Director of Public Prosecutions v Waverly (a pseudonym)

[2022] ACTSC 329

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Director of Public Prosecutions v Waverly (a pseudonym)

Citation:

[2022] ACTSC 329

Hearing Date:

30 November 2022

DecisionDate:

30 November 2022

Reasons Date:

6 December 2022

Before:

Kennett J

Decision:

Bail is refused.

Catchwords:

CRIMINAL LAW – BAIL – Application for bail – review of bail decisions under s 43A of the Bail Act 1992 (ACT) – three series of charges – initial review application inutile because it did not cover all charges for which the accused was remanded in custody – no material change in circumstances – consideration of phrase “fresh evidence or information” – where new character references, accommodation and work information did not amount to a change in circumstances or fresh evidence – evidence of grandmother’s illness and other family hardship not sufficient for “special or exceptional circumstances” – bail refused

Legislation Cited:

Bail Act 1992 (ACT), ss 9D, 22, 42A, 43A

Parties:

ACT Director of Public Prosecutions

“Leroy Waverly” (Accused)

Representation:

Counsel

A Chatterton (DPP)

P Johannessen (Accused)

Solicitors

ACT Director of Public Prosecutions

Johannessen Legal (Accused)

File Numbers:

SCC 183 and 184 of 2022

KENNETT J:

Introduction

1․On 30 November 2022 I refused an application for bail by the accused, who is known by the pseudonym Leroy Waverly. I indicated that, because the matter was somewhat complicated, I would provide written reasons for that refusal. What follows comprises my reasons.

2․The accused is charged with three sets of offences.

(a)Series 1 charges, relating to events in July 2021: attempting to traffic in a controlled drug; and possession of property suspected to be proceeds of crime.

(b)Series 2 charges, relating to events in October 2021 (but apparently laid at the same time as the series 1 charges): possessing a drug of dependence; and three charges relating to possession of a firearm and ammunition.

(c)Series 3 charges, relating to events between December 2021 and March 2022: threatening a witness in a federal judicial proceeding; using a carriage service to menace, harass or offend; stalking; obstructing a Territory public official; impersonating a Territory public official; and damaging property.

3․On 15 July 2022, the Magistrates Court committed the accused for trial in this Court on the series 1 charges. Those charges are listed for a callover on 20 March 2023.

4․The accused was granted bail in relation to the series 1 charges on 16 December 2021. Ten days later he came before the Magistrates Court in relation to a breach of bail conditions but was readmitted to bail. I was informed that he remains on bail in relation to the series 1 charges (but later perusal of the file suggests this may not be correct).

5․The series 2 charges were fixed for trial in the Magistrates Court in September 2022; however, the trial dates were vacated by reason of the public holiday declared during that month. The matter was mentioned on 21 October 2022 and new trial dates were fixed in March 2023. The accused had also been granted bail in relation to these charges on 16 December 2021. Records from the Magistrates Court obtained during the hearing before me on 30 November 2022 indicate that, following the mention on 21 October 2022, the accused was remanded in custody on these charges. Bail therefore appears to have been revoked, at some earlier stage, by the Magistrates Court.

6․The series 3 charges have been listed for a hearing in the Magistrates Court beginning on 15 December 2022. The accused has made several unsuccessful bail applications in relation to these charges:

(a)He was refused bail in the Magistrates Court following applications made on 22 March, 28 March and 14 April 2022. On each occasion, the Court proceeded on the understanding that bail could not be considered unless special or exceptional circumstances were established pursuant to s 9D of the Bail Act 1992 (ACT) (Bail Act). It has not been suggested that this understanding was incorrect.

(b)An application filed in this Court on 5 May 2022, supported by an affidavit affirmed by the accused, was refused by Elkaim J on 10 May 2022. His Honour’s reasons are not available; however, I understand that the application was treated as having been made under s 43A of the Bail Act and was refused on the basis that there was no change in circumstances or fresh evidence.

7․The accused filed a further application for bail in this Court on 16 September 2022, at which time he was unrepresented. The application came before Loukas-Karlsson J on 20 September 2022. It did not proceed on that day, and her Honour expressly noted that the accused was not formally refused bail. It appears that the accused accepted her Honour’s suggestion that he should take up a potential offer of legal representation.

8․Mr Johannessen, who now acts for the accused, has only been instructed very recently and sought the listing of the matter in relation to bail on 30 November 2022. No other formal bail application had been filed. Although the notes of the hearing before Loukas‑Karlsson J indicate that on 20 September 2022 the accused “withdrew” the application filed on 16 September 2022, I was asked to proceed on the basis that Mr Johannessen was moving on this application. Mr Chatterton, who appeared for the Director of Public Prosecutions, did not oppose that course.

9․A further complication arose during the hearing. The parties approached the hearing on the understanding that the accused was still on bail on the series 1 and 2 charges, so that the present application was understood to be directed at the series 3 charges. During the hearing a document came to light showing that the accused had been remanded in custody on the series 2 charges on 21 October 2022. In those circumstances, a grant of bail relating only to the series 3 charges would lack utility. However, Mr Chatterton indicated that he would not oppose the application being extended to cover the series 2 charges as well. Mr Johannessen gratefully took up that invitation. It was only in the course of preparing these written reasons that it was discovered the accused is likely remanded in custody on the series 1 charges as well. The conclusion I reach below means this discovery is not of great moment.

Series 3 charges

10․Section 43A of the Bail Act applies in relation to the series 3 charges, with a decision on bail in relation to those charges having previously been made by this Court. The consequence is that that decision may be reviewed only if the Court is satisfied that the accused has shown either a change in circumstances relevant to the granting of bail since the previous decision or the availability of “fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision”.

11․Mr Johannessen relied on four matters in seeking to overcome the barrier erected by s43A:

(a)a title search showing the accused to be the registered proprietor of property in Ngunnawal where, in previous bail applications, he has submitted that he can live with his parents and his partner;

(b)a reference dated 30 November 2022 apparently provided by a priest at St Mark’s Coptic Orthodox Church in Kaleen;

(c)two recent letters, one from the accused’s father and the other from a former employer, stating that they would employ the accused if he were released from custody (the letter from the accused’s father also states that he “desperately and definitely” requires the assistance of the accused with his construction industry business); and

(d)a report from a radiology practice dated 23 September 2022 in relation to a woman who I was told is the accused’s grandmother. The substance of the report is that she suffers “multiple intracranial aneurysms”, which I infer is a very serious matter. Mr Johannessen has been instructed that she may not have long to live.

12․I am not persuaded that any of these documents points to a material change of circumstances since the last bail application was dealt with, so as to justify the entertaining of a fresh application under s 43A(2)(a). The title search might have added some weight to the submissions made in earlier applications that the accused had stable accommodation available to him, but clearly does not represent a changed circumstance: there is no information as to when the accused acquired the property, although the document records that there is an existing mortgage registered in 2017. The reference from the priest is in general terms and does not record any new events; nor is the obtaining of the reference in itself a change in circumstances. According to the letter from the former employer, before being taken into custody the accused was due to start work with him in March 2022. He has also submitted on previous bail applications that he needs to be released in order to work, a submission that tends to imply the availability of work. Finally, while the illness of the accused’s grandmother has not previously been relied on, there is no information as to how long she has been unwell. The provision of a radiological report in September 2022 is at least consistent with her having suffered symptoms likely to give rise to considerable concern sometime before then.

13․Each of the documents referred to above is “fresh evidence”, in that the document did not exist at the time of the previous bail decision in May 2022. Each is at least potentially “relevant to the granting of bail to the accused person”, if that phrase in s 43A(2)(b) is understood to refer to satisfaction of the ordinary criteria for granting bail under s 22 of the Bail Act. I assume for present purposes that that is the correct construction, although it does appear to be arguable that the phrase should be understood by reference to the task faced by the applicant for bail in the particular case (so that, in a case like the present one, the material must be relevant to the establishment of special or exceptional circumstances for the purposes of s 9D of the Act). However, I am not satisfied that any of this material other than the radiology report was “unavailable when the court made the decision”. Although the particular documents postdate the decision made by Elkaim J, there is nothing to indicate that documents having the same effect could not have been obtained and tendered before his Honour. Section 43A should not be given a construction that allows its limiting effect to be circumvented by procuring the creation of a new document such as a character reference or confirmation of employment in circumstances where that document could have been requested and created at an earlier time.

14․The radiology report is in a different category. It was created after the decision of Elkaim J and is not by its nature something that was within the power of the accused or his advisers to obtain before that decision. I have concluded that it is “fresh evidence” in the sense referred to in s 43A.

15․The next hurdle the accused must overcome is s 9D of the Bail Act. Section 9D applies because the series 3 charges allege offences to have been committed while earlier charges against the accused were outstanding. Under s 9D(2), bail must not be granted to the accused unless the Court is satisfied that “special or exceptional circumstances exist favouring the grant bail”. Satisfying the ordinary criteria in s 22 is not a special or exceptional circumstance.

16․I have proceeded on the basis that I must make my own assessment of whether circumstances exist that are “special or exceptional”, and not give any particular deference to the decisions of the Magistrates Court which have applied the same test. Mr Johannessen referred to a constellation of factors, in addition to the illness of the accused’s grandmother, which were said to make the circumstances of this case “special or exceptional”. In summary, these were as follows:

(a)Two young children of the accused and his partner were removed from their care in March 2022 and placed in the foster care system. This has understandably caused considerable stress to the family. I understand that proceedings relating to the custody of the children are in train. In the last eight months the accused has seen his children only three times. He has a strong desire to be involved in what he describes as the process of “fighting for the return of our children”.

(b)The inability of the accused to earn a living while he is incarcerated is putting financial stress on his family.

(c)Mr Johannessen also informed me, on instructions, that the accused’s partner has recently suffered health problems and that, with the accused not working, she is unable to obtain proper treatment. Mr Chatterton, who was taken by surprise by this information, sought to call evidence from a police officer who was in court which he suggested might shed light on the nature of these purported health issues. I decided not to allow that evidence to be called, as it was potentially prejudicial and Mr Johannessen would be hard pressed to deal with it. However, in circumstances where the state of health of the accused’s partner is controversial, and I have no information on that subject except for a bald assertion made on instructions, I do not give it any weight.

17․The situation faced by the accused and his family, while no doubt stressful and regrettable, is in my view not “special or exceptional” in the sense referred to in s 9D. Inability to earn a living and support one’s family is an almost inevitable consequence of being remanded in custody, which the legislature must have had in contemplation when enacting the Bail Act. Illness of a relative is also a far from uncommon experience. It was not suggested that the accused’s grandmother had any special need for his presence, over and above the normal bonds of affection between a grandparent and grandchild. If there were clear evidence that the accused’s grandmother was close to death and desperate to see him, an application for bail for a short period might well have considerable merit; however, the evidence here is not of that nature. Finally, while the desire of the accused to be involved in any way he can in obtaining the return of his children to the family is understandable, there was no indication that success in that struggle would be made significantly more likely by his personal involvement (other than, possibly, by earning money so that legal representation can be obtained). To the extent that he can assist by providing advice to his partner or giving evidence, it has not been established that these things are impossible while he remains in custody.

18․For these reasons, I have concluded that “special or exceptional circumstances” have not been established. Section 9D(2) requires that bail be refused.

Series 2 charges

19․Because of the way the hearing unfolded, bail in relation to the series 2 charges received no separate attention.

20․As noted earlier, the accused was remanded in custody by the Magistrates Court following the mention of this matter on 21 October 2022. Further inspection of the Magistrates Court file in my chambers since the hearing on 30 November 2022 has revealed that he was also remanded in custody—apparently in relation to all of the charges he faces—on 22 March 2022 following the first mention of the series 3 charges. This information was not before the Court (or, it would seem, known to the parties’ legal representatives) during the hearing but probably does not change the analysis. The hearing proceeded on the understanding that the accused was granted bail in relation to the series 2 charges but that at some stage (by necessary inference from him being remanded in custody) bail had been revoked. (It may be, however, that the accused needs to extend his application to series 1 as well.)

21․The pathway that must be taken through the Bail Act to determine the criteria to be applied in relation to the series 2 charges was also not explored. The Magistrates Court appears to have had power to revoke the grant of bail in relation to these charges, which were at relevant times before it (ss 19(1)(b) and 20(1)(a) of the Bail Act). The proceeding in relation to those charges, as noted above, remains before the Magistrates Court and a fresh application could be made there under s 20 of the Act. On that understanding, the series 2 charges do not come within the grant of power to this Court in s 20B of the Act.

22․In any event, consideration of bail in relation to the series 2 charges has no utility in the light of the conclusion I have reached on bail in relation to the series 3 charges. The accused would have to remain in custody even if I were to conclude that a grant of bail in relation to the series 2 charges was appropriate.

23․For this reason, to the extent that an application can be entertained in relation to the series 2 charges, I have concluded that bail should also be refused in relation to those charges. (The same reasoning would clearly apply to series 1, if the application were extended to cover those charges as well.)

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett.

Associate:

Date: