CRIMINAL LAW AND PROCEDURE - bail - offences charged while on bail - special and exceptional circumstances - overcrowding in a remand facility - Bail Act 1992 (ACT), ss 9D, 9G, 43.

EVIDENCE - bail - Bail Act 1992 (ACT), s 19.

Bail Act 2002 (ACT), ss 9, 9D, 9G, 9G(2), 19, 19(6), 22, 22(1), 22(1)(c), 22(3), 22(3)(c), 25,25(1)(b)-(c), 32, 43, 49(1), 56, Dictionary

Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)

Crimes Act 1900 (ACT), ss 24, 26

Human Rights Act 2004 (ACT), s 30

Pollock F and Maitland F W, The History of English Law Before the Time of Edward I (2nd Ed, Cambridge University Press, 1911)

In the Matter of an Application for Bail by Skeen [2009] ACTSC 30

R v Fraser and Jacobs (1892) 13 LR (NSW) 150

Eleko v Officer Administering the Government of Nigeria & Anor [1928] AC 459

In the Matter of an Application for Bail by Massey [2008] ACTSC 145

In the Matter of an Application for Bail by Skeen [2009] ACTSC 30

R v Freeman [No 2] [2001] ACTSC 86

Anon (1704) 6 Mod Rep 231; 87 ER 982

Ex parte Lyne [1822] EngR 35; (1822) 3 Stark 132; 171 ER 798

R v Butcher (1792) Peak 226; 170 ER 138

R v Kristiansen [2008] ACTSC 83

R v Deputy Governor of Parkhurst Prison & Ors; Ex parte Hague [1992] 1 AC 58

R v Benbrika and Ors [No 20] [2008] VSC 80; (2008) 18 VR 410

Nasr v New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78

1. The applicant, Chris Merritt, has applied for a review of a decision made by Ms K Fryar, Magistrate, to refuse him bail. I refused that application on 3 November 2008 and indicated I would give my reasons later. These are my reasons.

2. Mr Merritt had been charged with a number of offences over some time. Relevantly, he appeared before the learned Magistrate on 19 September 2008 when bail was refused. In this case, I did not have the advantage of annotated bench sheets from the Magistrates Court (see In the Matter of an Application for Bail by Skeen [2009] ACTSC 30 at [10]) and Mr Merritt's affidavit, which he prepared himself from the usual pro-forma, did not even attempt to summarise the grounds of the application before her Honour nor reasons why bail was refused.

3. Mr Merritt was originally charged with relevant offences on 16 September 2007. He is alleged, on that day, to have attended at premises in Narrabundah where he lived with his then de facto partner. He had earlier had an argument with his then partner at a party. She left but did not go home. Mr Merritt is alleged to have attended the premises in the early hours of the morning where his partner's younger brother was minding her two young children aged seven and five.

4. Mr Merritt is alleged to have torn the front security screen from its hinges, removed a flyscreen and damaged the premises and then smashed a number of items on the property including furniture. He was later arrested and charged with three counts of damage to property contrary to s 403(1) of the Criminal Code 2002 (ACT), a charge which carries a maximum penalty of a fine of 1000 penalty units ($100,000) or ten years imprisonment or both. He appeared before the court on 19 September 2007 and was bailed to appear on 3 October 2007 and then was bailed to appear further on 21 December 2007, which he did. On 21 December 2007 he was then further bailed to appear on 23 January 2008 but failed to appear on that date in answer to his bail.

5. When Mr Merritt had appeared on 3 October 2007, he had been charged before the court with offences under the Road Transport legislation allegedly committed on 14 September 2007. These charges were of driving an unregistered and uninsured motor vehicle with number plates attached that were not those issued to the vehicle and of being an unlicensed driver. All these charges were for purely summary offences which attracted only a fine of a maximum of 20 penalty units ($2,000).

6. Mr Merritt was subsequently arrested on 1 August 2008 and was again granted bail to appear on 21 August 2008. Again, he failed to appear on that date.

7. The two failures to answer bail on 23 January and 21 August 2008 resulted in charges under s 49(1) of the Bail Act 2002 (ACT) (the Bail Act), an offence which renders him liable in each case to a maximum fine of 200 penalty units ($20,000) or two years imprisonment or both.

8. It was then alleged that on 19 September 2008, Mr Merritt attended the premises of his then partner. He is alleged to have punched her a number of times; one of the punches is claimed to have caused her tooth to cut her bottom lip. He is alleged then to have taken their six month old son and left the premises. He was later arrested. He was charged with trespass on the premises which, under s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth), is an offence punishable by ten penalty units ($1,000), assault contrary to s 26 of the Crimes Act 1900 (ACT) (punishable by two years imprisonment) and assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (punishable by five years imprisonment).

9. Magistrate Fryar refused Mr Merritt bail and by application dated 15 October 2008, Mr Merritt sought a review of that decision.

10. This application first came before me on 22 October 2008. I was informed that representations were being made to the Director of Public Prosecutions about the offences of 16 September 2007. In summary, it was claimed that the door had been torn from its hinges prior to the alleged attendance by Mr Merritt, the other damage had not been caused by him on that occasion and that the items smashed had been owned, or at least jointly owned, by Mr Merritt so that this could not be the subject of such a charge, which is expressed to apply to property "belonging to someone else" (s 403(1) Criminal Code 2002 (ACT)).

11. Accordingly, I adjourned the proceedings to 24 October 2008 so that consideration could be given to those representations. On the adjourned date, I was informed that the representations had not been successful and that the prosecutions were to proceed in court. The application for bail was then further pressed. During it, reference was made to overcrowding at the Belconnen Remand Centre as a ground favouring the grant of bail. It was pointed out to Mr Merritt's counsel that there was no evidence or information about this before me and a further adjournment was sought to obtain that information. The hearing resumed on 30 October 2008 and, at its conclusion, I reserved my decision. On 3 November 2008, as noted above, I refused the application.

12. Under the Bail Act, a court can review a decision on bail at any time and as many times as the applicant wishes, a continuation of the common law position that an applicant for bail can make successive applications from judge to judge (or magistrate to magistrate and then to judges). See R v Fraser and Jacobs (1892) 13 LR (NSW) 150 at 153; Eleko v Officer Administering the Government of Nigeria & Anor [1928] AC 459 at 468.

13. There are, however, constraints that have now been placed by statute on such applications, for, so far as the Supreme Court of the ACT is concerned, the application can only be entertained if the fresh application or the application for review of a bail decision is based on:

(a) a significant change in circumstances relevant to the granting of bail; or

(b) the availability of fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application in relation to bail.

14. In this case, there is a further constraint, for the offences allegedly committed on 19 September 2008 were serious offences within the meaning of s 9D of the Bail Act (that is, punishable by imprisonment for five years) and allegedly committed while Mr Merritt was on bail for other serious offences. In that circumstance, the Bail Act requires that the court may not grant bail "unless satisfied that special or exceptional circumstances exist favouring the grant of bail": s 9D of the Bail Act.

15. Section 9G refers to these special and exceptional circumstances and provides:

9G Special or exceptional circumstances

(1) This section applies if a court or authorised officer is required under this part to be satisfied of the existence of special or exceptional circumstances favouring the grant of bail to a person.

(2) A circumstance that would be an applicable bail criteria for the person is not a special or exceptional circumstance only because it is an applicable bail criteria.

(3) Also, the court or authorised officer must consider the applicable bail criteria for the person only after the court or authorised officer is satisfied of the existence of the special or exceptional circumstances.

Examples for s (3)

1 Damien is before the court charged with having committed an aggravated robbery. He has earlier been charged with having committed aggravated robbery. Section 9D applies and there is a presumption against bail unless there are special or exceptional circumstances. Damien argues that there are special circumstances as he needs to support his child, he may lose his job and he may lose an opportunity to take up public housing. The court considers that the circumstances are not special or exceptional. Bail is not granted and the criteria in section 22 are not considered.

2 Jason is facing similar charges. Jason has had a car accident before his arrest for the second offence. His kidneys are damaged requiring dialysis every 3 days. Jason argues that his need for regular treatment and his reduced mobility mean that he is highly unlikely to abscond. The court considers these circumstances are special or exceptional. The court then considers the criteria in section 22 in deciding whether to grant bail.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1"> 16. Section 9G(2) refers to "applicable bail criteria". This is a reference to s 22 of the Bail Act which sets out the criteria which a court (or authorised officer) must consider in making a decision about the grant of bail. That section is in the following terms:

22 Criteria for granting bail to adults

_(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider - _

(a) the likelihood of the person appearing in court in relation to the offence; and

_(b) the likelihood of the person, while released on bail - _

(i) committing an offence; or

(ii) harassing or endangering the safety or welfare of anyone; or

(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and

(c) the interests of the person.

Examples for par (c)

1 the need of the person for physical protection.

2 the period that the person may be held in custody if bail is refused and the conditions under which the person would be held.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.

_(3) In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including - _

(a) the nature and seriousness of the offence; or

(b) the person's character, background and community ties; or

(c) the likely effect of a refusal of bail on the person's family or dependants; or

(d) any previous grants of bail to the person; or

(e) the strength of the evidence against the person.

Example

In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.

(4) The reference in subsection (1) (b) (i) to an offence includes a reference to an offence against a law of the Commonwealth, a State or another Territory (including an external territory).

17. It is clear that when deciding whether or not to grant bail, a court must consider the matters set out in s 22(1) but that, in doing so, the court may have regard to the matters enumerated in s 22(3) and any other relevant matter. Thus, the matters which might favour a grant of bail are not limited.

18. In interpreting s 9G of the Bail Act, then, it is not correct, as it appeared to have been submitted by the prosecution, that it requires a court to exclude from consideration for the purposes of s 9D, any matter to which a court would be able to have regard under s 22. That would be absurd, since if a circumstance favoured the grant of bail, it could be considered under s 22. To exclude any circumstance that could be considered under s 22 would mean that s 9G would effectively prevent bail ever being granted if s 9D applied.

19. Properly construed, s 9G simply means that a court must find a circumstance that is special or exceptional before bail can be granted where s 9D applies, but the fact that such a circumstance would, under s 22, be able to be considered and would favour a grant of bail, is not, of itself, a special or exceptional circumstance.

20. That is clear from the examples to s 9G. In example 1, the factors set out there are all matters favouring the grant of bail. They would be taken into account in applying s 22. For example, the support of the child would be relevant under s 22(3)(c); the loss of a job would be relevant under s 22(1)(c) and so on. These would, however, rarely be special or exceptional: In the matter of an Application for Bail by Massey [2008] ACTSC 145 at [15] - [17]; In the matter of an Application for Bail by Skeen at [57]. In example 2, the need for regular treatment would be relevant under s 22(1)(c) and the reduced mobility would be relevant under s 22(1)(a). These are, however, expressed by the legislature to be special or exceptional circumstances. It is easy to understand why that is so.

21. I have examined the meaning of special and exceptional circumstances in In the Matter of an Application for Bail by Massey at [7]-[8], [28]. See also In the Matter of an Application for Bail by Skeen at [32]-[39]. As I said in those cases, an applicant must show some unusual or uncommon circumstances which justify the grant of bail and they must relate to the granting of bail. That is consistent with the examples to s 9G.

22. Mr Merritt's application was based on four matters:

(a) His mother was prepared to undertake the obligation of a surety. Although she was the recipient of a disability pension and was unable to deposit cash with the court, she was prepared to forfeit up to $200 for this purpose.

(b) Mr Merritt's aunt, who lived in Hackett, was prepared to offer him accommodation. Not only was this residence relatively distant from where the complainant lived, thus providing her with some protection, his aunt could provide some supervision. This may be significant in the case of an indigenous man, as Mr Merritt is, where an elder might be able to influence him for the good.

(c) Letters from medical practitioners showed that Mr Merritt had previously injured his right hand which had required surgical repair in January 2008. After a recent altercation, it had become painful.

(d) The Belconnen Remand Centre was seriously overcrowded with up to four detainees being housed in two person cells.

23. As noted above, the first threshold that Mr Merritt must cross is whether there is fresh evidence or information of material significance or a significant change in circumstances relevant to the granting of bail.

24. The availability of a surety has been held to satisfy these tests, so long as the surety was unavailable at the earlier hearing: In the Matter of an Application for Bail by Skeen at [56]. Though a change in circumstances, it may still not necessarily justify the grant of bail: R v Freeman [No 2] [2001] ACTSC 86 at [14]- [15].

25. At common law, a surety was the custodian of the bailed person and had power to arrest him or her: Anon (1704) 6 Mod Rep 231; 87 ER 982; Ex parte Lyne [1822] EngR 35; (1822) 3 Stark 132; 171 ER 798. To escape from one's surety was escaping from lawful custody: R v Butcher (1792) Peak 226; 170 ER 138.

26. The situation was well-described in Pollock F and Maitland F W, The History of English Law Before the Time of Edward I (2nd Ed, Cambridge University Press, 1911) where the learned authors explained (at vol 2 pp 589-590):

We have spoken, perhaps too indifferently, of 'mainprise' and of 'bail'. There was some difference between these two institutions, but at an early time it became obscure. Bail implied a more stringent, mainprise a laxer, degree of responsibility. English, Norman and French tradition seem all to point to an ancient and extremely rigorous form of suretyship or hostageship which would have rendered the surety liable to suffer the punishment that was hanging over the head of the released prisoner. In Normandy these sureties are compared to gaolers, and a striking phrase speaks of them as 'the Duke's living prison.' In England when there is a release on bail the sureties are often said to be bound corpus pro corpore_. However, so far as we can see, whether there has been bail or whether there has been mainprise, the sureties of the thirteenth century, if they do not produce their man, escape with amercement. The undertaking to forfeit a particular sum and the formal recognizance, which afterwards become familiar, seem to be very rare in this age. The strict theory seems to be that all the chattels of the sureties are at the king's mercy, while in case of bail they may have to render their own bodies to gaol. Very often the prisoner was handed over to a tithing; sometime_ [sic] a whole township was made responsible for his appearance. (Footnote omitted).

27. The Bail Act, however, has not continued that position. Section 25(1)(b) and (c) create possible conditions of bail whereby a person undertakes a responsibility for the attendance of the defendant. Although this condition is commonly referred to as a surety - and that is a convenient shorthand, reinforced by the definition of "surety" in the Dictionary to the Bail Act - the responsibility is somewhat different in its detail from the responsibility imposed at common law on a surety. The provisions are:

1. Conditions on which bail may be granted to adults

(1) The following conditions may be imposed on a grant of bail to an adult:

...

(b) a condition that the person, an acceptable person or each of a number of acceptable people -

(i) pays to the Territory a stated amount if the person fails to appear in court in accordance with his or her undertaking; or

(ii) gives acceptable security for the payment to the Territory of a stated amount if the person fails to appear in court in accordance with his or her undertaking;

Note For acceptable people and acceptable security, see s 32.

(c) a condition that the person, an acceptable person or each of a number of acceptable people -

(i) deposits a stated amount with a court or authorised officer; and

(ii) forfeits the amount if the person fails to appear in court in accordance with his or her undertaking.

28. As can be seen, there is no power for the surety to take the bailed person into custody. In case that is not clear, it is reinforced by s 56 of the Bail Act which declares that a surety has no right of arrest.

29. Similarly, the surety is not responsible either personally or by loss of the money paid or undertaken to be paid, if the bailed person does not comply with any of the other conditions that may be imposed on a grant of bail. In addition, apart from loss of a sum of money, there is no other sanction to which a surety is liable if the person bailed does not answer the bail.

30. For completeness, I refer to s 32 of the Bail Act which permits a court to nominate who, whether a named person or a class of persons, may be acceptable to undertake the responsibility of a surety.

31. Thus, although the responsibility of a surety is a much more limited role than the common law role was, it can be an important condition on which a court may rely to ensure the attendance of the applicant to take his trial, obviously one of the more important matters that the grant of bail must achieve.

32. For the applicant, however, this was apparently a matter that had been raised before the learned Magistrate. This was asserted by the prosecutor and not contradicted by the applicant. I had neither the transcript of the proceedings before the learned Magistrate nor the benefit of any annotations by her on the bench sheets from the ACT Magistrates Court. I have earlier indicated how beneficial this can be: In the Matter of an Application for Bail by Skeen at [8]-[10]. As the prosecution's assertion was, however, not here contested, I am able to say that the availability of a surety, a circumstance favouring bail, did not contribute to Mr Merritt meeting the threshold imposed by s 43 of the Bail Act. It would also not have amounted to a special or exceptional circumstance under s 9D of the Bail Act.

33. This was a new matter. It would, therefore, amount to a change in circumstances or fresh information, probably the former. Given that it was with a family member from whom Mr Merritt could be expected to receive some guidance as well as support and while it was a reasonable distance away from the residence of the complainant, it does seem to me to amount to a significant change in circumstances, despite the prosecutor's submission to the contrary. Certainly, given the requirement to construe s 43 of the Bail Act consistently with the rights set out in the Human Rights Act 2004 (ACT) as required by s 30 of that Act, I would hold that this matter did satisfy s 43 of the Bail Act. See R v Kristiansen [2008] ACTSC 83 at [20].

34. It was not, however, a special or exceptional circumstance to meet the test under s 9D of the Bail Act. Many applicants for bail are able to reside with relatives and in circumstances which remove them from the proximity of a complainant.

35. The various letters tendered did satisfy me that Mr Merritt had a hand injury which was causing him ongoing pain. A letter from the Director of Corrections Health stated that Mr Merritt had been referred to the "Hand Clinic" at the Canberra Hospital and that an x-ray of his hand had been ordered. This does not seem to have been mentioned to the learned Magistrate.

36. There was nothing before me to suggest that Mr Merritt was not gaining appropriate care while in custody nor that release on bail would in any way contribute to better care or that continued custody would cause damage.

37. It was submitted that there were two issues relevant to bail. The first was that Mr Merritt would be treated more speedily were he granted bail. There was, however, simply no information on which I could make that finding and the medical evidence did not support that submission.

38. Secondly, it was asserted that in the crowded conditions at the Remand Centre, it was more likely that Mr Merritt's hand would be knocked or further injured. While that was entirely speculative, and there was no real evidence or information to support it, I accept that it renders Mr Merritt somewhat more fragile in custody. I do not, however, consider it to be a significant matter relating to bail and so it does not meet the threshold of s 43 of the Bail Act. It might, however, be considered in the context of the next matter of overcrowding.

39. Because of the delay in the reception of prisoners and detainees into the Alexander Maconochie Centre, the ACT's new prison, combined with difficulties in ACT prisoners being accepted into NSW gaols, there has been significant overcrowding in late 2008 and early 2009 in the Belconnen Remand Centre and also in the Symonston Temporary Remand Centre opened to take some of the overflow from the Belconnen Remand Centre.

40. Tendered before me were press reports which referred to "unprecedented crowding" and reported that detainees were "being forced to sleep on mattresses on the floor to accommodate newly sentenced prisoners who would otherwise have been sent interstate". The reports suggested that in October 2008 the Belconnen Remand Centre was holding 76 people instead of its maximum capacity 69 and that the Symonston Temporary Remand Centre was holding 27, three short of its capacity. The report did suggest that the position would ease on the following Monday when prisoners could be transferred interstate.

41. Normally, material such as press reports would not be admissible to prove facts on which a court should rely. In matters of bail, it was always likely that informal means of putting material before a court would occur, especially in a busy Magistrates Court. Section 19(6) of the Bail Act puts the matter beyond doubt and permits the court to "have regard to any information it considers relevant and reliable". While press reports are not always reliable, the content of the reports in this case, taken as a whole, especially where the relevant Minister is quoted and he has not controverted the primary issue of overcrowding, seem capable of providing relevant information. The absence of contrary evidence or information, notwithstanding that the adjournment had been granted to the applicant to obtain this very material to the actual knowledge of the prosecution, leads me to accept that material in general terms as reliable. It is clearly relevant.

42. While the conditions described are at the very least undesirable they can hardly be called intolerable, that is in the sense that they cannot be tolerated. It has been held that even intolerable conditions do not make incarceration unlawful: R v Deputy Governor of Parkhurst Prison & Ors; Ex parte Hague [1992] 1 AC 58 at 165. In that case, Lord Bridge said at 165:

The logical solution to the problem, I believe, is that if the conditions of an otherwise lawful detention are truly intolerable, the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful. I see no real difficulty in saying that the law can provide such a remedy.

43. In one of the reports tendered before me, the Canberra Times stated "[c]riminal lawyers who have visited clients at Belconnen say the facility - which the Government has previously described as substandard - is more depressing than ever". I am not satisfied that this amounts to intolerable conditions, though they may be said to be severe.

44. It is clear that the conditions under which an accused person is held during his trial can cause the trial to be unfair: R v Benbrika and Ors [No 20] [2008] VSC 80; (2008) 18 VR 410 at 428. In those circumstances the court has to provide a remedy. If the conditions cannot be so ameliorated such that the trial becomes fair, then the appropriate remedy may be a stay of proceedings: R v Benbrika and Ors [No 20] at 431. An alternative may be a grant of bail.

45. While Mr Merritt's trial has not actually commenced, it seems to me that pre-trial incarceration can have an effect on the fairness of a trial in some circumstances.

46. There is, however, a difficulty in approaching the issue of overcrowding. If overcrowding per se is the source of the inappropriate conditions, then releasing some detainees would resolve that problem. For example, if the press reports are correct, the conditions would cease to be of concern with the release of detainees. Based on the press reports, seven detainees would need to be released, or four as three could apparently be accommodated in the Symonston Temporary Remand Centre.

47. The courts, however, are not in a position to determine which four (or seven) of all those detained should be released. Some may have a greater claim than others. This is, of course, no answer to unacceptable conditions, but it does point to the need for something more than a mere allegation of overcrowding before bail should be granted to the applicant who happens to be before the court. That is to say, there should be some evidence or information that shows that the applicant is specially prejudiced by the overcrowding or, alternatively, that the overcrowding renders conditions so intolerable that it cannot be permitted for anyone at all.

48. That is to say, each matter must be considered in relation to that person and a court cannot consider the position "globally" as was stated in relation to a somewhat different but analogous situation in Nasr v New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78 at 97-98.

49. The evidence before me did not come up to either of these standards. The conditions were obviously severe, probably approaching what is unacceptable in a civilised community. It did not, however, in my view come to the standard required whereby the court was bound to act by way of remedy, whether through granting bail or otherwise. I did not consider, however, that this would prevent a further application if conditions deteriorated further or some specific matter showed special prejudice to Mr Merritt.

50. The one matter on which he might have relied, but did not do so expressly, was the vulnerability of his hand. Again, the material before me was very thin and I could make no real finding on the issue. It seemed to me to be fundamentally speculative - he might have his hand knocked or hit more readily because there were more people detained - and I do not consider that to be sufficient to show that there were special or exceptional circumstances favouring the grant of bail as required under s 9D of the Bail Act.

51. For these reasons, I concluded that I could hear Mr Merritt's application as there were changed circumstances or new facts (the availability of accommodation with his aunt and the overcrowding in the remand facilities) since the earlier applications but that the matters raised, even taken together, did not amount to special or exceptional circumstances favouring the grant of bail.

52. As a result, I refused the application for bail.

I certify that the preceding fifty-two (52) 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 applicant: Aboriginal Legal Service (NSW/ACT) Ltd