IN THE MATTER OF AN APPLICATION FOR BAIL BY JOHN WAYNE HUTCHINGS
[2011] ACTSC 83
IN THE MATTER OF AN APPLICATION FOR BAIL BY JOHN WAYNE HUTCHINGS [2011] ACTSC 83 (20 April 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – bail – need for special or exceptional circumstances – Bail Act 1992 (ACT), s 9D.
Bail Act 1992 (ACT), ss 9D, 43, 56A
In the matter of an application for bail by Massey [No 2] [2009] ACTSC 70
In the matter of an application for bail by Allen [2009] ACTSC 64
EX TEMPORE JUDGMENT
No. SCC 143 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 20 April 2011
IN THE SUPREME COURT OF THE )
) No. SCC 143 of 2011
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION FOR BAIL BY JOHN WAYNE HUTCHINGS
ORDER
Judge: Refshauge J
Date: 20 April 2011
Place: Canberra
THE COURT ORDERS THAT:
The application for bail is dismissed.
John Wayne Hutchings has applied for bail. He has a number of charges laid against him which appear to result from difficulties that were experienced in a relationship that has now terminated and, where it appears from the charges that have been laid, but about which I can make no final finding, of course, that he is having difficulty in accepting the end of that relationship.
He has been charged with events that occurred on 21 January 2011 and he appeared in the Magistrates Court on 9 February 2011 charged with driving in a way menacing to another person and driving in a manner dangerous. On 13 April 2011, those matters were listed for hearing. Initially they were to be listed on 29 April 2011 but that date was not suitable for the prosecution and they were listed for hearing on 20 May 2011.
Subsequently, Mr Hutchings has been charged with other offences arising out of the granting to the complainant, MCD, of an interim Domestic Violence Order on 31 January 2011 in the Magistrates Court and which, on the evidence before me, was served on Mr Hutchings on 1 February 2011. I understand there were other things that prohibited Mr Hutchings from contacting MCD except at court and except through a solicitor.
It is alleged that, on 16 February 2011, the complainant received an envelope addressed to her which contained a letter to her from Mr Hutchings and which, to quote the statement of facts, “summarised the defendant’s feelings towards [MCD] and the end of their relationship, and requested she read the other enclosed letters.”
As a result of that, on 17 February 2011, Mr Hutchings was charged with failing to comply with conditions of bail under s 56A(2) of the Bail Act 1992 (ACT) (the Bail Act), and breaching the terms of the Domestic Violence Order. He appeared in court on 17 February 2011 and was granted bail with conditions that he not contact, in any way, in writing, verbally or by any other means, MCD.
On 30 March 2011, MCD complained that she had received a telephone call and a message, which she alleged came from Mr Hutchings. Mr Hutchings was arrested and charged with breaches of the Domestic Violence Order on 30 March 2011 and also on 27 February 2011.
That activated s 9D of the Bail Act which provides that where a person, who has been charged with a specified offence and is granted bail, is charged with a further specified offence alleged to have been committed while on bail, he or she cannot be granted bail unless special or exceptional circumstances favour the grant of bail. On 31 March 2011, Magistrate Lalor refused bail on those circumstances. Mr Hutchings has now sought a review, under s 43 of the Bail Act, of that decision.
Since Magistrate Lalor refused bail, a hearing date for the initial charges has been set; as I said it is for 20 May 2011. That is said to be a change in circumstances, in part because it is a change occasioned by the prosecution who were unable to proceed on the first date offered, namely 29 April 2011.
I heard evidence from the informant, Constable Benjamin Russell, who said that the Australian Federal Police, on the information available to them, had concerns about Mr Hutchings committing further breaches of the Domestic Violence Order and interfering with or contacting the complainant. He said there were other complaints that MCD had made against Mr Hutchings but that the evidence was not sufficient to justify the taking of proceedings.
It seems to me, in those circumstances, I have to be very cautious about relying on those allegations although one of them involved the spray painting of MCD’s car which is consistent with a threat received by MCD in a text message. I do not give that a great deal of weight but it emphasises a concern that needs to be taken into account.
I was referred to some text messages received by Mr Hutchings said to be from MCD. They were not ultimately tendered and they appeared to be messages received before the grant of the interim Domestic Violence Order and, therefore, are not really relevant to these proceedings.
I also had evidence from Mr Hutchings’ daughter who is pregnant and due to give birth in about two weeks time. She has some significant challenges, both in her own situation, but also in that her partner suffers from epilepsy and has recently had a fit, such that he is unable to drive. Nevertheless, there are options available to Ms Hutchings in relation to that. She has a car, she has a friend who can drive her car, she has another friend who has a car and she has her mother. Although she is not as close to her mother as she is to her father, her mother is available and, of course, there are the ambulance services if absolutely necessary.
In my view the hearing date that has been granted for the first set of charges is really of limited significance in this case. Even if Mr Hutchings were to be acquitted of those charges that would not alter the situation under s 9D of the Bail Act for it is not those charges which have initiated that consideration. It is the subsequent charges that have done so.
At this stage, while no hearing date has been set for those other charges and there is no suggestion that can be sustained that Mr Hutchings will stay in custody for a period, that would, having regard to the law as expressed in cases such as In the matter of an application for bail by Massey [No 2] [2009] ACTSC 70, or In the matter of an application for bail by Allen [2009] ACTSC 64, amount to special and exceptional circumstances justifying the grant of bail.
It is unfortunate that Mr Hutchings has to remain in custody until these matters are resolved, but at the moment I am not satisfied that there are special and exceptional circumstances justifying the grant of bail and, accordingly, under the Bail Act as it presently stands, the application is dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 20 April 2011
Counsel for the Crown: Mr C Wanigaratne
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr E Ezekiel-Hart
Solicitor for the defendant: Ray Swift Moutrage & Associates
Date of hearing: 20 April 2011
Date of judgment: 20 April 2011
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