Director of Public Prosecutions v Roberts (Ruling No 2)
[2021] VSC 559
•8 September 2021
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0324
IN THE MATTER of the Bail Act 1977
– and –
IN THE MATTER of an application for bail by JASON JOSEPH ROBERTS
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JUDGE: | KAYE JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2021 | |
DATE OF RULING: | 8 September 2021 | |
CASE MAY BE CITED AS: | DPP v Roberts (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2021] VSC 559 | First Revision: 8 September 2021 Second Revision: 11 July 2022 |
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CRIMINAL LAW – Bail – Murder – Retrial – Second bail application – Whether new facts and circumstances – Whether exceptional circumstances justifying bail – Application for bail refused – Bail Act 1977 ss 3AAA, 4, 4A, 18, 18AA, 18AB – Re Roberts [2020] VSC 793, Roberts v The Queen [2021] VSCA 28 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Hallowes SC with Mr M McGrath | Stary Norton Halphen |
| For the Respondent | Mr B Ihle QC with Mr G Hayward and Ms S Lenthall | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
In August 2000, the applicant, Jason Roberts, and Bandali Debs (‘Debs’), were charged with the murder of two members of Victoria Police, Sergeant Gary Silk and Senior Constable Rodney Miller on 16 August 1998. They were also charged with ten armed robberies which it was alleged they committed together in the period between March and July 1998. After a committal proceeding, the applicant and Debs were presented for trial on the two murder charges. In December 2002, following a trial that lasted four months, the jury returned verdicts of guilty against both the applicant and Debs in relation to the two murder charges. The applicant was sentenced to life imprisonment on each charge with a non-parole period of 35 years.
Applications by the applicant and Debs for leave to appeal against their convictions and sentences were dismissed.[1] An application for special leave to appeal to the High Court was subsequently refused.[2]
[1]R v Debs and Roberts [2005] VSCA 66.
[2]Debs v The Queen; Roberts v The Queen [2005] HCA Trans 971.
Subsequently, and following the enactment of the Justice Legislation Amendment (Criminal Appeals) Act 2019, the applicant filed a second application for leave to appeal against his convictions. On 25 March 2020, the Court of Appeal granted that application.[3] On 10 November 2020, the Court allowed the appeal, quashed the applicant’s convictions, and made an order for a new trial.[4]
[3]Roberts v The Queen (2020) 60 VR 431.
[4]Roberts v The Queen [2020] VSCA 277.
The present indictment was filed on 19 March 2021. The first ten charges allege the commission by the applicant of the armed robberies which have been designated the ‘Hamada armed robberies’. Charges 11 and 12 allege the commission by the applicant of the murder of Sergeant Silk and Senior Constable Miller. It is anticipated that, following the disposition of a number of pre-trial issues in the latter part of this year, the trial of the charges against the applicant will commence on 14 February 2022. In his response to the summary of prosecution opening, the applicant has admitted committing the ten armed robberies. On being arraigned at the conclusion of the present application, he pleaded guilty to the charges in respect of them.
Following the second Court of Appeal decision in November 2020, the applicant made an unsuccessful application for bail before Beach JA sitting in the Trial Division (‘the first bail application’).[5] An appeal by the applicant to the Court of Appeal against that decision was subsequently dismissed.[6] The applicant now makes a further application for bail. It is common ground that, pursuant to s 18AA(1)(a) of the Bail Act 1977,[7] the application for bail may not be heard unless the applicant establishes that new facts or circumstances have arisen since the refusal of his application for bail by Beach JA. If the applicant establishes the existence of such new facts or circumstances, pursuant to s 4A of the Act, the applicant must satisfy the Court that ‘exceptional circumstances exist that justify the grant of bail’.
[5]Re Roberts [2020] VSC 793.
[6]Roberts v The Queen [2021] VSCA 28.
[7]‘Bail Act’ or ‘the Act’.
In order to determine, first, whether the applicant has demonstrated the existence of new facts or circumstances, and, secondly, whether he has established the requisite exceptional circumstances justifying his release on bail, it is necessary to examine, in a little detail, the reasons given by Beach JA in the first bail application, and those of the Court of Appeal.
The first bail decision
The principal circumstance, relied on in the first bail application, was that the applicant had been in prison for more than twenty years since he was aged 19 as a result of a trial that the Court of Appeal subsequently found was vitiated as a result of undisclosed serious police misconduct that had corrupted the fairness of the trial. The applicant’s incarceration during that period had been served under circumstances of considerable personal hardship, in which he had been detained in high security since 2013, and during which, subsequently, he had been subject to further restrictions as a result of the COVID-19 pandemic. The applicant further relied on the fact that there would be a lengthy delay before the commencement of the retrial, and that he and his legal advisers would have difficulties preparing for the retrial if he were to remain in custody. It was submitted that, on the retrial, there was a ‘not insubstantial’ prospect that the applicant would be acquitted on the two murder charges. In addition, the applicant relied on the circumstance that he has strong family support, including a stable address and employment available to him, and that his stepfather was prepared to provide a substantial surety to ensure his compliance with any bail conditions.
In considering those matters, Beach JA accepted that the miscarriage of justice, found by the Court of Appeal, constituted a ‘rare and highly unusual circumstance’, which may be characterised as ‘exceptional’.[8] However, his Honour considered that those exceptional circumstances did not justify the grant of bail. In reaching that conclusion, Beach JA noted that it was likely that the retrial would commence in the second half of 2021, or at the very latest in the first half of 2022, which constituted a delay that would be ‘far from exceptional’.[9] His Honour also took into account that if the applicant were found guilty of the murders of Sergeant Silk and Senior Constable Miller, there was no reasonable prospect that he would receive a sentence that would be less than the time that he would have already spent in custody if bail were refused.[10] In addition, Beach JA noted that the Court of Appeal, in quashing the applicant’s convictions, expressed the view that the prosecution case against the applicant as a whole was ‘powerful’, but that conviction was not inevitable.[11] For those reasons, his Honour concluded that the applicant had failed to establish that exceptional circumstances existed that justified the grant of bail to the applicant.[12]
[8]Re Roberts [2020] VSC 793, [19].
[9]Ibid [21].
[10]Ibid [23].
[11]Ibid [24], quoting Roberts v The Queen [2020] VSCA 277, [169] (Maxwell P, Niall and Emerton JJA).
[12]Re Roberts [2020] VSC 793, [28].
The bail decision of the Court of Appeal
In dismissing the appeal by the applicant, the Court of Appeal concluded that it was open to Beach JA to conclude that there did not exist exceptional circumstances that justified the grant of bail.[13] While the Court accepted that the circumstances, giving rise to the quashing of the applicant’s convictions in November 2020, were quite exceptional, nevertheless those circumstances did not compel the conclusion that a grant of bail was justified. In reaching that decision, the Court observed as follows:
The informing principle seems to be clear: if continued incarceration before trial would be productive of injustice, then a grant of bail may be justified (subject always to the separate question of ‘unacceptable risk’). The bail decision maker is thus looking to the future, considering the likely consequences of the continued incarceration of the applicant for bail. Past events may be relevant to that consideration, as in the cases concerning pre-trial delay, but what justifies bail is the need to prevent or mitigate future injustice.[14]
[13]Roberts v The Queen [2021] VSCA 28, [59] (Maxwell P, Niall and Emerton JJA).
[14]Ibid [10].
The Court then proceeded to consider a number of decisions in which it had been held that exceptional circumstances existed that justified the grant of bail, and concluded:
What appears to underpin the judicial recognition of these different types of circumstances as justifying a grant of bail is that they are seen to render continued pre-trial detention unjust, even in relation to very serious offending. That is, it is seen to be unjust for a person to wait an indefinite or unreasonable time in custody before coming to trial; or for a person on remand (or his/her dependants) to suffer serious adverse consequences by virtue of the incarceration; or for an unconvicted person to spend time on remand which will exceed any likely sentence.[15]
[15]Ibid [47].
The Court rejected the submission, made on behalf of the applicant, that the two decades, during which he had been incarcerated, should be properly characterised as time spent on remand. Rather, during that period, the applicant had been serving a sentence which was valid until it was set aside.[16] Accordingly, the Court expressed the view that, in considering the issue of delay, Beach JA was correct to focus on the likely period, that the applicant would spend in custody if he were not released on bail, between the time of the quashing of his convictions and the commencement of the retrial.[17]
[16]Ibid [51]–[52].
[17]Ibid [53].
The Court noted that it was not put on behalf of the applicant that bail was justified in order to prevent him suffering future hardship and mental distress attributable to his incarceration.[18] In those circumstances, the Court concluded that it was well open to the judge to conclude that the circumstances relied on — the injustice constituted by the corruption of the trial and the hardship which the applicant had suffered during his time in custody — did not compel the conclusion that a grant of bail was justified.[19]
[18]Ibid [56].
[19]Ibid [59].
In reaching that conclusion, the Court made the following observation, which is pertinent to the current application:
The argument in favour of bail would, of course, have been much stronger if there had been evidence showing that continued incarceration until the retrial was likely to have a serious adverse effect on the appellant’s physical or mental health, or if there were no likelihood of the retrial coming on within a reasonable time. But, as we have said, neither of those circumstances arises.[20]
[20]Ibid [60].
The present application for bail
The present application is supported by an affidavit by the applicant’s solicitor. Apart from a section, entitled ‘new facts and circumstances’, comprising ten paragraphs, the affidavit substantially repeats the contents of the affidavit that was relied on in support of the first bail application.
In the affidavit, the applicant’s solicitor, in effect, deposes to two particular facts and circumstances, which, it is submitted, are new and additional to those which were relied upon in the previous application.
The first additional circumstance concerns the effect of the applicant’s ongoing incarceration on his mental state. The second additional circumstance concerns the stringent conditions imposed on the applicant, and their effect on his trial preparation, resulting from the current COVID-19 pandemic.
In respect of the first such consideration, the applicant was assessed by a forensic psychologist, Dr Matthew Barth, at the Acacia Unit at Barwon Prison on 18 May 2021, and subsequently by audio visual link on 15 July 2021. A copy of Dr Barth’s report is an exhibit to the affidavit of the applicant’s solicitor, and Dr Barth gave evidence on the hearing of the bail application.
In his report, Dr Barth noted that the applicant had previously sought assistance from a psychiatric nurse while in prison, and over the period of the last six or seven years he had received ongoing treatment by Dr Kyla Jonkers, a forensic psychologist. The applicant told Dr Barth that despite that assistance, his depressive and anxiety related symptoms had continued to intensify in recent months.
Having interviewed the applicant and administered a number of tests to him, Dr Barth noted that the most salient features of the applicant’s mental state are persecutory thoughts which focus predominantly on the applicant’s belief that he has been unfairly targeted due to findings by the IBAC investigation into his conviction. Those thoughts have contributed to feelings of irritability and agitation which, according to Dr Barth, have culminated in depressive and anxiety related symptoms. Dr Barth formed the view that the applicant’s symptoms continue to impact his emotional well-being in the lead up to his retrial. He expressed the opinion that the applicant satisfies DSM-5 diagnostic criteria for an ‘Adjustment Disorder — with Mixed Anxiety and Depressed Mood’. He considered that the applicant’s cognitive function continues to be impacted by a narrative which focuses on persecutory thoughts in relation to his legal issues. Nevertheless, the applicant was lucid throughout the interviews and he was appropriately oriented. While he experienced some concentration issues, that appeared to be due to mental clouding associated with his emotional distress. Dr Barth concluded that the applicant required ongoing treatment for his depressive and anxiety related symptoms in the lead up to his retrial.
Dr Barth gave evidence on the hearing of the bail application. He stated that while it would appear that the applicant has had substantial psychological support while in custody, it was necessary that there be a structured treatment plan to address his underlying psychological condition. Dr Barth had attempted to speak with Dr Jonkers, but she had indicated that she was not permitted to communicate with him. He expressed the view that if the applicant were on bail in the community, he would be able to consult with the psychologist of his choosing, and he would have better access to that treatment than is currently available to him in prison. In addition, Dr Barth considered that, if the applicant were on bail, the family support that would be available to him would be a critical component of his treatment. Dr Barth noted that due to the regime of restrictions necessitated by the current COVID-19 pandemic, the applicant’s family have not been permitted to visit him. The applicant has found that very difficult. Although the applicant has been able to communicate with his family through video link and in telephone calls, that is not as supportive as if he were able to speak directly with them.
In cross-examination, Dr Barth confirmed the view expressed in his report, namely, that the most salient feature of the applicant’s mental state are his persecutory thoughts. Dr Barth agreed that it is those thoughts that have culminated in the applicant’s symptoms of depression and anxiety. Dr Barth agreed that the underlying cause of the applicant’s condition is his focus on the complex legal matters and his persecutory thoughts in relation to them.
Dr Barth further accepted that it is quite common for persons involved in the prison system to suffer from adjustment disorders. He said that the incidence of adjustment disorders are more prevalent in the prison population than in the general population. Dr Barth further accepted that, as the principal stressor affecting the applicant is his impending criminal trial, he would require psychological support whether he was in custody or on bail. Dr Barth stated that the applicant had told him that he had a good rapport with Dr Jonkers, whom he has consulted during the last six or seven years. Dr Barth considered that it would be very useful for the applicant to be able to continue treatment with such a person with whom he has had a long-standing established rapport. He noted that Dr Jonkers is presently having telephone communication with the applicant on a monthly basis, which Dr Barth regarded as being inadequate. He expressed the view that, until the completion of his trial, the applicant should have weekly access to Dr Jonkers. He also considered it is important that the applicant be able to retain his relationship with Dr Jonkers, with whom he had such a good rapport.
Dr Barth stated that it is possible to deliver by a remote facility, such as Zoom or WebEx, the three therapeutic treatments that he recommended the applicant receive, namely, cognitive-behavioural therapy, mindfulness-based therapy, and acceptance and commitment therapy. Dr Barth concluded by reiterating that the applicant’s mental health problems are most significantly a function of his ongoing legal issues. That is, it is the legal issues, rather than the fact that the applicant was in custody, that are impacting the applicant’s mental health. However, Dr Barth considered that the applicant’s psychological issues could be addressed more effectively if he were in the community rather than in prison.
The second circumstance, relied on in the applicant’s solicitor’s affidavit, arises from the current COVID-19 pandemic. As the applicant’s solicitor has noted, since the date of the previous bail application, the COVID-19 situation has deteriorated in Victoria due to the spread of the Delta variant of the virus in the community. As at the present date, Victoria is in a ‘hard lockdown’. The solicitor anticipates that those conditions will continue in Victoria for the foreseeable future, including up to February 2022 when it is anticipated that the retrial will commence.
In her affidavit, the applicant’s solicitor set out a number of consequences for the applicant arising out of the present situation. First, while counsel have previously attended Barwon Prison on multiple occasions in order to confer with the applicant, that has not been possible since the lockdown. In those circumstances, the obtaining of proper instructions in the case has proven particularly problematic over video link. Secondly, due to the lockdown, the applicant will not be able to be moved to the Metropolitan Assessment Prison, where he ordinarily would be held in custody during the trial. As a consequence, on each day of the trial, he will need to travel some three hours each day which will be particularly onerous considering the anticipated length of the trial. Thirdly, any prisoner who attends court must be subjected to quarantine conditions on their return to prison. While the applicant will be in quarantine, he will not be permitted to be out of his cell for the purpose of legal visits, or to have a ‘run out’ time that he currently is entitled to for three hours per day. Thus, he would be confined to his cell for the duration of the trial.
Finally, the applicant corresponds with his legal representatives by mail. In recent times, due to the pandemic, the delivery of mail has slowed which will further impact on his capacity to instruct his legal advisers in preparation for the trial.
In response, in the present application, the prosecution has filed three further affidavits, and has relied on the contents of affidavits that were before the Court on the previous application.
Relevantly, the applicant is presently accommodated in the Acacia High Security Unit of Barwon Prison. The cells in that unit are larger than in the prison system standard cells, and the applicant’s cell has a small airing exercise yard at the rear of it which is open for his use. He has up to four hours out of cell exercise each day in a large exercise yard and is entitled to make telephone calls. In addition, he has an in-cell computer for his use.
Since March 2020 and until further notice, all prisoners coming into the Victorian prison system are required to spend fourteen days in a protective quarantine unit, regardless of their screening risk. From August 2020, all new prisoners have been swabbed for COVID-19 on reception and on day eleven. Transfer quarantine arrangements have been established to move prisoners between regional and metropolitan correctional centres. Those arrangements also have been applied to any prisoner returning from an in-court appearance anywhere in Victoria.
Since January 2021, the applicant has had five contact visits and 56 Zoom calls. He also has had contact visits and Zoom calls with his legal practitioners. However currently, due to the COVID-19 pandemic, professional visits are generally via remote facility, although box visits can be facilitated if a face to face meeting is essential. The applicant continues to receive his usual telephone access in the Acacia Unit. Since 1 March 2021, he has made 960 private telephone calls and 293 professional calls with his legal representatives.
In April 2021, the applicant attended his monthly review meeting with the Major Offenders Unit Panel. At that time, there was discussion as to the placement of the applicant in a prison closer to court during the trial, but that consideration was deferred until a time closer to the trial date.
In July 2021, the applicant attended a further monthly review meeting with the Major Offenders Unit Panel to discuss possible interim placement options during his trial. Three different placement options were discussed with him, all of which were closer to Melbourne than Barwon Prison. One of the prison units offered to the applicant is a normal sized cell with an attached small courtyard to it via a back door which is opened by prison officers. The other two options do not have outside courtyards, but one offered more time out of cell. It was again determined that the applicant would stay in the Acacia Unit at Barwon and attend court hearings from there, and review his options when the trial is closer and the applicable COVID-19 pandemic restrictions are known.
Since at least June 2019, the applicant has been attending sessions with the Major Offenders Unit Psychological counselling team as well as with a Catholic chaplain. The Major Offenders Unit panel noted that, in a number of meetings it had with the applicant since that time, no medical or mental health alerts were recorded. Recently, the forensic psychologist attached to the Major Offenders Unit (Dr Jonkers) has been on family leave. A special arrangement has been made by which Dr Jonkers has been able to continue to confer with the applicant by telephone approximately once per month. Dr Jonkers is apparently focusing on the applicant’s emotional regulation and management of his stress. In her more recent affidavit, Ms Jennifer Hosking, the Acting Deputy Commissioner, Custodial Operations, Corrections Victoria, has stated that the notes made by Dr Jonkers are not accessible at present because they are held in a building that is being used as a vaccination site, and also because they would need to be interpreted or explained by the treating psychologist.
New facts and circumstances
Section 18(1) of the Bail Act provides that an accused person, who has been refused bail and is in custody pending the hearing or trial of the charge, may make a further application for bail. That right is qualified by s 18AA(1) of the Act, which provides that a court must not hear an application under s 18 unless (inter alia) the applicant satisfies the Court that ‘new facts or circumstances’ have arisen since the previous refusal or revocation of bail.
In Mokbel v Director of Public Prosecutions,[21] Kellam J described the approach which the Court should take such an application in terms which have been consistently applied in subsequent decisions. His Honour stated:
The applicant must satisfy the Court that new facts or circumstances have arisen since the making of the previous order before the court may proceed to hear the application. In my view the new facts or circumstances must be of such a nature that they are relevant to bail and justify a conclusion by the Court that reconsideration of the refusal of bail is required.
Clearly not every new fact or change of circumstance will fall into this category.[22]
[21][2002] VSC 127.
[22]Ibid [39]–[40].
In response to the present application, the respondent accepts that some of the matters, now relied on by the applicant, constitute new facts and circumstances. However, it is submitted, those facts and circumstances do not justify a conclusion that reconsideration of the previous refusal of bail is required. In that respect, senior counsel for the respondent has noted that in the previous application for bail, the applicant relied on a number of factors upon which he relies in the present application. They include: the applicant’s vulnerability in custody due to the length of time he has spent in custody; his age when first incarcerated; the onerous conditions of maximum security; the stress of the protracted legal proceedings; the restrictions in custody resulting from the COVID-19 pandemic and the significant stress attendant to the forthcoming retrial; the likely delay until the retrial; the difficulty in preparing for the retrial while in custody; the availability of family and other supports in the community; and the availability of a substantial surety.
In Beljajev v Director of Public Prosecutions,[23] the Full Court (consisting of Young CJ, Crockett and Ashley JJ) explained the underlying principles, that inform the approach by the courts to a further application for bail, in the following terms:
In Victoria, at least in some circumstances, the right to make a fresh application for bail where an earlier application has been refused is now made dependent upon the existence of legal representation where there was none previously, or upon the existence of new facts or circumstances … The right of an accused to make a fresh application for bail where an application has previously been refused underlines the fact that an accused person deprived of his liberty prior to trial stands in a situation which is subject to constant variation, where factors which may tend in favour of a grant of bail may at a particular stage become predominant, whereas at another, earlier time they were not; or where new factors may emerge and tip the balance in favour of a grant of bail.[24]
[23](Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991).
[24]Ibid 9–10.
Based on that underlying principle, in Director of Public Prosecutions (Cth) v Barbaro,[25] J Forrest J stated:
The words used demonstrate a clear intention to encompass a broad range of matters which may be considered under this rubric. The legislature was, I think, endeavouring to preclude a party from raising a point which had been raised at the previous hearing, but no more than that. If a particular matter had been considered previously by a Court and bail refused, then that would not constitute a new fact or circumstance. On the other hand, if there was no consideration of the issue on the previous application, it was to be regarded as a new circumstance or, depending upon its nature, a new fact. This approach is consistent with the fundamental right of a defendant to be at liberty and the right to be granted bail provided the provisions of the Bail Act are satisfied.
Significantly, the legislature did not impose any prescription upon whether the facts or circumstances were known to the applicant at the time that bail was refused. Nor did it attach any condition in relation to reasonable inquiries being made to ascertain such facts or circumstances. Rather, it elected to enact a broad concept, presumably taking into account the fact that the subject matter was the liberty of the subject.[26]
[25][2009] VSC 27 (‘Barbaro’).
[26]Ibid [26]–[27] (citation omitted). See also Re Application for bail by Tyler Foxwell (No 2) [2014] VSC 145, [13] (Dixon J).
As I have noted, in effect, the applicant relies on two matters as constituting new facts and circumstances to justify a reconsideration of his entitlement to bail pending the hearing of the charges. Those matters are, first, the effect of the applicant’s ongoing incarceration on his mental state, and, secondly, the circumstance that since the date of the previous bail application, the COVID-19 pandemic, and its effects, have become more serious due to the spread of the Delta variant of that virus in Victoria.
In respect of the first matter, as counsel for the respondent has noted, in the previous application, material relied on by the applicant did refer to the psychological stress and hardship endured by the applicant arising out of his continued incarceration. In particular, the applicant’s solicitor, in his affidavit in support of that application, noted that the Court of Appeal, in its decision quashing the applicant’s convictions, recognised that the applicant had suffered ‘considerable personal hardship’ arising from the length of his time in custody, and the fact that he was only 19 years of age when he was imprisoned.[27] The solicitor also referred to the observation by the Court that the retrial of the applicant would cause the applicant to remain under significant stress.[28]
[27]Roberts v The Queen [2020] VSCA 277, [280] (T Forrest and Osborn JJA and Taylor AJA).
[28]Ibid.
It may be accepted that, in the previous application, the applicant did rely on some material indicating that he had suffered stress as a result of the matters referred to. Nevertheless, at the forefront of that application, was the circumstance that the applicant had been incarcerated for a period of twenty years as a result of convictions that were subsequently determined to constitute a miscarriage of justice. That circumstance, and the anticipated delay to the retrial of the charges against the applicant, were the principal factors previously relied on in support of the applicant’s contention that he had established the requisite exceptional circumstances justifying his release on bail.
At the time of the previous application, the applicant had been undergoing some psychological treatment while in custody for some time. Nevertheless, the Court did not have before it any evidence that the applicant suffers from an established psychological disorder, or as to the nature or severity of that disorder. Dr Barth did not examine the applicant until May this year. In that respect, the diagnosis by Dr Barth, of the applicant’s mental state, and of the factors contributing to it, do constitute new facts and circumstances in the manner discussed by J Forrest J in Barbaro. In my view, of themselves, those facts and circumstances are of sufficient moment to justify a reconsideration of the applicant’s entitlement to bail.
In addition, since the date of the previous bail application in November 2020, the COVID-19 pandemic, and its effects in Victoria, has become significantly more serious. At the time of the previous application, Victoria had, effectively, emerged from a lengthy period of ‘lockdown’ due to the spread of the virus throughout the Victorian community. While a number of precautions were still required to be followed, the applicant’s legal representatives were able to visit him in prison and confer with him face to face. Since then, the spread of the Delta variant of the virus has led to the imposition of particularly stringent public precautions against the condition. At the present time, Victoria has been in another ‘hard lockdown’, which was instituted in early August. As a consequence, it has not been possible for the applicant’s legal advisers to confer with him in the prison. It has been necessary for the practitioners to obtain instructions from him and confer with him over video link. In addition, due to the more serious nature of the present variant of the virus, further stringent precautions have been applied in prisons to protect prisoners from the risk of infection by it. In the particular circumstances of this case, I am persuaded that that factor is an additional new fact or circumstance that warrants a further consideration of the applicant’s right to bail.
For those reasons, I am persuaded that the applicant has established the existence of new facts and circumstances to justify a reconsideration of the previous refusal of bail.
Exceptional circumstances — submissions
Senior counsel for the applicant relied on a combination of factors which, he contended, constituted exceptional circumstances which would justify the grant of bail to the applicant.
In summary, they were as follows. The first, based on the evidence of Dr Barth, counsel submitted that the applicant would receive better treatment for his mental health issues if he were on bail. In particular, he would be able to consult a psychologist of his choice, and he would have regular direct contact with members of his family. Secondly, it was submitted, the continued incarceration of the applicant adversely affected his ability to prepare for trial. The applicant is fully conversant with the detail of his legal proceedings and the history of them. There is a considerable amount of material which needs to be considered by the applicant and his legal advisers. If the applicant were released on bail, his legal representatives would have better access to him and would be able to confer with him more readily and more effectively. At present, the applicant has not attended pre-trial hearings, but has viewed them remotely, in order to avoid the necessity of being placed in quarantine should he attend court. In October, it is intended that the more complex pre-trial issues be agitated and determined. The applicant would prefer to be present during those hearings, and, it was submitted, his presence at them might assist in the presentation of submissions on his behalf.
Counsel next noted that, when the trial commences, the applicant will be required to be subject to quarantine procedures which have been in place in the prison system since August 2020 for any prisoner who has attended court. While the applicant is in quarantine, he will not be permitted to receive visits from his legal practitioners. Nor would he be permitted to enjoy ‘run outs’ in the prison system. Thus, for the duration of the trial he will be confined to his cell and deprived of the ability to have visits from his legal representatives and from members of his family.
The next factor relied on by counsel is that of delay. He submitted that that is a highly relevant factor in the circumstances of the case. Counsel noted that in the previous bail application, the Court of Appeal focused solely on the period of delay between the date on which the applicant’s conviction was quashed in November 2020, and the anticipated date of the retrial. Counsel submitted that that approach failed to take into account the period in which the applicant was originally on remand between 15 August 2000 (when he was arrested) and the empanelment of the jury in his first trial (on 14 August 2002). In those circumstances, in view of the fact that the trial is not expected to commence until February 2022, the total period of delay would be some three years which, counsel submitted, is quite exceptional. Counsel further submitted that that delay must be viewed in the context in which the applicant spent more than seventeen years in prison based on his conviction which was secured in circumstances that amounted to a substantial miscarriage of justice.
Finally, counsel noted that the prosecution does not allege in this case that if the applicant were released on bail there would be an unacceptable risk that he would not attend his trial, that he would offend while on bail, or that he would interfere with other witnesses. Counsel submitted that that factor is a relevant consideration in determining whether exceptional circumstances exist which justify the release of the applicant on bail.
In response, senior counsel for the respondent commenced by submitting that it is not possible to foretell or anticipate what restrictions will be in place on the movement of prisoners at the anticipated time of the trial in February next year. Counsel submitted that, particularly in view of the present focus on vaccinating the Victorian population, it would be a matter of speculation whether the applicant would be required to be held in quarantine circumstances during his trial. Counsel further submitted that the present placement of the applicant, in the Acacia Unit of Barwon Prison, is a function of the applicant’s choice. He has been offered other placements, but he has chosen, for his own reasons, to remain in that unit. Counsel further noted that the Corrections personnel are continuing to explore further options with the applicant as to an alternative placement during his trial.
Counsel for the respondent further noted that the evidence of Dr Barth is that the applicant’s current condition is primarily a function of his legal issues. While those issues might be able to be better addressed if he were on bail, nevertheless there is no evidence that incarceration itself is causing or exacerbating the applicant’s condition. Counsel further noted the evidence of Dr Barth that it is not uncommon for persons in custody to suffer from adjustment disorders. Thus, he submitted, the applicant’s mental health condition should not be regarded as an exceptional circumstance. Counsel further noted the evidence of Dr Barth that the applicant’s condition is prone to fluctuate during his period of imprisonment.
Counsel for the respondent further noted that if the applicant were released on bail, he would also have limited direct access to his legal practitioners, because of the current restrictions which would preclude such communication with them. Thus, it was submitted, if the applicant remained in prison, he would have the same capacity to confer with his legal representatives that he would have if he were released on bail.
Finally, counsel submitted that the Court of Appeal, in the previous bail application, noted that while the applicant’s past periods of incarceration were relevant, nevertheless the focus of a bail application is on the likely consequences of the applicant’s continued incarceration. Thus, it was submitted, while the applicant’s previous period on remand (between 2000 and 2002) is relevant, and the period in which he was undergoing the sentence which had been later overturned, is relevant, nevertheless the principal question concerns the anticipated period of delay until his retrial. In that respect, counsel noted that it is anticipated that the retrial will commence in February next year.
In those circumstances, it was submitted that the applicant has failed to establish exceptional circumstances that justify his release on bail.
Exceptional circumstances — legal principles
Section 18AB of the Act provides that the present application for bail must be conducted as a fresh hearing and determined in accordance with s 4 of the Act. As the applicant is charged with murder, I am obliged to refuse the application for bail unless I am satisfied that ‘exceptional circumstances exist to justify the grant of bail’.[29] As with the previous application made by the applicant, the respondent does not submit that the applicant is an unacceptable risk for the purposes of section 4D of the Bail Act.
[29]Bail Act 1977 s 4A(1A).
The meaning of the term ‘exceptional circumstances’ has been considered in a number of decisions of this Court. In essence, in order to satisfy that requirement, the circumstances relied on by the applicant must be such as to take the case out of the ordinary. That is, the circumstances must be exceptional to the ordinary circumstances which would otherwise entitle an applicant’s bail. It is accepted that exceptional circumstances may be established by a combination of circumstances which, individually, might not be considered exceptional.[30]
[30]DPP v Muhaidat [2004] VSC 17, [13] (Kaye J); Re Brown [2019] VSC 751, [65]–[66] (Lasry J); Re Tong [2020] VSC 141, [18] (Tinney J).
As in the previous application, in the present application it is not in issue that the collection of circumstances that are relied by the applicant might be appropriately characterised as ‘exceptional’. The critical question, in terms of s 4A(1A) of the Act, is whether those exceptional circumstances ‘justify the grant of bail’ in the present case. In that respect, in its recent decision, the Court of Appeal has made it clear that the informing principle is whether the continued incarceration before trial would be productive of an injustice. As the Court stated, past events may be relevant to that question, but ‘what justifies bail is the need to prevent or mitigate future injustice’.[31] In determining whether the applicant has established the requisite exceptional circumstances that justify the grant of bail, it is necessary to take into account all the relevant circumstances including those specified in s 3AAA(1) of the Act.
[31]Roberts v The Queen [2021] VSCA 28, [10] (Maxwell P, Niall and Emerton JJ).
Whether exceptional circumstances established
I turn, then, to each of the factors relied on in the present application as constituting such exceptional circumstances.
The first, and primary consideration, concerns the evidence relating to the applicant’s mental health. In assessing the relevance and significance of that factor, it is necessary to consider the nature and severity of the applicant’s current mental condition, the cause of it, and the extent to which his ongoing incarceration might affect it.
The evidence of Dr Barth makes it clear that the applicant’s current psychological condition is very much the product of persecutory thoughts held by him arising from the circumstances in which he has been detained during the last two decades, and, in particular, from his belief that he has been unfairly targeted due to the findings of the IBAC investigation. As Dr Barth stated, the applicant’s cognitive function continues to be impacted ‘… by a narrative which focuses on persecutory thoughts in relation to his legal issues’. In cross-examination, Dr Barth confirmed that the applicant’s persecutory thoughts are the most salient features of his mental state, and it is those thoughts that have significantly contributed to his depressive and anxiety related symptoms. While the applicant’s ongoing incarceration has played a role in the development of those thoughts, and in aggravating his feelings of anxiety and depression, nevertheless it is significant that the principal factor, affecting his mental state, is his focus on his legal issues and in particular his persistent persecutory ideation arising from them.
It is also relevant that while Dr Barth expressed the view that the applicant’s current cognitive function continues to be impacted by his focus on persecutory thoughts in relation to his legal issues, Dr Barth concluded:
Nevertheless, he was lucid throughout the interviews and was oriented to time, person and place. While [the applicant] is experiencing some concentration issues, this appears to be due to the ‘mental clouding’ associated with his emotional distress. He is not psychotic; his reality testing is intact. [The applicant’s] intelligence is estimated to fall in the normal range.
Thus, the applicant’s ongoing incarceration is not a primary or significant factor causing or aggravating his psychological condition. Further, while his condition requires ongoing attention, it is not suggested that it is in a severe state, or that it is materially affecting his capacity to prepare for the trial.
As Dr Barth noted, the applicant’s ongoing incarceration does affect his psychological state in two important respects. First, if the applicant were released on bail, he would be able to live, and interact on a personal basis, with close members of his family with whom he has remained in constant contact throughout his long years in prison. Dr Barth expressed the view that that kind of support is very important in view of the applicant’s mental health condition, and that it would constitute ‘the best optimal environment’ in which to address the issues that are mediating it.
The applicant has been, and is, able to have continual contact with members of his family, but since the onset of the current pandemic, that contact has been confined to telephone calls and some Zoom interaction. I accept that such contact is substantially less beneficial to the applicant than if he were able to live and interact with his close family members.
The second aspect of the applicant’s ongoing incarceration, which, according to Dr Barth, might affect his ongoing psychological state, concerns his access to appropriate and sufficient psychological therapy. In particular, Dr Barth considered that if the applicant were released on bail, he would be able to have access to treatment from a practitioner of his choice, and that he would have more direct and more frequent access to treatment from that practitioner.
On the other hand, as Dr Barth acknowledged, the applicant told him that he had a ‘really good rapport’ with Dr Jonkers, who he had consulted during the last six or seven years. Dr Barth considered that the treatment, that was being provided by Dr Jonkers, which focused on the applicant’s emotional regulation and stress management, was appropriate. His only concern was that that treatment was being confined to telephone calls on a once per month basis. He considered that in order that the treatment provided by Dr Jonkers be sufficient, it should be provided on a weekly basis.
It would seem that Dr Barth did not consider that, in order that the treatment be provided effectively, it must involve person to person contact between the psychologist and the applicant. He accepted that the treatments that he had recommended in his report — cognitive-behavioural therapy, mindfulness-based therapy, and acceptance and commitment therapy — can be effectively delivered by a remote facility such as Zoom or WebEx. He also understood that those facilities were available to the applicant. Again, his concern related to the frequency with which the treatment was being provided to the applicant, rather than with the medium through which it was being delivered.
In summary, then, the principal factors driving the applicant’s current mental condition are the persecutory thoughts that he has in relation to his legal issues and his intent focus on them. Dr Barth did not suggest that the ongoing incarceration of the applicant itself is a significant contributing factor of the condition. Further, Dr Barth did not suggest that appropriate treatment could not be delivered to the applicant while he remained in custody. It is clear that at present the frequency with which the treatment is being provided to the applicant is inadequate. While that is a consideration that is particularly relevant to the question of whether the applicant established the requisite exceptional circumstances, nevertheless it is a consideration which ought to be able to be addressed and properly rectified by the Corrections authorities. In the present circumstances, they have a particular obligation to ensure that the applicant is provided with all necessary psychological and therapeutic treatment that will address his underlying condition.
The second factor, relied on by the applicant as an exceptional circumstance, is that his continued incarceration will adversely affect his ability to prepare for the trial. In particular, due to the current pandemic, the applicant’s legal practitioners have not been able to confer with him directly in prison, but have been confined to contacts with him either on the telephone or by remote facility. As counsel for the applicant submitted, the applicant has been deeply immersed in the detail of the legal proceedings, and he has an intricate knowledge of the voluminous documentation and materials that are relevant to the proceeding.
I accept that, in those circumstances, counsel would be able to more effectively and more readily confer with the applicant if they were able to visit him in prison and speak directly with him. While members of the legal profession have become more adept in the use of remote forms of communication, nevertheless, in a case such as this, that medium could not be as effective or efficient for the applicant’s legal practitioners than if they were able to confer with him in person. On the other hand, it is relevant that, at least at present, if the applicant were released on bail, the current restrictions imposed by the health authorities in Victoria would preclude the applicant being able to have personal contact with his legal representatives.
Due to the current restrictions, the applicant has not attended recent pre-trial hearings conducted in the proceeding. Instead, he has participated in them remotely. I accept that it would be desirable and more efficient if the applicant were able to attend the court during the consideration of pre-trial issues that are to be heard and determined next month. Those issues will centre, predominantly, on the admissibility of a voluminous amount of listening device and telephone intercept material. I would anticipate that the capacity of the applicant’s practitioners to be able to directly confer with him during those pre-trial hearings would assist in the presentation of submissions on his behalf in respect of them.
It is a matter of concern that if the applicant were not granted bail, it is anticipated that, during the trial, he would be subject to stringent quarantine procedures in place in the prison system for the duration of the trial. It is understandable that the Corrections authorities would implement those procedures, in order to protect both the applicant and others in the prison system from infection from the COVID-19 virus. Nevertheless, if the applicant were to remain subject to those conditions for the duration of the trial, it would have the effect that he would be confined, substantially, to his cell for a protracted period. In addition, it would also have the effect that the applicant’s counsel would not be able to confer directly with him on weekend visits during the trial. Further, if the question of the applicant’s alternative accommodation during the trial is not able to be resolved, he is likely to spend long hours each day travelling to and from court.
In assessing this factor, it is necessary to take into account that the trial will not commence for a further five months. As counsel for the respondent has submitted, at this point it is still a matter of some speculation as to the nature and extent of the restrictions which might be imposed on the applicant during the trial. Nevertheless, since the first stages of the current pandemic in early 2020, Corrections Victoria have maintained a particularly stringent approach to enforcing restrictions in respect of our prison system. That approach has been successful in ensuring that the pandemic has not become widespread throughout the prison population. In those circumstances, it is appropriate to act on the basis that, if the applicant remained in custody for the duration of his trial, he is likely to be subject to quite stringent restrictions while he is in custody arising from his attendance in court. In that respect, I would accept that those restrictions would place a material burden on his psychological well-being, and they would also affect his capacity to confer more efficiently with his legal practitioners for the duration of the trial.
The period of delay until the trial is another relevant factor in the present application. If the trial is able to proceed in February 2022, the applicant would by then have been held on remand for a period of some fifteen months since the quashing of his conviction in November 2020. In considering that period of delay, it is relevant to take into account that the applicant had originally been held on remand between 15 August 2000 (when he was arrested) and the empanelment of the jury in his first trial (on 14 August 2002). It is also appropriate to consider the length of the delay in the context in which the applicant was held in prison for some seventeen years based on convictions which, the Court of Appeal held, were the result of a substantial miscarriage of justice.
Those past periods of custody are, as I have stated, relevant. However, in determining the weight to be attributed to them, it is necessary to take into account the admonition by the Court of Appeal that ‘what justifies bail is the need to prevent or mitigate future injustice’.[32] Thus, the previous periods on which the applicant has been on remand, or held in jail, are a relevant context to the present period on remand. Nevertheless, provided that all pre-trial issues have been completed, and that the current pandemic does not provide any relevant obstacle, it is anticipated that the trial will commence in February 2022. It is that period of delay which, principally, is relevant to the assessment of the question of whether the applicant has established the requisite exceptional circumstances.
[32]Ibid.
In the present application, the respondent has not contended that if the applicant were released on bail, he would fail to surrender into custody in accordance with the conditions of the bail, interfere with a witness or obstruct the course of justice, commit an offence, or endanger the safety or welfare of any member of the public. It may fairly be observed that it is quite unusual, in a case in which an applicant is required to establish exceptional circumstances, for the respondent not to contend that the applicant is an unacceptable risk on one or more of those bases. Such a consideration is recognised as relevant in determining whether the applicant has established the requisite exceptional circumstances justifying his release on bail.[33]
[33]Re Gloury-Hyde [2018] VSC 393, [30] (Priest JA); Re Hooper (No 2) [2021] VSC 476, [59] (Tinney J)
In summary, then, the evidence establishes that the applicant does suffer from a recognised psychological condition. However, that condition is not directly the result of his incarceration, but, rather, is a consequence of his focus on his legal issues, and the persecutory complex that he has developed arising from the circumstances of the last twenty years. While he might have better access to treatment for the condition if he were not in custody, nevertheless Dr Barth has accepted that the treatment that is provided by Dr Jonkers is appropriate. It is a matter of concern that the treatment is not available on a sufficiently frequent basis. I would expect that, if the applicant were to remain in custody, based on the evidence of Dr Barth, Corrections Victoria would ensure that the treatment provided by Dr Jonkers is available on a more regular basis, and preferably weekly.
It is also evident that if the applicant were to remain in custody, his legal practitioners would not be able to visit him or confer with him directly. On the other hand, in the present circumstances, if the applicant were released on bail, the current restrictions would preclude counsel from having direct access to him in any event. It may be accepted that the preparation for the applicant’s trial would not be as efficiently undertaken while he is in custody than if he were on bail. It is also apparent that if the applicant were to remain in custody for the duration of the trial, he may be subject to quite stringent quarantine procedures. In addition, the applicant will, by the date of trial, have been held on remand for a total period of more than three years, in circumstances in which he also had been in prison for a period of approximately seventeen years as a consequence of a trial that was a substantial miscarriage of justice. Nevertheless, it is anticipated that the trial will commence in some five months. As Beach JA noted in the first bail application, such a delay is ‘far from exceptional in a matter of this kind’.[34]
[34]Re Roberts [2020] VSC 793, [21].
In determining whether that combination of circumstances constitutes exceptional circumstances justifying the applicant’s release on bail, it is necessary to take into account the seriousness of the charges which the applicant faces. As Beach JA stated:
… the charges of murder in the present case are, in my view, about as serious as can reasonably be contemplated. The deliberate killing of a police officer, in the course of his or her duties, is an appalling crime deserving of the sternest punishment.[35]
[35]Ibid [18] (citation omitted).
Another relevant factor, specified by s 3AAA, is the strength of the prosecution case. Any assessment of the strength of the prosecution case is, of necessity, somewhat preliminary. The Court of Appeal, in quashing the applicant’s convictions, considered that the prosecution case as a whole is ‘powerful,’ but that conviction is not inevitable.[36] Further, it is relevant to take into account that if the applicant were found guilty of the two charges of murder, there is no prospect that he would receive a sentence that is less than the time he would have spent in custody if bail were refused.
[36]Roberts v The Queen [2020] VSCA 277, [169] (T Forrest and Osborn JJA and Taylor AJA).
The question whether, in those circumstances, the applicant has established exceptional circumstances justifying his release on bail, is not straightforward. In determining that question, I am particularly concerned by the evidence of Dr Barth that the treatment, currently being provided to the applicant for his psychological condition, is inadequate. I have also been concerned with the prospect that, for the duration of the trial, the applicant may be confined in circumstances which would be particularly oppressive. Nevertheless, and giving those factors, and the other factors to which I have referred, full weight, the fact remains that the applicant is facing most serious criminal charges in respect of which the prosecution case is particularly strong. Taking those matters into account, and bearing in mind that it is anticipated that the trial of the proceeding will commence in February next year, I am not persuaded, on balance, that the applicant has established exceptional circumstances that would justify his release on bail.
It follows that the application by the applicant for bail must be refused.
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