Director of Public Prosecutions v Toohey, Fairest and Fields (Ruling No 2 - Liability for supervision and extension of bail)
[2016] VSC 827
•4 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0121; 0119; 0120
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WARWICK TOOHEY, JAKE FAIREST & GEORGIA FIELDS |
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JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 29 September - 28 October, 31 October & 4 November 2016 |
DATE OF RULING: | 4 November 2016 |
CASE MAY BE CITED AS: | DPP v Toohey, Fairest and Fields (Ruling No 2 – Liability for supervision and extension of bail) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 827 |
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CRIMINAL LAW – Special Hearing – Found to have committed the offence of murder – Declared liable to supervision under s 18(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) – Bail considered under s 19(1)(a) of the Act – Bail granted for Mr Fairest and Ms Fields – Mr Toohey remanded in custody in a prison.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Dane QC with Ms K Argiropoulos | Office of Public Prosecutions |
| For Warwick Toohey | Mr T Alexander | Paul Vale Criminal Law |
| For Jake Fairest | Mr D Gibson | Victoria Legal Aid |
| For Georgia Fields | Mr P Kilduff | Stary Norton Halphen Criminal Lawyers |
HER HONOUR:
On 28 October 2016, Warwick Toohey, Jake Fairest and Georgia Fields were each found by a jury at a special hearing to have committed murder.
I declared each of them liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’). I granted bail to Mr Fairest and Ms Fields and remanded Mr Toohey in custody in prison pending the making of the supervision orders. My reasons are as follows.
On 15 February 2015, the three accused were arrested and charged with the murder of Robert Wright. Although each of them was initially remanded in custody, Mr Fairest and Ms Fields were subsequently granted bail and remained on bail throughout the special hearing. Mr Toohey has remained in custody in prison since his arrest.
On 1 July 2016, following an investigation under Part 2 of the Act into the three accused’s fitness to stand trial, Croucher J directed that the criminal proceedings brought on indictment against the accused were to proceed as a special hearing under Part 3 of the Act within three months. His Honour’s reasons are contained in R v Fairest, Fields & Toohey (Rulings – Fitness to be tried).[1]
[1][2016] VSC 329, [1]-[6].
The special hearing took place before me. On 28 October 2016 a jury brought in their findings that each of the three accused had committed the offence of murder.
In response to these findings, I decided pursuant to s 18(4) of the Act[2] to declare each of the three accused liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’), pursuant to s 18(4)(a).
[2]Section 18(4) of the CMI Act reads as follow:
If a jury makes a finding under section 17(1)(c), the judge must—
(a) declare that the person is liable to supervision under Part 5; or
(b) order the person to be released unconditionally.
I must now consider the further requirements of the Act.
Although each of the three accused were initially remanded in custody, Mr Toohey has remained in prison, whereas Mr Fairest and Ms Fields were subsequently granted bail. They have been on bail throughout the special hearing. I extended bail over the period between the jury's finding on 28 October 2016 until Monday, 31 October 2016 to give the parties an opportunity to provide the Court with information and evidence relevant to the questions currently before me.
I will deal with the individual circumstances of each of the three accused later in these reasons.
The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 was introduced into parliament in 1997 with the purpose of repealing the regime under which people were committed to be detained in custody at the Governor's pleasure.[3] It created new procedures for dealing with people found unfit to stand trial or not guilty on the ground of mental impairment.[4] The defence of insanity was replaced with a defence of mental impairment, and the requirements of that defence were codified in the Act.[5]
[3]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997 (Jan Wade, Attorney-General).
[4]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 1. (‘CMI Act’)
[5]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, 187.
One of the purposes of the legislation was to provide a process for persons found unfit to be tried to be able to test the prosecution case.[6] The special hearing procedure enables this to occur, giving persons who are found unfit to be tried an opportunity to be acquitted of the alleged crime, or to be found not guilty on the grounds of mental impairment. In the event that the special hearing establishes that the charged offence has been committed, the Court is obliged to either declare the person liable to supervision under Part 5 of the Act or release the person unconditionally.[7]
[6]Ibid, 185.
[7]CMI Act, s 18(4).
A finding that the accused committed the offence charged or an offence available as an alternative under s 17(1)(c) of the Act constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates.[8]
[8]CMI Act, s 18(3)(a).
Having declared each of the three accused liable to supervision under s 18(4) of the Act I will ultimately be obliged to make a supervision order for each of them under s 26 of the Act.
The Court is imbued with a discretion as to whether the supervision order to be imposed is a custodial supervision order (‘CSO’) or a non–custodial supervision order (‘NCSO’).[9]
[9]CMI Act, s 26(2).
That decision will be made once all the requirements of the Act are met, including the provision of reports under s 41 of the Act and certificates of available services under s 47 of the Act. I have called for reports under s 41 and certificates of available services under s 47 of the Act in respect of each of them.
Reports from members of the family of the offender and the family of victims of the offence may also be furnished pursuant to s 42 of the Act to assist the court in considering any conditions attached to a supervision order, and to assist in counselling and treatment processes for all persons affected by the offence.
I must also consider the disposition of each of the three accused pending the obtaining of the said reports and certificates.
Section 19 of the Act governs the options available to the Court pending the reports being obtained and is in the following terms:
Section 19
(1)If the judge declares a person liable to supervision, the judge may make any one or more of the following orders pending the making of a supervision order—
(a) an order granting the person bail;
(b) subject to subsection (2), an order remanding the person in custody in an appropriate place;
(c) subject to subsection (3), an order remanding the person in custody in a prison;
(d) if he or she is of the opinion that it is in the interests of justice to do so, an order—
i.that the person undergo an examination by a registered medical practitioner or registered psychologist; and
ii.that the results of the examination be put before the court;
(e) any other order the judge thinks appropriate.
(2) The judge must not make an order remanding a person in custody in an appropriate place unless the court has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(3) The judge must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
In determining the most appropriate course of action for each of Mr Toohey, Mr Fairest and Ms Fields, I must also apply the principle set out in s 39 of the Act and have regard to the matters set out in s 40.
Section 39 reads as follows:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) sets out matters to which the court is to have regard:
(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(a)the nature of the person's mental impairment or other condition or disability; and
(b)the relationship between the impairment, condition or disability and the offending conduct; and
(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
I am informed there will be a six-to-eight week period before any reports under s 41 or certificates of available services under s 47 of the Act will be provided to be to the Court.
The Crown submits that all three accused should now be remanded in custody in light of the findings brought in by the jury at the special hearing.
Mr Alexander, on behalf of Mr Toohey, does not seek to persuade me that his client should be released on bail at this juncture.
Both Mr Gibson, for Mr Fairest, and Mr Kilduff, for Ms Fields, submit that their clients should remain on bail pending the provision of reports and certificates under ss 41 and 47 of the Act.
During the proceedings before me, the Crown called the informant Detective Senior Constable Tuininga and tendered an affidavit from Ms Louise Gallagher of the Disability Forensic Assessment and Treatment Unit (‘DFATS’), a service conducted by Department of Health and Human Services (‘DHHS’). The Crown also called evidence from Leonie Hatch, a solicitor employed by DHHS who has familiarity with the process of assessment under s 41 and the furnishing of certificates under s 47.
I must now consider whether Mr Toohey, Mr Fairest and Ms Fields should be granted bail or have their bail extended, pending the reports and certificate being furnished to the Court.
Warwick Toohey
I will deal firstly with the position of Warwick Toohey.
Mr Toohey's position is complicated by the fact that at the present time he is unable to present the Court with a practicable alternative to his current position on remand. The Court is required under s 19(3) to consider whether there is any practicable alternative to remanding Mr Toohey in custody in a prison.
At the time of the offence which he has been found to have committed he was sharing an apartment with the deceased and was subject to some degree of oversight by social workers from Vicdeaf, although he had been inclined to avoid meetings and appointments with the case workers allocated to him in the lead up to the offence.
He had fallen out with the deceased and did not wish to continue sharing his accommodation with him. He was romantically involved with Ms Fields and had formed a strong bond with both Ms Fields and Mr Fairest.
It is not apparent from the materials currently before me that Mr Toohey was seeing much of his foster mother in the lead-up to the offence, although I understand that she was regularly in attendance during the special hearing.
Prior to sharing the apartment with the deceased, Mr Toohey resided in supported accommodation where he had a greater degree of supervision than when he moved into the apartment with the deceased.
Mr Toohey, like Jake Fairest, suffers the twin disability of profound deafness and an intellectual disability. Like Mr Fairest, he has been previously certified under the Disability Act2006 as intellectually disabled.
Mr Toohey has an IQ in the lowest 0.5 percent of the general adult population. The reasons of Croucher J for finding it unlikely that Mr Toohey would become fit in the ensuing 12 months, set out in more detail some of the difficulties faced by Mr Toohey, including communication and comprehension deficits.[10]
[10]R v Fairest, Fields & Toohey (Rulings – Fitness to be tried) [2016] VSC 329 (6 July 2016), [34]-[41].
In considering the circumstance of Mr Toohey, I have taken into account the reports of Mr Jeffrey Cummins and his testimony before me, and the reports and testimony of Mr Christopher Drake. I have also considered the reports of Dr Vowels which were provided prior to the fitness investigation.
In determining what course to take upon having declared Mr Toohey liable to supervision under Part 5 of the Act, and in consideration of the options set out in s 19(1) and the requirement of s 19(3), I have had regard to the principle of parsimony in s 39 of the Act and the factors set out in s 40(1) of the Act.
However, in the case of Mr Toohey, I am also required to have regard to s 40(2) which prohibits the Court from ordering the release from custody of a person under Parts 3, 4 or 5 of the Act or from significantly reducing the degree of supervision to which the person is subject, unless the Court has obtained and considered the report of at least one registered medical practitioner or registered psychologist who has personally examined the person on their mental condition and the possible effect of the proposed order on the persons behaviour.
Although I have had access to psychological reports relating to Mr Toohey, none of those reports have been prepared with a view to bail, or to transfer to a less restrictive facility. I have no information before me as to his suitability for a less restrictive option or the present availability of any facility equipped to accommodate Mr Toohey pending the obtaining of reports and certificates.
In those circumstances, and in light of the absence of any application for bail on his behalf, I am satisfied that there is no practicable alternative other than to remand Mr Toohey in custody in a prison pending the obtaining of reports and certificates under the Act.
I therefore determine to remand him in custody in a prison and to direct the filing of certificates of available services under s 47 of the Act from DHHS and Forensicare, and reports under s 41(1) of the Act on the mental condition of Mr Toohey. Those reports should be filed before 12 December 2016. I also request that the reports to be filed under s 41 address not only the matters laid out in s 41(1)(a)-(c), but also address the matters in s 40(1)(a)-(e) and s 40(2)(a)(i)-(ii) of the Act.
Jake Fairest
I will now address the position of Jake Fairest.
I must consider whether Mr Fairest should remain on bail pending the reports and certificates being furnished to the Court. Mr Fairest was in prison from the day of his arrest until 29 July 2015, at which time Weinberg JA granted bail. He remained on bail until he was arrested on 25 March 2016 by Constable Brill and charged with offences relating to an incident on the Belgrave train and a train platform.
He was remanded in custody at that time and returned to prison at the Metropolitan Assessment Prison. On 20 April 2016, the Crown made a revocation application in respect of his bail on the charge of murder, but the application was not granted. Mr Fairest obtained bail in the Magistrates’ Court with respect to the Brill charges on 4 May 2016. He remained on bail throughout the investigation into his fitness for trial in May and June of 2016, and during the special hearing.
The Crown argues that his bail should be revoked, referring to the fact that a jury has now found that Mr Fairest committed the offence of murder, and that there was a further breach of the bail conditions imposed by Weinberg JA. The second breach occurred on 17 September 2016 when Mr Fairest attended the Royal Melbourne Show in company with the co-accused, Ms Fields. The facts relied on as demonstrating a purported breach of conditions are admitted.
Mr Gibson, on behalf of Mr Fairest, emphasizes the combined disabilities and physical health risks suffered by his client, and submits that his client would experience extreme hardship if returned to the prison environment. Mr Fairest is profoundly deaf, intellectually disabled and is in remission from brain cancer. Mr Gibson submits that bail should be continued until the relevant reports and certificates are obtained.
With the consent of the Crown, Mr Gibson provided copies of previously filed materials relevant to his client. This included copies of affidavits filed by each of the opposing parties in the original application for bail made by Mr Fairest in this Court and in a subsequent unsuccessful revocation application made by the Crown. Both of those proceedings were heard by Weinberg JA. A transcript of the revocation application on 20 April 2016 was made available to me.
For the purposes of the current determination, the Court was supplied with an affidavit deposed by Brendan Money, Assistant Commissioner of Corrections Victoria, dated 22 July 2015, giving information about the management of Jake Fairest in prison following his previous period of remand on the charge of murder. The following medical, psychological and social work reports were also provided:
(a) Report of Professor Michael Daffern, 29 March 2016;
(b) Report of psychologist Professor Ogloff, 25 November 2015;
(c) Reports of neuropsychologist Dr Lindsay Vowels, 16 October 2015, 30 August 2016 and 27 September 2016;
(d) Report of psychologist Elizabeth Warren, 4 May 2007;
(e) Report of Lyn Wilson, 7 August 2003;
(f) Report of endocrinologist Professor Margaret Zacharin, 10 July 2015;
(g) Reports of Catherine Dwyer, 8 July 2015, 19 April 2016;
(h) Schedule of medical appointments for monitoring the recurrence of brain cancer.
The personal and constitutional factors affecting Mr Fairest were articulated in the detailed reasons for bail published by Weinberg JA on 29 July 2015.[11] I adopt his Honours description of those matters.
[11]Application for Bail by Jake Royd Fairest [2015] VSC 375 (29 July 2015), [5]-[7].
In granting bail to Mr Fairest, his Honour referred to Kaye JA’s earlier description of the Crown case as to joint criminal enterprise as strong. Justice Kaye’s conclusion as to the strength of the Crown case ultimately proved correct.
When Mr Fairest was charged by Constable Brill, the substance of those additional charges was ventilated in the revocation application but did not lead Weinberg JA to revoke bail. This information was raised before me as part of the consideration for whether bail should now continue.
The evidence adduced by the Crown from the informant Detective Tuininga was to the effect that he had doubts about Mr Fairest's capacity to understand his conditions of bail. He said that although there had been a curfew in place that meant Mr Fairest was to remain at home between 10.00 pm and 6.00 am, Mr Fairest had been in the habit of getting up at 5.30 am each morning and going directly to report to the Boronia police station before 6.00 am, despite being reminded of the curfew. He would then board the train into the city to resume his usual daily activity of busking in the city. This had led to a variation of the reporting conditions in the revocation hearing before Weinberg JA.
The affidavit of Ms Gallagher and evidence of Ms Hatch indicates that regardless of Mr Fairest's level of disability, there are no appropriate DHHS custodial facilities into which Mr Fairest could be placed pending the making of a supervision order under s 26 of the Act. There is therefore no pathway to a supervised placement in a custodial setting other than a prison whilst awaiting disposition. Custodial placements other than prison may be available to an intellectually disabled person on a Custodial Supervision Order made pursuant to s 26(2)(a) of the Act, are not presently available as an adjunct to declaring a person liable to supervision under s 19(1)(a).
Under s 19(3), Mr Fairest must not be remanded in custody in a prison unless I am satisfied that there is no practicable alternative in the circumstances.
The practicable alternative put forward on his behalf is that he remain on bail under the close supervision of his father and on the bail conditions put in place by Weinberg JA on 29 July 2015, as revised by him on 20 April 2016.
In considering whether to permit Mr Fairest to remain on bail during the assessment and certification process I have taken into account the finding of the jury that he committed murder. Murder is a grave offence. However, the finding at a special hearing differs from an ordinary finding of criminal responsibility.
I have carefully considered the totality of material and evidence put forward by the parties for this phase of the hearing, and the evidence as to the effect of prison on Mr Fairest when he was not on bail.
In considering whether or not to grant bail, I am required to have regard to the principle of parsimony set out in s 39 of that Act. I have also had regard to the factors referred to in s 40(1) of the Act. I have balanced those non-exhaustive considerations and paid heed to the interpretation of the requirements of ss 39 and 40 provided by the Court of Appeal in Nom v DPP & Ors.[12]
[12][2012] VSCA 198 (24 August 2012).
I have also taken into account the strict bail conditions that have been in force since 20 April 2016, and the fact that since then there has only been one breach of bail conditions by attending the Royal Melbourne Show with Ms Fields in September 2016.
Although there was an earlier alleged breach of bail resulting in the charges laid by Constable Brill, it appears probable that this was an unusual incident that may have developed from a misunderstanding between Fairest and the alleged victims. He has no prior convictions for matters of violence.
Mr Fairest has otherwise complied with his bail conditions since his release from custody on 4 May 2016.
He attended punctually for each day of the lengthy special hearing and behaved appropriately during the proceedings. There is no record of failing to appear for the relevant hearings in the fitness investigation before Croucher J.
I have had regard to the fact that Mr Fairest is a person whose vulnerability within the prison setting means that imprisonment would create significant hardship to him. Justice Weinberg in his original reasons for bail said:
In my opinion, the applicant has clearly established that there are exceptional circumstances, arising out of his various disabilities, which are numerous and profound, and warrant his being granted bail on suitable terms. If the facts of this particular case do not give rise to exceptional circumstances, I am at a loss to know what type of case could conceivably meet that description.[13]
[13]Application for Bail by Jake Royd Fairest [2015] VSC 375 (29 July 2015), [22].
When dealing with the revocation application on 20 April 2016 his Honour took into account the further evidence available at that time suggesting the respondent would be found unfit to be tried. He expressed the view that it would be harsh to remand Mr Fairest in prison pending the fitness investigation before Croucher J, in circumstances where the respondent was undergoing severe privation in prison.[14]
[14]Ibid [18].
His Honour indicated that it was not surprising that incarceration was causing further problems for Mr Fairest and expressed disquiet as to these circumstances. He modified the reporting times for Mr Fairest when making orders for the continuation of bail.
I am satisfied that bail is a practicable alternative, on the condition that Mr Fairest reside with his father. In my view this option meets the requirements of ss 39 and 40 of the Act.
I have taken into consideration the risk posed to himself or to the public of permitting Mr Fairest to remain on bail, noting that there has been no suggestion of any such risks materialising during the period he has been on bail since 20 April 2016.
I have balanced the question of risk against consideration of Mr Fairest's vulnerability in prison.
It is my view that close supervision of his compliance with bail conditions by his family, especially his father, coupled with oversight by the police informant of bail compliance will reduce the likelihood of any risk to himself or to the public to an acceptable level during the period whilst s 41 reports and s 47 certificate are obtained.
I take into account that the adjournment period is for the proposed reports and certificates to be prepared and that it would be preferable if that process occurred in circumstances where Mr Fairest is able to participate in a meaningful way in the assessment process. I also note that Mr Fairest was previously observed to have deteriorated when returned to prison after his arrest on the Brill charges and prior to being re-bailed.
I will extend bail under s 19(1) on the same conditions imposed by Weinberg JA with an additional condition being that Mr Fairest make himself available and cooperate with the assessment required under the Act.
I made a further variation to Condition 5 of the standing bail order, to replace the time at which curfew ends from 6.00 am to 5.30 am.
In my order on 28 October 2016, I added a condition that Mr Fairest was not to leave his residential address without being in the company of his father. However, that condition will be varied to include the company of any adult family member or social or community worker who has been made aware of Mr Fairest’s conditions of bail by Mr Fairest’s father. I also order the appropriate persons arrange to have prepared and filed reports under s 41(1) of the Act, which include reference to matters in ss 40(1)(a)-(e) and 41(1)(a)-(c); and that the Secretary of DHHS and Forensicare[15] prepare and file Certificates of Available Services under s 47 of the Act, by 12 December 2016.
[15]Victorian Institute of Forensic Mental Health.
Georgia Fields
Turning now to Ms Fields I must also decide whether she should remain on bail pending the receipt of reports and certificates. In this regard I must consider pursuant to s 19(3) whether there is another practicable alternative other than remanding her in custody in a prison.
As with Mr Fairest, the Crown submits that Ms Fields bail should now be revoked and that Ms Fields should be remanded in custody as a result of the outcome of the special hearing. They submit that whilst her attendance on each day of the special hearing has been punctual and she has reported on bail uneventfully, she did breach the bail conditions imposed by Weinberg JA by going to the Royal Melbourne Show with Mr Fairest on 17 September 2016.
If bail is discontinued at this juncture, the Crown acknowledges that Ms Fields would be remanded to the Dame Phyllis Frost Centre where she was placed prior to being granted bail by Kaye JA.
Mr Kilduff argues on behalf of Ms Fields that Ms Fields should remain on bail on the same terms and conditions imposed by Weinberg JA, whilst reports and certificates of available services are sought. He proposes to argue that her ultimate disposition should be a NCSO under the Act.
A written submission in favour of bail was put forward by Mr Kilduff of counsel and an affidavit was produced from her solicitor, Mr Smurthwaite.
Mr Smurthwaite deposed that when Ms Fields was granted bail by Kaye JA in June 2015, the grant of bail reflected the difficulties Ms Fields had experienced in prison as a result of her combined disabilities. As none of the relevant factors have changed, those difficulties would recur if Ms Fields were returned to prison. He noted that the grant of bail preceded the reports of Dr Dowling[16] and Dr Walton[17] articulating the range of difficulties that afflict Ms Fields.
[16]Report of Dr Peter Dowling, 29 March 2016.
[17]Report of Dr Lester A. Walton, 22 December 2015.
I have had regard to those reports and the Forensicare report of Dr Dion Gee[18] which were obtained by the Crown for the fitness investigation.
[18]Report of Dr Dion Gee, dated 29 March 2016.
I have also perused the original bail affidavit of Mr Douglas Fields dated 25 May 2015, the letter provided by Elaina Chapman, Ms Fields’ case manager at Vicdeaf, the affidavits of Crown solicitor Mr David Bosso sworn 22 June 2015 and 14 April 2016 relevant to the original bail application and a subsequent Crown revocation application, and the affidavit of Brendan Money of Corrections Victoria, dated 19 June 2015.
Based on the evidence produced viva voce from Ms Louise Gallagher, it is unlikely that Ms Fields would qualify for the service at DFATS even under a supervision order, due to the fact that, at that stage, she had not been issued with a certificate of disability under the Disability Act 2006, and is female.
Evidence called from Ms Hatch outlined the range of orders that can be made under the Act and gave details of the relatively small number of custodial placements which may be available for intellectually disabled male offenders placed on a supervision order. She was not aware of any similar service for females or for persons diagnosed with the range of impairments afflicting Ms Fields.
My reasons for granting bail to Ms Fields pending the reports and certificates being furnished to the Court are informed in part by the detailed reasons provided by of Kaye JA for his original grant of bail to Ms Fields.[19] I adopt those reasons as setting out the background to the matters before the Court and the particular circumstances of Ms Fields.
[19]In the matter of an application for bail by Georgia Fields [2015] VSC 309 (24 June 2015).
I am also cognisant that Weinberg JA declined a bail revocation application on 20 April 2016 brought by the Crown in respect of Ms Fields, but varied and strengthened the conditions of bail pertaining to Ms Fields at that time. I was provided with a transcript of the revocation application conducted before Weinberg JA on 20 April 2016. I have also had regard to the portion of the decision of Croucher J as related to Ms Fields in R v Fairest, Fields & Toohey (Rulings – Fitness to be tried).
Ms Fields was originally remanded in custody to the Dame Phyllis Frost Centre on 13 February 2015, and remained there until her successful application for bail before Kaye JA on 24 June 2015.
Justice Kaye granted bail on 24 June 2015 under ss 4(2)(a) and 13 of the Bail Act 1977 (Vic), accepting that there were exceptional circumstances as to why bail should be granted. He found it appropriate to grant bail despite describing the prosecution case against Ms Fields as strong, and despite the burden on the applicant at that stage of proceedings.
Following the grant of bail to Ms Fields in June 2015, the Crown sought to have her bail revoked due to breach of the conditions of bail by Ms Fields between 24 June 2015 and 20 April 2016. In that period, Ms Fields had gone interstate in breach of her bail conditions, having contacted another young female online. She was also alleged to have broken into her former school and stolen an iPad. It was in response to the revocation application that Weinberg JA imposed more stringent conditions of bail, but, on 20 April 2016, declined to revoke bail.
Detective Tuininga testified before me that he believes Ms Fields does understand her bail conditions but does not comply with them when it suits her not to. Meeting up with Mr Fairest at the Show may be an example of this behaviour.
On the other hand, Mr Fields gave evidence partially explaining how his daughter came to be at the Royal Melbourne Show with Jake Fairest. He said that he had intended that another person would be accompanying her to the Show and had arranged to meet Ms Fields at 6.00 pm at Southern Cross station after the Show. He sought to take responsibility for the breach. He offered assurances that he would be more careful in the future to supervise Ms Fields’ compliance with her bail conditions.
Mr Fields gave evidence that he had noticed a change in her attitude since the revocation hearing and that his daughter has now grown to accept the restraints imposed. He noted that she had been attending church meetings and groups with older deaf women in Pascoe Vale and Prahran and was being mentored in this way.
He contrasted her more settled behaviour since the imposition of the stricter bail conditions after the revocation application. This was an improvement on how she behaved when she first came out of gaol and was difficult to control.
The practicable alternative put forward on behalf of Ms Fields is that she remain on bail under the close supervision of her parents and family, and continue to remain under the bail conditions put in place by Kaye JA, as varied and strengthened by Weinberg JA on 20 April 2016.
In considering whether to grant bail or to remand Ms Fields in custody I am required to pay heed to the principle of parsimony to be applied under s 39 of the Act.
As with my decision regarding bail for Mr Fairest, I have had regard to the fact that the offence which Ms Fields has been found to have committed is grave. I also acknowledge that a finding at a special hearing constitutes a qualified finding of guilt, and does not provide a basis in law for a conviction.
I have also had regard to the factors referred to in s 40(1) of the Act especially paragraphs (c) and (d).
As with Mr Fairest, I have balanced the non-exhaustive considerations referred to in s 40(1) of the Act.
I have also taken into account the strict bail conditions that have been in force since 20 April 2016, and the fact that since then there has only been one breach of bail conditions since that time when Ms Fields attended the Royal Melbourne Show with Mr Fairest in September 2016.
Ms Fields has otherwise complied with her bail conditions and supervision by family members, in particular her parents with whom she resides. She has attended punctually each day of a lengthy special hearing and conducted herself appropriately throughout.
She has reported on bail as required and is being mentored by older women in the deaf community as well as her parents and siblings.
I have taken into account that Ms Fields is a vulnerable young woman whose immaturity, profound deafness and atypical autism or developmental delay make imprisonment in an adult women's prison highly problematic.
Justice Kaye in his reasons for bail referred to evidence before him from Mr Brendan Money and Ms Chapman of Vicdeaf that Ms Fields was seen as vulnerable within the prison environment. Ms Chapman had referred to bullying of Ms Fields by other prisoners.[20]
[20]In the matter of an application for bail by Georgia Fields [2015] VSC 309 (24 June 2015), [48].
Ms Fields father testified that during her last period of imprisonment at the adult women's prison, Ms Fields presentation and behaviour deteriorated significantly below that which the family usually encounter in managing her, but has improved since then.
In balancing the risk to herself or to the public that might arise by permitting Ms Fields to remain on bail, against the consequences of remanding her in prison, I note that the public has not been exposed to harm from Ms Fields during the period she has been on bail since 20 April 2016. I am satisfied that bail to reside with her family is a practicable alternative to prison that meets the requirements of ss 39 and 40 of the Act.
In my view, close supervision and monitoring of Ms Fields compliance with bail conditions by family members, and oversight by the police informant will minimise any risk to herself or to the public whilst s 41 and s 47 reports are obtained.
I also consider that the process of obtaining the s 41 reports will be enhanced by Ms Fields being in a more settled environment during the assessment process. She will be more able to participate in a meaningful way than if she were remanded in prison.
I propose to extend bail under s 19(1) on the same conditions imposed by Weinberg JA with one additional condition being that Ms Fields make herself available and cooperate with the assessments required under the Act.
I also order the appropriate persons arrange to have prepared and filed reports under s 41(1) of the Act, which include reference to matters in ss 40(1)(a)-(e) and 41(1)(a)-(c); and that the Secretary of DHHS and Forensicare prepare and file certificates of Available Services under s 47 of the Act, by 12 December 2016.
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