In the matter of an application in relation to the grant of bail to Lokvicic

[2012] ACTSC 37

IN THE MATTER OF AN APPLICATION IN RELATION TO THE GRANT OF BAIL TO TONY LOKVICIC
[2012] ACTSC 37 (15 March 2012)

Bail Act 1992 (ACT), s 43A, Division 6.2

In the matter of an application for bail by Rebecca Massey [No.2] [2009] ACTSC 70

No. SCC 58 of 2012

Judge:             Burns J
Supreme Court of the ACT

Date:              15 March 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 58 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

IN THE MATTER OF AN APPLICATION IN RELATION TO THE GRANT OF BAIL TO TONY LOKVICIC

REASONS FOR DECISION

Judge:  Burns J
Date:  15 March 2012
Place:  Canberra

1. By an application dated 28 February 2012 the applicant sought a review under s 43A of the Bail Act 1992 (ACT) (the Act) of the decision of a magistrate not to review under s 42A of the Act a decision of that court refusing him bail. On 2 March this year the application came before me, with Mr Sharman appearing for the applicant and Ms Hunter appearing for the informant. After hearing counsel I refused the application, and indicated I would publish reasons at a later time. These are those reasons.

1. On 31 January this year the applicant was arrested and charged with one offence of assault occasioning actual bodily harm and one offence of driving whilst disqualified as a repeat offender.  On the same day he appeared before a magistrate and applied for bail.  At that time he was not represented by a legal practitioner.  Bail was refused and he was remanded in custody.

1. On 21 February this year the applicant made a further application for bail before Chief Magistrate Walker in the Magistrates Court.  At this time he was represented by a legal practitioner.  Bail was again refused.

1. On 22 February the applicant appeared in the Family Violence list in the ACT Magistrates Court where he entered pleas of not guilty to the two charges.  A case management date was set for 21 March this year to allow for the preparation of the prosecution brief of evidence.

1. On 24 February this year an application under s 42A of the Act for review of the decision of the Magistrates Court (presumably the decision of Chief Magistrate Walker of 21 February this year) refusing the applicant bail came before Magistrate Campbell.  Her Honour was not satisfied that the applicant had demonstrated any change in circumstances since the previous refusal of bail on 21 February this year, as required by s 42A (b) (i) of the Act.  Her Honour refused the application and further remanded the applicant in custody.  The applicant then commenced these proceedings.

1. The parties agree that this application is governed by s 43A of the Act. That section provides:

43APower of Supreme Court to review – decision of Magistrates Court or Supreme Court

(1)   This section applies if a decision in relation to bail for an accused person has been made by –

(a)the Magistrates Court in accordance with section 42A (Power of Magistrates Court to review – decision of Magistrates Court); or

(b)the Supreme Court.

(2)   The Supreme Court may, on application under this division, review the decision of the court, only if the court is satisfied that the applicant has shown –

(a)a change in circumstances relevant to the granting of bail since the court’s decision; or

(b)the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision.

1. The parties approached the application before me on the basis that the requirements of s 43A (1) (a) were satisfied. I will refer further to this issue later in these reasons.

1. A further precondition to this Court reviewing a bail decision of a magistrate is found in s 43A (2). In the instant case the applicant submitted that there had been a change in circumstances relevant to the granting of bail as he had entered pleas of not guilty to the charges in the ACT Magistrates Court.

1. The chronology set out above reveals that the fact that the applicant entered pleas of not guilty cannot be a change in circumstances which is relevant for the purposes of s 43A (2) (a) of the Act in this case. The “decision” which is referred to in s 43A (2) (a) is, relevantly for present purposes, the decision of the ACT Magistrates Court made under s 42A of the Act. So much is clear from s 43A (1). In the present case the pleas were entered on 22 February this year and the bail review under s 42A was heard on 24 February this year. Obviously the entry of pleas cannot be a change is circumstances “since the court’s decision” for the purposes of s 43A (2) (a), as the pleas were entered before the relevant decision. As such, the applicant has not satisfied the requirements of s 43A (2) (a) of the Act.

1. It appears to me that s 43A does not empower this Court to simply review the appropriateness of a decision of the Magistrates Court made under s 42A of the Act. Section 43A does not permit an applicant to simply present the same case before this Court as was presented in the Magistrates Court with a view to seeking a different outcome. An applicant under s 43A must show a change in circumstances relevant to the granting of bail since the decision under s 42A, or must show that there is fresh evidence or information relevant to the granting of bail that was unavailable when the Magistrates Court made the decision under s 42A. An application for review under s 43A is not a rehearing of an unsuccessful application under s 42A.

1. For the purposes of this application I have assumed that a decision not to review bail under s 42A of the Act is a “decision in relation to bail” for the purposes of s 43A (1). If that were not the case, then the provisions of s 43A (1) would also not be satisfied.

1. I understand that Magistrate Campbell declined to review the decision of Chief Magistrate Walker on the basis that she was not satisfied that the applicant had shown a change in circumstances relevant to the granting of bail since the Chief Magistrate refused bail on 21 February this year. Whilst it is no part of my function to review the decision of Magistrate Campbell, as the provisions of s 43A (2) of the Act have not been satisfied, I must say, with respect, that I consider her decision to have been correct if the evidence placed before her Honour was the same as that placed before me. I accept that the entry of a plea, either of guilty or not guilty, constitutes a change in circumstances for the purposes of Division 6.2 of the Act, however the entry of the plea, in itself, is not relevant to the granting of bail. By entering the pleas an accused person asserts their innocence. But an accused person is always presumed to be innocent until such time as their guilt may be proved. The entry of a plea of not guilty does not enliven any presumption in favour of the granting of bail, and can only be relevant to the granting of bail to the extent that it will, or is likely to, result in delay in the proceedings being concluded. However, as Penfold J observed In the matter of an application for bail by Rebecca Massey [No.2] [2009] ACTSC 70 some delay, in the sense of simple passage of time, in resolving contested charges is inevitable, and not all delay will be relevant to an application for bail. Usual or inevitable delay is anticipated by a court when bail is refused and an offender remanded in custody. As such, with respect, Magistrate Campbell was correct to conclude that, by itself, the entry of pleas of not guilty was not a change in circumstances relevant to the granting of bail.

   I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:    15 March 2012

Counsel for the applicant:  Mr T Sharman
Solicitor for the applicant:  Rachel Bird & Co
Counsel for the respondent:  Ms M Hunter
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  2 March 2012
Date of judgment:  15 March 2012