Mark Raymond Johnsen v Colin George Dunstan [1999] ACTSC 30

Power to review a bail decision of the Supreme Court

4. A threshold submission made on behalf of the defendant was that there is no power in the Supreme Court to review a bail decision of the Supreme Court which is itself a decision by way of review. Section 57AA of the Act abolishes (or purports to abolish) the inherent power of the Supreme Court to grant bail. Hence it is submitted that the power to entertain the present application must be found within the Act itself. Relevant provisions of the Act are as follows:

"8. Bail for offences other than minor offences

(1) ...

(2) A person -

(a) accused of an offence to which this section applies; or

(b) to whom this section applies;

is entitled to be granted bail in accordance with this Act unless -

(c) the court or authorised officer is satisfied that, having regard to the matters referred to in whichever of sections 22 and 23 apply to the accused person, the court or authorised officer is justified in refusing bail; or

(d) the requirement for bail is dispensed with under section 10.

19 General provisions relating to court bail

(1) Subject to section 20, a court may -

(a) grant bail to an accused person who is being held in custody in connection with the offence with which he or she has been charged; or

(b) enlarge, vary or revoke bail granted to an accused person.

(2) There is no limit to the number of applications in relation to bail that may be made to a court by a person accused of an offence.

(3) All applications to a court in relation to bail shall be dealt with as soon as is reasonably practicable.

(4) Notwithstanding the provisions of subsections (2) and (3), a court may refuse to entertain an application in relation to bail if it is satisfied that the application is frivolous or vexatious.

(5) Where 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 legal practitioner at the hearing of his or her first application to a court for bail in respect of the offence with which he or she is charged; or

(b) the accused person can show that there is fresh evidence or information of material significance to the granting of bail to the accused person that was not available to be put before the court at the time of the hearing of the immediately preceding application to a court for bail.

(6) In determining whether to grant bail to an accused person, a court may have regard to any information it considers relevant and reliable.

43. Power of Supreme Court to review

(1) The Supreme Court may review any decision of an authorised officer, the Magistrates Court or the Supreme Court (however constituted) in relation to bail.

(2) The power of the Supreme Court to review a decision under this section may be exercised whether or not any power to review the decision under section 38 or 42 has been exercised or has been sought to be exercised.

44. General limitation on power of court to review

A court may not, pursuant to this Division, review a decision in circumstances where, had the decision not been made, the court would be prohibited from making a decision in relation to the grant of bail."

5. It was submitted that the operation of s 43 is restricted by the provision of s 44. It is not necessary for present purposes to define the operation of s 44. It would appear to apply where a court has made a decision on a further application for bail by an accused person where the conditions of s 19(5) have not been complied with. In such a case it may be said that, if the decision had not been made, the court "would be prohibited" from making a decision in relation to the grant of bail and that the decision is therefore not reviewable under s 43. We do not think that it was intended that the general words in s 43 which confer on the Supreme Court the power to review any decision of the Supreme Court in relation to bail are to be restricted to a review of a decision made on what counsel for the defendant called a "primary application" in the criminal jurisdiction of the Supreme Court after the presentation of an indictment or, at least, after the person has been committed for trial or sentence. The provision in s 43(2) that the power of the Supreme Court to review a bail decision may be exercised whether or not any power to review the decision of an authorised officer under s 38 or of a magistrate under s 42 has been exercised, or has been sought to be exercised, appears to us to confirm rather than deny the power of the Supreme Court to review any bail decision previously made by the Supreme Court, irrespective of whether that decision was made by way of review of a bail decision in the Supreme Court, or in the Magistrates Court, or by an authorised officer.

6. A further threshold submission was that the Court should not entertain the application for review on the ground that the application is frivolous or vexatious as contemplated by s 45(7). The onus is on the defendant to satisfy the Court that the application to review is frivolous or vexatious. The only ground relied upon to support the submission is that the Director of Public Prosecutions, who appears for the plaintiff (the informant in the committal proceedings), has made the application not as a result of a bona fide decision made in pursuance of statutory powers and responsibilities, but at the instance of the Attorney-General, who, in turn is motivated politically to ensure that bail is denied to the defendant. Certain newspaper clippings were put before the Court which indicate that the Attorney-General or a spokesman for the Attorney-General is reported to have said that, in response to a request from the Attorney-General, the Director of Public Prosecutions indicated that he would consider a possible appeal against the decision of Higgins J as a matter of urgency. There is also a report that, in the context of the grant of bail to the defendant, the Attorney-General and another member of the Legislative Assembly have been critical of the decision to grant bail in the present case and critical generally of decisions of the courts of the Territory. The Attorney-General is reported to have called upon judges and magistrates, as "players in the public debate", to explain their decisions rather than relying on the Government and the Attorney-General to understand those decisions and defend them.

7. It is neither necessary nor appropriate to respond in this judgment to the reported criticisms. It is necessary to say that there is nothing in the material before us to indicate that the decision of the Director of Public Prosecutions to apply for review was not made in good faith. It is hardly necessary to add that the defendant, and the public, should rest assured that the Court will discharge its task in accordance with its constitutional duty to do justice to all according to law, undeterred by criticisms of the nature reported. As always, the Court will state, or will endeavour to state its reasons both succinctly and fully.

8. We agree with the remarks of Reynolds J in Peter William Hamill (1986) 25 A Crim R 316 at 319 that an application can be frivolous if without substance or groundless or fanciful or an abuse of the process of the court and that an application can be vexatious when it lacks good faith and is hopeless.

9. We agree also that where, as in Hamill, the applicant is attempting to exercise a right under the provisions of the Act, the application cannot be regarded as frivolous or vexatious "simply because it follows close upon a full hearing by another judge of this Court and simply because no complaint has been made as to the manner in which it was conducted, and it was not suggested that there was any error in any particular way or on any particular aspect" (at 319).

"45. Exercise of power to review

(1) The power to review a decision under this Division includes a power to affirm or vary the decision or to substitute another decision.

(2) A decision as varied or substituted shall be in conformity with this Act.

(3) The review of a decision shall be by way of rehearing and evidence or information in addition to, or in substitution for, the evidence or information given or obtained on the making of the decision may be given or obtained on the review.

(4) Where, on a review of a decision under this Division the court varies the decision or substitutes another decision, section 27 applies in relation to the decision as varied or substituted as if that decision had been given by the court in relation to an application for bail.

(5) Where, on a review of a decision under this Division, bail for an accused person is revoked, the court may, by warrant, commit the person into custody.

(6) Where, on a review of a decision under this Division -

(a) bail is granted without any condition being imposed but the accused person has not given an undertaking to appear; or

(b) bail is granted subject to a condition;

the court may by warrant commit the person into custody until he or she gives the undertaking to appear, or satisfies the condition, as the case may be.

(7) A court may refuse to entertain a request to review a decision pursuant to this Division if he court is satisfied that the request is frivolous or vexatious.

(8) The regulations may make provision with respect to -

(a) the manner of making a request for the review of a decision under this Division; and

(b) the giving or sending to persons of notices relating to the proposed exercise of power to review a decision under this Division."

11. While s 45 obliges the Court conducting the review to do so as a rehearing, it is within the discretion of the Court to decide whether or not to do so as a hearing de novo. The Court may rely entirely upon the evidence and information which was before the previous decision-maker, or it may supplement or replace that material with further evidence or information. Whilst the right to apply for leave to appeal from the Supreme Court to the Federal Court of Australia under s 24 of the Federal Court of Australia Act 1976 (Cth) is not, and cannot be, affected by any provision for review in the Supreme Court, it is clear that an applicant for review is not required to show that the decision is vitiated by error or any of the considerations that apply to appeals against judgments of a discretionary nature, as for instance in House v The King [1936] HCA 40; (1936) 55 CLR 499.

12. It may be acknowledged that when the decision under review has been reached after hearing witnesses whose credit is in issue, and no further evidence or information is received in the review process, then the original decision-maker has the advantage conventionally attributed to trial courts and that the court conducting the review will be reluctant to interfere with a bail decision which is dependent upon the acceptance or rejection of such witnesses. The present review is not so constrained. The only oral evidence before the Chief Magistrate was by Constable Peter Crozier as to the nature of the prosecution case and the evidence to support it, and by Dr Hugh Veness as to the psychological or psychiatric state of the defendant and treatment. Dr Veness was asked some questions over the telephone in the review conducted by Higgins J. There was no oral evidence before us.

13. The defendant is facing a number of charges alleging the following offences:

* One offence of damaging property by means of explosive with intent to endanger life, contrary to s 129(2) of the Crimes Act 1900 (the Crimes Act) (maximum sentence 25 years imprisonment).

* 28 offences of intentionally attempting to inflict grievous bodily harm on various persons, contrary to s 19 of the Crimes Act (maximum sentence imprisonment for 15 years).

* 28 offences of intentionally and unlawfully sending an explosive device in circumstances likely to endanger human life, contrary to s 27(3)(e) of the Crimes Act (maximum sentence 10 years imprisonment). These are presumably in the alternative to the previously mentioned charges.

14. In summary, the offences are alleged to have been committed in early December 1998 when the defendant was alleged to have sent packages containing explosive devices through the post to each of the 28 persons named in the charges under s 19 and s 27(3)(e) of the Crimes Act. The devices were improvised from compressed gas cartridges. One of the devices exploded during routine mail sorting operations at the Fyshwick Mail Exchange, giving rise to the charge under s 129(2). No person received physical injury on that occasion, but the internal roofing of the Mail Exchange was damaged.

15. Following the explosion, investigations revealed that there were 21 packages in the Mail Exchange containing similar explosive devices in similar packaging. A further similar explosive device was delivered to a person in Sydney after having been returned through the post. Further and similar explosive devices were delivered through the post, to persons in Victoria, New South Wales and Queensland.

16. The committal proceedings against the defendant are listed to commence on 27 April 1999. At this stage this Court is informed only in very general terms of the nature of the evidence to be called in order to associate the defendant with the mailing of the explosive devices. This evidence may be summarised as follows:

* Fingerprints identified as those of the accused on documents found (together with an explosive device similar to those in the packages sent through the post) near Uriarra Road. The documents include a list of the names of some of the persons to whom the packages were addressed, together with brochures and the like concerned with the construction of explosive devices.

* Items found at the defendant's home at Palmerston, including a document with a list of persons to whom the packages were addressed, an explosive device similar to those in the packages, and certain tools and equipment capable of being used to construct such a device.

* An interview with police including comments by the defendant relating to letter bombs mailed interstate and mention of the names and addresses of the persons to whom the packages were addressed.

* Claims by the defendant of harassment, discrimination and the like on the part of the persons to whom the packages were addressed relating to the defendant's employment at the Australian Taxation Office and claims made by him to the Human Rights and Equal Opportunity Commission.

17. The criteria for granting bail to adult persons are set out in s 22(1) of the Act as follows:

"22. Criteria for granting bail to adults

(1) In making a determination regarding the grant of bail to an accused person who is not a child, a court or an authorised officer shall have regard to the following matters, so far as they are ascertainable:

(a) the probability of the person appearing in court in respect of the offence for which bail is being considered, having regard only to -

(i) the background and community ties of the person, having regard to the nature of his or her home environment and employment and to his or her criminal record; and

(ii) the circumstances in which the offence is alleged to have been committed, the nature and seriousness of the alleged offence, the strength of the evidence against the person and any other information relevant to the likelihood of the person absconding;

(b) the interests of the person charged, having regard only to -

(i) the period that the person may be held in custody if bail is refused and the conditions under which he or she would be held in custody;

(ii) the need of the person to be free for the purposes of preparing for his or her appearance before a court and obtaining legal advice and for other purposes; and

(iii) the need of the person for physical protection, whether the need arises because the person is incapacitated by intoxication, injury or use of drugs or arises from other causes;

(c) the protection of the community, having regard only to -

(i) the likelihood of the person interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice whether in relation to himself or herself or any other person;

(ii) the likelihood of the person committing an offence while released on bail; and

(iii) the likelihood of the person harassing a victim or other persons while released on bail."

18. These criteria are supplemented by s 23A(1) which provides as follows:

"23A. Victim's concern about need for protection

(1) Where a court is determining the grant of bail to an accused person-

(a) the prosecutor shall inform the court of any concern of which he or she is aware expressed by the victim about the need for protection from violence or harassment by the accused person; and

(b) the court shall receive any submission in respect of that concern and have regard to it in the context of the matter referred to in paragraph 22(1)(c).

19. We accept the submission made by the Director of Public Prosecutions that s 22(1) of the Act is not expressed as a code and that the three "matters" to which a court must have regard when considering the grant of bail (so far as they are ascertainable) are not strictly exhaustive. For instance, s 22(1) encompasses the requirement of s 23A that the court shall receive any submission in respect of the concern of any victim about the need for protection from violence or harassment by an accused person, and shall have regard to that submission "in the context of" the need to have regard to the protection of the community.

20. The statutory provisions in s 22(1) make no mention of the presumption of innocence, but it is clear that any consideration of bail before conviction does not involve a court making any finding on matters which go to the determination of guilt or innocence. At the same time, the court must evaluate the strength of the case against the person charged. As Cross Ch Q S put it in R v Wakefield (1969) 89 WN (Pt 1) NSW 325 at 330:

"The principle that a man is presumed innocent until proved guilty is not violated by the court on a bail application making an assessment of probability of conviction. The principle that a man is presumed innocent until proved guilty is a principle which, with other principles, is applied by the tribunal at the accused's trial in determining criminal liability. But the court on the bail application is entitled to see the nature of the evidence which the Crown intends to call to determine whether at the trial the presumption of the innocence of the accused is likely to be easily rebutted. To say that a bank robber photographed by the bank's hidden cameras, who is tackled and held by a civilian on the floor of the bank and who makes a handwritten confession to the police, is presumed to be innocent for the purpose of a bail application, is to talk in terms of tenuous connection with reality."

21. Section 22(1) of the Act provides specifically for three "matters" which the Court must take into account: the probability of appearing in court for the offence charged, the interests of the person charged, and the protection of the community. With regard to each of those three matters, the Court must restrict its consideration "having regard only to" what is specified in the respective sub-paragraphs. Furthermore, whilst s 22(1)(a) uses the term "probability" and s 22(1)(c) uses the term "likelihood", there is no requirement of proof on the civil standard that the conduct of the kind specified is likely to occur.

22. It was submitted on behalf of the defendant that counsel for the informant in the proceedings before the Chief Magistrate and before Higgins J had not argued that there was any risk of the defendant's non-appearance in court. That, however, cannot affect the right of the Director of Public Prosecutions, appearing for the informant in this application for review under s 43 of the Act, to raise any matter relevant to any of the criteria under s 22(1). Nor can it affect the duty of this Court, in accordance with the requirements of the Act, to consider all relevant matters.

23. There is no doubt that the offences charged are extremely serious and that, as we are informed, there is a strong circumstantial case against the defendant. However, apart from directing our attention to the absence of a report at this stage from explosives experts who examined the devices found, counsel for the defendant did not raise any contentious issues on the matter of the strength of the evidence or the likelihood or otherwise of conviction.

24. The information before us relating to the defendant's background and community ties, home environment and employment comes from reports by Dr Cullen, a psychiatrist in Sydney, and Dr Hugh Veness, a psychiatrist in Canberra. The defendant was born on 27 September 1955. He has no previous convictions. There is no question that the defendant has strong ties with the Territory and there is no suggestion that he has ties anywhere else. He has a university degree, majoring in computer studies. He commenced working in a public service department in 1982. He is married. He has daughters from a previous marriage with whom he keeps in contact. There is a question of his relationship with another woman that is said to be associated with disputes which he has with various people connected with his employment. He had been suspended from duty by the time of the alleged offences. He has had psychological and psychiatric assessments on various occasions going back to 1995 at least. He has been suffering from episodic depression and placed on medication and spent some time at the Canberra Hospital in 1998, receiving treatment for suicidal tendencies.

25. Although counsel for the defendant did not rely specifically on s 22(1)(b), we acknowledge and take into account the interest of the defendant in being free whilst awaiting the committal proceedings, and, if appropriate, whilst awaiting trial, in order to prepare his case, and in order to receive optimum treatment for his depression and to avoid the inevitable stress associated with imprisonment.

26. However, it is the matter of the protection of the public specified in s 22(1)(c) that causes us most concern. Any risk that the defendant might engage in the sort of conduct that gave rise to the charges he is facing is a strong indication that bail should not be granted, despite the prima facie right to bail that the Act confers. The concern of some of those to whom the packages were addressed was the subject of evidence to the effect that they would consider hiring private security services to ensure the safety of themselves and their families should the defendant be allowed bail. That concern, in our view, reflects the seriousness of the risk.

27. Dr Veness gave evidence that, with the increase in medication which followed incarceration and which has continued upon his release on bail, the defendant has his depression under control and is likely to continue to have it under control indefinitely so long as he continues to take the medication and sees a psychiatrist regularly and twice a week initially. The defendant, so we are told, has complied with the onerous bail conditions that were set by Higgins J. The conditions include reporting to police twice daily and continuing to take medication and consulting Dr Veness twice weekly. Dr Veness acknowledged that he was unable to discuss with the defendant the alleged conduct constituting the offences. He assumed for the purposes of expressing his opinion that the conduct alleged had occurred, and on that assumption Dr Veness attributed the conduct to the depression as well as a deepening sense of injustice on the part of the defendant over his continuing disputes with government officials about matters associated with his employment. Dr Veness expressed the view that the sense of injustice had been relieved somewhat after various people had expressed their support for the defendant in these disputes, following the publicity given to the explosion at the Mail Exchange and the discovery of the other explosive devices. Dr Veness concluded that "one thing that is clearly in his favour in regard to potential violence is the complete lack of a past history of violent behaviour". Dr Cullen, who saw the defendant whilst in custody, made a tentative diagnosis of a delusional disorder. Dr Veness disagreed with that diagnosis. For the purposes of the present application, we find Dr Cullen's diagnosis of little assistance. At the same time we regard Dr Veness' views as hampered by his inability to discuss the alleged offences with the defendant.

28. We are of the opinion that, whilst the risk that the defendant will not answer bail cannot be overlooked, the risk of conduct endangering the life and safety of others whilst on bail is sufficiently high that it requires the refusal of bail. Dr Veness' view that the defendant is unlikely to be a danger to himself or to others is dependent upon the continued control of his depression which Dr Veness regarded as an essential ingredient in the psychopathology which, he assumed, led to the commission of the offences. That condition is chronic. We accept the opinion of Dr Veness that the medication is likely to control the depression, but neither Dr Veness or anybody else is able to give sufficient assurance that the defendant will continue to take the medication, or that the defendant's sense of grievance may not be exacerbated by stressful events at any time in the future even if the defendant were to continue to be on bail in the community. Such stressful events may occur at any time unexpectedly, particularly as the commencement of the committal proceedings draws close. They may be difficult for others to detect. The pattern of conduct alleged and the offences charged suggests sophisticated planning. The fact that its execution readily suggested the defendant as its perpetrator in no way reduced the danger to which the intended recipients appear to have been deliberately exposed and to which numerous others were incidentally and perhaps recklessly exposed. In our view, the granting of bail poses an unacceptable risk of danger to the public. The protection of the public alone requires the revocation of bail.

29. The question of the probability or otherwise of the defendant answering bail is of less concern but is not insignificant. The very factors that constitute the risk to the public constitute a real risk that the occurrence of stressful events, or a failure to continue medication, or a combination of both will result in the defendant failing to answer bail on the charges he is facing. We need only note the evidence that for several days after the explosion at the Mail Exchange the defendant disappeared from his home and that some of the physical evidence such as computer discs, documents and the like were discovered in circumstances which strongly suggest that somebody was trying to destroy the items or to keep them from the attention of those investigating the incidents.

30. In our view, bail should be revoked and we so order. We further order that a warrant issue, committing the defendant into custody to await the committal proceedings commencing in the Magistrates Court on 27 April 1999.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the plaintiff: ACT Director of Public Prosecutions

Note: For administrative reasons the Registry file for this review is numbered SCC 1064 of 1999.