In the matter of an application for bail by Massey - [2008] ACTSC 145

HUMAN RIGHTS ACT

IN THE MATTER OF AN APPLICATION FOR BAIL BY REBECCA MASSEY [2008] ACTSC 145 (19 DECEMBER 2008)

Bail Act 1992 (ACT), s 9C
Human Rights Act 2004 (ACT), s 18

DPP v Tang (1995) 83 A Crim R 593
Lunam v Western Australia [2007] WASC 73
Beljajev v DPP (1998) 101 A Crim R 362
Mokbel v DPP (Vic) [No 2] (2002) 132 A Crim R 290
Raad v DPP (2007) 175 A Crim R 240
DPP (Vic) v Cozzi (2005) 12 VR 211
Abbott (1997) 97 A Crim R 19

EX TEMPORE JUDGMENT

No. SCC 317 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 19 December 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 317 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

IN THE MATTER OF AN APPLICATION FOR BAIL BY REBECCA MASSEY

ORDER

Judge:  Refshauge J
Date:  19 December 2008
Place:  Canberra

THE COURT ORDERS THAT:

The application is dismissed.

Following an altercation at the Charnwood shops, Charnwood, in the ACT on 25 July 2008, a female who had been stabbed in the incident was pronounced dead at the Canberra Hospital about an hour or so later. She apparently had three knife wounds in her torso and arms and other medical injuries consistent with a struggle. Later that night police arrested Rebecca Anne Massey and charged her with murder.
She was refused bail by a magistrate on 28 July 2008. Ms Massey has an 8-year-old son. Such a situation is inevitably tragic for all concerned. By application dated 12 August 2008, Ms Massey applied for a review of the magistrate’s decision to refuse bail. The application came before the Chief Justice on 26 August 2008.
Under s 9C of the Bail Act 1992 (ACT) a court is prohibited from granting bail to a person charged with murder unless satisfied that special or exceptional circumstances exist favouring the grant of bail. Even if those circumstances exist, the court must still thereafter consider whether it is appropriate to grant bail, having regard to the criteria ordinarily applied to a grant of bail. His Honour did not consider that the material before him amounted to special or exceptional circumstances and permitted the application to be adjourned.
It does not appear that his Honour considered himself part-heard in the application. This would not normally be so where the adjournment is a general one for a reconsideration of the material supporting the application. This is especially so where the adjournment is for some time as judges take leave or are otherwise engaged in court business so that a re-listed application may be delayed. The approach of requiring the matter to be heard only by the judge before whom the application initially came before would have the potential to breach the rights of the applicant under s 18 of the Human Rights Act 2004 (ACT). Accordingly, the matter came before me on 17 December 2008.
I read the affidavits of Sarah Elizabeth Avery affirmed on 11 December 2008 and Anne Maree Fredrickson affirmed on 12 December 2008. I also heard oral evidence from Ms Fredrickson who is Ms Massey’s mother. I adjourned the application to today for decision. In the meantime, I read the transcript of the proceedings before the Chief Justice.
Mr Pappas, who ably represented the applicant, submitted that there were four matters which amounted to special or exceptional circumstances favouring the grant of bail: the difficulties that Ms Massey’s son was experiencing as a result of the continued detention of his mother, the availability of a surety, the weakness of the prosecution’s case and the delay between arrest and trial.
The term “special or exceptional circumstances” has not been defined in the Bail Act. It is, however, a phrase commonly used in relation to bail. In DPP v Tang (1995) 83 A Crim R 593, Beach J said (at 596):
‘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, p 872). Webster’s 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.
That is to say, the applicant has, in my view, to establish that there is some unusual or uncommon circumstances which justify the granting of bail and those circumstances must relate to the granting of bail. I will consider each matter in turn.

The difficulty being experienced by Ms Massey’s child

As noted above, Ms Massey has an 8-year-old son. She also has a 17-year-old daughter. Unsurprisingly, the arrest and continued detention of Ms Massey has caused difficulties for her son. In her affidavit, Ms Fredrickson deposed as follows at [6]-[8]:
6.Approximately four weeks ago, I had a meeting at [the child’s] primary school which was attended by the Principal … [the child’s] teacher … [the child’s] teaching aide and the school counsellor. During the meeting I was advised that since the applicant had been in custody, [the child] had experienced significant behavioural problems at school such as temper tantrums, disruptive behaviour, lack of concentration and refusing to comply with directions from teachers. I was advised of examples of [the child’s] behaviour, including tipping up tables and chairs and a rack with cartons of Lego on it and damaging items in his classroom.
7.I was advised and verily believe that [the child’s] behavioural problems at school began around the time when the applicant was remanded in custody. I was advised by [the principal] and verily believe that prior to the applicant being taken into custody [the child] attended school from 9.15 am to 3.15 pm and apart from some minor discipline problems, [the child] had not exhibited the behaviour problems he is now showing.
8.During the meeting referred to above, it was decided that [the child] would attend school for restricted hours only between 9.15 am and 11 am due to his disruptive behaviour.
Attached to Ms Avery’s affidavit was a letter from the principal of the school attended by the child. In part it stated:
My observation of [the child] since 25th July 2008 indicate that he has become moody and sometimes very angry and finding it difficult to conform with directions given by the class teacher, teacher assistant and myself. He becomes defiant and is also reacting in a similar way with his grandmother, Mrs Anne Fredrickson. I can’t say that this behaviour is related to his mother’s current situation, however, it has to be remembered he is now living in a different home environment.
[The child] does react in a negative manner towards some of his friends in class and I believe this is due to his frustration and in built anger. I cannot relate the cause to a specific situation as I am not a psychologist or therapist. I would believe that it is a culmination of many circumstances happening in his current situation.
Currently [the child] attends school from 9.15 to 11 am daily, however, prior to 12th November 2008 he was able to attend school for the full day. He commenced getting upset and pushing and throwing objects within the classroom after this date and found himself hitting children whilst in the playground. His hours of school were reduced due to my concerns for his safety and that of his classmates.
The prosecution also raised the fact that on 24 March 2005, the Children’s Court of New South Wales had ordered that Ms Fredrickson, Ms Massey’s mother, be granted parental responsibility of the boy.
The submissions about this were quite frankly vague and unhelpful. If it was designed to suggest that Ms Fredrickson had no right to allow Ms Massey to care for the boy, then that is just wrong in law. If it was designed to suggest that the present behavioural problems simply had to be accepted because Ms Fredrickson had, by court order, the responsibility for parenting the boy, then that is also wrong in fact and in law.
It is not for the court to speculate on the relevant contribution to a submission of each matter in the case of a party before it; it is for the party to make out its case and say how each relevant fact fits into that case. Without more, I cannot see how this fact was relevant to any issue I have to decide. Nevertheless, it is true that a court has held that Ms Fredrickson is the proper person, rather than Ms Massey, with parental responsibility at law for the child.
The present difficulties of Ms Massey’s son are, of course, concerning. As Mr Drumgold, who represented the prosecution, said perceptively “There are no winners here”. It is a tragedy that a woman is dead, apparently stabbed to death in public, and that a mother is incarcerated and separated from her son. The young boy is becoming quite behaviourally disturbed by his separation from his mother.

Tragic family circumstances are not uncommon to those who practice in criminal law: see for example Lunam v Western Australia [2007] WASC 73 at [64]. I note that since 2000, when I assume the child was born, Ms Massey has been before the courts on no less than 14 occasions for offences ranging from possessing a pocket knife - an offensive weapon - with intent, assault, theft, and driving offences with penalties imposed including suspended jail terms. Regrettably, the children of people who engage in crime will suffer and, as will often occur, their problems will increase if the parents are imprisoned for offences they commit.
While the severity of the child’s problems are obviously of concern and are matters that could not fail to move any human or fail to cause concern to anyone concerned to prevent young people meeting developmental difficulties that will impede their progress to full potential as citizens, these problems can hardly be described as special or exceptional.
I have seen and heard Ms Fredrickson. She is clearly a concerned grandmother. I formed the view that she has a clear knowledge of what must be done to ameliorate the child’s problems and has the capacity and will to do so. In my view, these problems standing alone do not amount to special or exceptional circumstances.
Delay
Mr Pappas further submitted that the delay between the arrest of Ms Massey and the ultimate trial was an exceptional circumstance. I was advised that the committal was listed to commence on 1 June 2009 and was set down for 4 weeks. At that time, even were Ms Massey to still be in custody and the trial to be given the priority that that would entitle it to receive, it is unlikely that the trial will be held before well into 2010.
It is now clear that delay can constitute special or exceptional circumstances for the purposes of the bail application: Beljajev v DPP (1998) 101 A Crim R 362 at 368. The amount of delay that would justify such a finding is by no means precise.
For example in Tang at 596-7, a delay of six months between arrest and committal and six to eight months expected between committal and trial was held not to be an exceptional circumstance. On the other hand, cases of pre-trial custody of 18 months to 2 years have been held to amount to exceptional circumstances. (See the cases collected by Kellam J in Mokbel v DPP (Vic) [No 2] (2002) 132 A Crim R 290 at 294-5.)
The complexity of the case is, however, a factor to be considered in determining the acceptability of the delay: Raad v DPP (2007) 175 A Crim R 240 at 242-3. The fact that there are, I am told, to be 100 witnesses in the case is also relevant both to the complexity and the time the court will take to hear the matter and therefore when court time can reasonably be available.
While the delay in this case is significant, and is at the upper end of what might be considered acceptable, this can be reviewed, as has been said in a number of cases. There may, then, at the date of committal, be a finding of exceptional circumstances on this ground because of the ongoing delay.
Surety
As noted, a surety is available. Ms Fredrickson, Ms Massey’s mother, is prepared to undertake that obligation. She has no criminal convictions and clearly understands the obligation of a surety. Indeed she was prepared to go further and use such capacities and influences she had to ensure Ms Massey complied with any bail conditions the court might impose. Nevertheless, it is clearly not a special or exceptional circumstance that an applicant for bail has a surety available.
Strength of the prosecution case
It is always difficult on a bail application to assess the strength of a case against the applicant for bail. Often the court only has, as here, a statement of the police facts prepared at or shortly after the applicant’s arrest, and when investigations may be far from complete.
Indeed I was advised that although a brief of evidence has now been prepared, it is still only 90% complete. I am also told that there will be 100 witnesses, as I noted above. The incident occurred about 8 pm on 25 July 2008 at a shopping centre. There were other people around. Nevertheless the statement of facts recounts the observations of only three witnesses. One of these was the deceased’s partner and one was Ms Massey’s partner. Naturally a court would not reject either of these accounts, but would treat them with some caution. The account of the other witness tends to support the prosecution case, though there is no direct observation of the actual stabbing.
It is clear on the statement of facts that there was an altercation between the deceased and Ms Massey and that at its end the deceased had been stabbed and subsequently died. There is no suggestion of the relevant involvement of any other person. Apparently no weapon has been found. There are reports in the statement of facts of significant animosity between the two combatants. Indeed in the ambulance on the way to the hospital the deceased, then obviously still conscious, is reported to have said ‘I’m going to fucken kill her’. That may be consistent with a pre-existing intent to do Ms Massey harm, but it seems to me more likely to be an angry reaction to the injury that had been inflicted upon her.
Mr Pappas submitted that self-defence was very much a live issue. He pointed to four passages in the statement of facts. I am not satisfied that, apart from one, they are strongly indicative of the relevant aggression on the part of the deceased as would ultimately form the basis for an acquittal by reason of self-defence. It is, of course, for the prosecution to negative such a matter and not for Ms Massey to prove it. The one matter is that one of the witnesses, Ms Massey’s partner, is said to have heard Ms Massey call out ‘That slut just tried to stab me’. Despite that, no knife was found on or near the deceased. Clearly, self-defence will be an issue, but I consider the case of the prosecution not to be so weak as to amount to special or exceptional circumstances.
Totality of circumstances
Even if each of the factors referred to by the applicant do not in themselves amount to special and 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 them to determine whether they constitute such circumstances, as I have done: Abbott (1997) 97 A Crim R 19 at 27.
In this case Mr Pappas identified the effects of the continued detention of Ms Massey on her son, the alleged weakness of the Crown case, the delay before the trial is likely to be conducted, and the availability of a surety.
I have considered each of them in turn above and formed the view that none of them by themselves constitutes special and exceptional circumstances. Taken in combination, however, and with some hesitation, I am prepared to find that they amount to special and exceptional circumstances.
Bail
As noted above, however, I am still required to consider whether Ms Massey should be released on bail. The charge faced by Ms Massey is, of course, the most serious in the criminal calendar. It carries a maximum penalty of life imprisonment. This is an important factor for a court to take into account.
I also note that Ms Massey has a long and depressing criminal history extending back to 1993. It appears to consist of mostly relatively low level offences, although there are serious drug offences involved and more serious assaults. She has been sentenced to prison, though most such sentences have been fully suspended.
She has on five occasions failed to appear to answer bail and since 1995 has shown a concerning disregard for court orders. As noted, she has a history of assaults, and worryingly these recently have appeared alongside offences involving knives. While not a strong matter, there has been a threat made to a prosecution witness, though that does not have great weight in this application, especially as it was not made by Ms Massey herself. She has a surety available. The difficulties that her son is experiencing, and the time she has already spent in custody and will yet spend are of concern.
Ms Massey has a long heroin history. She said in evidence before the Chief Justice that she had been on a methadone program, at the maximum dose, and that she had been, before her arrest, undertaking random urinalysis and had been “clean” since Anzac Day 2008; that is three months prior to her arrest.
She has a long association with the Territory and said before the Chief Justice that she had nowhere else to go. I do note, however, that a number of the courts in which she has appeared have been in Sydney as recently as 2004 as well as Queanbeyan and Goulburn.
Taking all these matters into account, as best I can, I am not satisfied that it is appropriate to grant Ms Massey bail and the application is dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 22 January 2009

Counsel for the Crown:  Mr S Drumgold
Solicitor for the Crown:  Director of Public Prosecutions (ACT)
Counsel for the defendant:  Mr J Pappas
Solicitor for the defendant:  Ben Aulich & Associates
Date of hearing:  17 December 2008
Date of judgment:  19 December 2008