Director of Public Prosecutions v Donohue

[2024] ACTSC 96

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Donohue

Citation: 

[2024] ACTSC 96

Hearing Date: 

9 April 2024

Decision Date: 

9 April 2024

Before:

Mossop J

Decision: 

1.    The application for bail is dismissed and bail is refused.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – applicant charged with attempted murder – charge falls within s 9C Bail Act 1992 (ACT) due to operation of s 189 Legislation Act 2001 (ACT) – applicant failed to establish “special or exceptional circumstances” – consideration of s 22 factors – application dismissed and bail refused

Legislation Cited: 

Bail Act 1992 (ACT), ss 9B, 9C, 22

Legislation Act 2001 (ACT), s 189

Parties: 

Director of Public Prosecutions

Flynn Donohue ( Accused)

Representation: 

Counsel

M Howe ( DPP)

Self-represented ( Accused)

Solicitors

Director of Public Prosecutions

Self-represented ( Accused)

File Number:

SCC 300 of 2023

MOSSOP J:  

Introduction

1․This is an application for bail by Flynn Donohue. Mr Donohue is almost 19 years old. He has been charged with attempted murder and, in the alternative, intentionally inflicting grievous bodily harm. He is presumed to be innocent of those offences. He has been in custody since 18 July 2023. He was committed for trial on 14 November 2023. The trial date has been set for 26 August 2024. An application for a pre-trial ruling on tendency evidence is listed on 28 May 2024. On 15 March 2024, McCallum CJ granted leave to Legal Aid ACT to withdraw as solicitors for Mr Donohue. That application was made because Mr Donohue said that he no longer wished to be represented by Legal Aid and wished to represent himself in the proceedings.

2․The prosecution case is that two other people, who I will refer to as J and K, approached the accused outside Westfield Woden on 16 July 2023. They spoke to the accused and “hung out” together before making their way to K’s unit in Narrabundah. Alcohol was consumed by the group throughout the night and into the early hours of 17 July 2023. J asked the accused to leave because he was behaving inappropriately towards K. J was rolling a cigarette when the accused approached him from behind, grabbed his hair and cut his throat with a knife before fleeing the house. J suffered a serious wound to his neck that would have been fatal without life-saving measures.

3․Under the Bail Act 1992 (ACT), s 9B provides that there is no presumption for bail in relation to the offence of intentionally inflicting grievous bodily harm. Attempted murder is covered by s 9C, by reason of the operation of s 189 of the Legislation Act 2001 (ACT). This means that the court is prohibited from granting bail unless special or exceptional circumstances are established.

4․Mr Donohue relied upon the terms of his application for bail and made oral submissions. The application for bail indicated that he intended to represent himself, that this was his first bail application and that he proposed his mother’s house as a place of residence. He also indicated that this was the first allegation of criminal offending against him as an adult. Each of these matters were relied upon in order to establish special or exceptional circumstances. He proposed bail conditions which included a residence condition, a reporting condition, a supervision condition, a condition that he enter a residential rehabilitation program and a condition that he not approach certain people. Details of any specific conditions were not provided.

5․The prosecution relied upon the affidavit of Chloe McKenzie dated 5 April 2024. That annexed the case statement, a copy of Mr Donohue’s criminal history, a police Statement of Facts for a separate charge of intentionally inflicting grievous bodily harm, [redacted] and a police bail consideration form.

6․I have given an outline of the prosecution allegations in summary form. The more detailed explanation in the case statement indicates that the prosecution case is a strong one, given the identification evidence, the evidence from J and K, the forensic biology evidence and admissions made by the accused. It is a stronger case in relation to the intentionally inflicting grievous bodily harm charge than the attempted murder charge as a result of the intention element required for a charge of attempted murder. There will be an application to rely upon tendency evidence and the matters listed in the case statement include a history of using knives, thoughts about using knives and threats to use knives.

7․The criminal history indicates that the accused has no criminal convictions as an adult. [Redacted].

8․The Statement of Facts relating to a charge of intentionally inflicting grievous bodily harm relates to matters occurring inside the Alexander Machonochie Centre while the accused was on remand on the present charges. It involves allegations of an unprovoked attack on another inmate with a sharpened wooden spike on 13 December 2023. The accused is alleged to have stabbed the other inmate in the shoulder and neck area multiple times as well as in the right arm and buttock.

9․[Redacted].

10․[Redacted]. Police expressed concern that the accused will attempt to interfere with a witness. The officer expressed concern that the accused will continue to live a transient lifestyle without an effective support network and will engage in serious criminal activities.

11․[Redacted].

12․As a result of the allegation of attempted murder, it is necessary to establish, as a threshold issue, special or exceptional circumstances. The matters referred to by the accused in his application for bail as they were developed orally do not, in my view, establish special or exceptional circumstances. Indeed, the circumstances relied upon both in his bail application and developed orally appear to me to fall very much within the usual circumstances of an applicant for bail. [Redacted].

13․Because special or exceptional circumstances are not established, there is no power to grant bail to the accused. However, even if the power to grant bail existed, the considerations that must be taken into account pursuant to s 22 of the Bail Act would indicate that bail should have, in any event, been refused.

14․The criteria for granting bail to adults are set out in s 22. They are, in summary:

(a)the likelihood of the person appearing in court in relation to the offence;

(b)the likelihood of the person while released on bail committing an offence, or harassing or endangering the safety or welfare of anyone, or interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice; and

(c)the interests of the person.

15․Had it been possible to consider the question of bail, in my view, bail would be refused because the evidence tendered on the application indicates that there is too great a risk that the accused will commit further offences while on bail or harass or endanger the safety of anyone. The current allegations, the allegations relating to conduct within the Alexander Maconochie Centre [redacted] all indicate that there is an unacceptable risk of further offending if the accused is released on bail. I accept that he expressed a genuine desire to prove his capacity to live lawfully if he was released on bail. However, I also accept the submission of the prosecution that the history demonstrates the potential for the accused to respond with disproportionate violence to circumstances of aggravation or confrontation. I also accept that there is a risk of interference with a witness or obstruction of the course of justice, although I see that as a lesser risk than non-targeted further offending.

16․Because of the absence of supports, the history of conduct of the accused, [redacted] and the fact that he is not represented by a lawyer, I consider that there is also a risk that he will not appear in court in relation to the charges. However, while that is a factor which tends against a grant of bail, specific reliance was not placed on it by the prosecution and I consider that it is of much less significance than the potential for further offending or endangering the safety of someone.

17․I have taken into account the interests of the accused, which are obviously in being out of custody. As I have indicated, the accused emphasised his desire to prove his good conduct if he was released from custody. I recognise that there is a substantial period of time until the tendency application and the trial and that it is contrary to his interests to be incarcerated during that period. It is not, however, a case in which, if found guilty, the time in custody on remand would exceed any appropriate sentence. It is particularly contrary to his interests to be remanded in custody in circumstances where he is presently unrepresented and he has said that he intends to represent himself at the hearing and the trial. Obviously, preparation for the upcoming hearings will be even more difficult in custody than it would be outside custody. However, I do not consider that these interests of the accused outweigh the need to protect the community and the witnesses involved in the present case from the risk of further offending. I note that his unrepresented status is as a result of his own choice, which appears to be very significantly contrary to his own best interests.

18․For these reasons, the order of the Court is:

1.The application for bail is dismissed and bail is refused.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 16 April 2024