Director of Public Prosecutions v Hicks (a pseudonym)

[2022] ACTSC 316

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Director of Public Prosecutions v Hicks (a pseudonym)

Citation:

[2022] ACTSC 316

Hearing Date:

17 November 2022

DecisionDate:

17 November 2022

Before:

Mossop J

Decision:

See [11]

Catchwords:

CRIMINAL LAW – BAIL – Application for bail – day bail – bail to secure, vacate and prepare to rent a property the accused owns being occupied without her consent – accused charged with incitement to murder – special circumstances made out – consideration of conditions requiring a detainee return directly to the Alexander Maconochie Centre following day bail – order made for accused to return to court to be remanded in custody

Legislation Cited:

Bail Act 1992 (ACT), ss 6(2)(b), 9C, 24, 25

Parties:

ACT Director of Public Prosecutions

Laura Hicks (a pseudonym) (Accused)

Representation:

Counsel

S Janackovic (DPP)

J De Bruin (Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT (Accused)

File Number:

SCC 115 of 2022

MOSSOP J:

Introduction

1․     This is an application for bail by Laura Hicks, which is a pseudonym for the accused, given as a result of the making of a non-publication order in relation to her name. She seeks a grant of bail for one day in order to allow her, in conjunction with a real estate agent, to take steps to secure and vacate a property which she owns, the subject of a mortgage, so as to ensure that it is not occupied without her consent. Bail is sought so as to permit it to be put in a state where it can be appropriately rented out to a third party. The evidence indicates that during her period of incarceration the property has been, without her consent, occupied by other persons and that she suspects that antisocial and illegal activity has taken place there.

Consideration

2․ I am satisfied, having regard to the limited period which bail is sought and the reasons for which it is sought, that for the purposes of s 9C of the Bail Act 1992 (ACT) there are special circumstances that exist favouring the grant of bail.

3․ Section 9C arguably applies because that section applies to a person accused of murder and Ms Hicks faces two counts of incitement to murder as well as various other serious offences. The offences alleged against her are described in the case statement which discloses very serious allegations arising in very unusual circumstances. It is not necessary for present purposes to outline those allegations.

4․     It is sufficient to say that the unusual nature of those allegations, the apparent involvement of mental health difficulties so far as the accused is concerned, her current minimum security status in prison and the conditions which are to be imposed on a grant of bail are sufficient to satisfy me that any relevant risk of further offending or failing to appear is reduced to an acceptable level.

5․ I note that the application for bail was not opposed subject to one issue raised in relation to the conditions of bail. That arose because the proposed conditions included a condition that the accused return to the Alexander Maconochie Centre at 5pm on the day for which she was granted bail. Counsel for the prosecution pointed to the terms of s 6(2)(b) of the Bail Act which indicates that following a grant of bail the person is “entitled to remain at liberty in relation to the offence until required to appear before a court in accordance with the undertaking”.

6․     Her submission was that this required that, prior to re-entering custody, it was necessary for the accused to appear in court and that the exclusive method of re‑entering custody under the Bail Act was following an appearance in court. The submission necessarily implied that it was not open under conditions imposed pursuant to ss 24 or 25 of the Bail Act to impose a condition which allowed a direct return to custody.

7․     This submission was contrary to the longstanding practice of the court in granting day bail for various purposes including, for example, attendance at funerals, attendance at a hospital for the purposes of medical treatment or seeing a dying relative, to grant bail on a condition that the accused person return directly to the Alexander Maconochie Centre. 

8․     If the submission is correct, it would reflect a lack of flexibility in the Bail Act which would tend to increase the burden on the court by reason of the necessity to conduct a hearing to permit the person to re-enter custody and increase the burden on the corrections officers who are required then to transport the accused person from the court back to custody. It would also limit the time available for grants of day bail by reason of the need to report to court rather than returning directly to custody, and, by reason of the need to return to court, in that way tend to increase the number of applications for leave made to ACT Corrective Services for day leave purposes.

9․     In the present case it was not necessary to attempt to resolve the question of principle arising from the prosecution’s submissions. That is because the purposes of the grant of day bail could be achieved within a time which permitted a return to court and either the duty judge or myself will be able to deal with the matter in order to allow day bail on this occasion.

10․  Obviously, this is an issue which will arise in further applications and it is an issue which, when it arises on a further occasion, will need to be the subject of some more developed submissions than were presented to court on the current occasion.

Orders

11․   For those reasons, the orders of the Court are:

1.That the applicant be granted bail under the Bail Act 1992 (ACT) on the conditions set out below:

a.    To be released between 7:00am-7:30am on 22 November 2022 into the custody of an employee of Prisoners Aid ACT.

b.    To travel in the company of the same employee to [an address in Fadden] in the ACT and remain at [an address in Fadden] in the company of the same employee.

c.    To appear in court no later than 4:15pm on 22 November 2022.

d.    Not to possess a mobile telephone device and not to possess or use any other internet enabled electronic device.

e.    Not to contact directly or indirectly, the following persons [persons named at paragraph 1(e) of the application in relation to bail]. 

2.List the matter before the duty judge at 4:10pm on 22 November 2022.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 7 December 2022