R v Broome

5. He was arrested on those charges and appeared in the Canberra Magistrates Court on 28 July 2009. Bail was not applied for and he was remanded in custody. The same position applied on 31 July 2009 and on 10 September 2009.

6. On 10 September 2009, the matter had been listed for a case management hearing (see ACT Magistrates Court Practice Direction No 1 of 2009 - Case Management Hearings and Committal Proceedings) and I was informed that the Brief of Evidence, which, by par 3.3.1 of that Practice Direction, should have been served no later than fourteen days before the Case Management Hearing, was served on the morning of the Case Management Hearing. As a result, the Case Management Hearing had to be adjourned to 8 October 2009, thus delaying the progress of the proceedings.

7. There are two ways in which an application in relation to bail may be made in this Court. Section 19 of the Bail Act 1992 (ACT) (Bail Act) empowers a court, including this Court, to grant bail. Section 43 of the Bail Act gives the Supreme Court power to review a bail decision of a court, including the Magistrates Court.

8. The bench sheets for the Magistrates Court record that on 28 July 2009 and 10 September 2009, bail was not applied for and Mr Campbell was remanded in custody.

9. On 31 July 2009, however, the bench sheet records that bail was not applied for, but curiously bail was then refused and Mr Campbell was remanded in custody.

10. This is important because under the Bail Act, different consequences flow if a court has made a decision in relation to bail.

11. Strictly speaking, if no application is made for bail, then there is no occasion for bail to be refused. One can, in ordinary language, only refuse an application that is made. Thus, there is no decision to grant or refuse bail if no application has been made. Compare the situation with the Bail Act 1977 (Vic) where s 12 mandates that where a person is arrested the court or bail justice before whom the arrestee is brought must either grant or refuse bail.

12. Accordingly, the provisions relating to the limitation on the consideration of bail applications where a court has already made a decision (ss 19 and 43 of the Bail Act) do not apply to any of the occasions on which Mr Campbell was before the Magistrates Court, despite the apparent "decision in relation to bail" purportedly made on 31 July 2009. It is important that this is remembered when dealing with such matters as the consequences for the defendant can be significant.

13. Thus, I was not being asked to exercise jurisdiction under s 43 of the Bail Act. The other jurisdiction was under s 19 of the Bail Act.

14. Ms K McKenzie, who appeared for the prosecution, submitted that I had no jurisdiction to proceed under s 19 of the Bail Act because Mr Campbell's criminal proceedings were being dealt with in the Magistrates Court. She submitted that where the proceedings were being conducted in the Magistrates Court and there had been no committal for trial or sentence to this Court, s 19 was not a source of jurisdiction for this Court to consider bail.

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

(a) grant bail to an accused person who is being held in custody in relation to the offence with which the person 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) 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 lawyer at the hearing of his or her first application to a court for bail in relation to the offence with which the person is charged; or

(b) the accused person can show -

(i) that since the most recent application to a court for bail there has been a significant change in circumstances relevant to the granting of bail; or

(ii) that there is fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent 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.

16. As can be seen, there is no express limitation on the restriction of this Court under that section to grant bail. "Court" is defined in the dictionary to the Bail Act as:

17. In essence, Ms McKenzie's argument seemed to be that because the criminal proceedings were being conducted in the Magistrates Court, it was inappropriate for the bail application to be made to the Supreme Court except under s 43 of the Bail Act which is a review of a decision already made.

18. In my view, there are a number of answers to this contention. In the first place, it has never been the case that the Supreme Court was an inappropriate place for bail applications notwithstanding that proceedings were in another court. Indeed, the Supreme Court had, until the Bail Act was enacted, inherent jurisdiction to grant bail wherever the proceedings were conducted: R v Broome [1955] VicLawRp 37; [1955] VLR 208 (at 209); In the application of Harrod [1978] 1 NSWLR 331 (at 333); R v Rochford; Ex parte Harvey (1967) 15 FLR 140.

19. Of course, s 57AA of the Bail Act has abolished any inherent power of the Supreme Court to grant bail. That, however, has only meant that the jurisdiction of the Supreme Court to grant bail is now regulated entirely by the Bail Act. Thus, bail applications to the Supreme Court can only be dealt with in accordance with the Bail Act and not under the common law. No implication can be drawn from that to suggest that s 19 is limited to the court in which the criminal proceedings are being conducted.

20. Indeed, a number of jurisdictions limit the power of granting bail in murder cases (s 15, Bail Act 1982 (WA), s 13, Bail Act 1980 (Qld)) and in treason cases (s 13(2)(a), Bail Act 1977 (Vic)) only to the Supreme Court notwithstanding that, of course, at the same time the criminal proceedings, at least until committal, will be conducted in another court.

21. Secondly, s 20 of the Bail Act imposes a limitation on the power of a magistrate to grant bail where a person has appeared before the Supreme Court after committal for trial or sentence or on appeal against the conviction order or sentence imposed upon a person for the offence. If Ms McKenzie's construction of s 19 was correct, this section would not be necessary because the proceedings would, in that case, be being conducted in the Supreme Court and, under her construction, the Magistrates Court would not have jurisdiction in any event since the proceedings would not be in that court.

22. Thirdly, the ordinary meaning of the section grants the Supreme Court power to grant bail wherever the proceedings are and I see no reason in the terms of the statute or, indeed, in any other provision to limit it.

23. Ms McKenzie suggested that this would permit an applicant for bail to engage in forum shopping, choosing whether to apply to the Supreme Court or the Magistrates Court. That, in itself, would not be a sufficient argument to overturn the clear words of the section. It may be a reason for reviewing the provision and re-considering the policy behind it.

24. Finally, even on a review of a decision of a magistrate, to refuse bail or to grant it on unacceptable terms, the Supreme Court is exercising its own discretion on a review: the matter is conducted as a rehearing and the court does not consider whether there is an error but decides whether it is proper to grant bail: R v Pakis (1981) 3 A Crim R 132 (at 136-7).

25. Accordingly, I held that I had jurisdiction to consider the application.

26. In addition to the charges in respect of which he has been remanded in custody (see [4]), Mr Campbell is facing a further three series of charges:

• he has pleaded guilty to offences of interfering with a numberplate and driving whilst disqualified;
• he has been charged with reckless driving, driving whilst disqualified and failing to stop when directed by police, which are part-heard with the hearing listed to continue on 20 October 2009; and
• he has been charged with kidnapping and unlawful confinement arising out of events on 12 May 2009 and has been committed for trial on those charges.

27. As noted above (at [6]), the charges in respect of which he is seeking bail are listed for Case Management Hearing on 8 October 2009.

28. Mr Campbell made the application himself as so often happens in this jurisdiction, but was represented at the hearing of the application. I have referred before to the desirability of practitioners ensuring that the application is properly prepared (see In the matter of an application for bail by Day [2008] ACTSC 121) and that the practitioner by appearing takes on the responsibility of ensuring that the application is, if unable properly to be prepared by way of a professionally completed affidavit, at least presented properly in accordance with the ordinary processes of the court.

29. The affidavit was, as is so often the case in applications prepared by applicants themselves, quite limited in the material presented. The charge referred to was "possession of stolen goods" and did not include, for example, the more serious charges of trafficking in drugs.

30. The significant issue, however, was that Mr Campbell had applied for referral to a drug residential rehabilitation programme conducted by Mission Australia known as "Triple Care Farm". He has, apparently, completed his telephone assessment, which was conducted on 31 August 2009, and his assessment interview was booked to take place on 15 September 2009 at 10.00 a.m. That interview has to be conducted at Triple Care Farm. Triple Care Farm is at Robertson in New South Wales a few hours drive outside Canberra.

31. The letter annexed to Mr Campbell's application describes Triple Care Farm as follows:

Triple Care Farm is a residential rehabilitation program for young people aged 16 to 24 years of age addressing alcohol and other drug use, living and social skills and providing a [sic] accredited and non-accredited vocational training program.

...

The triple [sic] Care Program encourages students to work towards achieving their weekly goals as well as their overall goal to graduate from the program. With this aim a young person can build their self-esteem and confidence and identify their problems and issues that may require more intensive work.

Triple Care has a Psychologist, Drug and alcohol counsellor, Case Manager, Education group work, relapse prevention work, vocational training, Accredited and non-accredited Courses. Music and Art work and a learning centre to meet a young persons [sic] individual needs. We also have an Aftercare Program, to support young people when they return to the community to link in with support programs available to them.

32. In principle, this appears to be a desirable programme of rehabilitation.

33. The application for bail was for part of one day, to travel to Robertson for the interview for assessment.

34. Mr Stubbs, who appeared for Mr Campbell, submitted that Mr Campbell's sister, who was employed by a bank in Woden, would travel with Mr Campbell to Robertson and return him to the Alexander Maconochie Centre after the interview.

35. Mr Stubbs, very fairly, noted that Ms Campbell had a significant traffic offence on her record but otherwise had no criminal offences.

36. Mr Campbell's sister, however, did not appear at the hearing and did not make an affidavit so I was not able to assess the appropriateness of her accompanying Mr Campbell to Robertson.

37. Further, Mr Campbell gave no evidence himself and his affidavit did not indicate the basis on which he sought the residential rehabilitation. In general terms, the rehabilitation provided at Triple Farm Care would be valuable for many young people who are in trouble with the police though it would appear that it is particularly directed to those who have alcohol and other drug use problems. There was no information provided in Mr Campbell's affidavit or otherwise available to indicate anything about Mr Campbell's use of or addiction to alcohol or other drugs. There was, for example, no report from any drugs worker at the Alexander Maconochie Centre nor from the Court Alcohol and Drug Assessment Service.

38. In effect, Mr Campbell was seeking day bail, a short period of bail that was to allow him out of the remand section of the Alexander Maconochie Centre for a specific purpose. Such day bail has been granted in the past: In the matter of an application for bail by Raeyers [2009] ACTSC 88. As I said in that decision (at [6]):

Normally it is not the function of the Court to manage the corrections system and to grant day release on such occasions when the superintendent of the Remand Centre has power to do so. In the usual case such an arrangement should be left to the superintendent and not for the Court to determine.

39. I was told from the bar table by Mr Stubbs that the superintendent had indicated that there was no capacity in the staffing of the Remand Centre at this stage to arrange for Mr Campbell to be transported to Robertson.

40. I gave anxious consideration to this matter. It is true, given the number of sets of charges Mr Campbell is facing and the current congestion of the Courts, that it is likely to be some time before Mr Campbell's cases can all be finally resolved. Thus, he is likely to be on remand for some time. Nevertheless, having regard to the serious nature of the charges, and I was provided with a Statement of Facts for the two most recent sets of charges, I cannot say that any period of remand would exceed any period of incarceration to which Mr Campbell may be sentenced were he convicted of the charges.

41. The Court, of course, would not wish to impede Mr Campbell's rehabilitation. While it is not the only objective of sentencing, rehabilitation is a very important objective since it is likely to be a very significant factor in preventing further offences by Mr Campbell. Nevertheless, there are a number of agencies that can assess Mr Campbell for residential rehabilitation for either alcohol or drug addiction in the ACT and, indeed, by telephone from New South Wales.

42. I heard evidence from Senior Constable David Fleming who, although not the informant, was a corroborator in the drug cases. He gave evidence of the significant quantities of methylamphetamine and cannabis found and of the cash which was found hidden in some furniture in the house. He expressed concerns about the likelihood of Mr Campbell not returning and re-offending including using drugs while released and also of the possibility of him obtaining drugs to smuggle into the Alexander Maconochie Centre on his return. I think I can take notice of recent publicity showing that, like most correctional facilities, the Centre has not been immune to drug use amongst detainees.

43. Senior Constable Fleming indicated that, although Mr Campbell had said that he had used amphetamines shortly before he was arrested, his demeanour was not consistent with such use.

44. Although Mr Campbell has a criminal history, it is not, apart from the charges that he is currently facing, a particularly serious history although he has two convictions for driving whilst disqualified and driving at a speed that is dangerous.

45. Mr Stubbs pointed out that he had no record of failing to comply with bail conditions and that is true, a distinction between him and a number of other applicants for bail from time to time. Nevertheless, he has breached a Good Behaviour Order and a Recognizance in the past and been convicted of not obeying a direction of the police. While these, in themselves, would not justify a refusal to grant bail, they add to the other concerns which I have to take into account.

46. Having regard to the serious nature of the offences, the risks associated with Mr Campbell being transported to New South Wales by his sister, whom I have not been able to assess, and in circumstances where there is no evidence of the basis for the appropriateness of this mode of rehabilitation in a residential facility for Mr Campbell, I was not satisfied that the risks involved were justified.

47. Accordingly, I refused the application and indicated that I would publish my reasons later. These are my reasons for refusing the application.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Solicitor for the defendant: Diana Burns Solicitors