Hamers v Director of Public Prosecutions
[2022] ACTSC 369
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hamers v Director of Public Prosecutions |
Citation: | [2022] ACTSC 369 |
Hearing Dates: | 21 December 2022; 23 December 2022 |
DecisionDate: | 23 December 2022 |
Before: | McCallum CJ |
Decision: | The application for bail is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Bail application – Where there have been repeated bail applications – where bail was refused by the Magistrates Court – where there has not been a change in circumstances – where there is a risk of breaching a court order |
Legislation Cited: | Bail Act1992 (ACT) ss 20A, 43A |
Parties: | Tammy Hamers ( Applicant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel Self-represented ( Applicant) L Etheredge ( Respondent) |
| Solicitors Self-represented ( Applicant) ACT Director of Public Prosecutions | |
File Number: | MBA 7 of 2022 |
Decision under appeal: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 24 November 2022 Court File Number: AM1301/2014 |
McCALLUM CJ:
Tammy Hamers stands charged with three separate series of offences including offences of stalking and, more recently, offences of breaching a personal protection order. The proceedings have come before the Magistrates Court a number of times, most recently following Ms Hamers’ arrest in respect of the third series of charges.
On 31 October 2022, Ms Hamer came before a magistrate in respect of those charges for the first time. Bail was applied for and refused. Two subsequent applications were made to the Magistrates Court with the result that the applicant thereafter faced the hurdle of s 20A of the Bail Act1992 (ACT). That section provides that, where an accused person has made two applications in the Magistrates Court for bail in the proceeding, the Court may only consider a third or subsequent application if satisfied that there has been a change in circumstances relevant to the granting of bail. That hurdle appears to have been recognised by a magistrate on 17 November 2022, as evidenced by an annotation on the Court file noting s 20A and the fact that it was the third application.
On 24 November 2022, Ms Hamers sought bail again. That application was treated, correctly in my respectful opinion, as an application for bail review. There is an annotation on the Court file to that effect.
It follows that, under s 43A of the Bail Act, this Court may review the decision of the Magistrates Court refusing bail but only if satisfied that the applicant has shown a change in circumstances relevant to the granting of bail since the Court’s decision or there is fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the Court made the decision.
The applicant has not been able to muster evidence to satisfy either of those tests. She is presently due to appear for the hearing, as I read the files, of all three series of charges on 3 February 2023 in the Magistrates Court. In the meantime, she states that she needs to be at liberty for the purpose of preparing for that hearing.
In the main, the Crown case will consist of proof of the making of a personal protection order and contact in breach of that order by Ms Hamers with the person in need of protection.
A psychiatrist’s report requested by the Magistrates Court for the purpose of considering fitness to plead indicates the psychiatrist’s view that the source of Ms Hamers’ conduct that has resulted in her being charged may be a belief as to the existence of a relationship with the person who sought the personal protection order, which belief is not shared by that person.
Even today, in exchanges with Ms Hamers, I have formed the clear impression that she remains unable to appreciate or accept the absence of any foundation for her belief that there was at some point a relationship with that person. Ms Hamers submitted that, if bail is refused today, she will have been in custody for offences she did not commit. The material before me indicates that the Crown case is strong and that the defences are based on either misconception as to the law or misperceptions as to the true facts.
On any analysis, I cannot be satisfied that the order will not be breached again if the applicant is released. Indeed, I have a high level of confidence that there would be a further breach of the order if bail were granted today.
In any event, in the absence of demonstration of a change of circumstances or fresh evidence, I do not have authority to grant bail in accordance with the provisions of the section to which I have referred. Accordingly, the application must be dismissed.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 20 March 2023 |
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