Police v Sipi

[2011] QMC 17

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Sipi [2011] QMC 17

PARTIES:

POLICE

(prosecution)

v

SIMOI ALEXANDER SIPI

(defendant)

FILE NO/S:

MAG232723/10(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Townsville

DELIVERED ON:

13 July 2011

DELIVERED AT:

Townsville

HEARING DATE:

13 July 2011

MAGISTRATE:

Ryan KA

ORDER:

Not Guilty

CATCHWORDS:

CRIMINAL LAW – BREACH OF BAIL - bail condition - QIADP court - whether residential condition forms part of bail condition that defendant participate in QIADP - whether defendant on QIADP bail can be charged with breach of bail condition

Bail Act 1980 (Qld), s 11(9), s 29(1), s 29(2)

Protocol No. 2 of 2008 for the Pilot Queensland Indigenous Alcohol Diversion Program

COUNSEL:

L Palmore for prosecution

P Coombs for the defendant

SOLICITORS:

Prosecutions appeared on own behalf

Aboriginal & Torres Strait Islander Legal Service for the defendant

1. Mr Sipi has pleaded not guilty to a charge of breaching a bail condition pursuant to section 29(1) of the Bail Act 1980.  His legal representative has submitted that there is no case to answer after the prosecution led evidence from four police officers and Mr Bradley Whittle from the Townsville Recovery Service.

1. On 16 November 2010, Mr Sipi signed a bail undertaking with certain conditions.  Those conditions included at paragraphs 4 and 5 of the undertaking that –

(4)The defendant must participate in the QIADP for a period of 20 weeks.

The defendant must comply with all reasonable directions of          Quensland Health (ATODS)

(5)You must live at:  Townsville Recorvery (sic) Services at 312-340 Walker Street, Townsville annd (sic) maintain a daily curfew at that residence between 7.00 pm and 7.00 am unless if excused (sic) or varied by staff at that centre.

1. The prosecution evidence is that at 4.45 am on 6 December 2010, Mr Sipi was found hiding behind an industrial bin at Rassmussen. This was clearly in breach of the curfew set out in condition (5) on his bail undertaking. 

1. The police made enquiries that revealed Mr Sipi was on the Queensland Indigenous Alcohol Diversion Program (QIADP) program, but were unable to ascertain the particular details of his bail conditions.

1. Mr Whittle gave evidence that later the same day, Mr Sipi was discharged from the Townsville Recovery Service into the custody of representatives of Queensland Health due to his gradual disengagement and reluctance to participate in the rehabilitation program. 

1. Further enquiries were undertaken with the QIADP prosecutor and details of the bail conditions were discovered. 

1. When Mr Sipi reported to the Townsville police station two days later of his own accord, at which time he was arrested, taken to the watch house and charged with the offence before the court.

1. Now Mr Coombs, for Mr Sipi, has submitted that condition (5) on Mr Sipi’s bail undertaking is a condition which cannot be breached pursuant to section 29(2)(c) of the Bail Act 1980. That section states –

(1)A defendant must not break any condition of the undertaking on which the defendant was granted bail requiring the defendant’s appearance before a court.

(2)Subsection (1) does not apply to –

……..

(c)a condition that the defendant participate in a program prescribed under a regulation under section 11 (9).

1. Section 11(9) provides the court with the power to impose a bail condition that the defendant participate in a program prescribed under a regulation. It is accepted that QIADP is such a program.

1. Mr Coombs has referred me to Protocol No. 2 of 2008 for the Pilot Queensland Indigenous Alcohol Diversion Program, in particular the section entitled Breaches of bail and withdrawal of consent. He argues that the action which should have been taken by the prosecution was that the matter should      have been brought back before the court as soon as possible for the appropriate action to be taken by the magistrate as contained in paragraph 15.5 of the Protocol. He says that his client has been charged with an offence that is not known before the law.

1. The question here is whether the residential and curfew condition contained in clause (5) of the Undertaking as to Bail forms part of the condition that Mr Sipi must participate in the QIADP program. If it does, then Mr Sipi could not have been properly charged pursuant to section 29(1) of the Bail Act 1980.

1. Ms Palmore, for the prosecution simply argues that clause (5) is a separate condition to that requiring Mr Sipi to participate in the program and police have the appropriate power to charge him with its breach pursuant to the Bail Act 1980.

1. I note that paragraph 15.11 of the Protocol states (referring to paragraph 15.10 which deals with breaching the condition requiring the defendant to participate in the program) –

…..if the defendant breaches bail in some other way, such as committing further offences, failing to appear or non-compliance with other bail conditions the magistrate may revoke bail and the matter will proceed in the normal way.

1. This of course, means that the defendant in such a circumstance would be dealt with outside the QIADP program.

1. I am cognisant of the fact that not all defendants who participate in the QIADP program are directed to reside at the Townsville Recovery Centre, but can be placed on residential conditions that they reside at a private residential address. It is clear that such a condition is a separate condition to that requiring the defendant to participate in the program.

1. I therefore find that the breach of clause (5) of the bail undertaking could be properly brought as a charge against Mr Sipi.

1. However, in this case, I turn to the actual charge before me. I set it out here in full –

That on the 6th day of December 2010 at Townsville City in the Magistrates Courts District of Townsville in the State of Queensland one Simoi Alexander SIPI being a defendant within the meaning of the Bail Act 1980 broke a condition of an undertaking into which he entered on the 16th day of November 2010 at the Townsville Magistrates Court namely to reside at Townsville Recovery Services located at 312 to 340 Walker Street Townsville on which Simoi Alexander SIPI was granted bail requiring his appearance before a court namely Townsville Magistrates Court.

1. On the evidence before me, Mr Sipi broke his curfew. He is not charged with this, only with not residing at the Townsville Recovery Service. From Mr Whittle’s evidence Mr Sipi was still a resident at the Centre until lunch time on the 6th December 2010 when he was discharged into the custody of Queensland Health representatives.

1. I therefore find that the prosecution has not proved its case beyond a reasonable doubt and I find the defendant not guilty.