CRIMINAL LAW - Bail - criteria for grant bail - cash surety - applicant desire to undertake drug rehabilitation - no offences of a serious nature - no indication of an increasing seriousness of offences - no indication that applicant is unlikely to be able to resolve criminal habits with appropriate support.

CRIMINAL LAW - Bail - surety - cash provided by surety from own resources.

PRACTICE AND PROCEDURE - Bail - Evidence and information - facts asserted from counsel - ss 4.8 Evidence Act 1995 (Cth), s 19(6) Bail Act 1992 (ACT).

PRACTICE AND PROCEDURE - completion of bail form - need for reform of application form - need for applicants to complete form with information required.

PRACTICE AND PROCEDURE - adjournment of bail applications - need to adjourn if insufficient notice given of grounds of application.

Bail Act 1992 (ACT) ss 19(6), 23A, 19(5), 43(2), 49(1) 43, 22

Evidence Act 1995 (Cth) ss 4, 8

Human Rights Act 2004 (ACT)

Court Procedures Rules 2006 (ACT) r 4720, 6008

Legislation Act 2001 (ACT) s133

Road Transport (Driver Licensing) Act 1999 (ACT) s 31(2)

Douglas Brown, Bail: An Examination (1971) 45 Australian Law Journal 193

In the matter of an application for bail by Rodriguez (2008) ACTSC 50

In the matter of an application for bail by Massey (2008) ACTSC 145

In the matter of an application for bail by Day [2008] ACTSC 121

R v Hines [1997] NZCA 123; (1997) 3 NZLR 529

In the matter of an application for bail by Skeen (2009) 2 ACTLR 53

In the matter of an application by bail by Chris Merritt [2009] ACTSC 56

R v Freeman No 2 [2001] ACTSC 86

In the matter of an application for bail by Kim [2009] ACTSC 129

Forrest v Huffa [1968] SASR 341

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

King v Porter (1910) 1 KB 369

R v Baba (1977) 2 NSWLR 502

Burton v The Queen (1974) 3 ACTR 77

Dunstan v Director of Public Prosecutions [1999] FCA 921; (1999) 92 FCR 168

1. The application be adjourned to 12 January 2010 at a time to be fixed.

1. This application for bail originally came before me on the last day of the 2009 Law Term. It is unsurprising that, as the Christmas-New Year period approaches, this court experiences an increasing number of bail applications. Indeed, on the last day of the Law Term each year there are, as there were last year, a large number of applications, either seeking a review of a decision of a court, particularly the ACT Magistrates Court, to refuse bail or a fresh application for bail.

2. Chris Merritt, the applicant for bail before me, made one such application. The main difficulty with such applications is that there is little room for adjournment of the application. The applicant is usually seeking the liberty that bail brings so as to spend Christmas time with his family, as Mr Merritt sought in the first application. In any event, I adjourned that first application over the weekend to consider my decision and when I resumed to deliver it, Mr Merritt withdrew the application which was, accordingly, then dismissed.

3. I have, however, now to consider the fresh application which Mr Merritt has made before me, although it has been accepted by both parties that I can take some of the information and knowledge I have from the previous application into account.

4. As so often happens, Mr Merritt himself prepared this bail application and, indeed, the earlier one. It was made on the prescribed forms but most of the sections requiring him to provide information were left blank and most of the statements where printed choices were given, one or more of which were to be struck out, were untouched. The application was therefore relatively uninformative.

5. While litigants in person must be given an appropriate indulgence, it seems to me that Mr Merritt's completion of some items in the form shows that he was able to complete more of the form than he actually did. I accept the criticism that has been made that the form itself may not adequately focus the attention of a litigant in person on the relevant information to be provided. The complexity of the provisions of the Bail Act 1992 (ACT), (the Bail Act), does not help. Thus, it is common for applicants to supplement the application by assertions from the Bar table themselves or through their counsel. This has occurred in this application.

6. While s 4 of the Evidence Act 1995 (Cth) makes it clear that that Act, with the stringency with which it regulates what evidence is admissible, applies to bail applications, s 8 of that Act makes it clear that the provisions of other Territory Acts, including the Bail Act, are preserved. Thus, s 19(6) of the Bail Act is not affected. It provides: "[i]n deciding whether to grant bail to an accused person, a court may have regard to any information it considers relevant and reliable."

7. Accordingly, such assertions from the Bar table are often accepted, indeed relied upon and used as a justification for the grant of bail. This is appropriate in all of the circumstances. It does, however, deprive the other party of notice of the application and the grounds for it insofar as they are only disclosed in this way. Bail applications involve the liberty of the subject and that is a matter which in this jurisdiction has been specially recognised in the Human Rights Act 2004 (ACT) (Human Rights Act). See In the matter of an application for bail by Rodriguez [2008] ACTSC 50 (at 20); In the matter of an application for bail by Massey [2008] ACT SC 145 (at 4).

8. Thus, they are heard often at short notice; that is appropriate. The procedure is regulated by Practice Direction Number 1 (1991), though some of the references in that direction are now obsolete, as they refer to the Supreme Court Rules 1937 (ACT), which, of course, has been superseded by the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules). There is a strong case for the Practice Direction to be revisited or revoked.

9. One important provision in it, however, is that it requires that the application and supporting affidavit or affidavits are required to be served on the Director of Public Prosecutions (DPP) two clear days before the application is heard. This is the effect also of rr 4720 and 6008 of the Court Procedures Rules. This gives the DPP time to consider his attitude to the application, investigate any assertions of fact that may be controversial, seek information from and the attitude of the informant and any victim, especially one whose views are entitled to be heard under s 23A of the Bail Act, and generally to prepare for the application. See In the matter of an application for bail by Day [2008] ACTSC 121 (at 45).

10. This is understandable, for proper notice and an opportunity to prepare one's case is an incident of a fair trial both civil and criminal. The right to a fair trial is the right to a trial that is fair to both parties, here both the applicant and the DPP. See R v Hines [1997] NZCA 123; (1997) 3 NZLR 529 where Richardson P and Keith J said (at 549):

Assessment of the values underlining the right to a fair trial by everyone charged with an offence must also recognise the public interest in the effective prosecution of criminal charges and the protection of the criminal process and witnesses and their families from intimidation or other matters affecting the adducing of their evidence_._

11. Ordinarily, any problem that arises because of assertions of untestable or fresh information from the Bar table which is not in the application or affidavit in support of it can be resolved by an adjournment. While such adjournments have been opposed by the DPP from time to time, submitting that the application should be dismissed and a fresh one made in which all of the relevant material is then provided and proper notice given, that is too drastic an option generally, particularly with the restriction on further applications to be found in ss 19(5) and 43(2) of the Bail Act. Nevertheless, of course, the convenience of the parties should not be ignored when a date for an adjourned hearing is set.

12. Applicants, however, have to understand that if they do not provide proper details of their applications and give proper notice, the application is likely to be adjourned and this regularly happens. It is likely to happen even at Christmas time when the adjourned hearing may not be able to take place prior to Christmas.

13. Although this is a difficult application, it has some similarities with the earlier one, for which I needed time to consider my decision, and accordingly I have the advantage of that consideration.

14. Mr Merritt was charged on 11 December 2009 with three charges. The first one was an offence of dishonestly without consent driving a motor vehicle belonging to another. This was contrary to s 318(2) of the Criminal Code 2002 (ACT), the maximum penalty for which is 500 penalty units, that is a fine of $55,000 (s 133 of the Legislation Act 2001 (ACT)), or imprisonment for five years or both.

15. The second charge was of being an unlicensed driver contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT), an offence which renders him liable to a penalty of a fine of $2200 as a first offender or, as a subsequent offender, a fine of $5500 or imprisonment for six months or both. It appears from his record that Mr Merritt is a subsequent offender.

16. The third was a failure to appear in court without reasonable excuse in accordance with a bail undertaking, an offence under s 49(1) of the Bail Act which renders him liable to a penalty of a $2200 fine or two years' imprisonment or both.

17. The statement of facts allege that the vehicle, the subject of the first charge, had been stolen on 8 December 2009. It was alleged that the police saw Mr Merritt driving the vehicle on 11 December 2009 very early that morning and followed the vehicle. The vehicle stopped in a driveway in a nearby street and police are alleged to have seen a person in a white shirt running through some nearby bushes. The car, it was said, had the driver's side door open and the keys in the ignition. There were three persons in the vehicle but not the driver. Clearly the driver had tried to evade the police, a matter to be taken into account in this circumstance.

18. Police stated that they searched the bushes and found Mr Merritt hiding. He was wearing a white shirt. He was arrested and appeared in the ACT Magistrates Court later that day. Magistrate Fryar refused bail. Very helpfully, her Honour had annotated the Bench sheet, which was available to me, with the reasons for refusing bail. See In the matter of an application for bail by Skeen (2009) 2 ACTLR 53 (at 56 [10]).

19. Mr Merritt has a long and unhelpful criminal record. In particular, on nine previous occasions he had failed to appear in answer to his bail. He had been sentenced to six months' imprisonment for the most recent such offence. This was a primary reason why her Honour refused bail. It was a cogent and very valid reason. His record disclosed 64 prior convictions extending over the past nine years. They were mostly less serious offences of common assault, larceny, goods in custody and traffic offences. There were offences of stalking and breaches of protection orders or their equivalent more recently. These are, of course, serious enough. In addition, there were nine failures to appear in accordance with his bail undertaking which I have already mentioned.

20. Mr Merritt has pleaded guilty to the three charges I have referred to and has consented to the jurisdiction of the Magistrates Court for sentencing purposes. He is due to be sentenced on 27 January 2010.

21. The convictions that inevitably follow also may activate breach action in respect of a good behaviour bond he was given on 15 June 2009 in the Queanbeyan Local Court for two offences of larceny. Mr Merritt is also to be sentenced on 27 January 2010 for breaching a good behaviour order he had entered into on 29 January 2009. The order had required him to comply with conditions of supervision. The allegations which appear to be acknowledged by him were that he had refused to report for probation supervision as required, another failure by him to comply with orders of the court that had been imposed on him from time to time.

22. While I cannot speculate, as I do not have enough information, there must be a reasonable prospect that Mr Merritt will be sentenced to a period of fulltime custody for some or all of these matters.

23. Mr Merritt has now, again, sought a review in this court of the refusal of bail by the learned magistrate. The reasons briefly stated in his application are, "I applied for rehab and have been accepted a bed is waiting for me." No details of the "rehab" were provided. He could have nominated the "rehab", although I now know that it is the Glen Centre Rehabilitation Facility on the Central Coast of New South Wales.

24. At the hearing, Mr Mayr, who acted for Mr Merritt in this application, advised that there were two grounds that amounted to fresh information and a change in circumstances relevant to the grant of bail which were of material significance. Here I am conflating the provisions of s 43 of the Bail Act which set the requirement to be met before I can accept jurisdiction to hear the application.

25. The grounds were: (1) Mr Merritt's mother, though a pensioner, would use her savings and borrow from the family so as to be able to deposit $500 cash as a surety for him answering his bail; and (2) he now has been accepted at a rehabilitation facility for drug rehabilitation.

26. These do seem to satisfy the threshold test in s 43 of the Bail Act. See, In the matter of an application by bail by Chris Merritt [2009] ACTSC 56 (at 24).

27. By itself, however, though granting jurisdiction to hear the bail review, provision of a cash surety will not necessarily justify the grant of bail. See R v Freeman (No 2) [2001] ACTSC 86 (at [14] - [15]).

28. Mr Steven Lawrence, who appeared for the prosecution, very properly accepted that these matters justified me embarking on the review and that the requirements of s 43 of the Bail Act had been met. He did, however, oppose bail.

29. He had three main concerns: (1) on the basis of Mr Merritt's history, Mr Merritt was unlikely to appear in court to answer any bail; (2) to grant bail now would interfere with the sentencing process; and (3) Mr Merritt was likely to be arrested in New South Wales on charges of property damage and intimidation said to have occurred in October 2009.

30. At common law, the rule was that the decision to grant or refuse bail was primarily based on the probability of the applicant for bail appearing to take his trial or sentence. See the detailed analysis by Douglas Brown, 'Bail: An Examination' (1971) 45 Australian Law Journal 193. The Bail Act, however, has widened the relevant considerations to include also the interests of the applicant and the protection of witnesses as well as the protection of the community from the commission of further offences. See, In the matter of an application for bail by Kim [2009] ACTSC 129 (at [3] - [7].

31. I do note, however, that even at common law the likelihood of committing further offences was at least relevant: Forrest v Huffa [1968] SASR 341 (at 344).

32. Nevertheless, in this case a central issue is whether Mr Merritt will appear at his sentencing hearing on 27 January 2010. This is a principal concern expressed by Mr Lawrence. This was the concern of the learned Magistrate whose decision was completely correct on the material she had before her.

33. The three significant matters that were relied on by Mr Mayr in the case he made, which was as strong as could be made for Mr Merritt, were that a surety was available, the fact that Mr Merritt had by his own efforts managed to rehabilitate from his drug use and become abstinent apart from continued use of alcohol and cannabis and that he now had a place in a rehabilitation centre.

34. All three have their problems. The surety was to be a cash deposit in the sum of originally $1000 in the first application but now, presumably because of the Christmas period, $500 from Mr Merritt's mother, a pensioner. This would provide a strong incentive for Mr Merritt to appear for sentence.

35. When I inquired in the first application where a pensioner would get that kind of money, however, I was told that it would be obtained from some savings and from borrowings from the family. It would, of course, have actually to be borrowed with the consequence that it became Mrs Merritt's money of her own which she was obliged then to repay. Anything less would be quite unacceptable and may indeed be a criminal offence. See Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (at 297 - 298), King v Porter (1910), 1 KB 369 and R v Baba (1977) 2 NSWLR 502.

36. A place in a rehabilitation facility is commonly used as a basis for bail and that is quite appropriate. Much crime, principally property crime, is committed in connection with drug addiction. If the addiction can be sensibly and effectively addressed, then the interests of the community in reducing recidivism are well served. It must be said, however, that the rehabilitation from drug addiction is no overnight exercise. It is littered with failures and further attempts but unless there is perseverance, success is often elusive. It must also be said that most rehabilitation facilities are not closed communities, so that a person bailed to them can simply leave if the going gets too tough and the going often does get tough.

37. Mr Merritt must understand that his shocking history of failures to attend court when required and other failures to comply with court orders, were he granted bail in this case to go there, will cancel any indulgence that a court might otherwise extend if he leaves the Glen Centre without returning to court to reconsider his bail options.

38. Despite all this, there is a strong public interest, as was accepted by Mr Lawrence, in having persons who are addicted to drugs rehabilitate themselves.

39. Finally, Mr Merritt's efforts to rehabilitate himself are a strong indicator that he is showing insight into his behaviour and the need to respond to the norms of the community. I would have preferred to have a report from such as an alcohol and drug worker employed say by the Court Alcohol and Drug Assessment Service, (CADAS) or the Alexander Maconochie Centre alcohol and drug worker or Aboriginal liaison officer, but I am prepared to accept, with some hesitation, that this is the position.

40. If that is, in fact, so, it may be said that the need for residential rehabilitation is somewhat less urgent or significant. Nevertheless, for the reasons I have mentioned above, rehabilitation from drug addiction is a long term process which needs reinforcement and even when achieved by the addict himself or herself, support is needed to ensure that it is long term.

41. Thus, the case for refusal of bail is strong. It includes: (1) the long record of mid level offences stretching back nine years; (2) the breach of court orders including protection orders but particularly the nine offences of failing to appear to answer his bail and his plea of guilty to a tenth; (3) the proximity of the sentencing just about three weeks away: in Burton v The Queen (1974) 3 ACTR 77, Fox J held that the nearness of the sentencing was a valid ground for refusing bail; (4) the problematic nature of each ground said to support a grant of bail; and (5) the real likelihood that a custodial sentence will be imposed on Mr Merritt for the current offences and the breach of a good behaviour order.

42. Despite this, there are some significant considerations favouring the grant of bail. These include: (1) that Mr Merritt has never had a cash surety deposited to support his bail before; (2) that he would be unlikely to risk his mother losing what is a substantial sum for her is a powerful incentive for him to appear; (3) it was not submitted to me that he was likely to commit further offences of interfere with witnesses, the latter being quite unlikely since he has already pleaded guilty to the offences; (4) his wish to undertake drug rehabilitation to support the efforts that he has already made to be abstinent; (5) while his record is long and shows disturbing trends to violence and dishonesty, these are not offences of a very serious kind; (6) he is at a cross roads: he has been imprisoned before and he has continued to offend, he is taking positive steps now off his own bat to start managing his life and to respect society's rules, albeit from the confines of a prison and albeit very late in the day; (7) while his offences remain of concern, there is no indication of an escalation of seriousness or any signs that he is unlikely to be able to resolve his criminal habits with appropriate support.

43. A grant of bail is in many ways an exercise in risk management. The liberty of persons charged with criminal offences is the default position under the Human Rights Act. That position can be overridden if matters set out in s 22 of the Bail Act are made out. It seems to me that, in this case, the factors can be said to be at least finally balanced. A safer course would be to refuse bail and that could well be justified. Some support for Mr Merritt's efforts is, however, also justified and in all the circumstances I would be prepared to take that risk.

44. These reasons for my decision are, however, important, for I record in them that this would, if bail is granted, really be his last, his very last, chance to show that he can comply with his bail obligations and is making genuine efforts to reform.

45. Having said that, Mr Lawrence has raised important issues which also need to be addressed. In the first place, the proximity of the sentencing means that the grant of bail by this court could really be an interference with the sentencing process.

46. The Human Rights Act does mean that the courts must respect the liberty of persons charged with offences even for relatively short periods. Nevertheless, as I have mentioned earlier, this Court has accepted the proximity to trial or sentence as a valid basis for refusing bail.

47. The real question then is whether the Magistrates Court is prepared to permit Mr Merritt the opportunity to show his ability to participate effectively in drug rehabilitation, which I have accepted is appropriate at this stage of his life and criminal development, before he completes his sentencing. If not, and that is a decision for that court, then there is no utility in Mr Merritt being granted bail.

48. Mr Mayr advised that he would arrange for the matter to be listed next Tuesday in the Magistrates Court to seek an adjournment of the sentencing of Mr Merritt to about April 2010 so that Mr Merritt could undergo the rehabilitation program at the Glen Centre. That is an arguably appropriate approach, but it is entirely a matter for the Magistrates Court. If, however, such an adjournment is secured then I would be prepared to grant Mr Merritt bail. If not, I would not grant it.

49. Mr Lawrence also raised the possibility that Mr Merritt will be arrested in New South Wales for the offences allegedly committed in Blacktown in October 2009. Mr Mayr informed me that, as he understood the charges, they would be defended. While there may be some complication if Mr Merritt were to be arrested in New South Wales, Mr Mayr did point out strong circumstances which could be put to a New South Wales Court to justify bail which would permit Mr Merritt's rehabilitation to continue and for him to have the matters in the ACT finalised.

50. It seems to me that it is a matter for the New South Wales authorities to decide what they want to do. A document was tendered before me which stated that New South Wales authorities had "Extradition approval" and on 16 December 2009 "[w]ould be in court to extradite him." That latter was not so on either 18 December 2009 or 21 December 2009.

51. Without something much more concrete than that, there is no basis for refusing bail simply because Mr Merritt may be arrested in New South Wales. Indeed, as Mr Mayr said, actually to enter New South Wales for rehabilitation knowing that arrest is a possibility may be a good ground for a grant of bail in New South Wales, at least to continue the rehabilitation.

52. At the end of the day, it is an exercise in risk management, though the Federal Court of Australia, when acting as the appeal court for this court, did express some reservations about the use of that terminology and approach, see Dunstan v DPP [1999] FCA 921; (1999) 92 FCR 168 (at 184).

53. I consider that the circumstances are now sufficiently favourable to justify that risk but only if Mr Merritt can secure an adjournment of the sentencing proceedings.

54. Accordingly I will adjourn the application to Tuesday at a time to be fixed.

55. I direct that a transcript of these remarks be prepared and be available to Mr Merritt and the Director of Public Prosecutions. I indicate that if the sentence currently listed for 27 January 2010 is adjourned for at least three months, I will grant Mr Merritt bail on certain conditions.

56. I would, of course, provide an opportunity for both parties to make any submissions that they wish to make on the precise terms of the conditions before imposing them.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Applicant: Aboriginal Legal Services

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