Achanfuo-Yeboah v The Queen

[2001] FCA 1152

FEDERAL COURT OF AUSTRALIA

Achanfuo-Yeboah v R [2001] FCA 1152

CRIMINAL LAW – bail – review by Supreme Court of the Australian Capital Territory of decision of Magistrates Court refusing bail – consideration of whether to grant bail for a serious offence allegedly committed while on bail for another serious offence – whether acquitted on pending charges might amount to “special or exceptional” circumstances justifying grant of bail.

Bail Act 1992 (ACT) ss 9A, 22
Bail Amendment Act 2001 (ACT) s 12

Dunstan v Director of Public Prosecutions (1999) 92 FCR 168

ALBERT ACHANFUO-YEBOAH v THE QUEEN
A 44 OF 2001

MILES, WHITLAM and GYLES JJ
CANBERRA
21 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 44 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ALBERT ACHANFUO-YEBOAH APPLICANT
AND:	THE QUEEN RESPONDENT
JUDGES:	MILES, WHITLAM and GYLES JJ
DATE OF ORDER:	21 AUGUST 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.The applicant be granted leave to appeal.

2.The appeal be allowed.

3.The order of the Supreme Court be set aside and the matter be remitted to the Supreme Court for further hearing.

4.The respondent pay the applicant’s costs of the application for leave and of the appeal.

5.The costs of the Supreme Court proceedings be dealt with by the Supreme Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 44 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ALBERT ACHANFUO-YEBOAH APPLICANT
AND:	THE QUEEN RESPONDENT

JUDGES:	MILES, WHITLAM and GYLES JJ
DATE:	21 AUGUST 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MILES J:

1. I have read a draft of the judgment of Whitlam and Gyles JJ and agree with the analysis by their Honours of the relevant provisions of the Bail Act 1992 (ACT) (the Bail Act) and their Honour’s construction of s 9A. The section makes sense only if the words “circumstances…. justifying the grant of bail” are read to mean circumstances favouring the grant of bail.

2. However, I am unable to agree that it was an error on the part of Gray J to say that the previous acquittals “could” not amount to special or exceptional circumstances which favoured the grant of bail. In my view the previous acquittals, (or, more precisely, the dismissal of charges) could amount to special or exceptional circumstances within s 9A only if the whole of the circumstances surrounding the alleged offences and the dismissal of the charges was taken into account. In the present case Gray J was told that the offences previously charged were one each of common assault, assault occasioning actual bodily harm and the making of a demand accompanied by threats. The latter two offences carried a penalty of five years imprisonment or more. The charges were laid on 25 November 2000 and dismissed on 21 May 2001. There was no evidence before his Honour, or on the appeal, of the circumstances of the alleged offences, not even of the dates on which they were alleged to have occurred. Nor was there any evidence of the circumstances of the dismissal of the charges.

3. In that state of unenlightenment it was hardly surprising that his Honour was not able to find that the dismissal of the earlier charges was a circumstance, special, exceptional or otherwise, which favoured the grant of bail. His Honour should not be taken to have been labouring under a misapprehension of law that never, in any circumstances, could an acquittal on charges of serious offences, or a dismissal of such charges, in respect of which the person was on bail at the time of the alleged commission of the later serious offences, amount to special or exceptional circumstances within s 9A.

4. The matter of bail is an integral part of the criminal justice process. It used to be capable of decision on a broad discretionary basis which was well understood, if not universally accepted. When statutory regimes of bail were introduced, chiefly to reinforce the principle of a presumption in favour of the granting of bail, things changed. What had been essentially a decision based on experience and judgment became an exercise in statutory interpretation. It gave rise to the creation of a new jurisprudence in which increasingly sophisticated principles have developed. This development, in my view, is not in the interests of the administration of criminal justice and does not promote clarity in the criminal law, which was another of the purposes of the Bail Act.

5. Section 9A, in my view, simply reflects a flexible rule that was widely applied in a common sense way before the Bail Act was enacted. There is no profit in seeking to add to the many judicial pronouncements about the meaning of the words “special or exceptional” in the context of an application under the Bail Act.  Gray J knew what they meant and applied them. 

6. It is not to be overlooked that this is an application for leave to appeal from what is regarded as an interlocutory judgment.  The Court has treated the hearing of the application as if it were the hearing of the appeal.  That does not mean that the applicant is relieved from showing that the judgment in question is sufficiently tainted by error to justify the granting

   
   

   leave.  I do not think that the decision below was so tainted.  In fact I think it was right.  I would refuse the application, or, if it were granted, dismiss the appeal.

I certify that the preceding six (6) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.

Associate:

Dated:             21 August 2001

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 44 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ALBERT ACHANFUO-YEBOAH APPLICANT
AND:	THE QUEEN RESPONDENT
JUDGES:	MILES, WHITLAM and GYLES JJ
DATE:	21 AUGUST 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT

WHITLAM and GYLES JJ:

1. This is an application for leave to appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory on 29 June 2001 affirming the decision of an Australian Capital Territory Magistrate on 12 June 2001 to refuse the applicant bail.  If leave is granted, the proposed grounds of appeal are as follows:

   “1.That His Honour misconstrued the effect of the phrase ‘special or exceptional circumstances’ contained in Subsection 9A(2) of the Bail Act 1992; and

   2.That His Honour erred in His ruling that the combined effect of Subsections 9A(2) and 9A(3) of the Bail Act 1992 was that the Applicant for bail bears the onus of establishing both special circumstances and of satisfying the criteria set out in Section 22 of the Bail Act 1992.”

2. The question as to whether leave to appeal is required is a moot point, having been left open in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 (“Dunstan”).  As the grounds of appeal involve construction of the Bail Act 1992 (ACT) (“the Act”) in the light of recent legislative amendments, the respondent did not oppose a grant of leave if that be necessary and agreed that the Court should adopt the same approach as in Dunstan, namely, to grant leave without finally deciding that it is necessary.  Argument was heard on both leave and the appeal.

3. Prior to 4 April 2001 the applicant was charged with making a demand accompanied by a threat (maximum penalty:  ten years imprisonment), assault occasioning actual bodily harm (maximum penalty:  five years imprisonment) and assault (maximum penalty:  two years imprisonment) and was granted bail.  According to the respondent’s submissions the date of the charges was 25 November 2000.

4. On 4 April 2001 the applicant was charged with three counts of armed robbery (maximum penalty:  25 years imprisonment), seven counts of minor theft (maximum penalty:  six months imprisonment), two counts of assault (maximum penalty: two years imprisonment), two counts of possession of an offensive weapon with intent (maximum penalty:  12 months imprisonment), possession of a knife in a public place (maximum penalty:  six months imprisonment) and six counts of dishonest use of computers (maximum penalty:  10 years).  The applicant applied for bail before a magistrate on 5 April 2001, but the application was refused.  The applicant was remanded in custody. 

5. On 21 May 2001 the applicant was acquitted of the series of charges laid on 25 November 2000. Up to that point, the question of bail in the Australian Capital Territory was exhaustively dealt with by the Act, the operation of which was discussed in some detail in Dunstan. For present purposes, it is sufficient to know that, by virtue of s 8 of the Act, the applicant was entitled to be granted bail in accordance with the Act unless the Court was satisfied that, having regard to the matters referred to in s 22, the Court is justified in refusing bail.

6. Section 22 of the Act has been in the following terms at all material times:

   “22.     Criteria for granting bail to adults

   (1)In making a determination regarding the grant of bail to an accused person who is not a child, a court or an authorised officer shall have regard to the following matters, so far as they are ascertainable:

   (a)the probability of the person appearing in court in respect of the offence for which bail is being considered, having regard only to –

   (i)the background and community ties of the person, having regard to the nature of his or her home environment and employment and to his or her criminal record;  and

   (ii)the circumstances in which the offence is alleged to have been committed, the nature and seriousness of the alleged offence, the strength of the evidence against the person and any other information relevant to the likelihood of the person absconding;

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

   (i)the period that the person may be held in custody if bail is refused and the conditions under which he or she would be held in custody;

   (ii)the need of the person to be free for the purposes of preparing for his or her appearance before a court and obtaining legal advice and for other purposes;  and

   (iii)the need of the person for physical protection, whether the need arises because the person is incapacitated by intoxication, injury or use of drugs or arises from other causes;

   (c)the protection of the community, having regard only to –

   (i)the likelihood of the person interfering with evidence, intimidating witnesses or otherwise obstructing the course of justice whether in relation to himself or herself or any other person;

   (ii)the likelihood of the person committing an offence while released on bail;  and

   (iii)the likelihood of the person harassing a victim or other persons while released on bail.

   (2)In subparagraph (1)(c)(ii) a reference to an offence shall be read as including a reference to an offence against a law in force in the Territory and a law of the Commonwealth, a State or another Territory (including an external Territory).”

7. On 24 May 2001 the Bail Amendment Act 2001 (No 25 of 2001) (ACT) (“the Amendment Act”) commenced. A new s 9A was inserted in the following terms:

   “9A.    Bail for serious offence committed while on bail for another serious offence

   (1)This section applies if –

   (a)a person is accused of an offence punishable by imprisonment for 5 years or more (a serious offence);  and

   (b)the person is alleged to have committed the offence while on bail for another serious offence (or a number of offences including a serious offence).

   (2)A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist justifying the grant of bail.

   (3)However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified having regard to –

   (a)if the accused person is an adult – the matters mentioned in section 22 (Criteria for granting bail to adults) …”

8. On 1 June 2001 the applicant was committed to stand trial in the Supreme Court in relation to 11 of the charges laid on 4 April 2001 involving breaches of ss 26, 101 and 135L of the Crimes Act1900 (ACT). On 12 June 2001 the applicant applied for bail before Magistrate Fryar and bail was refused. On 14 June 2001 the applicant first appeared before the Supreme Court in relation to the charges upon which he had been committed to stand trial. On 29 June 2001 the applicant applied for bail before Gray J by way of review of the decision of Magistrate Fryar. We have been informed that the indictment, subsequently presented, includes three charges only.

9. The material before Gray J, apart from the essential facts to which we have referred, included:

   ·the statement of facts in relation to the charges upon which he was committed for trial;

   ·           the then criminal record of the applicant;

   ·affidavit and oral evidence of the applicant as to his personal circumstances, his reasons for seeking bail and the bail conditions which he proposed.

   There was no material concerning the facts relating to the earlier set of charges or the circumstances of the acquittal on these charges.

10. At the hearing before the Magistrate, the prosecution had conceded the existence of special or exceptional circumstances within the meaning of s 9A(2). After the close of evidence, the following exchange between counsel for the Director of Public Prosecutions and his Honour is recorded:

    “MR STANDISH: Your Honour when we arrived today we opposed bail for this particular applicant and the circumstances of this application are unusual in that we say he falls within the ambit of the new section 9A of the Bail Act but the concession has been previously made in the lower court and it can probably be made here in this court as well that there may be the establishment of exceptional circumstances because of the fact that he’s been acquitted of the earlier charges that he was on bail for.

    HIS HONOUR:          That troubled me.  How does that become a special circumstance?

    MR STANDISH:         Well I’m saying this your Honour, that I think it was – my friend was the person that applied for bail on behalf of the applicant in the lower court and one of my colleagues appeared in that court, I didn’t appear on that occasion.  The concession was made there and that’s not necessarily something that is binding obviously on this Court, but it’s something that I suppose you can take into account.”

    Although we do not have the whole transcript before us, it is clear that his Honour did not accept any concession as to satisfaction of s 9A(2) of the Act.

11. At the conclusion of argument his Honour said:

    “…I think I have to say that I cannot be satisfied that there are special or exceptional circumstances.  I’m certainly not satisfied that the mere fact that Mr Achanfuo-Yeboah was acquitted of the serious offences could constitute of itself, or indeed in conjunction with the other matters that you’ve put, a sufficiently special or exceptional circumstance to fall within the provisions of section 9A.

    I would refuse the application … for review of bail.” (Emphasis added.)

12. Before turning to the arguments on this appeal, there are two matters which should be mentioned. The first is that no issue has been raised as to the appropriateness of the Supreme Court conducting a review of a Magistrate’s refusal to grant bail in circumstances where the applicant had already appeared before the Supreme Court. From that time, bail became solely the province of the Supreme Court, with the Magistrate’s jurisdiction excluded (s 20 of the Act). It is certainly arguable that applications to the Supreme Court thereafter should be de novo applications for bail rather than applications by way of review of a now superseded decision, having in mind the nature of the review (cf Dunstan at [30]-[31]). As the parties have taken no point, and as the question makes no difference to the questions of construction of the Act which arise, we will say no more about it in this case. The second point to be noted is that the proposed grounds of appeal do not raise any issue as to whether s 9A of the Act was properly applied in this case. In those circumstances, we do not propose to deal with that issue or with the written submissions for the respondent upon it.

13. Before turning to examine the precise issue which arises here, it is necessary to consider the proper construction of s 9A(2) of the Act. Each counsel acknowledged the difficulty inherent in the words “justifying the grant of bail” in that subsection. It does no injustice to the careful argument of each of them to say that neither was able to posit a completely satisfactory solution. Resort to the Explanatory Memorandum to the Amendment Act and Presentation Speech has not resolved the problem. If the subsection is construed literally, the circularity is evident. “Bail” is only to be granted in accordance with the Act, which purports to abolish any inherent power of the Supreme Court to grant bail (s 57AA of the Act). The grant of bail is, for all relevant purposes, governed by the factors enumerated in s 22 of the Act. Yet, if the hurdle of s 9A(2) is overcome, the grant of bail then depends upon a separate application of s 22. The circularity is revealed by reading the words “justifying the grant of bail” into s 9A(3) after the words “special or exceptional circumstances”.

14. In our view, it follows that “justifying the grant of bail” in s 9A(2) cannot mean actually justifying the grant of bail to the particular applicant in the circumstances of the particular case. The Director of Public Prosecutions is correct in submitting that the words are limiting and that they require that the circumstances alleged to be special or exceptional be properly related to the grant of bail. We would favour the view that the special or exceptional circumstances must be such that they might justify the grant of bail, depending upon all of the circumstances relevant to s 22. Put another way, the special or exceptional circumstances must be such as would favour the grant of bail.

15. With those considerations in mind, we return to the decision. The judge found that acquittal of the charge (or charges) which caused s 9A to apply in the first place could not be special or exceptional circumstances within the meaning of s 9A(2). We do not think that there was any mistake in the expression of the reasons, brief as they were. Indeed, this view of the reasons explains their brevity. There was no occasion to review the circumstances in context in any detail once the relevance of them had been rejected. The decision therefore raises a question of law for determination in this appeal. This makes the case appropriate for consideration. Normally, there is a need for appellate restraint in relation to bail decisions.

16. The Director of Public Prosecutions supports the judge’s decision by submitting that the evil at which s 9A is aimed is the abuse of the grant of conditional freedom and has nothing to do with guilt or innocence upon the original charges. This proposition has attraction, as the first part of it is plainly correct. However, upon analysis, we do not think that the second part is sound. The point is illuminated by taking examples. Assume that the applicant, whilst on bail in relation to a charge of murder, is charged with another murder, or with manslaughter, or with intentionally inflicting grievous bodily harm, or with causing death by negligent culpable driving, or with recklessly interfering with the lawful use of a computer, or with causing the working of a railway carriage to be obstructed by neglect. Each of those later offences is a serious offence within the meaning of s 9A(1). Each of those offences has different characteristics and has a different relationship with the original charge of murder. The issue of conditional release on the later charge is surely different according to whether there is or there is not a murder charge already outstanding against the applicant. In our view, acquittal of the original murder charge before the question of bail in relation to the second charge is considered is relevant to the possible grant of bail and would be a circumstance, viewed alone, which is in favour of and might justify the grant of bail depending upon the circumstances and so is a circumstance capable of “justifying the grant of bail” within the meaning of s 9A(2).

1. In our opinion, this analysis also leads to the conclusion that acquittal on the original charge is at least capable of being regarded as “special or exceptional”. Each counsel referred to a number of authorities on like expressions in various contexts. Paraphrases of similar ordinary words in other statutes are of little assistance. A person who is acquitted is presumed to be innocent. The fact that s 9A picks up such a case does not deny the possibility of an acquittal amounting to a special or exceptional circumstance. The nature of the various charges and the relationship between them will vary from case to case. Further, the circumstances of the acquittal may be a factor to be taken into consideration when assessing issues relating to bail. For example, the significance of an acquittal might be reduced or eliminated if it occurred because the principal witness was shot in cold blood the day before trial.

2. In our opinion, the judge was wrong in rejecting the possibility that the acquittals here could be special or exceptional circumstances within the meaning of s 9A(2) of the Act. As error has been demonstrated, the matter must be remitted to the Supreme Court for rehearing. It has been submitted for the applicant that the judge also demonstrated error in the construction and application of s 9A(3). This submission is based upon some remarks of the judge during argument. Because of his finding as to s 9A(2) the judge never came to apply s 9A(3). The effect of the remarks was that showing special or exceptional circumstances does not put an applicant for bail back into the same position as though he or she were applying for bail de novo. That is plainly correct and is conceded on behalf of the applicant. The question of bail is governed by s 9A(3) and not by s 8 (see s 8(1A)). However, as submitted on behalf of the applicant, the difference between s 9A(3) and s 8(2)(c) in operation can be exaggerated. In each case the test for the judge is virtually identical: is he or she satisfied that refusal of bail is justified, having regard to the matters mentioned in s 22 of the Act? We have no reason to conclude that the judge will not properly apply s 9A(3) if he comes to consider the operation of it.

3. We would grant leave to appeal, allow the appeal, set aside the order of the Supreme Court and remit the matter to the Supreme Court for further hearing.  The respondent should pay the applicant’s costs of the application for leave and of the appeal.  The costs of the Supreme Court proceedings should be dealt with by the Supreme Court.

I certify that paragraphs numbered 7 to 25 are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Gyles.

Associate:

Dated:             21 August 2001

Counsel for the Applicant:	Mr S Gill
Solicitor for the Applicant:	pappas, j. – attorney
Counsel for the Respondent:	Mr R Refshauge SC
Solicitor for the Respondent:	ACT Director of Public Prosecutions
Date of hearing:	8 August 2001
Date of judgment:	21 August 2001