R v Walmsley [2011] ACTSC 173

1. On or about 1 January 2011, Mr Walmsley and his partner, Lisa Ann McDonald, are said to have injected themselves with heroin. Ms McDonald appears to have expressed an intention to commit suicide in a note she apparently made and which was found when police attended following her having been pronounced dead by a medical practitioner.
2. On 13 April 2011, Mr Walmsley was arrested and has been in custody since then. He was committed for trial to this court on 27 September 2011. On 6 October 2011, he applied for bail. Unfortunately, the filed documents did not find their way to the court file when the application was called on for hearing, but with the cooperation of the parties, substitute documents were filed in accordance with leave that I granted.
3. A preliminary issue was raised by Ms M Moss, who appeared for the prosecution at that stage, as to the court's jurisdiction to hear applications as a result of the amendments made to the Bail Act 1992 (ACT) by the Bail Amendment Act 2001 (ACT), which relevantly commenced on 16 May 2011. That latter Act introduced the new s 20B which provides:

The Supreme Court has power to make a bail order in relation to an

(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.

1. I initially expressed the view that the court did have jurisdiction, but on further consideration, after the hearing had ended, was not so sure, having regard, for example, to the very limited powers that the Federal Court has considered that this court has prior to the filing of an indictment: W v The Queen [2001] FCA 1648; (2001) 115 FCR 41.
2. The question of what was "a proceeding for an offence... before the Supreme Court" was of concern in light of the decision of R v Scott [1993] FCA 398; (1993) 42 FCR 1 when Cooper J (with whom Miles J agreed) pointed out in the context of the filing of a nolle prosequi following committal (at 22 - 23):

It is important to understand what proceeding has been terminated. At the time of the grand jury, or the Attorney-General or the Director of Public Prosecutions, determined to proceed no further, the only relevant charge was the charge on which the accused had been committed to stand his or her trial. If the matter proceeded to trial, the relevant charge was not the charge on which the accused was committed by the Magistrate. Rather, it was the charge contained in an indictment presented to the court (see Poole v The Queen [1961] AC 223 at 240).

Were this the position, then there would be no "proceeding for an offence... before the Supreme Court" prior to the filing of an indictment.

1. Unlike the position in R v Scott and, indeed, W v The Queen, however, it is now practice for the indictment to be filed well before the trial commences. Indeed, r 4733 of the Court Procedures Rules 2006 (ACT) requires a draft indictment to be filed in accordance with directions given on the first appearance in the Supreme Court of the accused following committal.
2. In fact, almost without exception (although there have been one or two exceptions) the indictment that is filed is not a draft indictment, but is the indictment. Concerns about the need to change the indictment, following more mature reflection and consideration of the prosecution case and possible difficulties in securing amendments should such reflection or consideration require it, have simply not been experienced.
3. As a result, I requested the parties to reconvene, though in the absence of Mr Walmsley, to express a provisional view that there may be no jurisdiction in the court to grant bail after committal but prior to the filing of an indictment and, of course an indictment, not a draft indictment. That would, of course, be a very significant lacuna in access to bail of an accused person with real prospects of being inconsistent with s 18 of the Human Rights Act 2005 (ACT).
4. The answer, in fact, is crystal clear in the legislation itself, though neither I nor either counsel were initially aware of it. Section 12B of the Bail Act defines the concept of "a proceeding for an offence... before the Supreme Court" as including "because the accused person to whom the proceeding relates... has been committed to the court for trial or sentence". This is the situation here.
5. It is clear that I have jurisdiction.
6. Mr Walmsley has applied for bail principally because he has a placement in the Managed Accommodation Program (MA Program) conducted by ACT Corrective Services. After hearing evidence, I had described that Program in In the matter of an Application for Bail by Schwalm [2011] ACTSC 153, to which I drew the attention of the parties. In that judgment I said (at [21] - [23]):

It is a residential program designed as a half-way house for appropriate offenders on release from prison to help them to adjust to their integration into the community, as well as for those on bail remand to assist them address criminal issues preparatory to sentencing.

The house is staffed 24 hours a day and, while not a custodial setting, has strict rules. A curfew is imposed on residents from 10 pm to 7 am and they are subject to random urinalysis. All breaches of rules are reported, and the residential staff have no discretion about that. Mr Snee referred to a particular instance which demonstrated the stringency of that approach.

The staff assist the residents with counselling and other rehabilitation options, as well as with securing employment. Residents may stay for up to six months. Mr Snee described the philosophy of the program as giving a second chance to persons admitted to the program.

1. The manager of the Program, Mr Simon Porter, was called to give evidence before me in this case. He confirmed the matters referred to above (at [11]). He also said it was necessary for residents to have a condition to their bail or Good Behaviour Order or, perhaps, Parole Order, that they be subject to the supervision of the Director-General or her delegate, so that ACT Corrective Services may supervise them.
2. Mr Porter pointed out that while the house is staffed 24 hours a day, seven days a week, there are only two staff members on duty at any time. He said that there were programs conducted in the MA Program House: ACT Corrective Services facilitates a group session each week addressing alcohol and drug issues and there is an individually assessed program specific to each resident. External courses include Alcoholics Anonymous, Narcotics Anonymous and Smart Recovery. The staff facilitate external counselling and use other agencies, such as Directions ACT, the Canberra Men's Centre, the Service Assisting Male Survivors of Sexual Assault (SAMSSA) and ACT Mental Health.
3. Mr Porter referred to the assessment he had made of Mr Walmsley, which included an evaluation of his motivation for change and his capacity and commitment to remain drug and alcohol free. He acknowledged the limitations of such a process, which were largely made from interview and self report.
4. The results of the program were interesting, however. He indicated that for residents who remain in the program for less than four weeks, the average stay is ten days; for those who remain for more than four weeks, the average stay is 100 days. Of the latter, he had done a report in relation to 24 such residents and found that only two had re-offended and a further three had breached conditions or rules.
5. Mr Porter acknowledged that the program was not especially suitable for people at risk of self harm and there was no capacity for around-the-clock supervision to prevent instances of self harm. He noted Mr Walmsley would, if permitted by bail conditions, enter the program and have a case plan prepared for him within the first 24 hours.
6. I also heard from Detective Senior Constable Kyle Williams. He expressed concerns about Mr Walmsley re-offending, absconding, harming himself and interfering with witnesses. Detective Williams gave his evidence carefully and in a balanced way. In relation to absconding, he noted Mr Walmsley had no fixed place of abode, no employment, no relatives in Canberra and had only arrived in Canberra in about July 2010. He noted that a warrant had been issued in New South Wales for Mr Walmsley's arrest, though advice from NSW Police was that they did not propose to extradite Mr Walmsley. The warrant related to offences of larceny, obtaining financial advantage by deception and failing to appear for sentence.
7. As to re-offending, Detective Williams referred to the obvious and admitted drug use and dependency of Mr Walmsley. Indeed in the Statement of Facts, Mr Walmsley is reported to have said he had used heroin habitually for 15 years and that Ms McDonald had not been a heroin user before meeting Mr Walmsley, though she had been abusing alcohol and using marijuana before that and they had met at Alcoholics Anonymous and Narcotics Anonymous meetings. Detective Williams said that Mr Walmsley had only come to Canberra because he wanted to obtain drugs. As he was not employed, Mr Walmsley was likely to commit offences such as theft or burglary to obtain the money to purchase drugs.
8. Detective Williams also expressed concerns that Mr Walmsley may engage in self harm. He said that Mr Walmsley suffered from depression and had engaged in self harm behaviour on previous occasions. He suggested he may do so to avoid appearing in court.
9. Finally, Detective Williams was concerned that Mr Walmsley may interfere with or intimidate witnesses. He said that before his arrest, Mr Walmsley had expressed anger to police about the persons who would be witnesses.
10. Detective Williams agreed in cross-examination that Mr Walmsley had no convictions for offences of violence on his criminal record, apart, possibly, from a conviction for resisting arrest in 1994.
11. Detective Williams, in cross-examination about the suggestion of self harm, referred to references by Mr Walmsley to the suicide pact and that he had said that he did not see "any point in being around", though he agreed that he had not re-stated that.
12. Mr M O'Brien, who appeared for Mr Walmsley, noted that Mr Walmsley had now been in custody for about five and a half months. He was originally placed on a methadone program with a dosage of 85 mgs: this had now been reduced to 45 mgs with an intention of reducing that further.
13. Mr O'Brien stated also that Mr Walmsley had spent six weeks in a secure unit with regular observations because of the risk of self harm, exacerbated by his severe depression and heroin withdrawal. He was now in the general remand section of the Alexander Maconochie Centre (AMC) and seeing a psychiatrist weekly and has been prescribed two antidepressants. He is also being treated for Hepatitis C, which is administered each Tuesday and renders him quite debilitated for the following two days.

1. When making a bail decision, the court starts from the proposition that unless ss 9B, 9C, 9D or 9E of the Bail Act apply, there is a presumption in favour of bail. This is consistent with s 18 of the Human Rights Act and with the common law as set out, for example, in R v Sefton [1917] VicLawRp 41; [1917] VLR 259 (at 262-3). None of the above provisions of the Bail Act apply to this case.
2. The Bail Act requires a consideration of three principal issues under s 22: first, the likelihood of the person appearing to take their trial; secondly, the likelihood of the person while on bail committing further offences, harassing or endangering the safety or welfare of anyone or intimidating witnesses or interfering with evidence or obstructing the course of justice; and thirdly, the interests of the person.
3. As to the first matter, there is, regrettably, little by way of statistical information to show how many people, granted bail, fail to appear, or more importantly, what kind of offences charged or other circumstances lead to non-appearance.
4. Clearly, some factors would logically support the likelihood of appearance such as a regular place of residence or domestic ties with the Territory: R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325 (at 329).
5. Here, the accommodation in the MA Program House will address the issue of place of residence and it appears that Mr Walmsley, while having no domestic ties to the Territory, has no particular ties elsewhere, which somewhat dilutes the concern that a court might otherwise have. That he is, therefore, somewhat nomadic, needs to be considered.
6. As to the warrants outstanding in New South Wales, I have said before and repeat that it is a matter for New South Wales authorities as to whether they wish to seek Mr Walmsley's extradition and the court should not try to speculate about that. If the State does wish to do so, the court may well need to consider the relative seriousness of the offences to be faced by a person here and there. In this case, however, the information before the court is that no extradition is to be sought. In a sense, this may make it more likely that Mr Walmsley will remain in the Territory, for if he ventures into New South Wales, there is a heightened risk that he will be arrested and detained there. In my view, this is not a matter that is relevant to the consideration of bail.
7. In considering the risk of re-offending, I am mindful of what Madgwick and Giles JJ each said in Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168 (at 174, 185) that the risk of re-offending must amount to an evidence-based real likelihood. See also Collins v The Queen [2003] ACTCA 17 (at [28]).
8. Clearly, a drug addiction is a powerful factor suggestive of likely re-offending for the courts are aware of the strong need for an addict to feed his or her habit, and that this also demands the commission of property offences to obtain the means to purchase the needed drugs. In this case, however, Mr Walmsley has been participating in the methadone program, which will clearly moderate his craving for a drug induced experience. Mr O'Brien submitted that Mr Walmsley had not consumed drugs whilst in custody. It would have been helpful, as submitted by Ms Moss, were this to have been supported by urinalysis or blood analysis, but I am sure that the prosecution would have had access to any information available in the AMC, had there been any particular concerns.
9. I am aware that Mr Walmsley was attending Narcotics Anonymous prior to his arrest and that this did not deter his drug taking. That is relevant, but not determinative. As I have said in Saga v Reid [2010] ACTSC 59 (at [89]), the drug dependant person may well fail a number of times in attempting rehabilitation before it is successful; there is no shortcut. Mr Walmsley seeks to attend the MA Program in part to address his drug habit. The Program mandatorily includes a weekly session conducted by the well-known and much respected Directions ACT agency. There is no similar provision for remand prisoners in the AMC.
10. The question of self harm is a concerning one, but I note that Mr Walmsley has been subject to mental health assistance. He was segregated in a secure area of the AMC where he could be observed, but after six weeks and an assessment by the health authorities, moved into the general remand section. He is also subject to a Psychiatric Treatment Order and the antipsychotic medication he was prescribed through medical decision, is no longer required. I can make a requirement that he comply with the Psychiatric Treatment Order in bail conditions. The arrangements in the MA Program are such that such conditions will be enforced and any failures will amount to a breach that will be brought back to court promptly.
11. There is a risk, but as the Federal Court said in Dunstan v Director of Public Prosecutions, bail is not only available where risk is eliminated. In my view, sensible and justifiable management of risk is appropriate.
12. The issue of intimidating witnesses can, in theory, be easily addressed by an appropriate bail condition prohibiting Mr Walmsley from approaching witnesses. I am aware that court orders can be broken and disobeyed. There is, however, no history of violence in Mr Walmsley's record such as would lead a court to be more cautious. Given that Mr Walmsley has made a number of admissions in his interview with police, some repeated in the second interview, the motivation for intimidation is much reduced. Presumably, also, police will have statements from witnesses, which is usually powerful evidence in itself, particularly if they are consistent with the admissions.
13. I do note also that the trial of Mr Walmsley is listed to take place in the first sittings of the court in 2013, that is, between February and May that year. This will mean that Mr Walmsley will have been in custody for nearly or more than two years by the time of his trial, with limited access to rehabilitative opportunities.
14. Taking all these matters into account, I am satisfied that it is appropriate to grant Mr Walmsley bail. Accordingly, I propose to grant John Christopher Walmsley bail to appear in the Supreme Court on a date to be notified to him by the Registrar on the following conditions:
    • (a) that he attend before the Supreme Court for a bail review at 9.30 am on 18 October and 9 November 2011;
    • (b) that he be released into the company of an officer of the Managed Accommodation Program conducted by ACT Corrective Services and remain in the company of that person until admitted to the program;
    • (c) that he admit himself into the program and remain in the program during the remand period and obey all reasonable directions of the officer in charge of the program;
    • (d) if for any reason he is discharged from the program, he is to report to the Registrar of the Supreme Court within 24 hours with a view to having his bail reconsidered;
    • (e) that he subject himself to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to drug and alcohol treatment and counselling and mental health treatment and counselling;
    • (f) that he be present at the Managed Accommodation Program residence between the hours of 10 pm and 7 am, except with the express permission of the officer in charge of the program and that, during these hours, he present himself to any police officer on request;
    • (g) that he report to the officer in charge of Belconnen Police Station every Monday, Friday and Sunday between 8 am and 8 pm;
    • (h) that he not consume illicit drugs or alcohol;
    • (i) that he subject himself to breath analysis when reasonably required by a police officer or an officer of ACT Corrective Services;
    • (j) that he subject himself to urinalysis when required by an officer of ACT Corrective Services;
    • (k) that he continue treatment with ACT Mental Health in accordance with any directions of the ACT Chief Psychiatrist and comply with the terms of any Psychiatric Treatment Order to which he is subject;
    • (l) that he does not approach or contact directly or indirectly any of the following persons: [names provided].
15. Given the statistics provided by Mr Porter, I consider that the bail review provided for in those bail conditions is appropriate at intervals of two weeks and one month approximately. I also note that the Program is for a maximum of 6 months. That means that Mr Walmsley will have to return to the court before the end of that period with a proposal to vary his bail in a way that is acceptable to the court to deal with the period between the end of his participation in the Program and his trial.
16. I note that, considering the nature of the MA Program and the circumstances of the residents, if the power of request in condition (f) is exercised in an unreasonable manner or unreasonably frequently, I shall remove the condition on any of the bail reviews or if application is made.
17. [His Honour then spoke directly to Mr Walmsley as follows]:

Mr Walmsley, I am giving you an opportunity to get into a program which should address some of the issues that are long entrenched.

It is going to be a tough road for you to do that, but you have some time to do that. If you experience any difficulties, then the most important thing for you to do is to come back to court and we will see what we can do. That may require you to go back into custody, I am not making any promises, but you certainly will go back into custody if you fail to comply with any of these conditions.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Ex-Tempore Judgment herein of his Honour, Justice Refshauge.

Solicitor for the applicant: Legal Aid ACT

Counsel for the respondent: Ms M Moss (6 and 7 October 2011)

Solicitor for the respondent: ACT Director of Public Prosecutions