Bennett v Polosak

[2020] ACTSC 168

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bennett v Polosak

Citation:

[2020] ACTSC 168

Hearing Date:

24 June 2020

DecisionDate:

24 June 2020

Before:

Elkaim J

Decision:

The application for bail is granted.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special or exceptional circumstances – pregnancy – upcoming release date

Legislation Cited:

Bail Act 1992 (ACT) s 9E

Parties:

Melissa Bennett (Applicant)

Robert Polosak (Respondent)

Representation:

Counsel

J De Bruin (Applicant)

H Roberts (Respondent)

Solicitors

Legal Aid ACT (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

CA 23 of 2020

ELKAIM J:

1. In this matter the applicant seeks bail under s 9E of the Bail Act 1992 (ACT). That section applies where a person has been convicted of an offence and sentenced to prison and there is an appeal pending.

1. Section 9E says that bail should not be granted unless there are special or exceptional circumstances. The exceptional circumstances put forward here are that the offender is pregnant. The Crown has pointed out that there are good facilities at the Alexander Maconochie Centre (AMC) and in fact, there is an obligation upon the AMC to provide facilities.

1. The fact that the applicant is pregnant would not normally be seen as an exceptional circumstance. However, there are two important differences in this case. The first is that she is due to give birth in about 3 weeks and the second is that her release date is only about 10 days after her due date. I think that the impending birth date does transform the mere fact of pregnancy into an exceptional circumstance. 

1. The Crown has also fairly pointed out that the appeal is not likely to be heard until after the release date. Although the Crown has also pointed out that that is not a ground of the application, I think it is something that I can take into account.

1. Accordingly, I grant bail on the following conditions:

(a)That the applicant reside at her residence at [redacted].

(b)That, subject to any medical demands arising from her pregnancy, she is otherwise subject to a curfew of 8:00pm to 8:00am.

(c)That she does not drive a motor vehicle. 

(d)That she accepts the supervision of ACT Corrective Services.

(e)That she is not to consume alcohol or illicit substances.

(f)That she will make herself available for urinalysis if required.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 29 June 2020