IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW MASSEY
[2010] ACTSC 163
HUMAN RIGHTS ACT
IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW MASSEY
[2010] ACTSC 163 (23 December 2010)
CRIMINAL LAW – bail – statutory presumptions – presumption for bail does not apply where person charged with armed robbery - Bail Act 1992 (ACT) s 9B.
BAIL – applicant required to show “significant change in circumstance” or “fresh evidence or information of material significance to the granting of bail” - Bail Act 1992 (ACT) s 19(5)
BAIL – “significant change in circumstance” or “fresh evidence or information of material significance to the granting of bail” – delay – whether 28 months in custody before commencement of trial is inordinate delay – applicant offered and declined earlier trial date - delay not shown to amount to significant change in circumstance or fresh evidence of significance to grant bail.
BAIL - “significant change in circumstance” or “fresh evidence or information of material significance to the granting of bail” – access to mental health services in the Alexander Maconochie Centre (AMC) – access to and level of mental health service available to applicant in the AMC considered adequate - not shown to amount to significant change in circumstance or fresh evidence of significance to grant bail.
Bail Act 1992 (ACT) ss 9B, 19, 23A, 43, Div 2.2
Director of Public Prosecutions Act 1990 (ACT) s 7
Human Rights Act 2004 (ACT) s 30
ACT Health Adult Corrections Health Services 2008-2012 (Canberra: ACT Health, March 2008)
R v Goodwin (2009) 233 FLR 473
In the matter of an application for bail by Massey (ACTSC, Higgins CJ, SCC 266 of 2009, 27 August 2009, unreported)
In the matter of an application for bail by Massey [No 2] [2009] ACTSC 70
Re an application for bail by Merritt (No 2) [2010] ACTSC 7
Massey v The Queen (2001) 115 FCR 98
In the matter of an application for bail by Day [2008] ACTSC 121
R v Kristiansen [2008] ACTSC 83
In the matter of an application for bail by Rodrigues
In the matter of an application for Bail by Allen [2009] ACTSC 64
In the matter of a application for bail by SA [2010] ACTSC 114
JUDGMENT
No. SCC 266 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 23 December 2010
IN THE SUPREME COURT OF THE )
) No. SCC 266 of 2009
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION FOR BAIL BY MATTHEW MASSEY
ORDER
Judge: Refshauge J
Date: 23 December 2010
Place: Canberra
THE COURT ORDERS THAT:
The application for bail be dismissed.
Matthew Massey has been charged on indictment with the following offences:
i. two counts of assault occasioning actual bodily harm (s 24 of the Crimes Act1900 (ACT) (Crimes Act); maximum penalty: 5 years imprisonment);
ii. three counts of aggravated robbery (s 310(a) of the Criminal Code 2002 (ACT) (Criminal Code); maximum penalty: 2500 penalty units or 25 years imprisonment);
iii. three counts of kidnapping (s 38(b) of the Crimes Act; maximum penalty : 15 years imprisonment); and
iv. three counts of forcible confinement (s 34 of the Crimes Act; maximum penalty: 10 years imprisonment).
The charges were all alleged to have occurred at various times on 12, 13 and 14 April 2009. On a number of counts on the indictment Mr Massey was committed for trial by the ACT Magistrates Court and a number of counts were laid ex officio: s 7 Director of Public Prosecutions Act 1990 (ACT). In a number of these charges, Mr Massey’s co-accused, Fakatounaulupe Ngata, was complicit, though Mr Ngata was charged with a total of nine offences.
This is, accordingly, a very substantial criminal enterprise, with very serious charges resulting.
The Facts
The case statement filed on 1 October 2009 (see R v Goodwin (2009) 233 FLR 473 (at [26] to [35])) asserted that the first of the charges arose when Mr Massey and Mr Ngata attended some units in South Canberra. Mr Massey is alleged to have punched a visitor going to one of the units and then robbed him of personal items. The next day the two again attended the units where Mr Ngata is alleged to have assaulted the occupier of the particular unit. The two are said then to have forced the occupier into a car and took him away. They demanded money and drugs from the occupier and physically assaulted him. They returned to the unit to collect the money and drugs but the occupier escaped and called the police.
The two accused, however, remained in the units and discovered two friends of the occupant who had come to the unit because the occupant had not answered calls they had earlier made. When they saw Mr Massey and Mr Ngata, they said they felt scared and hid in a cupboard in one of the bedrooms of the unit. They were discovered by Mr Massey and Mr Ngata and were robbed and held in the unit at knife point against their wills. Later, Mr Massey is alleged to have hit one of the two with a baseball bat.
When Mr Nagata walked onto the balcony of the unit, he saw a police car and he and Mr Massey are alleged to have taken the two friends out of the unit when each managed to escape.
The next day, Mr Massey and Mr Ngata went to the place of work of one of the two friends of the unit’s occupant that they had confined the previous night. They are said to have forced him to go with them to a car. They then drove him back to the unit. After a fruitless search for a computer, they drove him to the premises where they forced him to sign a document evidencing the sale of his motor bike and they obtained his keys to the bike. After driving to various places he was freed.
Higgins CJ in In the matter of an application for bail by Massey (ACTSC, Higgins CJ, SCC 266 of 2009, 27 August 2009, unreported) described the offences (at p 43) as follows:
So, the context of the offences is certainly that of, in effect, an organised crime ring, with the enforcement arm being Mr Massey and Mr Ngata, at least at that time and imposing themselves on person who owed money to Ms Stott.
Now, of itself, that would not be a reason for denying bail. But it gives rise to certain concerns. They are, as I see it too, first there is the fact that even with the greater parole Mr Massey is assessed at being at high risk of re-offending. And the nature of the offences in this group of second charges – the second lot of charges, are the kind of offences which, if they are repeated, would be indeed very serious and place the community at considerable risk.
It appears that Mr Massey was arrested on 14 April 2009 and has been in custody since that time.
Bail
When Mr Massey appeared in the ACT Magistrates Court on 15 April 2009, charged with four of the offences, bail was refused and he was remanded in custody. He entered a plea of not guilty to all charges on 29 April 2009.
Four further charges were laid on 28 May 2009 and on 2 July 2009, he entered pleas of not guilty to them also. He was then committed for trial to this court.
He made a bail application on 27 August 2009 before Higgins CJ. His Honour refused bail, referring to the seriousness of the charges, and noted the assessed high risk that Mr Massey would re-offend and the high risk of interference with witnesses: In the matter of an application for bail by Massey (at pp 42-3).
On 3 June 2010, Mr Massey made a further application for bail.
The Application
It was not entirely clear on what basis the application was made, whether under s 19 of the Bail Act 1992 (ACT) (Bail Act) as a fresh application, or under s 43 as a review of the decision of Higgins CJ. While it is desirable for the basis of such an application to be clear, it may not matter much as the tests are similar. In In the matter of an application for bail by Massey [No 2] [2009] ACTSC 70, Penfold J suggested that (at [4]) the Court could not review a decision of a judge’s review, however, from the reasons of Higgins CJ, it seems that His Honour was considering an application under s 19 and not a review of the earlier decision of the Magistrate. After all, the matters had not only been committed for trial, but a draft indictment including additional charges had been filed.
An affidavit of Mr Massey’s solicitor was filed in support of the application. He deposed in the first paragraph “the applicant seeks bail”, suggesting that this was an application under s 19.
A copy of the parole order made by the Sentence Administration Board on 18 August 2009 and a Pre-Release Report were annexed to the affidavit. The parole order was noted by Higgins CJ in the abovementioned application.
Also annexed was a report from the Manager of the ‘Inside Out’ Throughcare Program conducted by Directions ACT and a detailed psychological report by Mr Sam van Meurs, Psychologist.
The hearing of the bail application commenced on 23 July 2010. Mr Massey gave evidence and was cross-examined. His grandmother and Mr van Meurs, who prepared the psychological report, were also cross-examined. Detective Sergeant Matthew Innes gave evidence and was cross-examined.
A copy of charges subsequently laid against Mr Massey while he had been in custody on those matters was tendered. The charges had been the subject of a hearing in the ACT Magistrates Court in March 2010 and judgment was expected to be delivered on 5 August 2010.
It was also clear that the trial was then, at least tentatively, listed for 3 weeks commencing on 15 August 2011. However, because the ACT Government had announced the appointment of acting judges to sit in the ACT Supreme Court during the second half of 2010, an earlier date for trial was possibly able to be set.
As a result of the two issues referred to in [19] and [20], the proceedings were adjourned to 17 August 2010. On 5 August 2010, the proceedings were mentioned for the purpose of the court ordering a Forensic Mental Health Report. I declined to do so.
On 17 August 2010, I heard evidence from Ms Zoe West, Psychologist and Manager of Forensic Mental Health Service of ACT Mental Health who was also cross-examined, and submissions from counsel for the parties.
I reserved my decision.
The Legislative Framework
Section 19 of the Bail Act permits a person detained in custody in relation to an offence with which the person has been charged to make as many bail applications as he or she wishes. After an application has been made, however, a further application is subject to limitations set out in s 19(5) which provides:
19 General provisions relating to court bail
…
(5) If a court has made a decision in relation to an application for bail by an accused person, a court may only consider a further application for bail by the accused person if –
(a) the accused person was not represented by a lawyer at the hearing of his or her first application to a court for bail in relation to the offence with which the person is charged; or
(b) the accused person can show –
(i) that since the most recent application to a court for bail there has been a significant change in circumstances relevant to the granting of bail; or
(ii) that there is fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application to a court for bail.
Section 43, which provides for a review of a decision about bail, provides for the same limitations as are set out in s 19(5)(b) above.
If the applicant meets this threshold, then the court is required to apply the provisions of s 22 of the Bail Act which is in the following terms:
22 Criteria for granting bail to adults
(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a)the likelihood of the person appearing in court in relation to the offence; and
(b) the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii)interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
2the period that the person may be held in custody if bail is refused and the conditions under which the person would be held
In addition, s 23A of the Bail Act requires the Court to take into account any concerns expressed by a victim (defined to mean “a person... who suffers harm... in the course of or because of, the commission of an offence of which the accused person is accused”: Dictionary to the Bail Act). The section relevantly provides:
23A Victim’s concern about need for protection
(1) If a court is making a decision about the grant of bail to an accused person—
(a) the prosecutor must tell the court about any concern of which the prosecutor is aware expressed by a victim about the need for protection from violence or harassment by the accused person; and
(b)the court must receive any submission in relation to the concern and consider it in the context of the matter mentioned in section 22 (1) (b).
The Bail Act also provides different approaches to presumptions about bail depending on the particular offence charged in the circumstances. In the case of aggravated robbery, s 9B provides that the presumption in favour of bail under Div 2.2 does not apply. This means that there is no presumption for or against bail. The applicant must satisfy the court that bail should be granted.
As to the material on which I can rely, it does not appear to me that I am bound by the rules of evidence. Section 19(6) provides:
(6) In deciding whether to grant bail to an accused person, a court may have regard to any information it considers relevant and reliable.
I addressed this issue in Re an application for bail by Merritt (No 2) [2010] ACTSC 7 (at [6] to [7]). I adopt what I there said.
The Evidence
Mr Massey’s solicitor’s affidavit identified the following matters:
(a) the delay before the likely trial date, which would mean that Mr Massey would have been in custody by that date for nearly 28 months;
(b) the grant of parole;
(c) the counselling received from the Manager of the ‘Inside Out’ Throughcare Program of Directions ACT; and
(d) the report of Mr van Meurs.
The following witnesses were called:
Mr Massey(i)
In his evidence, Mr Massey noted that he proposed, if granted bail, to reside with his grandmother. He stated that he had done so before while on bail and that when he breached his bail, his grandmother had reported the breach to police and he had surrendered to police. He said the breach on that occasion was for a failure to give urine for analysis. He said he had pneumonia and so was ordered to bed and did not go to the pathology laboratory. He said his grandmother rang the authorities and notified them of the breach.
He referred to the likelihood that he would get work from one of two employers, one in demolition or one in construction. He said he had spoken to one of the employers three months ago but seemed to rely on their knowledge of him as prior employers. Although he said that he had organised employment with one, in cross-examination, he said it was really that “[h]e’s always got employment opportunities for me”.
This was consistent with the approach he put in the Parole Pre-Release Report which stated:
Mr Massey advised that he intended to find employment immediately upon being released from custody. He did not provide contact details for his prospective employer, but said that it was ‘demolition work’, which he has undertaken previously. Mr Massey stated that it would be ‘easy’ for him to find employment as many people attempt to support him when he is in the community. ACTCS records support this statement and it is noted [sic].
No detailed information about the employers or likely employment was tendered. In any event, Mr Massey said he wanted to undertake a period (he said six weeks) intensive counselling before starting work.
Mr Massey referred also to the intensive work he had been doing with Directions ACT. He found the counsellor supportive and said he listened to her.
He referred, too, to his mental health circumstances. He stated that he had been seen by Mental Health Services three times, including twice by a psychiatrist. He had been prescribed methadone, anti-depressants and sleeping tablets. The appointments with the psychiatrist, he said, lasted about 20 minutes.
He denied he intended to commit further offences. He accepted that he had done so in the past. This, he said, was because he got in with the wrong crowd and that this time, he would be with his family, though he seems to have been with his family before when he committed offences.
Of the three victims of the offences, he said two were in prison and he did not know where the other one was.
He also said he had not left the jurisdiction before to avoid answering his bail.
(ii) Ms Massey
Mr Massey’s grandmother also gave evidence. She is 71 years old and a rather slight woman. She confirmed that, if granted bail, Mr Massey could live with her. She confirmed that he had breached his bail before. She said, however, that it involved his failure to comply with a curfew condition and that she did not telephone anyone but had come straight to court to report it. There was uncertainty in her evidence about the amount, for which her suretyship was secured, first $5,000, then $2,000 cash, then $3,000 security.
Ms Massey was not really aware of the nature of the charges, though she did recognise “kidnapping” when mentioned to her.
She confirmed that she was prepared to act as surety and that she would report any breach of bail conditions committed by Mr Massey. She acknowledged that she would always allow Mr Massey to stay with her and provide him with support. It appeared that he may have been staying with her when he was arrested for these offences; certainly her address was the address for him on the original information.
When asked if she would be able to stop Mr Massey from doing anything he was not supposed to do, she said “Well, I trust him, and I just hope that he’d do the right thing by us, because we’re getting old”. She did say that she thought he had grown up a bit.
(iii)Mr Samuel van Meurs
Mr van Meurs is a psychologist with Canberra Clinical and Forensic Psychology. His curriculum vitae showed that he had graduated with a Bachelor of Psychology (Honours) degree in 2006 and expected to submit a thesis for “Phd/Master of Clinical Psychology” in 2011. He was registered as a Member of the Australian Association of Cognitive Behavioural Therapy and an Associate Member of the Australian Psychological Society. He had been a Disabilities Support Worker from 2003 to 2008, Intern Psychologist from 2008 to 2009 and a Psychologist in private practice since June 2009.
He diagnosed Mr Massey as suffering from a Major Depressive Disorder recurrent, chronic with moderate symptoms and an Adjustment Disorder with anxiety, with mild to moderate symptoms.
His impression was that there was no existing psychotic disorder from which Mr Massey was suffering. He suggested previous psychotic symptoms were the result of a reaction to substance abuse but that a psychiatrist should determine whether a psychotic disorder exists. I did not have a psychiatric report.
Mr van Meurs, in his report, stated:
There were also some concerning borderline personality characteristics, such as mood liability, intense anger, feelings of chronic emptiness, and suicidal behaviours. These suggest that he will need long term therapy if he is to improve, as individuals with such personality characteristics need an evidenced based therapy such as Dialectical Behavioural Therapy (offered by Queanbeyan Mental Health).
As is clear from this excerpt, Mr van Meurs did not express the opinion that only Dialectical Behaviour Therapy was suitable as treatment for Mr Massey, though the implication was clearly that this was regarded as appropriate, if not optimal, treatment.
In his oral evidence, Mr van Meurs said in relation to the Depressive Disorder that people can remit from depressive symptoms, but the more episodes there are, the more likely it is that they will recur. In Mr Massey’s case, there have been periods of remission. The present episode was probably triggered by the miscarriage of a child to his fiancée and his present incarceration.
As to the Adjustment Disorder with anxiety, Mr van Meurs considered that this was linked to Mr Massey’s forthcoming trial and his present incarceration. While such would be common to people in custody, he thought Mr Massey was experiencing it at a higher clinical level, which, he said, included experiencing panic symptoms.
In his report, Mr van Meurs also stated:
At present there are a range of support services offered within AMC. Their website lists an Alcohol and Other Drugs Program, Getting Me Back (long term substance program), AMC Therapeutic Community, Anger Management... managing emotions, and the Cognitive Self Change Program. Whilst I agree with Mr Massey in that he needs some long-term one to one therapy with an experienced psychologist, some of the above programs might also add some benefit to Mr Massey’s time within AMC.
If released, Mr Massey has access to a range of services offered by Directions ACT, most of which mirror the services offered to him within AMC such as Alcohol and Other Drugs Counselling, Relapse Prevention, and Primary Health Care. The one difference to services available outside of AMC compared to inside, is that outside AMC Mr Massey could access a range of counsellors and therapists. Given that at present he requires evidence-based psychological treatment for depression and his complex personality characteristics, which I believe are perpetuating his substance dependence and life of crime, it seems that the most appropriate services for him are not readily accessible within AMC.
When questioned, Mr van Meurs stated that he had formed his opinion on “[p]rimarily discussions with other psychologists in the forensic area ... as well as referring to the website of the AMC”. He made no attempt to contact anyone at the Alexander Maconochie Centre (AMC).
He also accepted, in light of evidence from Forensic Mental Health of ACT Mental Health, that his report was somewhat inaccurate in its statement of what was available at the AMC. He acknowledged that there is a greater range of psychologists and counsellors in the AMC than he had assumed. He did feel, however, from discussions with Mr Massey that the frequency with which he could access them was less than optimal and that he was not getting one-on-one therapy.
He also acknowledged that it would have been helpful if he had “spoken to someone from Corrections Health”. This led him to say:
I would argue that I’m in a position to comment on [the services available inside the AMC], but not with any definite authority...
He had, however, been told by Mr Massey that he had been seen twice by a psychiatrist and three times by the Forensic Mental Health Services team members in total and, in his opinion, considered this to be insufficient. He sees people with mild depression weekly; Dialectical Behavioural Therapy is given twice a week.
Mr van Meurs also stated that he was not aware of the medication Mr Massey was taking at the time of his interview. He conceded that he did not “chase that up any further” even though it was something that he should have investigated.
As to the Dialectical Behaviour Therapy recommended, he accepted that Cognitive Behavioural Therapy could address the anxiety and depression from which Mr Massey was suffering but “I would be treating the symptoms and not the cause”. Dialectical Behaviour Therapy, he said is “the gold standard for borderline personality disorder”, though he had not diagnosed Mr Massey as suffering from the disorder.
Dialectical Behaviour Therapy is not available in the AMC and, in the Canberra area, seems only available from Queanbeyan Mental Health and perhaps some private practitioners.
Mr van Meurs also reported:
An element of exaggeration was also evident, as shown in the testing and supported by a lack of strong affect in the interview, and as such the severity rating of the disorder was modified. If the diagnosis was made on the severity that he reported in the interview he would be deemed as Major Depressive Disorder (recurrent), chronic, severe. It was moved back to a moderate severity rating so as to take into account this exaggeration. This is not to say that he was without doubt malingering, because elevations on the NIM scale of the PAI can often indicate a very negative world view and a ‘cry for help’, which seems to be the case in Mr Massey’s situation, but to be cautious the diagnostic severity was altered nevertheless.
In oral evidence, he was careful to distinguish between exaggeration, which had caused him to moderate his diagnosis, and malingering or fakery. The latter were, according to his testing, certainly not the case.
() Detective Sergeant Matthew Innesiv
Detective Sergeant Innes was the team leader of the investigation into these charges. The informant was currently on maternity leave.
Detective Sergeant Innes advised the court that:
“[T]here’s significant fear amongst [the witnesses in this matter], should Mr Massey get out, they would be getting visits from him in relation to potential evidence that they would be giving in court”.
Although one of the witnesses was in custody at the AMC, it was suggested that pressure could be exerted on him through his de facto partner. It was suggested that this witness was actually more vulnerable because he was incarcerated and has not been intimidated, though it was clear that Mr Massey had limited access to other prisoners since he had been housed in protective custody.
Detective Sergeant Innes was unable to name another witness for whom he had express concerns for their safety but he had a general concern about interference with witnesses.
Detective Sergeant Innes is an experienced police officer but his evidence on this issue was disappointingly general and unspecific. He clearly had made no particular enquiries about the circumstances of the witnesses nor made an up-to-date assessment of their vulnerability nor ascertained their fears. His evidence on this issue cannot be completely dismissed but it lacked particular cogency.
It was, however, supported by a note which was tendered. The note read, using cipher for names
X, see Y [address] get to
telltake u [sic] to Z and A reverse statements and B immediately.
As to the persons mentioned, Y is a witness in the proceedings, Z is one of the victims, A is the de facto partner of that victim and B is another victim.
Detective Sergeant Innes explained that the note had been taken by Corrections (sic) Officers from a detainee at the AMC as he was being discharged. It appeared the note had been given to the detainee by Mr Massey. The note was taken off the detainee shortly after Mr Massey’s arrival at the AMC into custody.
Unsurprisingly, Detective Sergeant Innes was cross-examined about the note. Under cross-examination, it was revealed that no statement had been taken from the detainee nor had any particular investigation been conducted into the allegation that the note was a threat to interfere with witnesses, an acknowledged serious offence.
(v) Ms Zoe West
Before Ms West gave evidence, a letter from Ms Diana Newman, Court Liaison Officer of Forensic Service Mental Health, about mental health services at AMC and Mr Massey’s treatment was tendered. That indicated that the mental health team at AMC comprises “a range of professionals, including Psychologists, Registered Nurses, Social Workers, Psychiatrists and Registrars”.
The report continued:
Mr Massey has been seen on a number of occasions by the AMC MHS. Contact has generally been episodic, with short bouts of intervention assisting in reducing his clinical symptoms (e.g., anxiety, low mood, panic), which tend to be secondary to situational crises.
Interventions have included supportive counselling and psychiatric review. On each occasion of closure from the AMC MHS, Mr Massey has been referred to Corrections Health (primary health care in the Prison) for continued monitoring.
Mr Massey was last seen by the AMC MHS on 12 July 2010 and was considered in need of psychiatric review, but not as an urgent appointment. He will be reviewed by nursing and allied health staff as an interim measure.
Mr Massey is not considered in need of ongoing tertiary mental health care at this juncture. However, if his mental health deteriorates, Mental Health ACT will provide him treatment and care; and delivery of care can be provided in either a custodial or community setting.
Ms West is a psychologist and manager of the Forensic Mental Health Service. One of her sub-teams is the AMC Mental Health Team for the operation of which she is responsible. She explained the process in the AMC where a detainee is reviewed by a psychiatrist and when a diagnosis is made, the detainee is transferred to the intervention team which has three psychologists, a social worker and a nurse.
While on remand, long term therapy is not usually commenced, such as for sexual assault or trauma, but Cognitive Behavioural Therapy for depression is provided, together with medication and “the plain sort of therapeutic paradigms used for anxiety and adjustment.”
Her assessment of Mr Massey’s immediate needs was consistent with the letter from Ms Newman. She confirmed that, as well as medication, Mr Massey would be provided with therapy sessions. She suggested eight to ten sessions were, on the best evidence, what should be given.
She confirmed that Dialectical Behaviour Therapy was not available at the AMC. She did note, however, that one of the AMC psychologists was skilled in Acceptance Commitment Therapy, which is a subset of Dialectical Behavioural Therapy and which, according to Ms West, “seems to have the same sort of results for things like borderline personality disorder and emotional regulation.”
Ms West noted that there were four psychiatrists at the AMC and the detainees were seen usually once a month and once or twice a week by psychologists for ongoing therapy. It was put to Ms West, however, that Mr Massey had, since April 2009, only seen a psychiatrist four times; she was unable to confirm or reject that because she did not have the notes before her.
She confirmed that the treatment plan for Mr Massey was medication together with regular psychology interventions involving the conversational therapy paradigm or cognitive therapy.
(vi)Documentary Evidence
A number of other documents were tendered.
Mr Massey’s criminal record was not tendered. A copy was tendered in the proceedings before Higgins CJ. Although on the court file, it was not formally admitted in evidence before me, though s 19(6) probably enables me to have regard to it. I am aware through reported cases (see, for example, Massey v The Queen (2001) 115 FCR 98) that he has a history of armed robbery, violence and drug offences, in any event.
The clinical notes from the AMC were tendered. They showed that Mr Massey was seen by a psychiatrist on five occasions between April 2009 and July 2010 and that he had been seen by his mental health team on 17 occasions, at times quite intensively.
I also had a letter from Mr Massey. He expressed confidence in an acquittal of the charges. He also felt he had done all he could about counselling while in custody. He wrote that he was “battling depression” and felt he was going backwards. He had been seeing a counsellor from Directions ACT but was only able to see her once a month.
He asserted that he was trying to address his issues; he had worked hard to get parole, “kept [his] head down hoping to get this chance to move forward”. He wrote that he was stable on methadone and had “been able to stay clean” while in the AMC.
He expressed confidence that he could succeed in overcoming the problems with drugs but he needs to address the cause of why he uses drugs, namely to deal with pain that he hopes intensive professional support will address.
Consideration
I was disappointed with the level of material provided in this application by both applicant and respondent. That bail applications are often heard at short notice limits the preparation that can be given, even by the most conscientious practitioner (Re an application for bail by Merritt (No 2) (at [7] to [12]), especially as many are made by the applicant personally, who only obtains the services of a lawyer at the last minute, though that is undesirable (In the matter of an application for bail by Day [2008] ACTSC 121 (at [43]).
This case was not such a case. The application was prepared by Mr Massey’s solicitor. It was filed on 3 June 2010 returnable on 11 June 2010 and then adjourned generally, being relisted on 23 July 2010 and ultimately heard on 15 August 2010. There was plenty of time for both parties to address important evidentiary issues.
The first issue is whether, there having been an earlier application before Higgins CJ, the threshold tests in s 19(5) of the Bail Act have been satisfied. These tests are an interference with the liberty of Mr Massey and so while I must apply these carefully and conscientiously in accordance with the purpose of the Bail Act, I have already held that they should be given a liberal interpretation because of the injunction under s 30 of the Human Rights Act 2004 (ACT) to interpret them as compliant with the human rights in that Act: R v Kristiansen [2008] ACTSC 83 (at [20]), In the matter of an application for bail by Rodrigues [2008] ACTSC 50 (at [20]).
Mr A Herring, who appeared for Mr Massey, essentially identified two issues which he said met the relevant tests: the delay in listing the matter for trial and the inadequate mental health services available at the AMC. I shall deal with each of these in turn.
Delay(a)
The mere passage of time since an earlier bail application cannot be a significant change in circumstances itself: In the matter of an application for bail by Massey [No 2] (at [7] to [8]). Of course, if the delay was inordinate or caused by the prosecution that may be different.
Here, the issue was that, since the bail application before Higgins CJ, a date for trial (15 August 2011) had been indicated and now set.
In some circumstances, that could meet the test under s 19(5) of the Bail Act, for example, if the date of the trial would mean that the applicant would remain in custody for a period well in excess of any sentence that could reasonably be imposed for the offence or offences charged. That is not the situation here.
Mr Herring submitted that the real vice was that as was now known, by virtue of the date (or proposed date) of the trial, Mr Massey would, by that date, have been in custody for 28 months. This, he submitted, was an inordinate time.
This has to be moderated by the fact that earlier trial dates have been offered to the accused. In fairness, I have to say that the failure to accept an earlier date, which Mr Massey embraced, was apparently because his co-accused resisted that. The matter of a date did not come before me and so I was not privy to the considerations that were involved. I do know, however, that an earlier date for the trial was available, was offered and declined.
Delay can be relevant, but the mere passage of time when the ordinary processes of the court are being followed, cannot ordinarily be regarded as delay of the trial that entitles an accused to bail.
As Penfold J (at [39] to [41]) in In the matter of an application for bail by Allen [2009] ACTSC 64:
[39] I am not convinced that the need to undertake the normal processes for dealing with a serious criminal charge, and the time taken by those processes in the normal course of events, could properly be described as delay. As long as the work of bringing the matter to trial in a proper way is being done at a reasonable pace, whether by investigating officers, forensic analysts, prosecuting authorities, court officials, magistrates or legal representatives, I cannot see that the matter is being delayed.
...
[40] Even if there is a sense in which the word “delay” could appropriately be used to describe periods normally required for the normal processes, it is hard to see that the likely passage of that time could amount to special or exceptional circumstances.
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[41] …It is... possible to imagine a situation in which, perhaps because of a significant shortage of resources within the criminal justice system or during a transitional period while an earlier set of procedures was being replaced by a new and different set of procedures, the normal elapsed time between arrest and trial blows out so as to exceed substantially that which has previously been regarded as acceptable, or which is currently regarded as acceptable in comparable jurisdictions. In such a situation, a court might come to the view that most or all accused persons were being subjected to inordinate delays, and therefore that special or exceptional circumstances applied to most or all accused persons being held in custody (with potentially dramatic results for bail applications).
In In the matter of an application for bail by SA [2010] ACTSC 114, Penfold J applied those principles (at [42] to [44]) and rejected the argument that a delay of two and a half years amounted to a special or exceptional circumstances favouring the grant of bail.
Of course, delay does not have to be a special or exceptional circumstance to amount to a significant change in circumstance nor fresh evidence of significance to the granting of bail (s 19(5)) but it seems to me that this approach is helpful to deciding those questions.
In my view, in these circumstances, the fixing of the trial date and the time that, therefore, Mr Massey will spend in custody before his trial is not such as to meet either of the tests under s 19(5), namely that it was “a significant change in circumstances” or “fresh evidence ... of significance to the granting of bail”.
Access to services in the AMC(b)
Mr Herring submitted that Mr Massey’s mental condition and the report of Mr van Meurs meant that he was being denied treatment to which he should have access.
I accept that so far as Mr Massey’s long term mental health is concerned, he needs to address underlying mental health causes and issues that he perhaps has not yet confronted. This may well require long-term and intensive psychological counselling. I also accept that the optimal counselling regime may consist of Dialectical Behavioural Therapy.
That, however, cannot be the relevant issue. There are always new treatments provided and optimal treatment is often not the treatment offered by all therapeutic providers. Many in the community who cannot access private health insurance for themselves have to wait for treatment sometimes beyond what is therapeutically necessary or reasonable.
The real issue that would amount to meeting the threshold test in s 19(5) would be if, while treatment was available out of the AMC, Mr Massey was not able to access treatment in the AMC. That accessible treatment in the AMC should be adequate and at least what other citizens can access is not in doubt. As the ACT Health Adult Corrections Health Services 2008-2012 (Canberra: ACT Health, March 2008) states in its “underpinning principles” (at p 7):
· People in custodial setting have the right to health services, prevention, education and health promotion initiatives that are equal to those applying to the broader population, recognising the constraints of the correctional setting in which they are located.
· The Corrections Health Program will provide care that is equal to that provided in the general community in a culturally sensitive service model.
· The Corrections Health Program will be accessible and flexible to all prisoners.
...
· Services will be provided on the basis of clinical assessment of individual need and will be provided using a continuity of care approach. Some services required may need to be provided off-site.
Nothing in the evidence before me suggested either that these principles were not appropriate nor that they were not being applied to Mr Massey.
It is here that Mr Massey understated his access to services in his evidence and the respondent overestimated his access compared to the facts as disclosed by the notes.
Principally, however, the report of Mr van Meurs was relied on to show that the access Mr Massey had was less than what was promoted. The problem was that Mr van Meurs did not know what was provided. He did not even know the medication which has been prescribed for Mr Massey.
When confronted with the actual availability of services, Mr van Meurs did somewhat resile from his position not insignificantly. In any event, he did not say that the therapy offered was not appropriate now in accordance with his requirement that it be evidence based.
In my view, Mr Massey has failed to show that the mental health services being provided to him are inadequate. Indeed, a perusal of the clinical notes show that when his need is acute, he is provided with significant and frequent services. I accept that these may be directed at this stage to health symptoms and not necessarily the underlying causes, but I do not accept that this necessarily amounts to inadequate service and there was no evidence on which I could rely to come to a conclusion that it was inadequate.
Accordingly, so far as this issue is concerned, the level of service available to Mr Massey at the AMC, compared to that accessible outside the AMC were he to be granted bail, is not such as to meet either of the tests under s 19(5); namely that it was “a significant change in circumstances” or “fresh evidence...of significance to the granting of bail”.
Other Issues(c)
I do not have to consider other issues that were canvassed at the hearing such as whether Mr Massey would, it released, interfere with witnesses. The evidence as to this was rather unsatisfactory, though not necessarily insufficient to justify refusing bail. It was not much more than was before Higgins CJ, who refused bail including for that reason.
Conclusion
In all circumstances, I am not satisfied that I can consider the application for bail by Mr Massey because of his failure to satisfy the requirements of s 19(5) of the Bail Act.
Accordingly, the application will be dismissed.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 23 December 2010
Counsel for the applicant: Mr A Herring
Solicitor for the applicant: Herring & Associates
Counsel for the respondent: Ms J Davidson
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 23 July, 5, 17 August 2010
Date of judgment: 23 December