SCT v Director of Public Prosecutions [2017] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION: SCT v Director of Public Prosecutions (Qld) [2017] QCA 131

PARTIES: SCT (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QLD) (respondent)

FILE NO/S: Appeal No 5121 of 2017 / SC No 3884 of 2017

DIVISION: Court of Appeal

PROCEEDING: Bail Application

ORIGINATING COURT: Supreme Court at Brisbane – Unreported, Dalton J, 26 April 2017

DELIVERED EX TEMPORE ON: 13 June 2017

DELIVERED AT: Brisbane

HEARING DATE: 13 June 2017

JUDGES: Sofronoff P and Gotterson and McMurdo JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The applicant be admitted to bail upon his own undertaking, such undertaking being conditioned that:

CATCHWORDS: CRIMINAL LAW – PROCEDURE – BAIL – JURISDICTION OF SUPREME COURT – where the applicant unsuccessfully applied to the Supreme Court for bail – where the applicant did not appeal that decision but instead sought to renew his application for bail on the basis of a material change in circumstances, in that evidence as to the likely delay in the matter coming on for trial had come to light – whether the Court of Appeal has jurisdiction to entertain an application for bail – whether the matter should be remitted to the trial division / CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – where the applicant was alleged to have twice breached a domestic violence order and to have choked the complainant, with whom he had been in a relationship – where the applicant was alleged to have punched the complainant in the leg a number of times and, on a separate occasion, put her in a “choke hold”, pushed her onto a bed while saying threatening words to her and choking her with one hand – where, by s 16 of the Bail Act 1980 (Qld), the applicant bore the onus to show cause why he should be granted bail because of the charge against s 315A of the Criminal Code (Qld) – where there was evidence that the applicant may spend about a year on remand awaiting trial and there was a real prospect that he would serve longer on remand than he would have to serve in custody under a sentence – where the applicant was 20 years of age and had no criminal history – where the applicant sought to be bailed to accommodation with family members and had an offer of renewal of his employment – whether the risk of reoffending was an unacceptable risk within the meaning of s 16 Bail Act 1980 (Qld) – whether bail should be granted / Bail Act 1980 (Qld), s 16 / Supreme Court of Queensland Act 1991 (Qld), s 29 / Ex parte Edwards [1989] 1 Qd R 139, cited / Fisher v Director of Public Prosecutions (Qld) [2011] QCA 54, cited / R v Hughes [1983] 1 Qd R 92, cited / Scrivener v Director of Public Prosecutions (Qld) (2001) 125 A Crim R 279; [2001] QCA 454, cited / Sica v Director of Public Prosecutions (Qld) [2011] 2 Qd R 254; [2010] QCA 18, cited / Williamson v Director of Public Prosecutions (Qld) [2001] 1 Qd R 99; [1999] QCA 356, cited

COUNSEL: D R MacKenzie for the applicant / G P Cash QC for the respondent

SOLICITORS: Morton & Morton Solicitors for the applicant / Director of Public Prosecutions (Queensland) for the respondent

SOFRONOFF P: Justice McMurdo will deliver his reasons first.

McMURDO JA: The applicant has been charged with three offences: two of contravening a domestic violence order and an offence of choking, suffocation or strangulation in a domestic relationship contrary to s 315A of the Criminal Code (Qld). The applicant has been in custody since he was charged on 12 April this year.

On 26 April, he applied for bail to Dalton J in the trial division. Bail was refused. There is no appeal against that decision. Instead the applicant comes to this Court seeking to renew his application for bail upon the basis of fresh evidence, or as it is described in this context, a material change in circumstances: see Ex parte Edwards;¹ Sica v Director of Public Prosecutions (Qld)² and Fisher v Director of Public Prosecutions (Qld).³

This application could, and usually would, be made to a judge of the trial division. As the respondent agrees, it can also be made to this Court. The jurisdiction of the Court of Appeal was explained by McPherson JA in Scrivener v Director of Public Prosecutions (Qld).⁴ The Court of Appeal has jurisdiction to hear and determine all matters formerly within the jurisdiction of Full Court: Supreme Court of Queensland Act 1991 (Qld) s 29(1), and in R v Hughes,⁵ the Full Court exercised that jurisdiction.

However, this jurisdiction of the Court of Appeal should not be invoked without some good reason, rather than the application going to a judge in the trial division. It is an inefficient use of resources for three judges to hear a case which could be heard by one. Further, it is likely that the application could be listed earlier before a single judge. In future, an application like the present one is likely to be remitted to the trial division if justification for filing the proceedings in this Court is not demonstrated.

Nevertheless the present application has been fully argued and on this occasion, this Court should dispose of it.

The applicant and the complainant had been in a relationship which ended earlier this year. A domestic violence order was granted in the Magistrates Court on 23 March 2017. It is alleged that on 2 April 2017, the applicant went to the complainant’s residence where they argued. He is alleged to have punched her in the leg a number of times. This is the subject of one of the charges of contravening the domestic violence order.

There was a further argument between them, it is alleged, on 11 April 2017. He threw a pillow at her which is the subject of the second alleged contravention of the domestic violence order. It is further alleged that he put her in a “choke hold” by standing behind her and putting his right arm around her throat, such that she could not breathe. He then threw her on to a bed and positioned himself on top of her, saying threatening words to her and using one hand to choke her. It is said that she was able to escape and call for help. Police arrived and they observed marks on her throat and face. That assault is the subject of the charge against s 315A of the Code, which carries a maximum penalty of seven years’ imprisonment.

The application to Dalton J failed because the applicant had not discharged the onus upon him, under s 16(3)(g) of the Bail Act 1980 (Qld) to show why he should be granted bail, having regard to the risks that he would contact the complainant and reoffend. Her Honour added: “There is certainly no issue with delay in having this matter heard at the moment. If that were to change he would have the option of bringing a new application.” Her Honour was there referring to an argument, not then the subject of any evidence, that there would be such a delay in the disposition of these charges through the District Court at Maryborough that if convicted and sentenced, his time on remand might exceed the time required to be spent in custody.

It is argued that there are materially new circumstances in three respects which justify this application. One of them is a suggested inconsistency between what the complainant said to police and what she said when examined at a hospital after the second incident. Another new fact is said to be her statement, in support of this application. Neither of those considerations is material in the sense that it could provide a basis for granting bail, having regard to the onus which is upon the applicant. However there is a further new circumstance, which is that there is now evidence of when the applicant would be tried in the District Court. It is not unlikely that he would spend about a year on remand. The submission for the Director of Public Prosecutions to Dalton J, and repeated here, is that if convicted, his likely head sentence would be in the range 18 months to two years. There is then a real prospect that he would serve longer on remand than he would have to serve in custody under a sentence.

It is well established that the length of incarceration before trial may be an important factor where an applicant attempts to show that he should be granted bail: see Williamson v Director of Public Prosecutions (Qld)⁶ and Lacey v Director of Public Prosecutions (Qld),⁷ although, as was said in the latter case, it is not a “critical factor”.⁸

The evidence of the likely date of a trial is a new circumstance. It is therefore open to the applicant to renew his application for bail. Because this is not an appeal from the previous refusal of bail, this Court is not concerned with the correctness of that decision.

The onus is upon the applicant to show cause why he should be granted bail because an offence against s 315A of the Code is a “relevant offence” under s 16(3)(g). The Court is to refuse to grant bail unless the applicant shows cause why his detention in custody is not justified.

The applicant is aged only 20 and has no criminal history. However, the facts which apparently cannot be disputed are that he was involved in two physical altercations with his former partner within a very short time of the making of the domestic violence order. There remains a real risk that he would commit an offence if granted bail, especially because he would continue to live in the same town as the complainant. Indeed, her recently stated support for him suggests that, if granted bail, the applicant might wish to have some contact with her, which heightens the risk of a further argument and incident.

But there are other factors which indicate that the risk is manageable: he has accommodation available to him with family members and an offer of renewal of his employment.

As was said in Williamson, no grant of bail is risk free. The extent of the risk has to be weighed here against the prospect that even if convicted, he would spend more time on remand than the time required to be served under his sentence. There is the further possibility, of course, that he might not be convicted at least of the charge under s 315A. These possibilities are relevant because they go to whether the relevant risk or risks are unacceptable risks in the sense in which the expression is used in s 16.⁹

Balancing these considerations, I would grant bail, subject to conditions as to his place of residence, as he proposes, that he not have contact with the complainant and the usual reporting conditions.

SOFRONOFF P: I agree.

GOTTERSON JA: I also agree.

SOFRONOFF P: There will be an order in terms of the draft initialled by me and placed with the papers.

Footnotes

1. [1989] 1 Qd R 139, 142-143. ↩

2. [2011] 2 Qd R 254. ↩

3. [2011] QCA 54 at [17]. ↩

4. [2001] QCA 454; (2001) 125 A Crim R 279 at 282 [12]. ↩

5. [1983] 1 Qd R 92. ↩

6. [2001] 1 Qd R 99 at 104 [23] per Thomas JA with whom McPherson JA agreed. ↩

7. [2007] QCA 413 at [11] (Williams and Keane JJA and Daubney J). ↩

8. Ibid. ↩

9. Williamson v Director of Public Prosecutions (Qld) [2001] 1 Qd R 99 at 103 [22]. ↩