_McEwen v Siely_

Court of Appeal (ACT)|2003-06-05|Before: Higgins CJ, Crispin P, Whitlam J, Connolly J

1. This matter was argued on 5 June 2003 when the applicant sought to challenge a decision of Connolly J refusing to grant him bail pending the hearing of committal proceedings against him on a charge of murdering his mother, Julia Margaret Collins. Mr Purnell SC, who appeared on his behalf, submitted that the decision to grant bail was effectively a final order from which his client had a right of appeal. However, he conceded that the preponderance of authority supported the view that such a decision was interlocutory in character and, in the alternative, sought leave to maintain the appeal. He also indicated that he would, if necessary, rely upon the power to review a bail decision provided by s 43 of the Bail Act 1992 (ACT) ("the Bail Act") though, in that event, it would have been necessary for him to have sought leave to amend the pleadings and to have the court reconstituted as a Full Court rather than as the Court of Appeal. We rejected the contention that an appeal lay as of right from the decision and refused leave to appeal. We also indicated that any application to amend the pleadings to have the decision reviewed would be pointless. We provided a brief extemporaneous account of our reasons, but indicated that we would provide a more detailed judgment when time permitted.

(4) Also, an appeal may be brought against an interlocutory judgment of the court constituted by a single judge only with the leave of the Court of Appeal.

3. Whilst a decision to grant or refuse bail may be said to finally determine the right of the applicant to remain at liberty for a limited period, the temporary nature of bail proceedings and the fact that bail is granted or refused for purposes ancillary to more substantive criminal proceedings suggest that such decisions are interlocutory in character.

4. It may be observed that the power of the Court of Appeal to entertain appeals, that is, to exercise appellate jurisdiction, is limited by s 37E(2)(a)(ii) as follows:

(2) The following matters may be brought before, and heard by, the Court of Appeal: (a) appeals in relation to the following judgments: (i) judgments of the Master, except interlocutory judgments (see section 9 (Exercise of jurisdiction by Master)); (ii) other judgments of the court (except judgments of the Registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself).

5. The exceptions in respect of interlocutory judgments of the Master and any judgment of the Registrar reflects the provisions of s 9(2)(a) and s 10(2) of the SC Act respectively which in such cases allow an appeal as of right to a single judge of the court exercising original, not appellate, jurisdiction.

6. A Full Court may be constituted pursuant to s 11 of the SC Act to deal with the admission or disciplining of legal practitioners. That is also an exercise of original jurisdiction.

7. Section 13 of the SC Act empowers a judge hearing a matter, before or after commencing the hearing of it, to order "that the jurisdiction of the court in that matter shall be exercised by the Full Court".

8. A Full Court would not, ordinarily, be exercising appellate jurisdiction but it might if a single judge referred an appeal from the Magistrates Court to a Full Court as occurred in McEwen v Siely (1972) 21 FLR 131.

9. The reference to "judgments" includes, by virtue of the Dictionary to the SC Act, "any decree, order or sentence".

10. It does not appear that the applicant had made any application for bail before the applications heard by Connolly J. If there had been a previous application then, although a subsequent application may be made in relation to bail (s 19(2) Bail Act), the power of a court to entertain that further application is limited by s 19(5) of the Bail Act:

(5) If 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.

11. That provision, however, applies only to a fresh application for bail. A decision in relation to bail may be reviewed pursuant to Part 6 of the Bail Act. The general scheme of the review process is that an "authorised officer" (certain police officers - see s 3(1) Bail Act) may review his or her own decision in relation to bail or that of another "authorised officer" (see s 38 Bail Act). A magistrate may review any decision in relation to bail of any authorised officer or any magistrate, including his or her own decision (see s 42 Bail Act).

12. The power granted to this Court by the Bail Act to review bail decisions is expressed in s 43:

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.

13. Under s 45 of the Bail Act the power to review is defined so as to permit the substitution of any other decision that might lawfully be made (s 45(2)). The process for review is defined by s 45(3) of the Bail 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.

14. There is a separate, but more limited power of review under s 46 of the Bail Act in the particular case where an applicant has been granted bail but has not been able to meet the conditions imposed for release from custody.

15. In this case, Connolly J heard two applications. The first was that of 4 April 2003. No application was made to review that decision or to seek leave to appeal from it. A further application was made on 16 May 2003. It was treated as a fresh application to which s 19(5) of the Bail Act applied.

16. The application for leave to appeal, expressed inappropriately as a Notice of Appeal, sought to appeal from the decision of 16 May 2003. It is plain that s 19(5) would have posed a considerable hurdle in the way of a further original application. If error was to be alleged a review of either or both decisions could have been undertaken as of right. It would have been open to any single judge before whom such an application came to refer the matter to a Full Court.

17. It would ordinarily be inappropriate to proceed by way of application for leave to appeal to the Court of Appeal at least until the right of review had been exhausted.

18. As mentioned earlier, in the present case Mr Purnell had foreshadowed seeking leave to amend the pleadings in order to invoke this right and we proceeded to deal with the practical merits of his contention that the applicant should be admitted to bail.

19. The evidence revealed that at about 10.30 pm on 30 January 2003 police went to Mrs Collins' home in response to an emergency call and found her lying in the driveway of the premises. She appeared to be unconscious and to have been bleeding from a stab wound to her abdomen. The applicant, who was naked, save for a quilt cover, was standing nearby. He had visible scratches and blood on his body. His behaviour at the scene was described as "crazy, agitated, on drugs and confused", though one witness said that he had been calm "at times", presumably prior to the arrival of the police officers. A hunting knife with what appeared to be blood on the blade was found standing with part of its blade embedded into the ground at the bottom of the front steps of the premises.

20. A next door neighbour, Mr Young, informed police that he had seen the applicant in his back yard between 9.45 pm and 10.00 pm that evening and that he had been crawling on the ground among the water sprinklers. When Mr Young confronted the applicant he found that he was unsteady on his feet and appeared to be under the influence of alcohol. He then escorted the applicant back to his own house next door and spoke to his mother. When he asked the applicant what he had been doing, the accused replied "I was being a commando. It must have been the books I read".

21. Mr Young returned home but, a short time later, heard a woman calling for help. He went to investigate and discovered the accused standing naked in the driveway with his mother lying on the ground. Other people were attempting to assist her. Mr Young ran home and made the emergency call which ultimately led to the attendance of the police.

22. The applicant was arrested and subsequently examined. He was found to have blood on his hands, upper torso, back and feet and to have visible injuries to his ankle, toes and knuckles. He refused to participate in a tape-recorded interview but did tell the police that no one had been home that night but himself and his mother. He also said that he had had some loss of memory. Despite this, he apparently recalled that he had consumed a large quantity of alcohol.

23. A search warrant was executed later that night. A large quantity of blood was found just inside the front door of his mother's house and a number of spots, believed to be blood, were located down the main corridor towards what were said to be the applicant's rooms at the far end of the house. Within those rooms red stains were found on a bed, curtains, under the light switch and near the key lock. A large carving knife was seen in the centre of the mat in one of his rooms and two more knives were found in a cupboard drawer in his adjacent bedroom. A black leather sheath, consistent with the size and shape of the knife earlier found outside the premises, was in the same drawer. In the en suite to the defendant's bedroom there was a newspaper article concerning the massacre of the royal family in Nepal. The search also revealed an empty Jack Daniels Whiskey bottle and some empty Bourbon and Cola containers.

24. Mrs Collins was subsequently found to have died as a result of a single puncture wound to the abdominal region.

25. An application for bail was heard by Connolly J on 4 April 2003. It was common ground that the applicant had no previous convictions and there was no suggestion of any past animosity towards his mother. The surviving members of his family were very supportive of him and his sister and brother-in-law were prepared to offer him a home if granted bail. A solicitor, Mr Hockridge, gave evidence that the applicant had been assessed by a psychiatrist, Dr William Lucas, and that, whilst time had not permitted the preparation of a written report, Dr Lucas had informed him that no evidence of an abnormal psychiatric condition had been found. It was contended that the evidence did not establish that he would present any substantial danger to the public if released and that the presumption in favour of bail provided by s 8 of the Bail Act had not been displaced. Nonetheless, bail was refused.

26. On 16 May 2003 his Honour heard a further application for bail based, inter alia, upon the evidence contained in a report from Dr Lucas dated 8 May 2003. The report stated that the applicant had claimed to have had no memory of events that occurred between about 4.30 pm and a time shortly before the police arrived at about 10.30 pm. He had also claimed that he had not used cannabis that day but that he had consumed a certain amount of alcohol. Dr Lucas formed the impression that he would have been intoxicated but that the level of intoxication would not have been sufficient to fully explain the later behaviour alleged. Dr Lucas found no evidence of a past or current psychiatric disorder and observed that, as the applicant did not have a psychiatric disorder, there was no indication for psychiatric treatment or counselling. It was argued that this evidence effectively excluded any substantial risk of irrational conduct due to any underlying psychiatric condition and that, even if he had committed the act which led to his mother's death, there was no reason to fear any further act of violence. He had previously been of good character, his family obviously trusted him and, if he had stabbed his mother, he had most probably done so as a result of an emotional or psychological state temporarily induced by alcohol. Hence, the community would be adequately protected by releasing him on bail on conditions requiring him to live with his family and refrain from using alcohol or illicit drugs. Despite these contentions, his Honour again refused bail.

27. Mr Purnell argued that, in doing so, his Honour had fallen into appealable error. The prima facie entitlement to bail provided by s 8 of the Bail Act applied even to cases in which a person was accused of murder. Yet his Honour had effectively reversed the onus of proof by refusing bail due to the applicant's inability to adduce evidence of an adequate explanation as to why there would be no risk to the community if he were to be released.

28. As Mr Purnell pointed out, in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 a Full Court of the Federal Court of Australia stressed that the Bail Act did not provide a legislative warrant for preventative detention based on mere suspicion or speculation that further offences might be committed. Madgwick J said, at par 21, that "(t)he question posed by the Bail Act is whether the Court is satisfied that any risk is sufficient to justify the Court denying the accused person a legal right, the right to bail established by s 8". Gyles J added, at par 55, that if there was a "real likelihood" of the applicant committing an offence whilst on bail, rather than mere suspicion or speculation about such a possibility, then that likelihood could be taken into account as a factor in the general weighing process to be undertaken in determining whether the application should be refused notwithstanding the prima facie entitlement to bail provided by s 8.

29. In the present case, it appeared that the applicant had no previous conviction for violent behaviour, no history of symptoms supporting a diagnosis of schizophrenia or mood disorder (such as major depression), and no relevant family history of medical or psychiatric disorder. Furthermore, there had been no history of significant problems in the family. On the contrary, he had apparently enjoyed good relationships with his parents and siblings. He had described his mother as having been very supportive and loving and said that he had respected her. Mr Purnell conceded that Dr Lucas had said that it was difficult to give an assessment of what risk the applicant might present to the community if granted bail, but argued that this very statement demonstrated that the nature and extent of any such risk was merely a matter for speculation. Yet this had been the essential rationale for his Honour's decision.

30. Accordingly, Mr Purnell submitted that leave should be granted, the appeal upheld and the applicant admitted to bail.

31. It should be noted that his Honour gave judgment extemporaneously and, accordingly, did not have the opportunity of correcting any imprecision of language as might be done when proof reading the draft of a written judgment. The further application with which his Honour was concerned had also been brought in apparent reliance upon the provisions of par 19(5)(b) of the Bail Act which required the applicant to show that there was fresh evidence or information of material significance to the granting of bail that had not been available at the time of the earlier application. Having previously heard hearsay evidence of Dr Lucas' opinion that the applicant did not have an abnormal psychiatric condition, his Honour was entitled to conclude that the subsequent report did not provide further evidence or information of material significance concerning this issue. Considered in this context, we are satisfied that his Honour's remarks, even if attended by some infelicity of language, do not reveal any underlying error of principle.

32. In any event, the report made it clear that Dr Lucas was unable to provide an expert psychiatric opinion capable of casting substantial light on the important question of whether there was any real likelihood of the accused committing further acts of violence if released. He said it was difficult to give an assessment of what risk the applicant might present to the community if granted bail and later added that "his complete amnesia for the event means there is no useful information from him about his mental state, motivations and the cause of his disordered behaviour". He concluded that apart from suspecting that intoxication may have played a part "it is unwise to speculate". He explained that some alleged offenders with psychiatric disorders respond to treatment and as a result present less risk to others, but said that in the applicant's case "there is little information of the type needed to make a satisfactory risk assessment".

33. The difficulty of the task did not, however, relieve his Honour of the need to grapple with the competing factors which he was obliged to take into account in determining such an application. The applicant had no history of bizarre or unusual behaviour. Yet within a period of less than one hour he had been crawling amongst sprinklers in Mr Young's backyard and had then been found standing naked near his mortally wounded mother. In the absence of any psychiatric evidence suggesting an alternative explanation, his Honour was entitled to conclude that this behaviour may well have been attributable to a psychotic episode or some other temporary psychological abnormality. Furthermore, in the absence of any adequate explanation as to what might have caused or triggered such an episode, his Honour was entitled to conclude that there was a substantial risk of repetition and, hence, a substantial risk of some other person being attacked and perhaps seriously injured.

34. It is true, of course, that one cannot know the future and that any acknowledgment of risk may be thought to involve some measure of speculation, but the decision in Dunstan does not require a conclusion that bail must be granted unless the Crown can establish on the balance of probabilities that the accused will act in a particular way. It is sufficient for the Crown to demonstrate that in the circumstances of the case the need to protect the community outweighs the prima facie entitlement to bail provided by s 8. In our opinion, his Honour was entitled to conclude that the evidence in the present case provided ample grounds for finding that there was a risk of sufficient gravity to warrant the refusal of bail.

35. It was for these reasons that we ordered that the application for leave to appeal be dismissed and indicated that any application to amend the pleadings in order to have the decision reviewed pursuant to s 43 would be pointless.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Applicant: Legal Aid Office (ACT)

Solicitor for the Respondent: ACT Director of Public Prosecutions

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Judgment (43 paragraphs)

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Cases Cited (2)