Re Application for Bail by Tyler Foxwell (No. 2) [2014] VSC 145 (3 April 2014)

2 Section 18 of the Bail Act 1977 permits an accused who has been refused bail and is in custody pending the hearing or trial of a charge to make a further application for bail. If it is reasonably practicable to do so, any such application is to be heard by a court constituted by the same judge or magistrate who heard the previous application for bail. However, s 18 AA of the provides that the court must not hear an application under section 18 unless the applicant satisfies the court that new facts or circumstances have arisen since the refusal or revocation of bail.

3 I published my reasons for refusing the third application for bail on 19 December 2013,[1] and I will treat those reasons as incorporated into this ruling and as read. I am persuaded that there are new facts and circumstances that have arisen since I refused bail to the applicant that warrant my reconsideration of whether he should be admitted to bail. Further, I am persuaded that the applicant should now be admitted to bail on strict conditions.

4 The applicant submitted that the following matters were new facts or circumstances have arisen since my refusal of bail.

(a) The effluxion of time - In December 2013, the applicant had been in custody for two months. He has now been in custody for five and a half months, which appears to be an additional three and a half months of abstinence from the use of drugs.

(b) Further, during that additional period, the committal mention has been adjourned and it now appears that the mention will be further adjourned.

(c) The court is no longer faced with the building industry Christmas shutdown and the applicant would not be idle for a substantial period of time waiting for his employment opportunity and at risk of resuming drug use immediately upon his release.

(d) The applicant has been assessed by Joseph Lamberti of Lamberti Associates as motivated to undertake, and suitable for assessment for, a long term treatment plan for a period of not less than 12 months, which program may include psychiatric, psychological and medical assessment and treatment, counselling, education, and relapse prevention.

5 The applicant submitted that each of these matters was material to my assessment of the risk that the applicant might commit further offences if released from custody on bail. The respondent contended that there were no new facts or circumstances that have arisen since the refusal of bail.

6 Drawing on the principle of finality, counsel for the respondent contended that s 18AA of the Act requires that a further application for bail may only be granted on the ground of the discovery of facts and circumstances since the conclusion of the failed application for bail if the court is persuaded that the failure to produce the facts and circumstances at the earlier application was not due to lack of reasonable diligence on the part of the applicant and that it is reasonably clear that the fresh evidence would have produced an opposite result.

7 Here the respondent submits that test cannot be satisfied because Mr Lamberti conceded that he was available to have assessed the applicant prior to the bail application before me in December 2013 and, had he done so, Mr Lamberti expects that he would have then given like evidence to the applicant's benefit. Mr Lamberti's evidence was then 'available' and as such, is not a new fact or circumstance.

8 The respondent relies on two authorities. In The Queen v Robin Vincent Holt,[2] the court was concerned with s 18(4) of the Bail Act as it then stood. The present s 18AA is in substantially the same terms as its predecessor, s 18(4). Marks J said

I do not think that the sub-section should be interpreted as meaning any new fact or circumstance whatever, but rather a new fact and circumstance bearing on the question of bail. It goes without saying that the new facts or circumstances must have been 'not disclosed' to the judicial officer previously presiding ...

Those observations, which are, with respect, self-evident, do not support the respondent's contention.

9 So too in Mokbel v DPP,[3] Kellam J (as he then was) stated:

In my view the new facts or circumstances must be of such a nature that they are relevant to bail and justify a conclusion by the Court that reconsideration of the refusal of bail is required. Clearly not every new fact or change of circumstance will fall into this category.

The changes circumstances relied on by Mokbel included that the likely trial date extended the period of delay, the considerably weaker prosecution case (because certain witnesses, who were the subject of allegations against them, would not now be called), and the financial circumstances of the applicant had deteriorated. Kellam J was not satisfied that any new facts or circumstances had been established as relevant to whether bail should be revisited. I cannot find any support in Mokbel for the respondent's contention.

10 In Beljajev v Director of Public Prosecutions[4] the Full Court said:

In Victoria, at least in some circumstances, the right to make a fresh application for bail where an earlier application has been refused is now made dependent upon...the existence of new facts or circumstances - see the Bail Act 1977, section 18(4). The right of an accused to make a fresh application for bail where an application has previously been refused underlines the fact that an accused person deprived of his liberty prior to trial stands in a situation which is subject to constant variation, where factors which may tend in favour of a grant of bail may at a particular stage become predominant, whereas at another, earlier time they were not; or where new factors may emerge and tip the balance in favour of a grant of bail.

The Full Court also noted that a court considering a bail application is entitled to act upon material of an informal nature.[5] Bearing these matters in mind, I consider the submission by counsel for the respondent, that the distinction between fresh evidence and new evidence illuminates the requirements of s 18AA, is misconceived. Not only is it unsupported by the authority relied on, but the considerations identified in Holt and Mokbel are consistent with the observations of the Full Court in Beljajev and a number of more recent decisions of this court.

11 In Mokbel v DPP (No 2),[6] the prosecution conceded that further information that emerged concerning the allegations against those police officers and their role in the prosecution constituted new circumstances that had arisen since the previous bail refusal. These circumstances were relevant to the issue of Mokbel's bail on the State charges. Then in Mokbel v DPP (No 3),[7] Kellam J granted Mokbel bail when it became clear that the committal proceedings had not progressed as envisaged on earlier bail applications and there was real uncertainty as to when the committal proceedings would proceed. Mokbel then faced a prospective delay of 19 months from his arrest to committal and three years to trial.

12 In Re Hadarra,[8] Whelan J (as he then was) accepted as new facts or circumstances, amongst others, two considerations that are here relevant. The first was the material that had become available from a psychologist revealing that Hadarra had significantly impaired intellectual function, and the second was evidence of further delay until trial.

13 In DPP (Cth) v Barbaro,[9] J Forrest J determined an appeal against a magistrate's decision to allow bail. One issue was whether the magistrate erred in finding that new facts or circumstances had arisen since an earlier refusal of bail. His Honour said:[10]

Section 18(4) is not to be considered in isolation. Section 4(1)(b) provides for a prima facie right to bail whilst an accused is awaiting trial. Whilst that is qualified by subsequent provisions of the Act, it nevertheless remains the starting point, as it must.

The use by the legislature of the word "circumstance" in addition to the words "new" and "fact" is of significance. The word "circumstance" is defined in the New Shorter Oxford English Dictionary 4th edition as follows:

"That which stands around or surrounds", or "The material logical or other environmental conditions of an act or event".

The words used demonstrate a clear intention to encompass a broad range of matters which may be considered under this rubric. The legislature was, I think, endeavouring to preclude a party from raising a point which had been raised at the previous hearing, but no more than that. If a particular matter had been considered previously by a Court and bail refused, then that would not constitute a new fact or circumstance. On the other hand, if there was no consideration of the issue on the previous application, it was to be regarded as a new circumstance or, depending upon its nature, a new fact. This approach is consistent with the fundamental right of a defendant to be at liberty and the right to be granted bail provided the provisions of the Bail Act are satisfied.

Significantly, the legislature did not impose any prescription upon whether the facts or circumstances were known to the applicant at the time that bail was refused. Nor did it attach any condition in relation to reasonable inquiries being made to ascertain such facts or circumstances. Rather, it elected to enact a broad concept, presumably taking into account the fact that the subject matter was the liberty of the subject.

14 Forrest J found that the magistrate did not err in hearing the renewed application, but the appeal succeeded on other grounds. Barbaro then appealed to the Court of Appeal, but the question on appeal was limited to whether it was open to the magistrate on the evidence before him to conclude that Barbaro did not represent an unacceptable risk of flight were he to be granted bail. The decision that there were new facts or circumstances and the observations of Forrest J concerning how s 18(4) is to be applied were not challenged by the prosecution, nor subject to any passing criticism from the court.[11]

15 The primary point raised on this application was not raised on the earlier application. I did not evaluate the nature of the risk that the applicant might re-offend if admitted to bail by reference to a proposal that he be immediately assessed for a drug rehabilitation program. The fact that such an opportunity is now available is a new fact. About the opportunity for assessment and treatment for drug addiction for the applicant, I said:

15 On the occasion of a bail application before a magistrate, the applicant was assessed by the Court Integrated Service Program... Although it does not appear that the applicant's drug habit has been thoroughly assessed, the limited evidence points to a substantial drug habit, which has only been abated by his detention in custody.

...

19 As already noted, the applicant reported a significant drug habit when assessed on 21 November 2013. He has apparently maintained abstinence from all illicit substances since his remand into custody and has expressed a willingness to engage in treatment and counselling, including relapse prevention and harm minimisation strategies. The CISP assessment report discloses that he was diagnosed with depression at 23 years of age but is not currently receiving any treatment. Referral to a general practitioner for a mental health care plan to allow access to treatment for depression is recommended.

20 The CISP assessment recommended the applicant for level 3 intensive case management by the CISP team. Had he been released on bail in November, that would have involved a further assessment of his substance abuse issues with an accredited worker, an appointment with a general practitioner in Eltham to review his mental and physical health concerns and needs, and regular appointments with the CISP case manager for review of progress in treatment, support and follow-up. Beyond noting that recommendation, the applicant does not express any intention to be proactive in seeking such assistance.

21 As the applicant was not granted bail by the magistrate, this assessment has now lapsed. However, his solicitors have arranged for a further CISP assessment on 8 January 2014. Appointments have also been made for the applicant to be examined by a psychologist in early February 2014.

...

26 ... I consider there is a significant risk that the applicant, unless substantially more committed to rehabilitation that he presently appears to be, will be unable to capitalise on a short respite from a substance abuse problem of major proportions. The applicant is likely to be idle, exposed to his former peer group away from his family, and possibly subject to significant stress from his activities prior to his arrest. This prospect is sufficient to satisfy me that the risk that the applicant will re-offend whilst on bail is presently unacceptable.

27 Because I consider that the risk that the applicant, if released on bail, will be unable to capitalise on his period in remand when he has been drug free, is significant, I am persuaded that there is an unacceptable risk arising not only from the fact that the applicant has not yet received and is not about to start carefully supervised treatment for his substance abuse problem, but also from the prospect that there are issues within his peer group prior to his arrest that may attract his attention if he is released on bail. The applicant's position in relation to his substance abuse issues may change, particularly if he receives assistance in the MRC or greater resources are applied to a more intensive approach to his admitted substantial substance abuse problem. As matters presently stand, I am satisfied that the continued detention of the applicant in custody is warranted.

16 The evidence of Mr Lamberti addresses a number of issues that I identified as relevant to the application about which there was no evidence before the court or available to the applicant. I also foreshadowed that the material circumstances, relevant to assessing whether the applicant presented an unacceptable risk of re-offending if admitted to bail, could change on the basis of evidence from a psychologist or from attendance at educational courses offered within the Metropolitan Remand Centre.

17 These are circumstances that could not have been disclosed to me because the applicant had not been assessed beyond the limited CISP assessment applicable only in the Magistrates Court which was no longer current. It is not to the point to establish that theoretically the applicant could have sought and presented on the prior application the evidence that Mr Lamberti gave. It was not, in fact, available to the applicant. The respondent argued that on the prior occasion when I was told that the earliest opportunity for assessment of the applicant for treatment if admitted to bail was through appointments that had been arranged with a psychologist for February 2014 demonstrated that the evidence of Mr Lamberti was not a new fact or circumstance.

18 I reject this contention. While a future appointment with a psychologist was a circumstance that was disclosed to me on the prior application, the assessment of the applicant that was made by Mr Lombardi was not, and could not, have been disclosed to me on that application. His evidence, which I shall shortly outline is relevant to the question of bail and is a new circumstance that was not disclosed to me. It is not necessary for the applicant to show that Mr Lombardi's evidence could, with reasonable diligence on the applicant's part have been produced at the earlier application. Even if it were, I am satisfied that the applicant was reasonably diligent in following up on the CISP assessment by engaging Mr Healey, for whom Mr Lamberti was later substituted.

19 Further, I am satisfied that each of the other matters, apart from the question of delay, relied on by the applicant is a new fact or circumstance, relevant to the question of whether I should admit the applicant to bail, that was not, and could not have been, disclosed to me in December 2013.

20 The applicant was arrested on 18 October 2013 charged with trafficking in a drug of dependence namely methylamphetamine in a quantity not less than a large commercial quantity between 12 April 2013 and 18 October 2013. He was charged with 44 further offences, including trafficking in amphetamine, Alprazolam (Zanax), ecstasy, GHB, and anabolic steroids. He was also charged with possession of such drugs. He was charged with various other property and dishonesty offences. In all, he faces 45 charges.

21 By reason of some of the offences with which he is charged, s 4(2)(aa)(i) of the Bail Act requires that a court shall refuse bail unless the court is satisfied that exceptional circumstances exist which justify a grant of bail.

22 In my prior ruling, I found that exceptional circumstances existed and the respondent accepted that there were no new facts or circumstances that warranted review of that finding.

23 I concluded that the prospect of a delay of more than two years until early 2016 before the charges are resolved at trial appears a realistic assessment. That assessment was a significant, but not the only, factor in my conclusion that exceptional circumstances existed.[12] The inability of the informant to serve the police brief of evidence in time for the April 2014 committal mention is a new circumstance that permits me to more readily infer that the applicant faces a period of remand of more than two years from his arrest. However, the prospect of greater delay does not affect my assessment of whether there is an unacceptable risk that the applicant may commit further offences if admitted to bail.

24 The respondent's contention remains that there is an unacceptable risk that the applicant, if released on bail, would commit further offences. This risk is said to arise in two ways. The respondent contends that the telecommunications intercepts reveal that the applicant owes a large drug debt in the vicinity of $108,000 and has drug debts owed to him of $60,000 and there was a significant risk that activity in relation to the collection or payment of these debts could lead to the applicant re-offending. Secondly, the applicant admitted to the CISP assessor using approximately 2 grams each of methylamphetamine and amphetamine on a daily basis, and appears to have a substantial drug habit, which has only been abated by his detention in custody.

25 Mr Lamberti gave evidence that he is the director of Lamberti Associates, Rehabilitation Consultants at the Millswyn Clinic. His substantial experience in drug and alcohol rehabilitation since 1972, including substantial experience as an expert before courts was accepted by the respondent. On 13 February 2014, Mr Lamberti assessed Mr Foxwell in custody to ascertain his history of drug use, his motivation for treatment and to develop a plan should he be released on bail. He assessed that Mr Foxwell had a significant problem with amphetamines, methylamphetamine in particular. Having been in custody for four months, with evidence of clean urine drug screening, immediate detoxification was not necessary. Mr Foxwell had applied for almost every course or program that was available to him in gaol. He was able to attend a grief reaction seminar but wasn't able to attend any of the drug related education services handed there due to overcrowding.[13]

26 If released on bail, Mr Foxwell will be required to undergo regular urine drug screens, initially three times a week and to see Mr Lamberti on a weekly basis for assessment, counselling, education and relapse prevention treatment. Mr Lamberti considered the following matters to be significant indicators that a treatment program could be beneficial for the applicant. I am satisfied that these matters are established on the evidence on the application. Mr Foxwell has employment immediately available through his father's building company. He has strong family ties and a safe environment to live in. He will live at home with his father. He appears motivated to undertake employment and drug treatment, an assessment that was made by Mr Lamberti after allowing for the applicant's motivation to secure his liberty.

27 Mr Lamberti suggested that a treatment program would likely involve at least twelve months of on-going supervision, which would be financially supported by the applicant's family. The Millswyn Clinic has 20 specialist practitioners who can provide interventions such as family therapy, anger management or psychiatric or psychological intervention if needed. A rehabilitation plan would include integrated medical management of any untreated mental health issues, such as depression. A period of drug abstinence is needed for proper diagnosis of such conditions, particularly in cases of long term use of amphetamine - methylamphetamines.

28 Should the applicant not be coping with outpatient treatment for any reason, which would become evident to Mr Lamberti through supervision of urine drug screens and counselling, residential programs are available. From a treatment perspective, observation of the applicant on an outpatient basis to ascertain his treatment needs on release from prison will be preferable to programs available within the prison system.

29 The applicant has accepted Mr Lamberti's requirement of strict supervision and participation in treatment to avoid returning to gaol. He also accepted that Mr Lombardi would, as he did, undertake to the court that if he does not follow directions, particularly showing up to appointments, or if he returns positive urine results, such matters would be reported to the informant. Further, Mr Lamberti told me he will liaise with the informant, who was known to him, about the events which the informant would want reported to him. Provided such reporting is consistent with treatment objectives, Mr Lamberti has undertaken to co-operate with the informant in this way.

30 Mr Lamberti explained that the counselling and relapse prevention treatment is directed to creating lifestyle change and part of that lifestyle change is disassociating from negative influences, although he was not in a position to monitor a non-contact bail condition. The confines of Mr Lamberti's undertaking would be to report to the informant about drug rehabilitation, whether the applicant is not using drugs and complying with treatment.

31 At some point in the years prior to his offending, the applicant moved out of home and during the time of his offending was living in rented premises with his girlfriend, Bleire Ashweirth who is a co-offender. The respondent submitted that should I be disposed to grant bail, the undertaking should be conditioned, including a 'no contact' condition for co-offenders, and others, which includes Ms Ashweirth. At the conclusion of submissions, counsel for the applicant asked that she be excluded from the condition as she remained the applicant's girlfriend. This submission was put without any supporting evidence, either substantiating that contention or informing me of Ms Ashweirth's current circumstances. It was not put to either the informant or Mr Lamberti.

32 Section 5(3) and (4) of the Act are relevant when imposing conditions on admission to bail. In the circumstances, I am unable to make any proper assessment of this request. It is possible that it may be acceptable or desirable to both the interests of the informant and to any long term treatment plan developed for the applicant that he continue his relationship with his girlfriend. I do not intend to impose an unreasonable or unnecessarily onerous condition on the applicant's bail that might discourage him from completing a rehabilitation program. On the other hand, I can envisage that either of Mr Lamberti or the informant, and perhaps each of them, may legitimately oppose contact between Ms Ashweirth and the applicant while he is on bail.

33 I am satisfied, now that Mr Foxwell appears to have been drug free in custody for five and a half months, that if Mr Foxwell is released into the assessment and treatment program that has been described by Mr Lamberti, particularly with the undertaking that has been given to the court concerning supervision of that program, he will be significantly less vulnerable to relapse into drug use than he appeared to be in December when I refused bail.

34 In making that assessment I attach significant weight to Mr Lamberti's evidence and I take into account the following additional matters.

(a) Immediate employment is available with his father.

(b) His sister, Mrs Stewart, remains able and willing to post a surety of no more than $20,000.

(c) The other matters that favour admission to bail that I noted in my earlier reasons remain operative.

(d) The principal bases for my concerns that there was, in December 2013, an unacceptable risk that the applicant would re-offend if admitted to bail have been ameliorated by the new facts and circumstances presented on this application.

35 The applicant's sister, Mrs Stewart, is employed as an operations supervisor for a bus company. She offered a modest surety in the sum of $5,000. She stated that the maximum amount of a surety that could be provided by drawing on funds she has accumulated jointly with her husband is $20,000. The respondent submitted that this was an extremely modest surety having regard to the seriousness of the charges and superficially that is so. However, although the prospect that the applicant might be a flight risk is faintly suggested I do not accept that the provision of a surety is a condition that would be directed to that particular risk. I am not satisfied that the applicant presents a flight risk that cannot be managed by other conditions of bail. I take the view that this offer of a surety at the maximum that a young married couple can afford demonstrates a significant commitment by Mrs Stewart to actively supervise and support the commitment, which I now accept, of the applicant to drug rehabilitation. Mrs Stewart accepts what history shows to be a significant risk to her and will need to be vigilant. The modest sum, assessed against the seriousness of the offence is a significant sum to Mrs Stewart and likely to motivate her in her task. Her willingness to accept that onerous responsibility is a significant factor in my decision that provided that bail is strictly conditioned, the risk that the applicant will re-offend whilst on bail is presently not unacceptable.

36 There was another aspect of my concern in December 2013 that concerned the drug debts and the prospect of a slide by the applicant back into associations with his past peer group. The evidence that this might be the basis for a significant risk that the applicant would reoffend if bailed is now balanced by a number of matters, particularly, the influence of the requirements outlined by Mr Lamberti that the applicant will need to commit to lifestyle change and that he will be closely supervised in respect of that commitment. It is in this context that further contact with his girlfriend may be undesirable, but, as I noted, I have no information about her current circumstances. Further, I will impose other conditions on his bail, including a curfew. I need only be satisfied that the risk is not unacceptable, not that it has been eliminated.

37 On the basis of the undertaking that Joseph Lamberti gave to the court as noted in the court's order, Tyler FOXWELL will be admitted to bail on his own undertaking with one surety in the sum of $20,000 (Twenty thousand dollars) conditioned in the proper form for his appearance at the Melbourne Magistrates' Court of Victoria on the 11th April 2014 as required by law and upon the following special conditions. Tyler FOXWELL shall:

(a) Attend at mention, committal and trial, at a day, time and place notified to him by the Director of Public Prosecutions by notice in writing and then surrender himself and not depart without the leave of the Court and, as often as leave is given, return at the time appointed by the Court on granting leave and again surrender himself.

(b) Undertake forthwith a drug and alcohol rehabilitation program assessment by Joseph Lamberti of Lamberti Associates at Millswyn Clinic to develop a long term treatment plan for a period of not less than 12 months, which program may include psychiatric, psychological and medical assessment and treatment, counselling, education, and relapse prevention.

(c) Follow all lawful directions as to drug and alcohol rehabilitation treatment and residence as are given to him by Joseph Lamberti, or his nominee at Lamberti Associates in implementation of that long term plan.

(d) Reside at [a nominated address] Whittlesea in the State of Victoria and not move to any other address without giving the informant 7 days' notice and receiving the informant's consent or the leave of a court, save that he may reside at another address for residential treatment under a drug and alcohol rehabilitation treatment plan if such residence is directed by Joseph Lamberti.

(e) Shall not leave the residence at [a nominated address] Whittlesea between the hours of 9:00 pm and 5:00 am daily unless accompanied by his father. If circumstances necessitate any variation of this curfew, Tyler FOXWELL must seek the consent of the informant or leave of a court.

(f) Shall report daily to the Officer in Charge of the Police Station at Whittlesea or nominee between the hours of 6.00 a.m. and 9.00 p.m.

(g) Shall not maintain or use more than one mobile phone and shall, forthwith on commencing to use that mobile phone, provide the phone number to the Informant.

(h) Shall surrender any passports which he may hold to the Informant within 24 hours of being admitted to bail and not apply for another passport. Any surrendered passport is not to be returned to Tyler FOXWELL except upon order of this Court or that of a Judge of the County Court of Victoria.

(i) Shall not attend any point of international departure during the period of bail.

(j) Shall remain in the area of Metropolitan Melbourne and not travel interstate without the consent of the Informant until further order.

(k) Shall not attend any gambling or gaming venues.

(l) Shall not contact directly or indirectly any witness for the Prosecution or any co-accused except the Informant or his nominee and, without limitation, shall avoid any contact with any of the persons named in the order. Save that the informant may, but is not obliged to, permit Tyler FOXWELL to have contact with Blaire Ashweirth if advised by Joseph Lamberti that such contact would not be detrimental to Tyler FOXWELL in implementation of the drug and alcohol rehabilitation treatment plan and if the informant be of the view that such contact would not be likely to obstruct the course of justice, or endanger the safety or welfare of members of the public.

[1] Re Application for Bail by TYLER FOXWELL [2013] VSC 716.

[2] Unreported, Supreme Court of Victoria, Marks J, 19 June 1984.

[3] [2002] VSC 127.

[4] Unreported, Supreme Court of Victoria, Full Court, 8 August 1991, at pages 9 and 10.

[5] See now s 8 of the Bail Act 1977.

[6] [2002] VSC 312, [10].

[7] [2002] VSC 393.

[8] [2008] VSC 298.

[9] [2009] VSC 27.

[10] Ibid, [24]-[27] (citation omitted).

[11] See also Re Scott [2011] VSC 674.

[12] [2013] VSC 716, [9].

[13] This would appear to be a further new fact or circumstance not disclosed to me in December 2013.