In the Matter Of An Application For Bail By Robert Carberry

[2012] ACTSC 137

IN THE MATTER OF AN APPLICATION FOR BAIL BY ROBERT CARBERRY

[2012] ACTSC 137 (28 June 2012)

EX TEMPORE JUDGMENT

No. SC 367 of 2011

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               28 June 2012

IN THE SUPREME COURT OF THE       )
  )          No. SC 367 of 2011
AUSTRALIAN CAPITAL TERRITORY    )          

IN THE MATTER OF AN APPLICATION FOR BAIL BY ROBERT CARBERRY

ORDER

Judge:  Higgins CJ
Date:  28 June 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for limited bail is granted.

1. The question is whether this is an appropriate occasion for the grant of limited bail.  There are some family occasions which, of course, are strong candidates for such.  The first requirement is that there is no other way of achieving the objective other than the grant of bail.  In many cases the Superintendant is not only empowered, but may, grant leave. I imagine this usually occurs with an escort, and that may satisfy the purposes of the particular applicant. 

1. In some cases, the Superintendent may well say, and reasonably so, that it is not an appropriate occasion to devote that kind of resource, and I can understand that.  Indeed, I would have thought on this occasion, that it would be reasonable for the Superintendent to say, “Well, this is not a sufficiently special occasion for me to be prepared to devote the resources that will be necessary to have Mr Carberry escorted to and from either Walker Crescent or Kingston”. I do not regard that stance that the superintendent or deputy has taken as unreasonable. 

1. The question is whether courts should, in the circumstances, grant Mr Carberry bail.  There are two issues there; the first and most obvious issue is that he is a detainee.  He has been denied bail and there are no doubt good reasons for that, which I do not need to go into in any great depth.  There is a public interest in his remaining on remand until his trial which is on 9 July 2012.  It is very soon and therefore the fears of something happening between now and the trial, which might prejudice that trial, must be taken seriously.

1. To address that, Mr Carberry has given evidence.  I suppose the obvious answer to any question he might answer which says that he will not do anything untoward is, “He would say that, wouldn’t he.”  But his partner, Ms Chatfield, has also given evidence. I have to say I am quite impressed with her and am prepared to accept that she would jealously guard the bail conditions and ensure that Mr Carberry complied with them.  I think, on balance, he probably does intend to as well.  However, one has to be reasonably sceptical of such assertions. 

1. The bail conditions which have been proposed to me by Mr Thomas, in the event that bail was to be granted, seem to be entirely appropriate.  My real concern is whether the grant of this limited bail would be seen as some kind of carte blanche to detainees to refer to any family occasion, whether it be a birthday, a graduation ceremony, or whatever, and say, “Now, Mr Carberry was granted bail to attend his daughter’s birthday party, what is different about my case?”  It is a matter for concern.

1. It seems to me that in such an application there ought to be at least special, perhaps exceptional, circumstances before such an application should be granted.  I have to ask myself whether there are any in respect of Mr Carberry.  I think on balance, and it is a very fine one, there are, in that: he is facing trial on 9 July 2012; he has been in custody for nine months; no such application as I understand it has been made before; it is a second birthday party for his younger child; and there is a risk that he will not be able to further released from custody after 9 July 2012. 

1. I make no comment about what his prospects for success are, but if it went adversely to him, he could not be released.  It is clearly close to that time. While it does raise the concerns which I have mentioned earlier, it also makes more poignant the question of attending the family occasion, as there may be no other later occasion, apart from sad occasions such as funerals, upon which he might be able to persuade the Superintendent to grant him leave. 

1. I make the point that there does have to be at least some special circumstance attaching to such a request to enable it to be granted. I find that although it may have been a finely balanced thing, with the nearness of the trial and the circumstances surrounding the fact the child is two, it does make it even more of a special occasion because she obviously is not old enough to really appreciate everything that is going on as an older child may be. 

1. On balance, I grant the application in the terms suggested by Mr Thomas and I fix a cash surety to be provided by Ms Chatfield in the sum of $500. Mr Carberry and Ms Chatfield will need to acknowledge those terms before the bail conditions can come into effect. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:       15 August 2012

Counsel for the Plaintiff:  Mr M Thomas
Solicitor for the Plaintiff:  Director of Public Prosecutions for the ACT
Counsel for the Defendant:  Mr D Perkins
Solicitor for the Defendant:  Darryl Perkins Solicitors
Date of hearing:  28 June 2012
Date of judgment:  28 June 2012