The Queen v Williams [2012] NTSC 47

R v Iskander (2001) A Crim R 302; R v Wilson [2011] NTSC 15; not followed

Applicant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

The Queen v Williams [2012] NTSC 47

[1] Seth Williams has been charged with three counts arising out of events said to have occurred at the home of his then girlfriend, Ms Burrows on the night of 6 January 2012:

• (a) one count of aggravated assault [Count 1];
• (b) one count of having sexual intercourse without consent [Count 2]; and
• (c) one count of deprivation of liberty [Count 3].

He has pleaded not guilty to all three counts, and his trial has been listed for 7 days beginning on 17 September 2012 - a little over 2 months away. Mr Williams has been in custody on remand since he was arrested in January. He made one (unsuccessful) bail application at his first court appearance on 11 January 2012, and has not applied again since until now.

[2] Because of the nature of the charge in Count 2, the presumption against bail in s 7A of the Bail Act applies: bail is not to be granted unless the accused satisfies the Court that bail should not be refused.

[3] The Crown opposes the granting of bail and relies on R v Wilson[1], which followed the New South Wales case on R v Iskander[2], and in particular the following passage from the judgment of Sperling JA, concerning the effect of the identical provision in the New South Wales legislation:

"In view of the authorities binding on me, I proceed on the basis that where s 8A applies, an application for bail should normally or ordinarily be refused. A heavy burden rests on the applicant to satisfy the court that bail should be granted. The strength of the Crown case is the prime but not the exclusive consideration. Countervailing circumstances common to applications for bail in the generality are to be accorded less weight than in the ordinary case. The application must be somewhat special if the Crown case in support of the charge is strong."

[4] Those "countervailing circumstances common to all bail applications" were identified in R v Kissner[3] as a deprivation of the general right to be at liberty, hardship and distress to the accused and his family, often with severe effects on the applicant's employment or business, his finances, his ability to support himself and his family, and his ability to prepare for his trial, and (often) the availability of sureties (with or without security) prepared to forfeit large sums of money to ensure that the accused will answer his bail. In relation to the last circumstance, Tobias JA observed that in the absence of such sureties, a bail application in relation to these serious matters which attract the presumption against bail, would be "unlikely to be considered".

[5] I cannot see in the legislation any support for putting such a gloss on s 7A or imposing such restrictions on the court's discretion to grant or refuse bail. It seems to me that the plain words of s 7A do nothing more than cast an onus on the applicant to satisfy the court that bail ought not to be refused, and that in considering whether or not the applicant for bail has satisfied that onus, the court must (as in all other bail applications) take into consideration the matters set out in s 24 of the Act, and no others. If the applicant does not satisfy that onus, then bail should be refused.

[6] The New South Wales decisions referred to in R v Wilson, while not binding, are highly persuasive and were followed by Reeves J in R v Wilson. In R v JDT[4], Blokland J referred to these cases as "instructive", but she did not expressly either follow them or refuse to follow them. Rather she said:

"It has been emphasised previously in this Court that once it is found the presumption applies, the burden lies on the applicant to show that bail should not be refused. Further, in making that assessment the only matters which may be considered on the bail application are those set out in s 24 Bail Act (NT)."[5]

That is to say, she adopted the approach referred to above.

[7] Moreover, in a number of ex tempore bail decisions, Mildren J has expressly refused to follow the New South Wales approach and has endorsed the view that the correct approach is to consider the application having regard only to the matters set out in s 24, on the basis that the applicant for bail bears the legal and evidentiary onus of showing that bail should not be refused. I propose adopting the same approach.

[8] The matters to be considered by the court in accordance with s 24 are:

"(a) the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to:

(i) the person's background and community ties, as indicated by the history and details of the person's residence, employment and family situations and, if known, the person's prior criminal record; and

(ii) any previous failure to appear in court pursuant to a recognizance of bail entered into before the commencement of this section or pursuant to a bail undertaking; and

(iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty; and

(iv) any specific evidence indicating whether or not it is probable that the person will appear in court;

(b) the interests of the person, having regard only to:

(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody; and

(ii) the needs of the person to be free to prepare for the person's appearance in court or to obtain legal advice or both; and

(iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii); and

(iv) whether or not the person is, in the opinion of the authorised member or court, incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection;

(c) the risk (if any) that the accused person would (if released on bail) interfere with evidence, witnesses or jurors;

(d) the risk (if any) that the accused person would (if released on bail) commit an offence, a breach of the peace, or a breach of the conditions of bail;

(e) the risk (if any) that would result from the accused person's release on bail to the safety or welfare of:

(iii) if the alleged victim is a child - any person (other than a close relative) who has the care of the child; or

(iv) any other person whose safety or welfare could, in the circumstances of the case, be at risk if the accused person were to be released on bail.

[9] In support of his application for bail, the applicant relied upon an affidavit of his mother, Elizabeth Williams, sworn on 28 June 2012, and an affidavit of his solicitor sworn on 20 June 2012. (The latter largely consisted of submissions.)

[10] The thrust of the mother's affidavit is that she lives in a nominated address in Jabiru and has worked full time at CDU for 12 years, she is at home most nights, and is willing to have the applicant live with her while on bail and to support him in meeting any reporting and curfew conditions. She is prepared to be a surety for her sons' bail. She has no significant cash reserves to pay money into court but offers $5,000 on her own recognizance. On being questioned about security, Mrs Williams indicated that she would be prepared to offer her car as security.

[11] The applicant called no other evidence.

[12] I turn to consider the matters in s 24.

(a) What is the probability of the applicant appearing in court at his trial on 17 September 2012, having regard only to the matters set out in s 24(1)(a) (i) to (iv)?

(i) The applicant is a long term Territory resident with family ties to the area, namely his mother. He will have the support of his mother in complying with any bail requirements if bail is granted and will be able to live at home. He has worked in the Jabiru area in the past but has no immediate prospects of employment should he be released on bail. He has a criminal record.

The fact that his mother is willing to be a surety for him is some incentive for him to answer his bail by appearing at his trial; on the other hand $5,000 is not a significant sum of money, particularly when considered against the seriousness of the charge and the likely sentence if he is found guilty of count 2. There would still be some incentive to flee.

I do not want to be understood as implying in any way that a person from a poor family, unable to obtain a surety with substantial assets should be at a disadvantage when it comes to a bail application. After all, a person offering a relatively small amount of money may be offering all they have. In such a case, a security of that small amount may be worth more than a much larger amount offered by a wealthy person. The value of the surety offering a substantial amount is threefold. First, it may be an expression of confidence that the applicant will answer his bail by someone who knows the applicant. Secondly, it provides an incentive for the surety to ensure, so far as he or she is able, that the applicant does answer his bail and complies with the conditions of his bail. Thirdly, especially where, the surety is a family member or someone close to the applicant, and offers an amount which would cause significant financial pain to the surety if it were forfeited, it provides an incentive to the applicant himself to answer his bail. These factors do not apply, or apply to a greatly reduced extent, if what is offered by the surety is an amount the surety can readily afford to lose if the applicant breaches his bail. In this case, I have no evidence before me as to the assets and income of the applicant's mother and whether the amount she offers as surety is such as would provide the incentives I have described.

(ii) The applicant's criminal record does not disclose any previous failure to appear in answer to bail previously granted. On the other hand, the applicant has not adduced any evidence that he has been granted bail in the past and complied with his bail obligations.

(iii) The Crown case has reasonable prospects. I am unable to say much more about the prospects of the charges of sexual intercourse without consent and deprivation of liberty. However, there does seem to be an admission in the text messages between the complainant and the accused that the accused assaulted the complainant by hitting her on the night in question, and there is evidence to suggest that he lied about this and the contents of a pretext telephone call made to him by the complainant. The likely term of imprisonment if the applicant is convicted of having sexual intercourse without consent is substantial. These two factors together give rise to an incentive to flee, especially as the surety being offered by the mother (which would give rise to a countervailing incentive to answer his bail) is a relatively modest sum.

(iv) There is no specific evidence one way or the other indicating whether or not it is probable that the applicant will appear in court if bail is granted.

(b) What is my assessment of the interests of the applicant having regard only to the matters set out in s 24(1)(b)(i) to (iv)?

(i) The applicant has been on remand now for approximately 6 months; his trial is listed for 17, September a little over two months away. The length of time he will spend in custody pending the trial if bail is refused is not great, although it may seem so to the accused, especially given the notoriously poor conditions generally experienced by remand prisoners at Berrimah prison.

(ii) I have been presented with no evidence to suggest that the applicant's ability to obtain legal advice or prepare for trial is being unduly hampered by being on remand.

(iii) There is no evidence that the applicant needs to be free for any other lawful purpose. He does not operate a business and has no current employment. The Crown tendered printouts of text messages from the applicant to the complainant which appear to contain admissions that the applicant has drug and anger management problems. He has put forward no proposal for attendance at rehabilitation courses or other counselling to address those issues, so it has not been suggested that this is another lawful purpose for which the applicant needs to be at liberty.

(iv) The criteria set out in s 24(1)(b)(iv) are not relevant to the present application.

(c) There is no direct evidence one way or the other about the risk (if any) that the applicant would (if released on bail) interfere with evidence, witnesses or jurors. I am told that the complainant has left the Territory, and I have no information about the whereabouts of the witnesses who are to be called to give complaint evidence.

(d) The Crown submits that there is a risk that (if released on bail) the accused will commit an offence, a breach of the peace, or a breach of the conditions of bail. This submission is based on the fact that the accused does have a criminal record (albeit it contains only one minor conviction for assault, the balance being drug and traffic related offences), and the admissions in the applicant's texts to the complainant that he has difficulty controlling himself and is seeking help. There is no suggestion by the applicant that, if granted bail, he would enter into drug and/or anger management courses or counselling to help minimise any such risk.

(e) I am told that the complainant has moved away from the Territory and so I do not consider that there is any real risk to her safety or welfare if the accused were to be released on bail. The complainant's sister (and certainly other people) are to give complaint evidence. I have been provided with no evidence about any risk there might be to them given the applicant's admitted difficulties with self control and his history of drug taking.

[13] Given that the onus is on the accused to show that bail should not be refused, I am not satisfied that he has discharged that onus. In particular, in my view he has not demonstrated that he is likely to answer his bail if it is granted, given the seriousness of the charge, the severity of the likely sentence should he be found guilty and the relatively low value of the surety offered, and he has not shown any real need, as distinct from a desire, to be at liberty for a particular lawful purpose.

[1] [2011] NTSC 15

[2] (2001) A Crim R 302.

[3] Unreported, Supreme Court, NSW, No 70768 of 1992, 17 January 1992.

[4] [2011] NTSC 39.