IN THE MATTER OF AN APPLICATION FOR BAIL BY LUKE MARSH

[2014] ACTSC 37

IN THE MATTER OF AN APPLICATION FOR BAIL BY LUKE MARSH
[2014] ACTSC 37 (20 February 2014)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – No jurisdiction under the Bail Act 1992 (ACT) or the common law to grant bail to a person serving a sentence of imprisonment unless there is a pending appeal of the conviction or sentence – No appeal pending in this instance – No power to grant bail – Should the power to grant bail exist, the need to undertake legal research is not a special or exceptional circumstance favouring bail – Should the power to grant bail exist, the proximity of the hearing is a reason for refusing to grant bail

Australian Capital Territory Self-Government Act 1989 (ACT), s 48A
Bail Act 1992 (ACT), ss 9E, 27AA

DPP v Tang (1995) 83 A Crim R 593
In the matter ofan application for bail by Burton (1974) 3 ACTR 77
In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145

EX TEMPORE JUDGMENT

No. SC 2 of 2014

Judge:             Refshauge J
Supreme Court of the ACT

Date:              20 February 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 2 of 2014
AUSTRALIAN CAPITAL TERRITORY )          

LUKE MARSH

Applicant

AND:

AUSTRLIAN CAPITAL TERRITORY

Respondent

ORDER

Judge:  Refshauge J
Date:  20 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for bail be refused.

1. Luke Marsh has applied for a judicial review of a decision of the Sentence Administration Board in which it revoked the parole to which he was admitted by the Board.  A condition of the parole was that he attend at, and complete, the Arcadia House withdrawal and transition program.  It appears that Mr Marsh was admitted to the program on 29 May 2013 but left on 4 June 2013.  He says, and he refers to what he says is a psychiatric opinion to this effect, that he was unable to complete the program.

1. Mr Marsh has alleged a number of breaches of statutory obligations of the Board, which he says led to the decision being a miscarriage of justice.  On this basis, he says that the decision of the Board should be set aside and that he should be readmitted to parole.

1. In those proceedings, Mr Marsh has now applied for bail.  Apart from the obvious wish to be free from custody, he says that he needs to be at liberty to prepare for the legal work for the pursuit of his challenge to the decision of the Board.  He also claims he is experiencing a number of difficulties within the Alexander Maconochie Centre. 

1. Bail is now regulated by Bail Act 1992 (ACT), and s 27AA of which thus provides:

Any inherent power of the Supreme Court to grant bail is abolished. 

1. Section 27AA may not oust all inherent jurisdiction of the Court because of s 48A of the Australian Capital Territory Self-Government Act 1989 (ACT), but the inherent jurisdiction would only apply if there was a common law power that the Court could otherwise exercise.

1. I am not aware of any common law power to grant bail to a person serving a sentence of imprisonment, which is the position where Mr Marsh finds himself, having had his parole revoked.

1. The only statutory provision that applies to a person sentenced to imprisonment is set out in s 9E of the Bail Act. That section provides:

(1) This section applies if (a) a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and (b) an appeal is pending in relation to the conviction or sentence.

(2) A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) In this section, appeal includes an appeal against a decision on appeal. 

1. The sentence was imposed in May 2013 and there is no appeal pending. 

1. Given that the time period to appeal the conviction or sentence has now expired, any such appeal must first be subject to an application for an extension of time within which to appeal.

1. In any event, I am not satisfied that the need to undertake legal research is a special or exceptional circumstance favouring bail. 

1. I have dealt with the meaning of “special and exceptional circumstances” in In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145. There I said, at [7]:

The term ‘special or exceptional circumstances’ have not been defined in the Bail Act.

1. It is, however, a phrase commonly used in relation to bail.  In DPP v Tang (1995) 83 A Crim R 593 at 596, Beach J said:

‘Exceptional’ is a word commonly used in legislation.  One definition of it in the New Shorter Oxford English Dictionary is:  ‘Of the nature of or forming an exception, unusual, out of the ordinary, special’ (see vol 1 page 872).  Websters Dictionary contains the following definition:  ‘Relating to or forming an exception, out of the ordinary course, unusual, uncommon, extraordinary’.  In my opinion it does not matter which of those definitions one chooses to adopt.  I consider it was the clear intention of the legislature that any person charged with an offence falling within the provisions of s 4(2)(aa) bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail.

1. That is to say, the Applicant has, in my view, to establish that there are some unusual or uncommon circumstances which justify the granting of bail. 

1. I further addressed this matter in In the matter of an application for bail by Rebecca Massey at [28], where I said:

Even if each of the factors referred to by the applicant do not in themselves amount to special or exceptional circumstances, it is also clear that such circumstances may exist as a result of the interaction of a variety of factors, each of which might not be regarded as special or exceptional.  Thus a court has to consider the totality of factors put forward in considering this issue: DPP (Vic) v Cozzi (2005) 12 VR 211 at 215. That does not relieve the court, however, from identifying each of the factors put forward as constituting such circumstances and considering then to determine whether they constitute such circumstances as I have done: Abbott (1997) 97 A Crim R 19 at 27.

1. I am not satisfied that I have jurisdiction to grant bail, but even if I had that jurisdiction, it does not seem to me that the circumstances that Mr Marsh is more likely to obtain legal representation were he to be released would be special or exceptional.  In any event, I note that after I put some pressure on the Australian Capital Territory to bring forward the hearing, it has been possible to list the hearing for 30 January 2014. 

1. It is clear from what Fox J said in In the matter ofan application for bail by Burton (1974) 3 ACTR 77 that the proximity of the hearing is another reason for refusing to grant bail.

1. In the circumstances, the application for bail is refused.

   I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date: 31 March 2014

Counsel for the Applicant:  In person
Solicitor for the Applicant:  In person
Counsel for the Respondent:  Ms A Katavic
Solicitor for the Respondent:  ACT Government Solicitor
Date of hearing:  20 February 2014
Date of judgment:  20 February 2014