CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - What constitutes a change in circumstances - Applicant has failed to comply with bail conditions on multiple occasions in the recent past - Application dismissed

Bail Act 1992 (ACT), ss 9B, 20B, 20C, 22, 43A

Crimes Act 1900 (ACT), ss 27(3)(a), 30

Human Rights Act 2004 (ACT)

In the matter of an application for bail by Dhaimat (No 1) [2014] ACTSC 42

In the matter of an application for bail by Laipato [2014] ACTSC 130

In the matter of a bail application by Rodrigues [2008] ACTSC 50

Re an application for bail by Islam (2010) 4 ACTLR 235

1. Despite some laypeople thinking otherwise, bail is not intended to punish people for offences with which they have been charged. Indeed, to the lawyer such a notion is offensive, for it must be recognised that persons who have been charged but not found guilty of offences are, by law, presumed to be innocent. Nevertheless, bail has become highly regulated by statute as the legislature has reacted to the demands of the community.

2. The Court is required to comply with the various requirements of the Bail Act 1992 (ACT). While such legislation must be construed with the Human Rights Act 2004 (ACT), which the ACT legislature has enacted to ensure, as far as possible, compliance with the rights recognised by it, this is not a license to emasculate the legislation nor to ignore its intent. See, for an example, Re an application for bail by Islam (2010) 4 ACTLR 235.

3. Appearing before me and applying for bail is David Christopher Laipato, who has been committed for trial to this Court on the following charges:

• choking the complainant so as to render her insensible, an offence against s 27(3)(a) of the Crimes Act 1900 (ACT), rendering Mr Laipato liable, if found guilty, to a maximum penalty of imprisonment for ten years; and
• threatening to kill the complainant, intending to put her in fear that the threat would be carried out, or being reckless as to whether she would so fear and the threat was made without lawful excuse and in circumstances which a reasonable person would fear the threat would be carried out, an offence against s 30 of the Crimes Act, which also provides for a maximum penalty of ten years' imprisonment.

4. The offences were said to have been committed on 16 February 2014, when Mr Laipato and the complainant were in a domestic relationship. The Crown alleges that they argued and Mr Laipato dragged the victim into the bedroom where he put his hands around her throat until she was unable to breathe and repeatedly said to her, "I'm going to kill you". Two friends of the complainant were said to have attempted to have intervened and pulled him off the complainant.

5. The police were called and Mr Laipato was arrested. The complainant gave an interview to police which was recorded. She made a written statement which she also signed. I have not seen the statement but I have, however, seen the transcript of the interview.

6. In the interview, she said, amongst other things

He came to the hotel at about eleven pm. Everything was fine. Um, all the boys left and then he called me to come on down and get him. I went down and got him. And he came up ... We had an argument - and the next thing I remember is being thrown on the bed and having his hands over my throat, strangling me. Um, not being able to breathe. And then ... I don't remember why he stopped or if one of the girls ... pulled him and then he came back and strangled me again. Um, he told me he was gunna to kill me. Um, I couldn't breathe and I lay there and looked at him and took it. And then he left and I went to the toilet and spewed and then told my friends to call the police. And the police showed up.

... we came up to the room and ... I don't know how I got from the door to the room. I just remember being - having him push me on the bed and putting his hand over my neck, choking me and I remember the girls trying to stop him.

[Question:] Did you say anything to him when he was choking you, or did you fight back?

[Answer:] Um, the first time I fought back a little bit and then stopped because I knew he physically had it over me. I knew he could do what he wanted. So I laid there and I took it. And I just looked at him hoping he would, um, snap out of it.

8. Mr Laipato applied for bail in the Magistrates Court after his arrest but it was refused. He made two further applications in that Court and then applied to this Court.

9. On 17 April 2014, I granted him bail. See In the matter of an application for bail by Laipato [2014] ACTSC 130.

10. I pointed out in that decision (at [3]) that the complainant appeared to have reconciled with Mr Laipato for she initially applied for, and was granted, a domestic violence order but subsequently withdrew it and it was dismissed. As I noted in that decision, she has since then actually visited him in the Alexander Maconachie Centre.

11. A cash security was offered on that occasion, but I was told that there was a risk of re-offending. I considered, however, that I could grant bail on very strict conditions which are set out in that decision. It was only, of course, if those conditions were followed that it was appropriate for Mr Laipato to be in the community.

12. Unfortunately, Mr Laipato was not able to comply with all those conditions and, on 24 June 2014, he failed to attend for urinalysis as directed (condition (h)) and, on 29 June 2014, he breached the curfew condition (condition (c)).

13. He appeared before the Court as a consequence and the application was adjourned so that further information could be gathered, thus he remained in custody for a few days. Ultimately, bail was continued on the 4 July 2014.

14. Unfortunately, he again breached his bail conditions. On 24 July 2014, he failed to report for supervision (condition (a)). He, again, failed to attend for supervision on 1 August 2014 (condition (a)) and then failed to be at his place of residence during curfew hours on 9 August 2014 (condition (c)). He again failed to attend for supervision on 13 August 2014 (condition (a)). On 15 August 2014, he was at the home of the complainant where she also was which was not permitted under the bail conditions (condition (k)).

15. He appeared in the Supreme Court and bail was refused. He has been in custody since then.

16. He made applications for bail on 10 October 2014 and 5 November 2014 prior to this application.

17. Under s 20B of the Bail Act, the Supreme Court may make a bail order in relation to an accused person only if a proceeding for an offence with which the person is charged is before the Supreme Court. This clearly is so in this case, because Mr Laipato has been committed to this Court for his trial on the two charges to which I earlier referred.

18. Nevertheless, under s 20C of the Bail Act, repeat applications may be made to the Supreme Court. Since Mr Laipato has already made an application this section applies.

19. The Court, however, is constrained by s 20C(2) only to consider a further application for bail if

(a) that since the last application for bail there has been a change in circumstances relevant to the granting of bail; or

(b) that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.

20. It is not clear whether the application before me was simply a repeat application under s 20C or a review of the decision on 5 November 2014. While it is important that such matters be clear, nevertheless, the preconditions under s 43A which provides for a review of the decision of the Supreme Court are relevantly the same as for a repeat application, and s 43A is in the same terms as s 20C(2).

21. Mr P Edmonds, who appeared for Mr Laipato, relied on one matter for a change in the circumstances or fresh evidence. In order to understand this, it is relevant to note what happened on 5 November 2014.

22. On that occasion, an application was made for the vacation of the trial date in December 2014 as the complainant's pregnancy meant that she would be unable to give evidence at the trial listed for December 2014.

23. An application was made for bail and the change in circumstances were, first of all, that vacation of the trial date which his Honour ordered on that day and, secondly, that the complainant had approached the Director of Public Prosecutions seeking to withdraw her statement.

24. A letter to the Director, dated 29 October 2014, in relation to these matters stated,

I am requesting the statement I provided to police regarding this matter be withdrawn as evidence as I was heavily intoxicated and was also under the influence of sleeping tablet, (Imovane, 7.5 milligrams) at the time.

25. She also wrote to the prosecution in relation to that letter

I received legal advice by legal aid about this matter and was advised to go to the police station and request a secondary statement by a police officer to clarify my intoxication at the time of my initial statement. I was refused on the spot to undertake a secondary statement by an officer at the Belconnen police station and advised that I would need to speak to the informant involved in the matter (Chloe Morrison). Subsequently, I left an email and phone messages but have not heard back since.

26. On 17 November 2014, as a consequence of the vacation of the trial date, the trial was listed to commence on 16 March 2015. This delay was clearly a matter that was in the contemplation of the Court on 5 November 2014 when hearing the bail application and I do not consider, in the circumstances, the new date to be a fresh circumstance, as Mr Edmonds quite properly conceded and accepted.

27. The complainant made a detailed statement in which she set out a different version of events to those she originally gave to the police.

28. Mr Edmonds submitted that this statement was, and should be, relied upon as the fresh evidence or change in circumstances. He pointed out that the complainant had gone further than was stated to the Court on 5 November 2014. It was not merely that she wanted to withdraw her statement or clarify the level of her intoxication by alcohol and drugs but she stated that she had not told the police the truth and she wanted to indicate to the Court the truth, which appears to be that she said the events had not happened as she initially said.

29. She said in the statement, a copy of which was tendered to me, that she was heavily intoxicated and under the influence of an "hypnotic" drug. She said, in her statement, that she told the police that Mr Laipato was going to kill her but that that was not the truth.

30. She said, however, that she had repeated the statements about Mr Laipato's actions to her father and later to a medical practitioner in Gungahlin, but said that those statements were also not the truth.

31. She also indicated that, in addition to the other drugs, she was also using cannabis at the time.

32. She is heavily pregnant and expected to deliver in January. Mr Laipato is the father of the child. She said that she had come off the substances because of the pregnancy and, in doing so, her anxiety and depression became worse and she wanted to clear up the misinformation that she had provided to the police.

33. She feels that Mr Laipato should not be in custody for offences she said he did not commit. She added

My intention was to wait until the trial date and give this information as evidence under oath after I had had the baby to avoid any stress related issues while pregnant. I was also scared of the repercussions I might face as a result of giving a false statement and was trying to avoid this during my pregnancy.

34. Although her retraction was referred to during the bail application on 5 November 2014, it was said that she had now placed in full and in detail, not merely the retraction, but that she had not told the truth to the police and that the events had not occurred as she said. This, it is said, will meet the fresh evidence requirement or change in circumstances test.

35. Of course, each case depends on the particular circumstances of the case. What is a change in circumstances in one case may not be a change in another. For example, while the availability of a surety is usually regarded as a change in circumstances, if not previously available (see In the matter of a bail application by Rodrigues [2008] ACTSC 50), to offer a surety of $100 may not, realistically, amount to a change in circumstances at the next bail application.

36. I have, however, set out, in In the matter of an application for bail by Dhaimat (No 1) [2014] ACTSC 42, what I consider to be the approach to the meaning of the phrases "fresh information and/or change in circumstances". In that case, I said (at [33]-[34]), inter alia

1. So far as an application by an accused person is concerned, I have held that this requirement should be construed liberally having regard to the requirement of the Human Rights Act that legislation should be construed, as far as possible, consistent with its purpose, in a way that is compatible with human rights; in the case of bail, the right in s 18 to liberty and that people awaiting bail should not be detained in custody as a general rule. The implication of this for an application by an informant has not been the subject of submission and I do not need to consider it here at this stage. For a consideration of those issues, see In the matter of an application for bail by Marsh [2013] ACTSC 16.
2. The reference to "fresh evidence or information" is, in my view, similarly to be explained in ordinary terms. It has to be evidence or information that was not before the previous bail hearing or indeed any earlier bail hearings. I do not think, however, that this should be interpreted in the manner of a common law consideration of fresh evidence on appeal ...

37. While in this case the complainant did make it clear that she wished to retract her statement and this was known on 5 November 2014, it is true that she has now made explicit her denial of what is said to have happened and she has not merely retracted her statement, but been positive about the denial.

38. I have some concern as to whether this is fresh evidence or a change in circumstances. Clearly, it is more information than was previously given, but it is consistent with the information that was already before the Court on 5 November 2014. Indeed, I note that the Court there was told that the prosecution still had sufficient evidence, which made it clear that they were not dependent, solely, upon the evidence of the complainant as I will mention later.

39. In the circumstances, however, I do not have to make a final decision on this matter.

40. The question is whether I am satisfied that Mr Laipato should be refused bail having regard to the matters set out in s 22 of the Bail Act. That section provides

(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).

41. In this case, there is also a question of the presumption of bail. It appears to me that s 9B of the Bail Act applies, that is, that there is no presumption in favour of bail. That is to say, Mr Laipato has no entitlement to bail, but I have to be satisfied that the bail should either be granted or not granted.

42. The case against Mr Laipato seems to me to be strong. While the denial and retraction of the evidence of the complainant will go some way to undermine the case of the Crown, there are two eye witnesses to the event and I have no suggestion before me that they have withdrawn, or intend to withdraw, their statements.

43. I also have a record of the interview of the complainant with the police, parts of which I have already set out and which may be admissible in the trial. She also gave a version of the events to other people and that may also be available.

44. Curiously, the police officer who gave evidence before me was not asked whether the complainant showed any signs of being under the influence of alcohol or drugs when reporting the matter to police and when making the statement that was recorded, but no doubt the statement will speak for itself.

45. In my view, the prosecution has a relatively strong case which remains so notwithstanding the statement of withdrawal of the complainant.

46. Mr Laipato has a bad criminal record. He has over forty convictions on his record and those include a number of very serious offences, including robbery, aggravated burglary, burglary, recklessly inflicting grievous bodily harm, and assault occasioning actual bodily harm.

47. He has been sentenced to terms of imprisonment. It seems to me, very likely, that if he is convicted of these offences he will be sentenced to a term of imprisonment.

48. I also note that he has been convicted of breaching his bail by failing to answer his bail undertaking, and he has also been breached for failing to comply with court orders on a number of occasions.

49. I have also a schedule suggesting that he has breached his bail conditions on seven occasions since 24 June 2012. This makes it quite likely, it seems to me, that he will further breach conditions if released.

50. It is said that he has learned the importance of complying with bail conditions since he has been in custody. That would have more force were it not the fact that he has previously breached court orders, including bail conditions and conditions of good behaviour orders or recognizances and, indeed, been sentenced to periods of imprisonment for such breaches.

51. I have every sympathy with the complainant who is to give birth while the father of her baby is in custody. That sympathy, however, cannot overcome the fact that Mr Laipato, by his behaviour, shows that he treats the Court's conditions that are placed on his liberty with some disdain and he has, in the past, certainly, and in the very recent past shown that he is not able to comply with the conditions which represent the trust that the Court puts in him to be at liberty.

52. I accept, as Mr Edmonds has said, that the breaches of bail do not suggest the commission of any particular further offences. That would obviously make it more serious and justify a refusal of bail more easily. Nevertheless, the fact is that bail conditions are conditions given by the Court in order to satisfy the Court that the person, subject to those conditions, should be at liberty.

53. Each one of the conditions is important, although more serious conditions should result in more serious responses. In any event, Mr Laipato has had the benefit in the past of breaching conditions but being allowed to continue on his bail. Despite that and despite the fact that he was, albeit only for a few days, in custody continuing to breach his bail and flout the obligations that the Court has placed on him.

54. The bail conditions suggested to me were that Mr Laipato live with the complainant. In my view, that would not be a reasonable situation in the circumstances. It was suggested, as an alternative, that he may be able to live with his parents. That would be a more reasonable alternative, but until he shows some capacity to comply with the conditions under which the courts have permitted him to be at liberty, it does not seem to me that I can accept that he should be released to bail.

55. As a result, I do not have to make a final decision in relation to a residency condition.

56. Whether the statement of the complainant amounts to fresh evidence or change in circumstances, I do not consider that bail should be granted.

I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.