CRIMINAL LAW - jurisdiction, practice and procedure - bail - grant by separate courts - power of courts to vary and revoke bail.

CRIMINAL LAW - jurisdiction practice and procedure - bail - application for bail - bail refused.

Bail Act 1992 (ACT), ss 10, 19, 22, 33, 36, 37, 43, 56A, 56B

R v JM [No2] [2011] ACTSC 60.

Re an Application for Bail by Chris Merrett [2009] ACTSC 56

1. On 21 April 2011, I had before me two related applications in two different proceedings, involving the same person, whom I describe as the applicant. The first is an application for bail following a finding by me of the applicant's guilt of certain charges: R v JM [No2] [2011] ACTSC 60. The other is an application by Mr Aleksander Kuper for a discharge of his suretyship: he had agreed to become a surety for the applicant, when, on a review of a bail decision by the Magistrates Court, I granted her bail. I had also to consider the effect any discharge had as to whether the bail it supported should continue. I discharged Mr Kuper from his surety and I refused the applicant bail. I indicated that I would give my reasons later. These are my reasons.

2. The applications are somewhat complicated because, as noted above, they involve two sets of proceedings. In one, the applicant has been found guilty of certain offences. In respect of those proceedings, she sought bail on the date on which the findings of guilt were made until the date to which the consequent sentencing proceedings had been adjourned.

3. As to the other proceedings, the applicant, on 21 February 2011, then under another surname, sought a review of the refusal of bail by the Magistrates Court. She had been charged in that court with assault and assault occasioning actual bodily harm, possession of an offensive weapon and use of a prohibited weapon and conduct causing harm to a public official, namely a police officer. She was refused bail on 19 February 2011. She sought a review of that decision under s 43 of the Bail Act 1992 (ACT).

4. That review originally came before Teague AJ on 25 February 2011. His Honour referred it to me on 3 March 2011 because of my involvement in her trial as referred to below. The applicant, in support of her application, supplied an address in Sydney where she could reside and the prosecution wished to investigate whether it was an appropriate address. The application was adjourned to 10 March 2011 so that this could be done. The proceedings were then adjourned a number of times until finally heard on 15 March 2011.

5. On 15 March 2011, I granted bail to the applicant on a number of conditions, especially as to residing in Sydney and reporting to a police station there.

6. In particular, as a condition of the bail, I required a surety to be given by an acceptable person, in the sum of $2000, of which $500 was to be deposited in cash. The acceptable person was a Mr Aleksander Kuper, who gave evidence before me. His evidence was, inter alia, that the applicant had been staying in his flat for about two months. He said he would allow her to stay in his flat "and I will look after her and I will be with her 24/7". He gave his mobile phone number to the Court. It appeared he and the applicant had an amicable relationship.

7. When granting the applicant bail, I stressed that she was required to comply with the bail conditions and, if there was a problem, that she should return to court. I said:

...in the meantime it is important that you comply with these conditions.

If things go wrong, for heaven's sake come back to court, because the worst thing you can do is just scarper. If things go wrong come back and we'll see what we can do. I can't promise. I mean I may have to put you back in custody, I don't know.

8. The next day, the acceptable person, Mr Kuper, appeared before me to say that the applicant had, instead of travelling home to Sydney with him in accordance with the bail condition, left him on the court steps and he had had no further contact with her. He wished to withdraw his surety.

9. I have written about the obligations of a surety in Re an Application for Bail by Chris Merrett [2009] ACTSC 56. I there said (at [25] to [31]):

1. At common law, a surety was the custodian of the bailed person and had power to arrest him or her: Anon (1704) 6 Mod Rep 231; 87 ER 982; Ex parte Lyne [1822] EngR 35; (1822) 3 Stark 132; 171 ER 798. To escape from one's surety was escaping from lawful custody: R v Butcher (1792) Peak 226; 170 ER 138.
2. The situation was well-described in Pollock F and Maitland F W, The History of English Law Before the Time of Edward I (2nd Ed, Cambridge University Press, 1911) where the learned authors explained (at vol 2 pp 589-590):

We have spoken, perhaps too indifferently, of 'mainprise' and of 'bail'. There was some difference between these two institutions, but at an early time it became obscure. Bail implied a more stringent, mainprise a laxer, degree of responsibility. English, Norman and French tradition seem all to point to an ancient and extremely rigorous form of suretyship or hostageship which would have rendered the surety liable to suffer the punishment that was hanging over the head of the released prisoner. In Normandy these sureties are compared to gaolers, and a striking phrase speaks of them as 'the Duke's living prison.' In England when there is a release on bail the sureties are often said to be bound corpus pro corpore. However, so far as we can see, whether there has been bail or whether there has been mainprise, the sureties of the thirteenth century, if they do not produce their man, escape with amercement. The undertaking to forfeit a particular sum and the formal recognizance, which afterwards become familiar, seem to be very rare in this age. The strict theory seems to be that all the chattels of the sureties are at the king's mercy, while in case of bail they may have to render their own bodies to gaol. Very often the prisoner was handed over to a tithing; sometime [sic] a whole township was made responsible for his appearance. (Footnote omitted).

1. The Bail Act, however, has not continued that position. Section 25(1)(b) and (c) create possible conditions of bail whereby a person undertakes a responsibility for the attendance of the defendant. Although this condition is commonly referred to as a surety - and that is a convenient shorthand, reinforced by the definition of "surety" in the Dictionary to the Bail Act - the responsibility is somewhat different in its detail from the responsibility imposed at common law on a surety. The provisions are:
   1. Conditions on which bail may be granted to adults

(1) The following conditions may be imposed on a grant of bail to an adult:

...

(b) a condition that the person, an acceptable person or each of a number of acceptable people -

(i) pays to the Territory a stated amount if the person fails to appear in court in accordance with his or her undertaking; or

(ii) gives acceptable security for the payment to the Territory of a stated amount if the person fails to appear in court in accordance with his or her undertaking;

Note For acceptable people and acceptable security, see s 32.

(c) a condition that the person, an acceptable person or each of a number of acceptable people -

(i) deposits a stated amount with a court or authorised officer; and

(ii) forfeits the amount if the person fails to appear in court in accordance with his or her undertaking.

1. As can be seen, there is no power for the surety to take the bailed person into custody. In case that is not clear, it is reinforced by s 56 of the Bail Act which declares that a surety has no right of arrest.
2. Similarly, the surety is not responsible either personally or by loss of the money paid or undertaken to be paid, if the bailed person does not comply with any of the other conditions that may be imposed on a grant of bail. In addition, apart from loss of a sum of money, there is no other sanction to which a surety is liable if the person bailed does not answer the bail.
3. For completeness, I refer to s 32 of the Bail Act which permits a court to nominate who, whether a named person or a class of persons, may be acceptable to undertake the responsibility of a surety.
4. Thus, although the responsibility of a surety is a much more limited role than the common law role was, it can be an important condition on which a court may rely to ensure the attendance of the applicant to take his trial, obviously one of the more important matters that the grant of bail must achieve.

10. My comments there about the obligations of a surety are, I am satisfied, quite accurate but, as this case shows, do not tell the whole story. Mr Kuper made an application under s 36 of the Bail Act 1992 (ACT). That section provides as follows:

(1) A surety may, at any time apply to be discharged from his or her liability under a bail condition -

• (a) if bail has been granted by a court -
  • (i) to the court that granted bail; or
  • (ii) to the court of appearance; or
• (b) if bail has been granted by an authorised officer - to the court of appearance.

(2) However, an application may not be made if the person granted bail has failed to comply with a bail condition or undertaking to appear.

(3) If the person granted bail is not in custody or before the court when the application is made, the court must -

• (a) issue a warrant to apprehend the person and bring the person before the court; or
• (b) issue a summons for the person's appearance before the court.

(4) On the person's appearance before the court, the court must, unless the court considers it would be unjust to do so -

• (a) Direct that the applicant be discharged from his or her liability; and
• (b) Release the security or deposit.

(5) If the court discharges the applicant from liability, the court may -

• (a) impose further bail conditions; and
• (b) remand the person granted bail into custody until the further conditions are satisfied.

(6) In this section:

court of appearance means the court before which the accused person is required to appear in accordance with his or her undertaking to appear.

11. While the surety does not forfeit the cash deposited or promised for failure of a bail condition, the surety does forfeit any cash deposited and may forfeit cash promised if the bailee does not attend court when bailed to appear.

12. As can be seen from s 36(2), the surety can only seek to be discharged from liability if the person granted bail has complied with all of the conditions. This, probably, imposes some impetus on the surety to ensure compliance with bail conditions although with few powers to do so. The only sanction is on the surety who cannot be discharged from that liability if there has been non-compliance with conditions. The surety cannot, for example, arrest the bailed person to return them to court or prevent a breach of bail conditions.

13. As a result, I indicated to Mr Kuper that I could not discharge him from his surety as it appeared that the applicant had not travelled to Sydney to stay with him in accordance with one of the bail conditions, though it later appeared that she had actually travelled to Sydney.

14. There was, also, no obvious mechanism by which I could require the applicant to appear before me. Section 56A of the Bail Act provides for arrest without warrant and accordingly, gives no authority to the court to issue a warrant. A warrant may be issued under s 56B of the Act but only if a police officer reasonably believes that a person who has been granted bail has failed to comply with a bail condition and the person is in a State or another Territory. No police officer gave such evidence before me. The principal proceedings were in the Magistrates Court and I could not bring those forward to require the applicant's attendance.

15. Under s 36(3) of the Act, however, I could issue a summons in support of the application but, as I indicated above, Mr Kuper was not in a position to make the application because of the failure of the applicant to comply with the bail condition.

16. The applicant, under her bail, was to appear before the Magistrates Court on 24 March 2011 and I indicated to Mr Kuper that he should appear before the Magistrates Court on that day and seek to withdraw his surety at that time. If the applicant did not appear, then under s 37(2) of the Bail Act, the cash amount would automatically, by virtue of the section, be forfeited to the Territory. There appears in the Act to be no discretion in the Court in respect of moneys actually deposited. The forfeiture is statutory. As to the balance of $1500 not so deposited, the court does appear to have a discretion as to whether the surety should be ordered to pay that amount to the Territory.

17. Mr Kuper appeared before me on 24 March 2011 to advise that he had attempted to withdraw his surety before the Magistrate. I did not have a clear picture of what happened before the Learned Magistrate but it seems to me that there was some misunderstanding at that time of the situation.

18. It appears that someone, I do not know whether prosecutor or Magistrate, had told Mr Kuper that because the bail had been granted by this court, the Magistrates Court was not in a position to discharge him as surety or to vary or revoke that bail.

19. That is, of course, not the position. Bail is bail. It is not bail of a court or authorised officer in the sense that it is not "owned" by any particular court. It is simply a promise to appear in court to take trial or sentence as appropriate.

20. This is clear from the Bail Act where s 19 enacts the common law position allowing any court to grant, revoke or vary bail. The Act also reinforces this in s 20, which limits when bail can be granted, varied or revoked by a magistrate in certain circumstances, for that would otherwise be permissible under the common law and under the Bail Act itself. Further, s 36(1)(a) of the Bail Act would clearly have given the Magistrates Court power to deal with Mr Kuper's application.

21. Following a grant of bail, that bail is answered by attendance at the court hearing the proceedings. Strictly, a fresh bail then needs to be granted because on the surrender to the court in answer to the bail, the defendant or accused person is in the custody of the court until released and the release can be by a further grant of bail or by dispensing with bail under s 10 of the Bail Act.

22. The Bail Act has, however, provided a useful mechanism for dealing with that situation in s 33 which provides:

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.

(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.

23. This is, of course, a purely statutory modification of the common law position referred to above.

24. Of course, a surety, having been present when the bail is answered is able, at that stage, to indicate that he or she is not prepared to continue to provide the surety and be discharged. Unless they do so, then, subject to s 33(5) of the Bail Act, the bail will continue on the same conditions including that the surety remains obligated if it has been made a condition of the bail (to which the surety must agree) that if the bail is continued, the surety continues.

25. An application for a surety to be discharged or not to continue should, of course, be made prior to the continuation of the bail which, strictly, amounts to a fresh grant of bail though, of course, on the same terms and conditions and without the requirement of the entry into a fresh bail undertaking.

26. Such an application will, of course, give the court an opportunity to consider whether bail should be granted, which the absence of a surety may significantly affect. Any breach after bail is continued would bring into place the limiting provisions of s 36 of the Bail Act to the application.

27. On 24 March 2011, Mr Kuper appeared before me. He had earlier been to the Magistrates Court and explained the position as set out above (at [17] to [18]). It appears that the applicant's bail had been continued.

28. I caused an application to be made by him formally in writing for the discharge from his surety liability and I listed that for hearing on 14 April 2011 at 9.30 am. That was the same day to which the Magistrates Court proceedings had been adjourned. I arranged for a Notice to be sent by the Registrar on 24 March 2011 to the solicitor who had made the bail application for the applicant notifying him of that date. I also directed under s 36(3)(b) of the Bail Act for a summons to be issued. It appears, however, that because the applicant resided at an unknown address interstate, it was not served.

29. On 14 April 2011, the applicant was represented but not present. Her counsel explained that she had only become aware of the requirement to be in Canberra the previous day and was not able to travel. It was not explained why the Notice sent on 24 March 2011 to her lawyer had not given her earlier notice, save that there were difficulties in contacting her, a problem that the bail condition as to residence was, in part, designed to address.

30. I noted that she was due to be in the Magistrates Court the same day, which was the reason I had listed the matter for 14 April 2011, but her counsel explained that she had been excused from attendance.

31. Accordingly, I had to adjourn the matter. I adjourned it to 21 April 2011.

32. On 21 April 2011, the applicant was not immediately available, but ultimately did appear. Her counsel had asked that the matter be stood down. When she appeared, I temporarily revoked bail. In the afternoon, I delivered judgment on the trial and then dealt with Mr Kuper's application and with bail.

33. As to Mr Kuper's application, he confirmed his wish to have his surety liability discharged.

34. It also appeared, as I deal with more fully below, that Mr Kuper was the respondent to an Apprehended Violence Order which had been taken out on behalf of the applicant and was still current. In those circumstances, the applicant could clearly not reside at Mr Kuper's address.

36. Notwithstanding her conviction for the offences for which I had found the applicant guilty (see R v JM [No2]), she applied for bail pending sentencing and in respect of the Magistrates Court proceedings.

37. It was submitted on her behalf that she had substantially complied with her bail conditions and that she had remained out of Canberra where the complainants to the fresh charges of assault lived. Bail was opposed by the prosecution.

38. Both Mr Kuper and the applicant gave evidence. In addition, I had an Alleged Breach of Bail Report from ACT Corrective Services.

39. That Report stated that, on 24 March 2011, the applicant had attended on her probation officer and that she intended to return to Sydney and reside with her partner and not at the bailed address. She referred to an Apprehended Violence Order issued by the NSW Local Court and which was taken out apparently by a police officer on behalf of the applicant requiring Mr Kuper not to assault, molest, harass, threaten, otherwise interfere with the applicant, nor engage in any conduct that intimidates her or that Mr Kuper must not stalk her and that Mr Kuper must not approach or contact the applicant. This clearly made it inappropriate for the applicant to reside with Mr Kuper.

40. The Report also stated that the applicant was asked why she did not advise the court of the Order and said that it was instigated after she had entered her bail. That is clearly false, for she entered her bail on 15 March 2011 and the Order was made on 16 February 2011.

41. The Report then recorded that the applicant was directed to return to court to seek a variation of the bail.

42. The Report, though dated 31 March 2011, noted that, since that time (presumably to the date of the Report), the applicant had not made contact with her probation officer. It also noted that the applicant had been reporting to Redfern Police Station as required by the conditions of her bail.

43. Mr Kuper's evidence was substantially the same as he had given before me on 16 March 2011.

44. He confirmed that he had deposited cash with the Court Registry and signed as a surety. He and the applicant then left the Court and had gone to the police station, for the applicant was to be accompanied by police to get some personal effects at her Canberra home, before going to Sydney.

45. Mr Kuper then said that the applicant told him that she did not want him to come with her to pick up her belongings. She told him that she did not want to see him again and that her children would assault him. He then waited at the police station until 9.00 pm but the applicant did not return. Instead, Mr Kuper went and stayed the night with his friend and returned the next day to Court.

46. He said that on probably Monday 21 or Friday 25 March 2011, he saw a boyfriend of the applicant at Redfern Police Station and he went into the police station and was served with the Apprehended Violence Order.

47. He further said that he returned to the Magistrates Court on 24 March 2011 and saw the applicant. He explained how he had sought to be discharged from his surety and recover his deposit but was told to return to this Court which he did.

48. In cross-examination, he said he had not received any calling cards, or other notification from the police about the Apprehended Violence Order. He denied that he had walked away from the applicant after I had granted her bail. He said that he is the only occupant of his flat and that he did not give the applicant a key. He said that he had not returned from Canberra until 16 March 2011 and thereafter had stayed with friends elsewhere in Sydney.

49. The applicant gave evidence. She said that when she had been granted bail, she went straight to the police station to arrange supervision while she collected personal items from her house. She says she did not thereafter speak to Mr Kuper because, she said, she had no way of doing so. She had made no arrangements to keep in contact with the man with whom her bail conditions had required her to reside. She said that she was at her house until 6.30 pm and said it was then too late to get a bus to Sydney. She stayed with a friend in Canberra. She said that Mr Kuper knew how to contact her boys, though that was never put to him in cross-examination. It seems to me that it was not his responsibility to contact her through her boys, but her responsibility to keep in contact with him. She also said that her son had tried to get in contact with Mr Kuper, but this seemed at least odd in light of her earlier suggestion that she had no way of contacting Mr Kuper. It was not put to Mr Kuper in cross-examination.

50. She said she returned to Sydney the next morning and went straight to Mr Kuper's home but there was no-one there. She waited for a while and then went to her partner's house.

51. She says that she went to Redfern Police Station and notified them of her change of address. She said she did not try to contact her lawyer.

52. She said she was not aware that the Apprehended Violence Order had been granted until after I had granted her bail. She was aware, however, that "she knew something ... the police had talked about it when the incident happened".

53. She also said that she spoke to her probation officer on the telephone and told her that she was at her partner's address and that the Apprehended Violence Order had been served on Mr Kuper at the Redfern Police Station. Her evidence about that service was consistent with the evidence of Mr Kuper. She said that her probation officer was concerned that she might be in breach of her bail and advised her to go to the Magistrates Court.

54. There is some inconsistency in this evidence. It appears that she had actually attended personally on her probation officer to bring the Apprehended Violence Order to her attention. This appears to have been done on 24 March 2011 when she was in the Magistrates Court with her lawyer, but that she appears not to have raised that with her lawyer or the Court. This is in the face of the clear instructions I gave to her at the time of granting her bail.

55. The applicant said she went to the Magistrates Court but was directed to the Office of the Director of Public Prosecutions. She went there and was given a form. The form was tendered. It certainly appeared to be a form of that Office and the prosecutor did not dispute that. It was described as a "Bail Variation/Bail Review Application Form". It included the following:

BAIL VARIATION /BAIL REVIEW Please tick the appropriate box.

Please provide details of the Bail Conditions you wish to vary and the reasons for the variation OR the reasons for Review of Bail:

.....................................................................................................................

have a avo on Alexander [sic] Kuper and can no longer reside at [the bail address]. New address is [her partner's address] ....................................................................................................................

Bail Variation/Bail Reviews require at least 48 hours notice, not including weekends and Public Holidays, prior to being listed for hearing.

56. The information in italics above was completed in manuscript, presumably of the applicant. She says she was told "Within 48 hours it will be changed. Everything will be fine". If that is what she was actually told, it would be wrong, for the form itself contemplated a hearing and, in any event, the notice was only that, notice, and the prosecution may have opposed the change.

57. She confirmed she had been reporting to police.

58. In cross-examination she admitted that she had been on bail before and that she understood her obligations while on bail. She said she did not realise that she had to return to court to vary a condition of bail to change her address but did concede that she knows that to change a condition she had to go to court to seek a variation. She said she had had a bail condition changed before but "it was a lot different to getting an address changed".

59. She then said that she did not appear in court on 24 March 2011, but later changed her evidence saying that she did attend court and then went immediately thereafter to see her probation officer. She also said that she told her lawyer that she had changed her address. That is odd for I am confident that her lawyer would have realised that this would require a variation to the bail conditions to be made by the court. It could, of course, have been made by the Magistrates Court that day.

60. She was also cross-examined about an earlier residential address she had been given, but nothing turns on that.

61. She was also questioned about Mr Kuper's presence in Court. Initially, she said "I did not organise for [Mr Kuper] to be there [i.e. in Court on her bail application on 15 March 2011]". She explained, "he just kept turning up at court." Later, however, her evidence was:

MR TODD: You arranged for [Mr Kuper] to be at the court on 15 March, did you not?

JS: Yes, I did.

MR TODD: Yes, and you had spoken to him about being surety for you, hadn't you?

JS: Yes, I did.

MR TODD: And he said, "Yes, I'm more than happy to go surety"?

JS: Yes.

MR TODD: And you said that you'd probably need to live at his address or something of that nature and he said he's fine for you to do that?

JS: Yes.

MR TODD: And you were happy to put forward his name?

JS: Yes.

MR TODD: But you knew that the police may well have been investigating him for some form of incident or they may be talking about taking out an apprehended violence order?

JS: I knew they were talking about it, yes.

MR TODD: And you knew that?

JS: Yes.

MR TODD: And did you say to your barrister, "Well, now look, I don't think he may be a suitable person because there's a possibility that there's an apprehended violence order"?

JS: No, I didn't, because I was told I wasn't allowed to live in the ACT. I do not have family in Australia apart from Brisbane, which is too far away from my older boys.

MR TODD: So you didn't think ...?

JS: I don't have many people that live in Australia to go to.

MR TODD: So you didn't think to tell your barrister or solicitor that there may be a problem with Kr Kupa[sic]?

JS: No, I didn't.

62. She also suggested that she had told Mr Kuper that she would be at his house on the morning of 16 March 2011, but that was never put to Mr Kuper in cross-examination. She also suggested that her son had had a conversation with Mr Kuper but, again, that was never put to him in cross-examination and was inconsistent with his evidence. She agreed that she did not leave a note for Mr Kuper at his home. She agreed that she did not go back to Mr Kuper's home on any of the days following her arrival in Sydney. She also agreed that she made no attempt to get Mr Kuper's mobile phone number even though it had been provided to the court in his evidence.

63. Later in the cross-examination, she was less sure about whether she had told her lawyer that she had changed her address. She then said she did speak to her lawyer or his staff and "was told it would have to be taken back to Supreme Court for that to happen". She did not do that. I had no evidence from her lawyer or his staff.

64. Having heard the evidence and seen the witnesses, I am not satisfied that the applicant made appropriate and genuine attempts to have the address at which she was to stay in Sydney under her bail conditions properly changed. Whether this was because she was fearful that it would result in the withdrawal of the surety and thus put her bail at risk I am unable to say and this was never directly put to her.

65. The charges in the Magistrates Court which led to the refusal of bail in that court were quite serious. One set of charges involved not only actual violence but were also allegedly committed in breach of bail conditions that she should not contact, approach or assault, threaten or intimidate the complainant. Another set involved her carrying a weapon and justifying it with a story that involved risk to her children which appears to be untrue. It also involved the applicant using what appeared to be capsicum spray.

66. She had also been dealt with on 17 August 2010 for threatening serious harm to the same complainant on 22 June 2008, a breach of a protection order in respect of that complainant and using a telecommunication service to make a threat to kill the same complainant.

67. In these circumstances, it is not surprising that the Magistrates Court felt that there was a real likelihood of further offending, particularly as the applicant and the complainant both live in the same suburb and in streets very close to each other.

68. I had considered that with a surety and a condition that the applicant reside at an acceptable address in Sydney, together with conditions about drug and alcohol consumption (which seemed to play a part in the alleged offences), that it was reasonable to grant bail.

69. I have since then learned that ACT Corrective Services, it appears, cannot transfer bail supervision to a New South Wales agency and that, as a consequence, it is not possible to direct accused persons on bail who reside outside the ACT to submit to urinalysis and, perhaps, breath analysis. While this cannot be held against an applicant for bail, it does mean that conditions which might justify the grant of bail cannot be effected where the applicant is resident interstate. I raised this with the parties at her hearing.

70. I accept, as the applicant's lawyer submitted, that the purpose of bail is so that the court can be assured of the bailee's attendance at court. The appellant has appeared. She did not appear, however, on 14 April 2011, though her legal representative was given nearly three week's notice. The Bail Act does make other considerations relevant as well: prevention of commission of further offences and of harassing or endangering the safety of others as well as prevention of interference with evidence: s 22 of the Bail Act. I accept that, since I granted bail, the applicant has not, so far as I am aware, infringed any of these other matters of concern.

71. The circumstances have, however, changed in that she has now been convicted of four relatively serious offences. They potentially carry a term of imprisonment, which could be cumulated.

72. Having regard to her approach to her obligations under the bail conditions, the seriousness of the offences with which she has been charged and also those of which she has now been found guilty, to her failure to appear in court in a timely fashion and the lack of a surety to assure the court of her attendance, I considered that the risk of granting bail was too great and I refused her application for bail.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the defendant: Darryl Perkins Solicitor