PQ v The Queen

[2021] NSWSC 830

Supreme Court

New South Wales

Medium Neutral Citation:

PQ v R [2021] NSWSC 830

Hearing dates:

23 June 2021

Date of orders:

08 June 2021

Decision date:

08 June 2021

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

Application for bail dismissed

Catchwords:

CRIME – bail – offence of taking and detaining – assessment of bail concerns – unacceptable risk test – whether risk of reoffending – whether risk of fleeing jurisdiction – very strong crown case – concern of not complying with bail conditions – presence of unacceptable risk – bail refused

Legislation Cited:

Bail Act 2013

Courts Suppression and Non-Publication Orders Act 2010

Crimes Act 1900

Cases Cited:

JM v R [2015] NSWSC 978

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Regina
PQ (Applicant)

Representation:

Counsel:
A Chauvet (Crown)
N Mikhaiel (Applicant)

File Number(s):

2021/138552

Publication restriction:

Order that the names of the applicant, her co‑accused, the victim of the offence and family members of the victim, the events the subject of this application and any material tending to identify them, be suppressed

Judgment

1. On 2 December 2020, the applicant, to whom the pseudonym PQ has been given, was arrested and charged with an offence contrary s 86(1)(b) of the Crimes Act 1900 of taking and detaining a person, in company, with intent to obtain an advantage. The offence was said to have been committed on the afternoon of 1 December 2020. The detention continued for some days.

2. On 17 May 2021, PQ made an application pursuant to s 8 of the Bail Act 2013 (“the Act”) to be released on bail.

3. The Crown opposed that application. It was heard on 23 June 2021. The Court reserved its decision on that day.

Non-Publication Order

4. It will be necessary in this judgment to consider the nature and strength of the Crown case against the applicant. That is to be done by reference to the contents of the Crown case statement and various other documents. Some of that material may not ultimately be admitted in evidence if the matter proceeds to a contested trial.

5. In order to prevent prejudice to the proper administration of justice, and in order to ensure a fair trial of the applicant, the Court must make a suppression order pursuant to s 8 of the Courts Suppression and Non-Publication Orders Act 2010. In so doing, I take into account that a primary objective in the administration of justice is to safeguard the public interest in open justice. However, in an interlocutory application such as this one, it is also important to take steps to ensure that a fair trial will take place.

6. Accordingly, the Court has ordered that the names of the applicant, her co‑accused, the victim of the offence (who is her child) and family members of the child, and any material tending to identify them, be suppressed. Such order is made until the conclusion of the trial of the applicant, or further order of the court, whichever first occurs.

Background of the Applicant

7. The applicant married the father of the child (“the father”) in 2006. In April 2013, the applicant gave birth to the child, who was her only child with the father (“the child”).

8. The applicant is presently 36 years of age. She has no history of prior criminal offences and comes before the Court as a person of prior good character.

9. The applicant was born and grew up in Sydney and was educated here. She has four siblings, three of whom who are engaged in professional practice having obtained tertiary qualifications. She graduated as a chiropractor and worked in that field for over 10 years.

10. Her parents are alive, although her mother is unwell and is being cared for at home by her father. The applicant’s father continues to undertake some work but apparently is coping poorly.

11. The applicant's marriage to the father provoked some disruption in her own familial relationships and interrupted her prior good relationship with her family.

12. Although the applicant had a reasonably stable upbringing, she did not enjoy school and was the subject of some physical abuse while in primary school. She was also subject to a sexual assault as a teenager by the brother of a female acquaintance. She did not report that incident.

13. The applicant successfully completed her tertiary education and took up work in her profession.

14. Although married in 2006, and giving birth to the child in 2013, the applicant's relationship with the father ended in 2014 and they were divorced in 2015. The applicant and the father have been involved in protracted litigation in the Federal Circuit Court of Australia.

15. The applicant is basically in good health although she has a congenital kidney disease which has affected one kidney in its functioning.

16. The applicant’s father is supportive of her application for bail and has offered to provide monetary security by way of an agreement to forfeit the sum of $10,000 if the applicant fails to comply with her bail undertaking.

Bail Act 2013

17. This application seeks a grant of bail, with conditions, for the offence of taking and detaining. Such a decision is to be made in accordance with Pt 3 of the Act. It is not a show cause offence.

18. Accordingly, the Court must proceed to assess the bail concerns raised by the Crown and then make an evaluative assessment of those concerns to see if, having regard to the conditions which are proposed, there remains an unacceptable risk.

19. This part of the process is conducted in accordance with ss 17 and 18 of the Act, which so far as relevant in this application, are in the following form:

“17 Assessment of bail concerns

(1) A bail authority must, before making a bail decision, assess any bail concerns.

(2) For the purposes of this Act, a

"bail concern" is a concern that an accused person, if released from custody, will--

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

(3) ...

(4) ...

18 Matters to be considered as part of assessment

(1) A bail authority is to consider the following matters, and only the following matters, in an assessment of bail concerns under this Division--

(a) the accused person's background, including criminal history, circumstances and community ties,

(b) the nature and seriousness of the offence,

(c) the strength of the prosecution case,

(d) whether the accused person has a history of violence,

(e) whether the accused person has previously committed a serious offence while on bail (whether granted under this Act or a law of another jurisdiction),

(f) whether the accused person has a history of compliance or non-compliance with any of the following--

(i) bail acknowledgments,

(ii) bail conditions,

(iii) apprehended violence orders,

(iv) parole orders,

(v) home detention orders, good behaviour bonds or community service orders,

(vi) intensive correction orders,

(vii) community correction orders,

(viii) conditional release orders,

(ix) non-association and place restriction orders,

(x) supervision orders,

(f1) ...,

(g) whether the accused person has any criminal associations,

(h) the length of time the accused person is likely to spend in custody if bail is refused,

(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,

(ii) ...,

(j) …,

(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,

(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,

(m) the need for the accused person to be free for any other lawful reason,

(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,

(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,

(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A,

(q) …,

(r) …,

(s) …”

20. Section 19 of the Act provides that this Court must refuse bail if it is satisfied on the basis of an assessment of the bail concerns, that there is an unacceptable risk. An unacceptable risk is defined in the following way:

“19 Refusal of bail--unacceptable risk

(1) …

(2) For the purposes of this Act, an

"unacceptable risk" is an unacceptable risk that the accused person, if released from custody, will--

(a) fail to appear at any proceedings for the offence, or

(b) commit a serious offence, or

(c) endanger the safety of victims, individuals or the community, or

(d) interfere with witnesses or evidence.

(3) ...

(4) ...”

21. If the Court assesses that there is an unacceptable risk or risks, as I have just noted, it must refuse bail. If, on the other hand, there are no unacceptable risks, the Court must grant bail (whether with or without the imposition of bail conditions): s 20 of the Act.

22. The provisions of s 22 of the Act do not apply to this bail application and there is no need for the applicant show that special or exceptional circumstances exist before a bail decision can be made.

23. In determining whether or not to grant bail, the Court is not bound by the principles or rules of law regarding the admission of evidence, but can take into account any evidence or information which it considers credible or trustworthy in the circumstances: s 31 of the Act.

24. When this Court decides any matter with respect to exercising its functions in respect in relation to bail, that matter is decided on the balance of probabilities: s 32 the Act.

Appropriate Legal Principles

25. I have in previous decisions noted that when considering the unacceptable risk test posed by ss 17 and 18 of the Act, a Court is obliged to only consider the matters exhaustively listed in s 18. A court cannot consider anything else: see JM v R [2015] NSWSC 978 at [29].

26. In JM at [32]-[43], I set out principles of general application relevant to applications for release under the Bail Act. There is no need to repeat those principles here. I will adhere to them in the consideration of this application.

Bail Concerns

27. The Crown expresses the following concerns about the applicant.

28. First, the Crown submits that the applicant would commit further serious offences if released on bail. The Crown identifies the serious offence as one relating to taking the applicant’s child contrary to the Federal Circuit Court’s orders.

29. Secondly, the Crown submits, based on her past conduct, that the applicant would flee the jurisdiction (and would do so with the child), remain away and not appear when required.

30. Finally, the Crown submits that there are real concerns about the applicant interfering with evidence because when she was arrested, she deliberately broke her mobile phone, thereby preventing police officers accessing any data on it.

31. In order to assess these bail concerns, it is necessary to have regard to the relevant facts, matters and circumstances set out in s 18 of the Bail Act.

Relevant Considerations

Applicants Background Circumstances and Community Ties

32. I have earlier at [7]-[16] above reviewed these matters. Two close personal family friends, one of whom is a self-employed builder and the other who has employment as a public servant, support the applicant and are willing to allow the applicant to reside with them at their long-term address. They will supervise the applicant whilst on bail. These family friends have also secured employment for the applicant in her professional field.

Applicant’s Criminal and Relevant History

33. As earlier indicated, the applicant has no previous criminal history. She has no history of violence, she has never been on bail, and consequently has not committed a serious offence while on bail, nor does she have any history of non-compliance with any order affecting her personal liberty.

34. Leaving aside the events of and surrounding the offence with which she has been charged, the applicant has no criminal associations.

Nature and Seriousness of the Offence; Strength of the Prosecution Case

35. In November 2018, the Federal Circuit Court made orders granting custody of the child to the father and suspending the applicant’s access to the child.

36. Those original orders were amended from time to time. By July 2019, the extant order was that the applicant had access to her child each alternate weekend.

37. In February 2020, the Federal Circuit Court made orders that the applicant could have access to her child four nights per fortnight.

38. There is no point in rehearsing all of the facts which underlie these orders. It is to be noted that the Court orders were made either on the application of the applicant, with her consent or else after a contested hearing. There can be no doubt that the applicant was well aware of the details of each of these Federal Circuit Court orders dealing with the custody of the child and the terms of the applicant's limited access to her child. At all times, access and custody arrangements occurred in Sydney.

39. The following facts provide a context to the events of 1 December 2020 which give rise to the charge which the applicant is currently facing. The applicant is not charged with any of the conduct set out in [40]-[46] below.

40. In mid-October 2020, the applicant collected the child from school in accordance with the arrangements pursuant to the Court Orders. She then left Sydney and fled with the child to Mullumbimby. The consequence of this was that the child did not return to school as she should have. The absence was noted. The father emailed the applicant asking for an explanation. The following day the applicant sent an email to the father which, amongst other things, said:

“Please cease and desist. There is no evidence you are the father and you are unable to obtain a DNA test as it's a breach of the Privacy Act 1988. So, fuck off."

41. On 4 November 2020, a detective in the New South Wales police contacted the applicant by email and asked her to contact him as soon as possible. He received this entirely nonsensical response:

“Notice to agent is notice to principal

Notice to principal is notice to agent

To all parties concerned,

I, Crown in right, commonly known as [PQ]: Executrix, Stewardess, Guardian, Custodian of the [PQ], [PQ] Estate (Private) and [the victim] Estate (Private), We wish not to contract with any Government or non-Government Corporate, Entities, Agencies and/or Personnel, Govern yourselves accordingly.

Duly noted Crown in Right Commonly known as [PQ].

42. On 5 November 2020, a Recovery Order was issued by Neville FCCJ which, amongst other things, entitled any police officer throughout Australia to find the child, to deliver the child to the father and to arrest the applicant. That Recovery Order also suspended the previous Court orders enabling the applicant to have access to the child.

43. After the issue of the Recovery Order, the email from the applicant set out at [41] was followed by a further email from the detective asking the applicant to bring the child into a police station.

44. Five days later the applicant responded to this email by saying to the detective:

“…, Why, not spend your time pursuing lowlife scum bags like [the father] who abuse children? Did you spend all your years to become a detective to pursue mums protecting their children from abuse? Are you so blind to the markers of domestic and family violence that you support women hating Muslims like [the father]?

All the best! I have no faith in any of your emails.”

45. After further enquiries, the police discovered that the applicant and the child were in Mullumbimby. Recovery of the child was effected but not without considerable difficulty. The applicant had with her, in addition to the child, a man who described himself as an ex-barrister (“the ex-barrister”), who asserted that the child was under his protection “under tribal law” and that he had a Federal Court order that said “… I have jurisdiction already, under my tribal estate”.

46. During the recovery of the child, the applicant said to the police:

“I hope you guys are proud that this is what you do as a job, that you take children who are protected, from their mothers and give them to abusive men. I hope you guys are proud of your job… you are taking this child and you are going to put her into the care of her abusive father, that's what your job does, how dare you… you’re going to be in the paper.”

47. Eventually, through the means of the police and officers of the Department of Family and Community Services, the child was returned to the father in Nambucca Heads. The father then returned to Sydney with the child and informed the school authorities that she would be returning, on 1 December 2022, to the public school which she had been attending prior to being removed to Mullumbimby in mid-October 2020.

48. On the morning of 1 December 2020, the father took the child to school.

49. At about 2:40pm that afternoon, the applicant, together with the ex‑barrister, another male and two females, arrived at the child’s school. Upon arrival, the ex-barrister and one of the females went to the school office, while the applicant and the remaining male and female walked towards where the child was waiting with her teachers to be collected by her father.

50. The applicant and her group went up to a teacher and informed her that they had a Court order, that there were people “in the office right now” and that they had a warrant and they were taking the child. No documents were actually produced to the teacher. They took hold of the child and walked away, leaving the school grounds. As they were walking away, the applicant said in a loud voice to the teacher “Thank you so much, rescuing children, that's what it's about”.

51. The teacher contacted other staff and executives. The Deputy Principal and an Assistant Principal approached. The Deputy Principal attempted to stop the applicant, the child and those with her from walking away. They were asked to stop until their authority to take the child could be verified. The Deputy Principal asked them to go into the office so that the “new court order” which was being asserted could be verified. The applicant refused to agree to this. She refused to stop and wait and continued to walk at a rapid pace towards a car. In the course of doing this, the applicant said to all those near her

“Rescuing the child from a paedophile, this is what it looks like, the school’s protecting him! This school protects paedophiles and child abusers. They’re trying to rip my daughter out of my hands, you are teachers, disgusting!”.

52. The police were summoned by a call to 000 from one of the teachers. Before the police arrived, the applicant, the child and the male and female in her company continued to walk to a car, into which they got, and the car then drove away.

53. The police investigated and tried to locate the child. They spoke with the ex‑barrister, who showed them a series of false Court orders which were said to justify the taking of the child. The orders were clearly fraudulent and faked.

54. On the following day, the police investigations continued. They observed a Facebook posting on the applicant's page which said:

“TODAY MARKS THE FIRST OFFICIAL CHILD TRAFFICKING RESCUE IN AUSTRALIA INVOLVING MYSELF AND MY VERY BRAVE DAUGHTER!! STAY TUNED FOR FULL STORY SOON. 7 year battle to save my daughter where court officials, DOCS, court psychologists, police, detectives covered up her abuse and no one would listen to her!!!!! This poor girl almost lost her hope. What a journey we have all been on. Stay tuned for what's next. Including videos of public school teachers assaulted my daughter and I in broad daylight. Thanks to all the beautiful light workers, and souls that helped us. … FUCK THE FAMILY COURT!!!!!!!!!!!!!!!!!!!! Let's drain the swamp!! Stand together for the future of our children.… MAKE SOME NOISE PEOPLE TO STAMP THESE PEOPLE OUT! IT’S ALL GUNS BLAZING!!!!!!!!!!!!!!! SHARE THE CRAP OUT OF THIS!!! … What a joyous day it is to celebrate.” (sic)

55. Officers of the Australian Federal Police (“AFP”) located the applicant in a cafe in the Australian Capital Territory together with the child and the ex‑barrister. The applicant when approached by officers of the AFP, identified herself as “Crown Private”. The applicant, in due course, accompanied police officers to the City Police Station where she was arrested and the child was once again returned to her father, who drove to Canberra to collect her. The applicant was extradited to NSW on the following day. She declined, as was her right, to in an interview electronically recorded interview. She referred to herself at the NSW police station as “Crown Karynga”.

56. Ultimately, the ex-barrister and the other male accomplice were arrested and taken into custody. The male accomplice has been granted conditional bail.

57. The simple recitation of these facts demonstrates that the prosecution appears to have a very strong case.

58. The applicant submits that this Court ought not draw such a conclusion because if the applicant can show that she was acting in the genuine belief that she was protecting her child from physical or sexual abuse when the taking occurred then the prosecution are unlikely to be able to make out one of the essential elements of the offence, namely that the taking was done with the intention of obtaining an advantage for the applicant herself.

59. I note that there is no objective evidence or material before me that suggests that the child was ever physically or sexually abused by her father. There is some hearsay material of dubious weight. Rather, the submission is based only on the existence of a genuinely held perception of the applicant.

60. In my view, this submission is wholly unpersuasive. As is apparent from the facts put before the Court, including a video of the removal of the child from school which was recorded by the female who accompanied the applicant, the applicant was asserting that she was entitled to the custody of the child to the exclusion of the father because of her relationship with the child as her mother and because she wanted to do what she should as a mother to protect her child. It seems to me that it is a more than sufficient advantage with respect to the applicant, that she took the child into her custody, spent time with her and cared for her i.e. the advantage was that at a time when she was forbidden by a Court order from having any access to the child she could spend time with her child fulfilling her role as a mother. This is a more that sufficient advantage to establish the offence charged.

61. My conclusion is that the prosecution case against the applicant is very, very strong.

62. There can be no doubt that at the time of the offence with which she is charged, PQ knew what the orders of the Federal Circuit Court were because of the events at Mullumbimby, to which I have earlier referred.

63. Within a few days of the child being returned to the father's custody, after being taken to Mullumbimby, the applicant deliberately and intentionally, with the assistance of others, set out on a course to take back the child contrary to those orders which she knew were in existence.

64. The seriousness of the offence is underlined by the fact that it carries a maximum term of imprisonment of 20 years.

Length of Time in Custody

65. The proceedings are next before the Local Court in 2 July 2021, for Charge Certification. Thereafter the statutory period will apply.

66. In my assessment, a trial before 2022 is unlikely. If committed for trial, which in my view is the most likely course, my assessment is that the trial would be had in the first quarter of 2022.

67. This will have the effect that the applicant will have been in custody for about 15 months between arrest and trial. It is a matter of concern that a period of 15 months or so for an applicant awaiting trial is what is confronting this applicant. It is undoubtedly a serious matter to deprive a person of their liberty for such a long period of time before they have been convicted of any offence. This is a matter to be borne in mind.

Likelihood of Custodial Sentence if Convicted,

68. Having regard to the seriousness of the offence and all of the surrounding circumstances, it is likely that upon conviction, even though the applicant has no previous criminal convictions, she would be sentenced to a significant term of imprisonment.

Proposed Bail Conditions

69. It is proposed that in addition to the ordinary conditions of bail including living at a specified residential address and reporting three times a week to her local police station, the applicant would be required by her conditions not to contact the father or her child, not to enter the suburb where the child's school is located or where she lives and that a form of monetary security is to be provided.

Remaining Conditions

70. It is clear that the applicant has not been in custody before. The report of an expert psychologist, Dr Lennings, says that the applicant is psychologically vulnerable whilst in custody and that she is highly traumatised by her experience in jail. This is a matter to be taken into account.

71. The applicant does not advance any particular need for her to be at liberty to obtain legal advice, or for any other lawful reason.

72. This Court has not been provided with the views of either the child, or the father, with respect to this application.

73. Two police officers have written letters to the Court, which were tendered by the Crown, which express views and make arguments against the applicant being released on bail. These letters contain material and views to which I am not entitled to have regard under the Act. I have entirely ignored the contents of these letters.

Discernment

74. Although the Crown expressed concerns about the applicant interfering with evidence, asserting that when arrested she deliberately broke her mobile phone, the Crown case statement and other material put before the Court, does not support a conclusion that the applicant in fact acted as asserted. It is true that various fraudulent copies of court orders have been produced and used during the course of the conduct which I have described, but there is no material before me which suggests that the applicant in fact undertook, or participated in the creation of these fraudulent documents.

75. On the basis of the material before me, I am not satisfied that the Crown has established any bail concern that the applicant would interfere with evidence or with witnesses.

76. The first and principal concern articulated by the Crown is that the applicant would, if released, be likely to commit a further serious offence constituted by again, and contrary to existing court orders, seizing her child and removing the child to a place remote from where the child ordinarily lives and goes to school.

77. The Crown’s submission is that the applicant has in the past, and so far as the material demonstrates, maintains the view that her child is at risk of physical or sexual abuse from the father.

78. As well, the Crown points to the somewhat delusional statements made by the applicant about her status: “Crown Estate” and her statement seeking to be known as “Crown in Right commonly known as PQ” as indicative of a belief that she is not bound by court orders, as her subsequent conduct shows. The Crown points to the fact that the applicant asserted in an email in mid‑October 2020, that there was no evidence that the father was in fact the father of the child, thereby leading to the conclusion that he had no right to custody or access of the child. The Crown pointed to the fact that it was obvious at all times that the applicant knew the substance and effect of the orders of the Federal Circuit Court with respect to the limitations on her rights of custody and access to the child, but nevertheless acted, intentionally and deliberately in contravention of those court orders, to take the child away and retain the child in her company on two occasions – first to Mullumbimby and secondly to the ACT. Finally, the Crown pointed to the fact that PQ was so determined, as evidenced by the video of the removal of the child from school, that she would not pause in the removal to enable any checking of her asserted entitlements to take custody of the child. The Crown submits that this feature of PQ’s conduct leads inexorably to the inference that the applicant knew that any check carried out would not support her assertion that she was acting lawfully in taking the child from school.

79. The Crown submits that all of these factors, combined with the absence of any evidence that the applicant recants any of her beliefs about the father’s behaviour, her delusional statements as to who she is, and without a recognition of the fact that orders which preclude her from having custody of, or access to, the child are obliged to be obeyed, demonstrated that whatever the conditions of bail that may be imposed, there is in overwhelming likelihood that the applicant would again behave in the same way as she had in the past and seek to take custody of her child and to retain her to the exclusion of the father.

80. As against these submissions, the applicant, in reliance upon the report of Dr Lennings, submits that the Court ought infer that the applicant’s attitude was being maintained she was under the malign influence of the ex-barrister who is her co-accused. The applicant also submits, based on the conversation between her and Dr Lennings, that the Court could have confidence that she now recognises the error of her ways and is unlikely to commit any further serious offence involving the child. The basis for this submission is that it appears that the applicant told Dr Lennings that in hindsight, she feels stupid for what she has done, and that she was under the influence of the ex-barrister who had persuaded her that there were legal ways she could withhold her daughter. She told Dr Lennings that she felt some humiliation and embarrassment at what had occurred.

81. However, I do note that in the course of the interview, the applicant told Dr Lennings that she felt robbed and treated unfairly by the Federal Circuit Court, and Family and Community Services from whom she had sought assistance.

82. I do not accept that PQ has abandoned any of her views about the inappropriateness of the father having custody of the child and the circumstances which deny her access to the child. I do not accept that she has abandoned any sense of anger at the orders which were made providing for such parental arrangements by the Federal Circuit Court, and I do not accept that she has changed or in any way modified her sense of righteousness in doing what she did.

83. I conclude in the absence of any material evidencing any change in these factors, that the applicant, if released on bail, would be likely to commit a further serious offence, and again take the child.

84. The conditions of bail which are proposed could not and would not prevent that occurring.

85. The possibility of such an offence is serious because of the possible adverse effects from such an offence on the child. A child is entitled to be brought up in as stable an environment as is possible in all the circumstances. The orders of the Federal Circuit Court contribute to that stability of the environment for the upbringing of the child. The past actions and, in my view, likely future actions of the applicant contribute to the complete destabilisation of that regime and thereby are likely to have, or might well have, adverse effects on the child.

86. Allied with this concern, the Crown points to the fact that on two occasions, when the applicant has taken the child into her custody, she has fled from Sydney in an attempt to put herself beyond discovery by police and beyond the jurisdiction of NSW. It is apparent from the facts that the applicant took considerable steps to avoid detection when she moved to Mullumbimby by selling her motor vehicle, changing her bank account and turning her phone off. She was, I am satisfied, attempting to “disappear off the radar”.

87. Accordingly, I am satisfied that the Crown has established a real concern that the applicant is likely to flee from the jurisdiction or go into hiding and fail to appear when the matter next comes before the Court.

88. As well, the fact that the applicant has knowingly breached orders of the Federal Circuit Court demonstrates that she does not respect those orders, and she has engaged in conduct contrary to those orders. I am not persuaded that she would behave any differently with respect to Court ordered conditions of bail. No material suggesting any change in her attitude to compliance with Court orders has been put before the Court on this application. It follows that I cannot rely on compliance by the applicant with any conditions of bail.

89. Taking into account all of the facts, matters and circumstances which I have set out above, and having regard to the material put before the Court by the applicant and the submissions of both parties, I am satisfied that if released on bail, there would be unacceptable risks that the applicant would commit a serious offence and also fail to appear before the Court when required so to do.

90. The conditions which are proffered would not prevent those two bail concerns identified by the Crown coming to fruition.

91. In those circumstances, the application for bail must be dismissed.

Orders

92. I make the following order:

1. Application for bail dismissed.

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Decision last updated: 08 July 2021