminal history of the applicant, to only some of which I have referred (but all of which is in evidence before and to all of which I pay regard), it appears to me that the applicant is a recidivist and that the gravity of her offences of late is increasing.

44. I cannot, however, overlook the fact that she has now been incarcerated for 18 months in respect of charges on which she has not been convicted and therefore must be presumed to be innocent, and I have therefore given anxious consideration to whether the risks of failing to appear and committing further offences can be ameliorated sufficiently by the imposition of conditions to allow for the grant of bail.

47. As the matter has now been developed I have been greatly assisted in that task by the submissions of counsel for the applicant and counsel for the Crown, who have together proposed that bail might be granted on conditions that the applicant reside at 12A Hall Street, Newport, which is her mother's address; give 24 hours notice of a change of address; remain at her address overnight between 9 pm and 6 am; and report three times each week to the officer in charge of the Williamstown Police Station. It is also proposed that the applicant should surrender any passports which she may hold to the informant and not apply for any other passport, and that she not attend at any point of international arrival or departure during the period of bail.

50. In the way in which the matter has developed and having regard to the submissions which have been made for both the applicant and the Crown, I reach the view that if conditions of that kind are imposed the risk that the applicant would not appear and the risk that she would re-offend whilst on bail may be reduced to a level which should be regarded as acceptable in all the circumstances.

53. As a result the orders I propose be made are as follows: I order that the applicant, Kathleen Therese MacBain, be admitted to bail on her own undertaking for her appearance as required by law at the County Court of Victoria at Melbourne to stand trial upon the charges upon which she has been committed, upon the following special conditions: first, that the applicant reside at 12A Hall Street, Newport; secondly, that the applicant report to the officer in charge of the Williamstown Police Station, or his or her nominee, once every Monday, Wednesday and Friday between the hours of 6 am and 9 pm; thirdly, that the applicant give 24 hours' notice to the informant or his nominee of any proposed change of address; fourthly, that the applicant not leave the State of Victoria during the period of bail; fifthly, that the applicant surrender any passports which she may hold to the informant within 24 hours of her being admitted to bail and not apply for another passport; and sixthly, that the applicant not attend any point of international arrival or departure during the period of bail.

Mr McArdle, I cannot specify the return date in the first part of the order any more precisely than to say that she is bailed to appear at the County Court upon the trial of the charges upon which she has committed.

MR McARDLE: Yes, or when notified or required, or whatever, but that would - as Your Honour's expressed it, it would meet the point, it's submitted. Your Honour, did I mishear you? I thought you might've not announced the condition concerning the curfew.

HIS HONOUR: If I did not, I certainly intended to. I will impose a further condition that the applicant remain at her place of residence between the hours of 9 pm and 6 am of each day.