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[2016] ACTSC 142
Supreme Court of the ACT
2016-06-06
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - Jurisdiction, practice and procedure - Bail - repeat application for bail - s 20C of the Bail Act 1992 (ACT) - 'in custody' - 'custody of the court' - arrest does not automatically lead to revocation of bail - appearance in court after arrest for breach of bail does not automatically lead to revocation of bail - appearance in court after arrest will justify application to revoke bail - application for revocation of bail does not constitute application for bail - acceptance that bail should continue does not constitute application for bail - remand in custody constitutes change in circumstances
CRIMINAL LAW - Jurisdiction, practice and procedure - Bail - insufficient evidence - adjournment to seek further evidence - mere assertion insufficient - drug and alcohol abuse - applicant seeking rehabilitation - history of breaching bail - reoffending - consumption of alcohol - failure to report
Evidence Act 2011 (ACT), s 136
Human Rights Act 2004 (ACT), ss 18(1), 30
Legislation Act 2001 (ACT), s 180
Bedford v Earle [2015] ACTSC 306
Clooth v Belgium [1991] ECHR 71; (1992) 14 EHRR 717
Dainer v Foster; Ex parte Tange (1984) 14 A Crim R 327
Dunstan v Director of Public Prosecution [1999] FCA 921; (1999) 92 FCR 168
Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314
Hertfordshire Justices; Ex parte Larsen [1926] 1 KB 191
In the Matter of an Application for bail by Massey (No. 3) [2010] ACTSC 52
J by his Litigation Guardian Vardanega v ACT (No 2) [2011] ACTSC 36
O'Brien (1991) 57 A Crim R 80
Re an Application for Bail by Kim [2009] ACTSC 129
Re an Application for Bail by Merritt (No 2) [2010] ACTSC 7
Re Pikula (2015) 293 FLR 115
R v BB [2013] ACTSC 92
R v Beibic (Unreported, New South Wales Court of Criminal Appeal, Samuels JA, Nagle CJ at CL, Cantor J, 20, 28, 29, 30, 38, 39 of 1981, 27 May 1982)
R v Benbrika & Ors (No. 25) [2008] VSC 451
R v Boney [2008] ACTSC 30
R v Celeski (No 2) [2016] ACTSC 140
R v Connors [2012] ACTSC 80; (2012) 268 FLR 91
R v Eiginson [2014] ACTSC 234
R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473
R v Hoang [2015] ACTSC 195
R v Ho Hoi [2010] ACTSC 60
R v Monfries (No. 3) [2011] ACTSC 210
R v Ogilvie [2015] ACTSC 296
R v Peehi (1997) 41 NSWLR 476
R v Pikula [2015] ACTSC 380
R v Reeves [2011] ACTSC 140
R v Shiels [2015] ACTSC 73
R v Wilkins [2015] ACTSC 8
R v Williams [2015] ACTSC 15
Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34
Ms E Beljic (1 June 2016) and Mr M Fernandez (2 June 2016) (Crown)
1. The applicant, Matthew Shaun McGrail, was, it appears, arrested on 24 January 2015. He was charged with two counts of engaging in sexual intercourse with a 15 year old person, one count of attempting to engage in sexual intercourse with a 15 year old person and three counts of committing an act of indecency on a 15 year old person.
2. My attention has been drawn to the Case Statement filed by the Crown and which, as I have pointed out in R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 at 478-9; [26]- [35], is very useful to give a summary of the Crown allegations. From it, I see that the Crown say that the charges arose out of acts that are said to have been committed on the same complainant in the same incident.
3. The day of his arrest, 24 January 2015, was a Saturday and it appears that Mr McGrail was refused bail by the police in the Watch House, as he appeared in the Magistrates Court on 26 January 2015 while in custody. He did not apply for bail and was remanded in custody.
4. In the circumstances set out below, Mr McGrail was granted bail but, on 9 May 2016, Burns J revoked his bail and remanded him in custody when he appeared, having been arrested for failing to comply with a condition of his bail undertaking.
6. It is appropriate to set out some of the history of Mr McGrail's involvement with the criminal justice system and of this matter before dealing with the present bail application.
7. Mr McGrail has a relatively short history of offending dating from 2011. Between then and today, he has been convicted of 13 offences and found guilty, but without conviction, of a further two offences. None were offences of dishonesty, which are often associated with an out of control drug addiction. They include, however, offences of damaging property and drink driving, which are often associated with alcohol abuse. He has also a conviction for driving while an illicit drug was present in his blood.
8. Relevantly, he was convicted, on 21 November 2013, of failing to appear after entering into a bail undertaking when, it appears, he failed to appear that day to answer a charge of possessing a declared substance without authorisation. On sentence, he was made subject to a Good Behaviour Order for 12 months.
9. He breached that Order when, on 16 July 2014, he committed three offences of damaging property. No action was taken on the breach, however, but he was convicted of those three offences and, on 4 November 2014, made subject to a Good Behaviour Order for two years for each offence. The Order included a probation condition and a requirement to provide samples of breath, blood or urine for alcohol and drug testing.
10. He was, as noted above (at [1]), then arrested for the current offences on 24 January 2015. The Court before whom he was taken heard that, in the previous 12 months, he had breached bail conditions on four occasions. It heard further that he had said to police that he proposed to speak to the complainant. As also noted above (at [3]), he was refused bail and remanded in custody on 26 January 2015. The proceedings were mentioned a number of times in court and, on 10 April 2015, Mr McGrail applied for bail. Over the opposition of the prosecution, he was granted bail with strict conditions as to residence, a curfew, supervision by ACT Corrective Services, non-contact with the complainant and a prosecution witness and a prohibition on him consuming intoxicating liquor or illicit drugs.
11. On 20 May 2015, he attended Woden Police Station intoxicated and voluntarily surrendered to police because his consumption of alcohol was in breach of his bail conditions. A screening test showed his breath alcohol concentration was 0.22 grams of alcohol to 210 litres of breath. He appeared in the Magistrates Court on 21 May 2015. A continuation of his bail was not opposed and it was continued.
12. At the time of his surrender to police, Forensic Services of ACT Health assessed him and the assessment was admitted into evidence. It described Mr McGrail as having a
[s]ignificant history of alcohol and polysubstance abuse and [a] past history of drug induced psychosis in the context of amphetamine use and mild mood disturbance in [the] context of drug use."
13. There were no noted health concerns, however, and he was "[f]riendly, co-operative and [displaying] good self care". His history, however, included "threats of self-harm when intoxicated" and "impulsivity and violent behaviour". On the other hand, it reported that he was "currently free of substance abuse" and that he was "living with [his] father", who was supportive.
14. There were several further adjournments of the proceedings until, on 3 March 2016, Mr McGrail was committed for trial to this Court.
15. On 14 March 2016, he was charged with two offences of being a motorbike rider with no helmet fitted or adjusted properly and being an unlicensed driver, having never held a licence. He appeared in court on 29 March 2016 for those offences and was convicted and fined a total of $1200.
16. Being offences not attracting a term of imprisonment, these convictions did not breach any of the Good Behaviour Orders then in place.
17. On 24 March 2016, Mr McGrail, as required by the Good Behaviour Orders, attended ACT Corrective Services for supervision. A breath analysis test was conducted which disclosed a breath alcohol concentration of 0.105 grams of alcohol to 210 litres of breath.
18. That clearly showed that he had consumed alcohol which, while not a breach of the conditions of his Good Behaviour Order, did breach a condition of his bail granted on 10 April 2015 which prohibited him from consuming intoxicating liquor.
19. Later, supervision was terminated and an application made to the Magistrates Court for him to be dealt with for the breach of the Good Behaviour Order condition as noted below (at [27]). It appears the proceedings on that application have not been completed.
20. On 27 April 2016, Mr McGrail's then partner reported to police that she and he had had a verbal argument because Mr McGrail was intoxicated (again a breach of his bail conditions) and, when she tried to leave, he grabbed her by the hair and pushed her head into a wall while their 10 month old son was sleeping. I understand that no action has yet been taken by police in relation to this incident. I received the evidence of this allegation not for the truth of the allegation, which is yet to be proved, although Mr McGrail's former partner has signed the hand written statement taken by the investigating police officer. I directed under s 136 of the Evidence Act 2011 (ACT), that this evidence be admitted solely for the purpose of showing that, were Mr McGrail to rely in his bail application on the need to support his former partner, this material would cast a considerable doubt on that claim and require clearer evidence to be adduced as to the present status of the relationship and, in particular, that his former partner's safety in such a relationship would need to be protected were bail to be granted.
21. On 29 April 2016, Mr McGrail was stopped by police at 12.55 am while he was riding his bicycle across Cooyong Street, Braddon but not wearing a helmet and not having any lights flashing on his bicycle.
22. He was then in breach of the curfew condition of his bail and was arrested. He appeared later that day in the Supreme Court before Penfold J, who, notwithstanding the breach of condition, continued his bail.
23. Later that same day, however, police saw Mr McGrail on a bicycle with a glass bottle in his hand which they discovered was a bottle of Vodka-based alcohol beverage. This was a further breach of his bail condition not to consume alcohol. He was arrested and appeared that afternoon before Penfold J again, who added the daily reporting condition but otherwise continued his bail.
24. On 30 April 2016, Mr McGrail failed to report to police as required by his bail conditions. It appears he may have failed to report on each day thereafter as he does not appear to have been arrested until early on Saturday, 7 May 2016, when police recognised him sitting on a public bench. He was also then in breach of his curfew condition and he was placed under arrest. He was also found in possession of four clear capsules suspected of being illicit drug MDMA and, if so shown on analysis, to which they have now been submitted, would lead to a prosecution for possession of that drug.
25. He appeared later that day in the Magistrates Court because the Supreme Court was not sitting (s 20(1)(b) of the Bail Act) and his bail was then continued, including, of course, the condition to report daily to the Officer-in-Charge at City Police Station.
26. He then failed to report on the very next day, 8 May 2016, but he surrendered to police on 9 May 2016 and appeared before Burns J who remanded him in custody.
27. The Crown in these proceedings also produced an affidavit attached to a summons for the breach of the Good Behaviour Order made by the Magistrates Court on 4 November 2014. In it the deponent, a Community Corrections officer, alleged that Mr McGrail had attended six of 10 scheduled supervision appointments between 8 January 2016 and 3 March 2016 but failed to attend for urinalysis as directed in March and failed on 13 and 18 April 2016 to attend for supervision as directed.
28. In summary, Mr McGrail has breached his bail conditions on many occasions but especially because he has been intoxicated, which is, it would appear, a major problem for him. It was accepted by Mr McGrail that he has a significant problem with alcohol and a low level drug problem. As it is alleged by the Crown that he was under the influence of alcohol and methylamphetamine at the time of the current offences, his continued intoxication is very relevant to the bail application.
29. He has also committed offences while on bail. He is further alleged to have failed to properly comply with his good behaviour obligations including a proved breach of an earlier Good Behaviour Order.
30. Mr McGrail made the bail application himself. The grounds of the application were:
31. He also indicated that "since I was refused bail I've had the chance to consider the import of complying with my bail conditions."
32. At the hearing, however, he was represented by Mr P Edmonds.
33. The Bail Act 1992 (ACT) is now a complex statute with jurisdictional thresholds of some difficulty that need to be determined before bail applications can be considered.
20B Power in relation to bail - Supreme Court
The Supreme Court has power to make a bail order in relation to an accused person only if -
(a) a proceeding for an offence with which the person is charged is before the Supreme Court; or
(b) if the proceeding is not before the Supreme Court - section 43 (Power of Supreme Court to review - decision of authorised officer) or section 43A (Power of Supreme Court to review - decision of Magistrates Court or Supreme Court) apply.
20C Repeat application for bail - Supreme Court
(1) This section applies to an application for bail (other than a bail review application) by an accused person in a proceeding if -
(a) the proceeding is one in which the Supreme Court has power to make a bail order under section 20B (a); and
(b) the accused person has -
(i) made 2 or more applications for bail in the Magistrates Court when the proceeding was before that court; or
(ii) if subparagraph (i) does not apply - made 1 application in the Supreme Court for bail in the proceeding
(2) The court may only consider a further application for bail (other than a bail review application) by the person in the proceeding if the court is satisfied -
(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.
1 An accused person has made only 1 application for bail in the Magistrates Court in a criminal proceeding. The person is committed for trial in the Supreme Court in relation to the proceeding. If the accused makes an application for bail in the Supreme Court in the proceeding, subsection (2) will not apply to the court's consideration of the application because the person did not make 2 or more applications for bail in the Magistrates Court when the proceeding was before that court.
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 132).
35. As Mr McGrail has been committed to this Court for trial, the Court has jurisdiction under s 20B(a) of the Bail Act to consider his bail application. Where it applies, however, s 20C prevents the Court from considering a bail application unless Mr McGrail can satisfy the Court of the matters in s 20C(2).
36. Mr McGrail accepted that he was not seeking a review under s 41 of the Bail Act of the decision of Burns J on 9 May 2016. Thus, his application for bail meets the criteria set out in the chapeau to s 20C and in s 20C(1)(a) of the Bail Act.
37. The question then is whether it meets the criterion set out in s 20C(1)(b) of the Bail Act. If it does, then Mr McGrail must satisfy one or both of the matters in s 20C(2) before I can consider his bail application. This is a matter that is not easy to determine.
38. Mr McGrail has certainly made one application for bail in the Magistrates Court; namely, on 10 April 2015 as noted above at [10].
39. He was arrested on 20 May 2015 for breaching the bail condition not to consume alcohol and, on 21 May 2015, appeared in court and, without opposition from the prosecutor, bail was continued. That was the notation on the bench sheet for that appearance in the Magistrates Court. There is a question as to whether this constituted an application for bail. This is also not an easy question to answer.
40. When he was arrested, he was on bail and that bail had not been revoked. It would be extraordinary were the police, by believing on reasonable grounds that the defendant had breached a condition of bail and then arresting the person, under s 56A of the Bail Act, thereby to be exercising the power to revoke an order made by a court granting bail. I see no basis for construing the Act in this way.
41. Once, however, Mr McGrail was brought before the court, it has been said that he is in the custody of the court. See R v Peehi (1997) 41 NSWLR 476. This is a view expressed by courts from time to time. See, for example, Western Australia v Sturgeon [2005] WASC 256; (2005) 158 A Crim R 34 at 38; [10]. Indeed, I have said as much in Re Pikula (2015) 293 FLR 115 at 119; [23].
42. This seems to me to come from the common law approach that, once a defendant or accused has appeared for his or her trial, he or she is in the custody of the court for that purpose. See R v Benbrika & Ors (No. 25) [2008] VSC 451 at [2]. It would seem that this includes the time when sentence is imposed, as suggested in O'Brien (1991) 57 A Crim R 80 at 87. That may depend on the particular statute. That the appellant was to appear for sentence was, of course, in effect, the position of the accused in R v Peehi.
43. Whether this applies to a mention or other interlocutory hearing in the proceedings is not clear. Indeed, it is also unclear as to what is involved in a defendant or accused being in the custody of the court. The court has no executive power to detain persons and relies on the officers of the executive government to do so. See ss 11 and 16 of the Crimes (Sentence Administration) Act 2005 (ACT).
(1) An accused person may be granted bail in relation to any period when the person is not required to attend court in relation to the offence with which the person has been charged.
(2) However, an accused person who is in custody in relation to an offence must not be granted bail in relation to any period when -
(a) the person is in custody for another offence or reason in relation to which the person is not entitled to be granted bail; or
(b) the person is serving a sentence of imprisonment.
6 Rights following grant of bail
(1) This section applies if -
(a) bail is granted to an accused person in relation to an offence; and
(b) the person gives an undertaking to appear; and
(c) if a bail condition mentioned in section 25 (1) (b) (ii) or (c) is imposed - the security is given or the deposit made.
(2) The person is entitled -
(a) if the person is in custody - to be released from custody; and
(b) to remain at liberty in relation to the offence until required to appear before a court in accordance with the undertaking.
(3) This section is subject to section 56A (Arrest without warrant of person on bail).
45. The first reference in s (5)(2) of the Bail Act to "in custody" may be ambiguous as to whether the accused person is in custody because he or she has been arrested or whether he or she is in custody because he or she is in the custody of the court. That, however, cannot be the meaning of "in custody" in s 5(2)(a), for it would be serendipitous for a person who has been arrested and remanded in custody for another offence to be in the custody of the court for that offence when the first offence, for which he or she seeks bail, is before the court. Thus, the two phrases cannot mean the same situation. It seems to me that the meaning is, in each case, that the person has been arrested by police or remanded in custody at some earlier time by a court or in the custody of the police.
47. The reference to "if the person is in custody" has been considered by the Full Court of this Court in Dainer v Foster; Ex parte Tange (1984) 14 A Crim R 327. In that decision, Blackburn CJ, with whom Kelly J agreed, held that the phrase implied that persons who appeared in court were not necessarily in custody in the sense used in the relevant legislation though, in that case, the court was considering different legislation but to similar effect. Thus, a person who appeared in court to answer a summons, was not relevantly "in custody" at all. Presumably, this would also apply to a person for whom the court had dispensed with bail under Pt 3 of the Bail Act.
If the defendant to an information for an indictable offence has been brought to court in custody under a warrant and escapes during the hearing of the proceedings can it be correct that a further order or warrant is required before he can be arrested? I do not think so; I think that the custody authorised by the warrant continues to be so authorised until the court either (a) discharges the defendant or (b) discharges him on reconnaissance of bail or (c) remands him in custody. On the other hand, a defendant present in court on summons is in my opinion not in custody at all until an order is made to that effect, or he is arrested on warrant. I cannot accept that by his appearance in court such a defendant impliedly submits to a tacit order placing him in the custody of some unnamed police officer or court official. If he fails to appear at the time and place prescribed in the summons he can obviously be arrested in the warrant.
49. The Court relied on what Avery J said in Hertfordshire Justices; Ex parte Larsen [1926] 1 KB 191 especially at 193 and 197.
50. It is also relevant that, despite the finding of the New South Wales Court of Criminal Appeal in R v Peehi that the accused there escaped from lawful custody of the court when he escaped while his appeal against the sentence was being decided, Hidden J, with whom Gleeson CJ and Hunt CJ at CL agreed said at 481:
For what it is worth, I believe the criminal lawyers in this State have long understood that a person who appears at court in accordance with a bail order is then in the custody of that court. Nevertheless, I consider that the matter should be the subject of express provision in the Bail Act. Perhaps the English formula of surrender into the custody court could be adopted, and it would be advisable for the Act to specify exactly when that surrender takes place. I consider also that the Act should spell out the consequences of the person leaving the court precincts without permission while in the court's custody (as does the English Act: see Director of Public Prosecutions v Richards (at 705-706) and, if deemed appropriate, that such conduct should be the subject of a statutory offence.
51. Neither the New South Wales nor the ACT legislation have acted on the Court's suggestion to clarify the position to bring it into line with the helpful English position.
52. Thus, the use of the phrase "in custody" in s 6 of the Bail Act must mean that there are at least some persons who appear before the court who are not in custody and it seems to me that this phrase refers to the person's status prior to being in court, not at the time when they are in court, for the reasons explained by Blackburn CJ in the Full Court.
33 Continuation of bail and undertakings
(1) If an accused person has given an undertaking to appear at a place, date and time at which proceedings in relation to the offence may be continued, whether on any adjournment, postponement or other deferment of the proceedings, or by way of committal, a court may continue the bail already granted in relation to the offence, whether or not the accused person is present in court.
(2) If bail is continued under subsection (1), the undertaking to appear and the bail conditions continue to apply, except to the extent that the undertaking or condition otherwise provides or the court otherwise orders.
Note A court continuing bail must give notice of the continuation, bail conditions and place, date and time to which the proceedings are adjourned, postponed or deferred (see s 34 (4)).
(3) If no direction is made by the court in relation to bail, whether or not the accused person appears in accordance with the undertaking -
(a) the court is taken to have continued bail; and
(b) the undertaking to appear and any bail conditions continue to apply.
(4) If the hearing of a charge against an accused person is adjourned or postponed, the court may -
(a) continue the person's bail; or
(b) make another order about bail.
(5) However, if a deposit has been made, or security given, by a surety in accordance with a bail condition, the court must not continue bail without the surety's consent unless it is a condition of bail that the deposit or security continues to apply if bail is continued.
(6) If bail is continued -
(a) the undertaking to appear is taken to be an undertaking to appear at any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued; and
(b) any bail conditions continue to apply.
(7) If an accused person has been released on bail and the court is satisfied that the accused person is because of illness or accident or other sufficient cause unable to appear personally before the court on the day when the person is required to appear, the court may, in the absence of the accused person, order the person to be further remanded to the place, date and time that the court considers appropriate and may order that the undertaking to appear given by the accused person and any agreement entered into under a condition of the grant of bail be continued so as to require the appearance of the accused person at every place, date and time to which the accused person is remanded or the hearing adjourned, postponed or otherwise deferred.
54. It seems to me that this provision only makes sense if the appearance in court of a defendant or accused person does not thereby revoke the pre-existing grant of bail.
55. Consideration must, however, be given to the terms of s 56A of the Bail Act which makes provision for the arrest of a defendant or accused person admitted to bail if that person is found by police in circumstances where a police officer believes, on reasonable grounds, that the person has breached a bail condition. This is the provision under which Mr McGrail was arrested, from time to time, and brought before the court. The provision is relevant as follows:
(1) This section applies if a person has been granted bail in the ACT, a State or another Territory.
(2) A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person -
(a) has failed to comply with a bail condition; or
(3) The police officer must bring the person before a court as soon as practicable.
(a) for a person granted bail in the ACT - exercise the same powers in relation to bail as it has in relation to any other accused person in custody ...
56. While s 56A(4)(a) of the Bail Act might suggest that the arrest has implicitly led to a revocation of bail, I do not accept that. In my view, the subsection is designed to give the court powers in relation to bail that it would otherwise not have, given that the person has been granted bail and, without such an express power, the court may not have had power to revoke bail, vary bail or remand in custody. The section does not, in terms or by necessary implication, require a finding that the grant of bail has been revoked.
57. I am fortified in this approach by the right to liberty enshrined in s 18(1) of the Human Rights Act 2004 (ACT) and the requirement under s 30 of that Act to interpret legislative provisions, insofar as possible, consistently with its purpose, as compatible with such a human right. To have a person's bail effectively revoked by a police officer arresting the person, especially when the basis for the arrest may be challenged by the person and ultimately found not to have been made out, would not be consistent with the right to liberty from which a person is not to be deprived, except in accordance with accepted procedures established by law.
58. I have also considered the rather complex legislative history of the provision, as well as the explanatory statements, and see no inconsistency.
59. Finally, as I noted in J by his Litigation Guardian Vardanega v ACT (No 2) [2011] ACTSC 36 at [21], it is strange that there is no express power in the Bail Act to revoke bail (or discharge from bail) under any circumstances. As I noted at [23], express power is found in s 180 of the Legislation Act 2001 (ACT). The absence of such a provision in the Bail Act is a relevant consideration. It seems to me some confirmation of the approach I have taken.
60. It seems to me that the absence of such an express power in the Bail Act is quite significant. The power to revoke under s 180 of the Legislation Act does not permit a person, other than the court who granted the bail, to revoke bail. Thus, the power of a police officer to revoke bail would not be authorised by that provision and, in the absence of any other such provision, would not amount to an accepted procedure established by law. Similarly, the appearance by a person in court would not, of itself, revoke bail under s 180 of the Legislation Act and would not assist.
61. If I am correct, then the appearance of a person in court as a result of an arrest under s 56A of the Bail Act does not revoke any grant of bail. It will, however, justify an application by, for example, the prosecution or the Crown for revocation of the grant of bail and then a remand of the person in custody, as happened before Burns J on 9 May 2016 to Mr McGrail. If the grant of bail is not revoked and the court makes no other order, then s 33 of the Bail Act will apply and bail will be continued.
62. Further, it means that, when a defendant or an accused person appears in court after being arrested under s 54A of the Bail Act, it will not be necessary for the court to have to proceed to consider all the matters in s 22, 23 and 23A of the Bail Act afresh (where applicable) before making the decision which would otherwise be required as the defendant or accused would be applying for bail. These are mandatory requirements which a court is required to consider when making a decision about a grant of bail.
63. Certainly, this is consistent with practice in this Court and, in my experience, no submissions are made to the contrary of such a situation.
64. On this basis, Mr McGrail has only made one application for bail in the Magistrates Court; the other occasions relating to bail, following Mr McGrail's arrest under s 56A of the Bail Act, were applications made by the prosecution for revocation or an acceptance by the prosecution that bail should continue. Neither constitute an application for bail in the terms of s 20C of the Bail Act.
66. If, however, I am wrong about that, then it seems to me that the remand in custody by Burns J on 9 May 2016 is a change in his circumstances that is relevant to bail that would meet the requirements of s 20C(2)(a) of the Bail Act. The change required is, it is clear, a change "relevant to the granting of bail" and not necessarily favouring a grant of bail. See, however, R v Celeski (No 2) [2016] ACTSC 140 at [36]- [39].
67. In any event, Mr McGrail has produced material that shows he has enrolled for courses in the Alexander Maconochie Centre in relation to anger management and drug rehabilitation and had done so soon after he was remanded in custody. This seems to me to be a change in circumstances and, if required, fresh evidence not before the court in earlier bail hearings. Although not quite as significant as entry into a residential rehabilitation facility, it still fits within what I said in Re an Application for Bail by Merritt (No 2) [2010] ACTSC 7 at [36]. Thus, there is a relevant change in circumstances.
68. I am satisfied that I have jurisdiction to hear the bail application.
69. Regrettably, the application had all the hallmarks of a rushed application made prematurely before a proper proposal could be put before the Court in a sensible, well constructed and thoughtful way. Counsel had to seek adjournments to seek instructions and to obtain further evidence and, when obtained, it was such that the Court had to infer as to how it could support the application or the full import of it.
70. This is wholly undesirable. I accept that, in this case, where Mr McGrail made his own application, it would have been difficult for counsel to "catch up" with all that had to be done to get the relevant material together and put an arguable case to the Court.
71. It seemed, at times, that all that was being submitted was that Mr McGrail had, by losing his liberty for about four weeks, learnt his lesson about complying with bail conditions and should, therefore, be granted bail. It does not take much consideration to appreciate that this is hopelessly inadequate. It is, of course, relevant, particularly when Mr McGrail has not, insofar as I can tell, been sentenced to a period of full-time custody before. Sometimes the court can take into account the potency of first time incarceration. See Bedford v Earle [2015] ACTSC 306 at [9]- [11].
72. Mr McGrail's position is somewhat different, however. He has been remanded in custody before and, indeed, in this case, he was in custody for longer than the present period, namely he was first remanded in custody on 24 January 2015 and not granted bail until 10 April 2015, a day less than 11 weeks.
73. That period of denial of liberty did not prevent him from committing further offences, although not serious ones, nor being intoxicated a number of times and being accused by his new partner of domestic violence. Further, after being stopped by police for riding an uninsured and unregistered motorcycle and told not to ride it, he was nevertheless found by police riding it about an hour later. In that context, more detailed, prepared and persuasive material than a mere assertion that he has seen the importance of compliance with bail conditions from a relatively short period in full time custody, which did not prevent him from breaching his conditions nor committing further offences, is necessary.
74. In the end, the material finally before me, in addition to the period of custody and his asserted recognition of his need to comply with bail conditions, was as follows.
75. Mr McGrail, soon after he had been remanded in custody by Burns J, probably within a week, sought, through his welfare officer, to make application to be admitted to an anger management course and a drug rehabilitation course known as the SMART Recovery program. The latter can be undertaken while in custody over seven weeks or in the community at Directions for an indefinite period.
76. I did not have any details about the anger management program, but I am aware that ACT Corrective Services has conducted such a program in the Alexander Maconochie Centre with the purpose of having detainees who have demonstrated a history of aggressive behaviour learn to manage anger, stop violence or threat of violence, develop self-control over thoughts and actions and receive support and feedback from others.
77. I am aware from other bail conditions that I have imposed that other agencies such as Relationships Australia do conduct anger management programs in the community.
78. The SMART Recovery program is, according to material which I managed to obtain and which the parties consented to me seeing, and some material tendered by Mr McGrail and admitted by me, is a program of SMART Recovery Australia. It is an international program promoted by SMART Recovery Australia with local, State and Territory partners. It consists of a facilitated 90 minute self-help group regularly held at least once a week for people facing addiction and it focuses on cognitive behaviour therapy.
79. It is intended to help people recover from all types of addiction and addictive behaviour with face-to-face meetings around the world and daily online meetings. It has four main principles: building and maintaining motivation to abstain from addictive behaviour and substances; coping with urges; managing thoughts, feelings and behaviours (that is problem solving); and living a balanced life and or lifestyle balance. I have also described the program in R v Pikula [2015] ACTSC 380 at [39].
80. One of the three ACT partners that provide the program is Directions, a well known and respected drug and alcohol rehabilitation agency in the ACT. It conducts three sessions a week and states that the main emphasis of the program is on self help peer support with professional assistance provided by staff from Directions when required. It is this which led Mr McGrail's welfare officer to describe it as "like an ongoing AA/NA support group". That refers to the also well known and reputable programs of Alcoholics Anonymous and Narcotics Anonymous.
81. Mr McGrail has been found suitable for the SMART Recovery program which is conducted over seven weeks in the Alexander Maconochie Centre but he has not been able yet to be admitted into the program. Were he released on bail, he could commence the SMART Recovery program with Directions immediately. There was no further information about the application for the Anger Management Program.
82. Mr McGrail has undertaken some prior drug and alcohol rehabilitation in a residential facility. He spent three months in the Canberra Recovery Services facility. He said to me that, while he recognises he still has a problem that needs to be addressed, he was, prior to being remanded in custody, not as irresponsible as he had been and his abuse of alcohol was less serious and out of control. He used, he said, to drink until he would black out but he has not done in the last year or so.
83. There is some evidence to support the submissions of counsel that Mr McGrail has found, in his current period of incarceration, some motivation to address his serious alcohol abuse problem and lesser, but not irrelevant, drug problem.
84. He has, of course, been abstinent while in custody, as counsel emphasised. While it is common knowledge that drugs are sometimes able to be accessed in the Alexander Maconochie Centre, there is, insofar as I am aware, no use of alcohol. Mr McGrail says that he has used neither while in custody. There was no evidence to contradict that.
85. Mr McGrail is also concerned that, presently, he has no access to his son. He accepts, it was submitted to me, that he realises that he must manage his addiction effectively if he wants to be part of his son's future.
86. He has accepted that the relationship with his former partner is over, at least for the present.
87. Finally, Mr McGrail's mother is a recovered addict and has agreed to support her son in his efforts of managing his addiction. She was in Court at the hearings for the bail application.
88. Mr Edmonds made the following submissions. He submitted:
• that the breach for which bail was revoked was for failing to report to police as required;
• that was not as serious as, for example, contacting a witness or the complainant;
• bail conditions were a means to an end and not an end in themselves;
• Mr McGrail's drug addiction was of a relatively low level;
• Mr McGrail has suffered the consequences of failing to comply with bail conditions and understood their importance;
• there were measures that could ensure better compliance with Mr McGrail's bail conditions. Mr McGrail had not been under supervision while bailed before, he could be required to report to police, who would be given a power to administer breath analysis;
• Mr McGrail has not attempted to contact his former partner or to contact any witness;
• Mr McGrail acknowledges that the relationship with his former partner is at an end at present.
• Mr McGrail's period of incarceration had meant that he had been drug and alcohol free for a month.
89. The Crown opposed bail, principally on the basis that Mr McGrail has, on many occasions, breached conditions and, therefore, could not be trusted in the community.
90. While he has made efforts to be admitted to some relevant rehabilitation programs, he has not yet participated in any. His alcohol misuse was very significant. The Crown did not accept that his drug addiction was low level, because of the finding on the Mental Health Consumer Assessment form and his possession of drugs when arrested on 7 May 2016. While he had not, it was true, been subject to supervision while on bail, he had been subject to supervision while subject to a Good Behaviour Order and there were sworn allegations of a breach of that supervision obligation.
91. The starting point is, as pointed out by Mr Edmonds, that Mr McGrail is entitled to bail unless, having regard to the matters mentioned in s 22 of the Bail Act, refusal of bail is justified. Section 22 is in the following terms:
(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 -
(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
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 -
(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
(e) the strength of the evidence against the person.
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).
92. This may be summarised, as I did in Re an Application for Bail by Kim [2009] ACTSC 129 at [3]- [6], as follows:
[3] Bail is primarily to be granted for three reasons. One is when the court is satisfied that the applicant for bail will appear to answer his or her, in this case his, bail and to take his trial as the criminal justice system requires.
...
[4] The second is to ensure that the interests of the applicant and of any witnesses are appropriately protected.
...
[5] It is clearly desirable that people who are addicted to drugs have the opportunity, where possible, to manage their addiction in the community so that they can become able to deal with the stresses and involvements of being in the community and managing their drug addiction at the same time. There is no suggestion here that any interests of any witnesses are at risk and so I do not need to consider that any further.
[6] The final matter is that the community is entitled to be protected from the commission of further offences by people who are shown to have been likely to or have committed offences...
93. As can be seen, it is not one of the purposes of bail to secure compliance with conditions that may, for example, seek to encourage reform or rehabilitation. Just as pre-trial detention is not a punishment (see R v Wilkins [2015] ACTSC 8 at [1]), so bail conditions are merely set to reduce the likelihood of the failure of a defendant or accused person to comply with one or more of the purposes of bail below which would justify a refusal of bail (R v Eiginson [2014] ACTSC 234 at [113]- [114]).
94. Indeed, Higgins CJ pointed out in R v Connors [2012] ACTSC 80; (2012) 268 FLR 91 at 97; [26]- [27], that bail conditions must be no more restrictive than necessary. As I pointed out in R v Hoang [2015] ACTSC 195 at [11], the conditions must be determined by having regard to the purposes of the granting of bail and there must be a sufficient basis in evidence, and not mere speculation, for a finding about a need for a condition to achieve a purpose of bail. See Dunstan v Director of Public Prosecution [1999] FCA 921; (1999) 92 FCR 168 at 184; [56]; Clooth v Belgium [1991] ECHR 71; (1992) 14 EHRR 717 at 734; [40].
95. It is because of the risk that the purposes of bail, as set out above, will not be met that the breach of conditions is dealt with by the court so seriously. As I pointed out In the Matter of an Application for bail by Massey (No. 3) [2010] ACTSC 52 at [23]- [24]:
96. See also R v Boney [2008] ACTSC 30 at [33].
97. Of course, a failure to report is not the only breach that might be dealt with in this way. For example, consuming alcohol and failure to report was held in R v BB [2013] ACTSC 92 at [30] not to be, in the circumstances of that case, such a breach of bail conditions such as to justify revocation of bail. As I pointed out in R v Reeves [2011] ACTSC 140 at [20]:
[t]he court is, in this jurisdiction, slow to revoke bail where the breaches of bail conditions are not substantial breaches or not ones where the risk to the community can be seen to have been significantly increased.
98. On the other hand, I pointed out in R v Monfries (No. 3) [2011] ACTSC 210 at [19]:
[i]f the courts do not accept the responsibility to enforce the conditions that they impose then those conditions will be able to be flouted and ignored and the reason for imposing those conditions will disappear.
99. See also R v Shiels [2015] ACTSC 73 at [38].
100. Indeed, the compliance with bail conditions is a matter of trust, such that where a defendant or accused person complies with bail conditions, the courts can trust that the person may be at liberty in the community without putting at risk the matters which are the purpose of bail. Breaches of bail conditions reduce that trust and may be taken as an indication that the person is not, in fact, likely to meet the bail purposes. See R v Williams [2015] ACTSC 15 at [18].
101. Taking all these matters into account, I have given anxious consideration as to whether I should grant bail to Mr McGrail.
102. He has shown, in the past, a continuing inability to comply with bail conditions. That is the main failing that he has displayed. While he has committed some offences, they are of a quite different kind to those for which he is now awaiting trial. That is, as pointed out in Clooth v Belgium at 734; [40], a significant matter. While any breach of the law is a matter of some seriousness, the particular offences of which he has been convicted are ones that endanger Mr McGrail more than other members of the public and are regulatory in nature.
103. The action taken by Burns J in revoking bail has clearly had a salutary effect. Mr McGrail has expressed his clearer understanding of the need to comply with bail conditions. As I pointed out in R v Ogilvie [2015] ACTSC 296 at [45], courts must rightly be sceptical of claims that an offender has "turned the corner" or reached a "crossroads" or the like. See also Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35].
104. Nevertheless, there is some support for that view in the evidence in this case. Mr McGrail has sought to enrol in a drug and alcohol rehabilitation course, the SMART Recovery program. In addition, though it is not the cause of any breach of bail or offences for which he has been presently been charged, he has sought to enrol in an anger management program. It is not due to any fault of his that he has not been able to commence either program. These show insight into the problems he faces and justifies a reasonable, but cautious, acceptance of the protestation that he has recognised the importance of compliance with bail conditions.
105. There is also the motivation that he has had to address his problems if he is to have any meaningful access to his young son. That his relationship with his son's mother is at an end means that he will need to show that he has reformed and he is no danger, either physically or as a role model, before he is likely to gain such access.
106. He has experienced the consequences of failing to comply with bail conditions and knows that he cannot do so with impunity. He has, it must be said, in fairness, recognised that, to some extent, in his surrender to police on two occasions when he failed to comply with his conditions then in force.
107. I also accept that, despite his failure to comply with the conditions, he does not seem likely to fail to comply with any of the three purposes of bail. There is, apart from one failure to comply with his bail undertaking in 2013, no indication that he will not appear to take his trial.
108. While he has committed some offences, I have described them not only as less serious but also of a very different kind to those with which he has been charged. I consider there is no need for preventive detention as there would be if there was a likelihood that he would commit similar or serious offences.
109. Further, he has shown no indication of any attempt to contact the complainant or any Crown witnesses.
110. Finally, it may be said to be in his interests to remain in custody so as to remain drug and alcohol free. While that has some persuasiveness, it must also be accepted that he is not presently accessing the programs he needs while in custody and will have access to them immediately if he is released from custody.
111. Further, as I pointed out in R v BB at [29], he will be released into the community at some stage and the sooner he starts to deal with the problems he has in the community, while under conditional liberty where failures can be addressed relatively promptly, the better for him and the community.
112. Accordingly, I am prepared, not without some hesitation, to grant Mr McGrail bail.
113. He needs to understand, however, that this must be the last chance, save for exceptional circumstances, for him to be at liberty pending his trial. Any further breaches will almost inevitably lead to him being detained in custody until his trial. See R v Ho Hoi [2010] ACTSC 60 at [19].
114. The necessary conditions require him to reside at a place known to the relevant authorities. He is presently a resident of the Allawah Flats but these are about to be demolished and he will be relocated, though the address is not yet clear. For this reason, he should reside as directed and that means that, when he is relocated, he must not move into his new premises before approval is given by an appropriate officer of ACT Corrective Services. He should also notify the Registrar of the Supreme Court of any change of address.
115. I also consider a curfew appropriate, as the offence and at least one breach of bail conditions occurred in the evening or early morning and that is a risky time for alcohol consumption. He must also abstain from consuming alcohol or illicit drugs.
116. That obviously requires some supervision from ACT Corrective Services and, despite his alleged poor response to the Good Behaviour Order's condition for supervision, I consider that it is necessary and that he is to comply with directions to provide breath, blood or urine for analysis to determine whether he is using alcohol or illicit drugs.
117. I see no reason not to continue the condition to report to police. The police will also be able to administer a breath test to test for alcohol consumption. This will reinforce abstinence and is intended to reduce the likelihood of re-offending.
118. He must have a condition prohibiting contact with the complainant and Crown witnesses and also his former partner. Mr Edmonds' suggested two exceptions to the prohibition of contact with his ex-partner, that is if she consents or in relation to the welfare of or access to his child. The former causes no difficulty; the latter is too wide and leaves open a risk that what Mr McGrail sees as permissible contact will be perceived or, in fact, be some form of unacceptable contact or in relation to unacceptable matters. For example, he might telephone repeatedly, on each occasion about the child's welfare, but so as to be harassing. There needs to be a more restrictive approach.
119. Finally, Mr McGrail needs to access relevant programs. These are the SMART Recovery program and also anger management program, both of which are available within the community.
120. I shall, accordingly, grant Mr McGrail bail on the following conditions:
(a) That he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him, including as to undertaking an anger management course.
(b) That he reside as directed by the person supervising him.
(c) That he notify the Registrar of the Supreme Court in writing each address at which he is directed to reside within 2 working days of any direction.
(d) That he commence the SMART Recovery Program at 10.30 am on 7 June 2016 at the offices of Directions, Level 6, Cosmopolitan Building, Woden and attend at least 2 sessions each week until he commences his trial.
(e) That he consents to the Officer-in-Charge of Directions providing to the person supervising him any information reasonably requested as to his attendance at and progress in the SMART Recovery Program.
(f) That he not consume alcohol or illicit substances.
(g) That he provide a sample of breath, blood or urine for analysis if directed by the person supervising him.
(h) That he report to the Officer-in-Charge of City Police Station each Monday, Thursday, Saturday and Sunday and, on reporting, provide a sample of his breath for analysis if requested by the police officer to whom he reports.
(i) That he not contact (directly or indirectly), approach, assault, threaten, harass or intimidate ND or BQ.
(j) That he not contact (directly or indirectly) TD except with her consent, evidenced in writing, save that he may have contact with her through his mother or his solicitor concerning the welfare of or his access to the child UD.
(k) That he not approach TD except with her consent, evidenced in writing, or in accordance with a court order when having access to UD.
(l) That he not assault, threaten, harass or intimidate TD.
(m) That he be at his place of residence between 8.00pm and 7.00am each day, except in the case of a medical emergency or in accordance with a direction of the person supervising him.
(n) That he report to ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4.00pm on 7 June 2016.
121. Mr McGrail, it is line ball but I have agreed to grant you bail on very strict conditions. You will need to look at those. You will be released tomorrow and you will need to do two things. One is go to SMART Recovery at Directions at 10.30am tomorrow and the other is you will need to report to Corrective Services so that their supervision can be undertaken.
122. Basically you have three responsibilities. One is the SMART Recovery program. Two is reporting to the police. Three is reporting to Corrective Services as and when they require it. Other than that, you are not to contact the complainant or the witness, BQ, and you are not to contact your ex-partner except in circumstances that I will allow in particular situations.
123. You are to reside where ACT Corrective Services says, so you will need to contact them on Tuesday to get a direction that you stay at Allawah Flats until you are relocated and then again when you are relocated. You are not to drink or have any drugs. You are now abstinent, you tell me, and you will remain abstinent. You are at risk in the community. The conditions, I hope, will mean that you will be able to remain abstinent, at least until September. No drugs and no alcohol.
124. You understand that this is your last chance unless there are absolutely exceptional circumstances and they are very unlikely. You have three agencies looking at you. You have the police, you have Directions and you have Corrective Services so the chance of you getting drunk or drinking or having drugs and not being picked up is very remote.
125. Hopefully you can prepare your defence properly. You can start to learn some skills through the SMART Recovery program and anger management program that allow you to operate sensibly in the community. You have a relatively short criminal history. Do not throw it away by not taking this opportunity.
126. I have to warn you that if you are convicted of the offences that you are charged with you are likely to go to gaol but you will do that better if you manage to take this opportunity to get your drug and alcohol consumption under control and that is in the best interests of the community.
I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
McGrail [2016] ACTSC 142
(1999) 92 FCR 168
(2015) 293 FLR 115
(2012) 268 FLR 91
(2009) 233 FLR 473
(1997) 41 NSWLR 476