R v Charles
[2016] ACTSC 177
•22 July 2016
HUMAN RIGHTS ACT 2004 (ACT)
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Charles |
Citation: | [2016] ACTSC 177 |
Hearing Date: | 6 February 2014 |
DecisionDate: | 22 July 2016 |
Before: | Refshauge J |
Decision: | 1. It be declared that the Magistrates Court erred in finding on 14 November 2013 that Stanley Dwayne Charles, having been arrested under s 56A of the Bail Act 1992 (ACT), had to apply for bail. 2. It be declared that, on the proper construction of s 56A of the Bail Act 1992 (ACT), when Stanley Dwayne Charles appeared in the Magistrates Court on 14 November 2013, the Court had to determine whether he had breached any of his conditions of bail and, if so, whether to accede to any application by the prosecution to revoke his bail, make any other bail order or continue his bail. |
Catchwords: | BAIL – JURISDICTION, PRACTICE AND PROCEDURE – s 56A of the Bail Act 1992 (ACT) – arrested – suspected breach of bail conditions – arrest does not automatically revoke bail – appearance in court after arrest for breach of bail does not automatically revoke bail – right to liberty – revocation of bail cannot be implied – appearance in court after arrest will justify application to revoke bail – application to revoke bail does not constitute application for bail – s 9D of the Bail Act 1992 (ACT) not applicable |
Legislation Cited: | Bail Act 1992 (ACT), ss 5, 6, 6(3), 9D, 17, 19, 19(1)(b), 22, 23, 23A, 28, 33, 41, 42, 42A, 49, 49(1), 49(2), 56A, 56A(4)(a), 56A(4)(b), 57AA, Pt 4 Bail Act 2013 (NSW), ss 77, 78, 92 |
Cases Cited: | Al-Kateb v Godwin (2004) 219 CLR 562 |
Parties: | The Queen (Crown) Stanley Dwayne Charles (Defendant) |
Representation: | Counsel Mr J Hiscox (Crown) Mr K Archer (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (ACT) (Defendant) | |
File Number: | SCC 212 of 2013 |
REFSHAUGE J:
Stanley Dwayne Charles, the applicant, was convicted of an offence of aggravated indecent assault in the Griffith Local Court on 15 October 2003. He was sentenced to a term of imprisonment which was wholly suspended upon him entering into a good behaviour bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
He appears, from his criminal record, to have breached the bond on a number of occasions and, on 20 March 2006, part of the term of imprisonment was imposed as a result of a breach and he was required to serve a period of full-time custody.
As a result of the conviction, Mr Charles became a registrable person under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). Such legislation imposes various obligations involving the reporting of various matters. See, for example, but under the ACT legislation in relevantly similar terms, Byrne v Mingay (2014) 242 A Crim R 9 at 11; [4], and OH v Driessen [2015] ACTSC 148 at [82]-[90].
When Mr Charles came into the ACT, he became a registrable offender under s 8 of the Crimes (Child Sex Offenders) Act 2005 (ACT) and was required to report to the Chief Police Officer under s 33 of that Act. He was also required to comply with other reporting obligations, in particular an obligation to report the address where he lives. See ss 54 and 57 of that Act. It appears that the Chief Police Officer has delegated to the Child Sex Offenders Registry (CSOR) the responsibility of receiving such reports.
In circumstances I shall deal with below, Mr Charles was charged with an offence against s 54 of the Crimes (Child Sex Offenders) Act of failing to report as required. The informant was a member of the CSOR. Mr Charles was granted conditional bail. He subsequently was arrested by police who suspected that he had breached a condition of his bail. When he appeared in court, he was remanded in custody.
Initially, he sought a review of that order but later abandoned that application. He sought, instead, a declaration that he had not been dealt with in accordance with the Bail Act 1992 (ACT).
That is the issue that is now before the Court.
The facts
On 25 July 2013, the Magistrates Court issued a warrant under s 42 of the Magistrates Court Act 1930 (ACT), commonly called a “first instance warrant”. See R v Welch (2009) 166 ACTR 32 at 40; [62]. This term is commonly used, though the Magistrates Court Act uses the term in s 64 for a different warrant.
The warrant sought Mr Charles’ arrest for an offence under s 54 of the Crimes (Child Sex Offenders) Act because he had provided an address in Chifley, but, when police visited that address, an occupant stated that he was no longer living there. He had failed to report any change of address, an offence under that section.
An offence under s 54 of the Crimes (Child Sex Offenders) Act is punishable by the maximum penalty of 500 penalty units (that is, at the time, a fine of $55,000) and imprisonment for five years.
Mr Charles was arrested on 14 August 2013 and, when brought before the Magistrates Court, charged and granted bail with a condition, inter alia, that he live at a nominated address in Red Hill.
That would require him to report this change of address to CSOR as required under s 54 of the Crimes (Child Sex Offenders) Act. The obligation under the section to report required, relevantly, Mr Charles to report at the end of seven days from the date of the change of address.
It is alleged that, by 21 August 2013, Mr Charles had not reported the change of address and a further charge under s 54 of the Crimes (Child Sex Offenders) Act was prepared, intending to charge Mr Charles on the next mention of the first charge, namely 6 September 2013.
Mr Charles, however, did not appear, thus breaching his bail undertaking entered into on 14 August 2013. A warrant, sometimes called a bench warrant, was issued for his arrest under s 49(2) of the Bail Act. It appears that it is also commonly called a first instance warrant, though it is not a warrant under either s 42 or s 64 of the Magistrates Court Act.
Mr Charles was again arrested and brought before the Court on 21 October 2013.
He was charged with failing to appear in accordance with his bail undertaking, an offence against s 49(1) of the Bail Act.
He applied for bail, which was granted, for him to appear on 8 November 2013, with conditions, including, inter alia, for him to reside at the Red Hill address. No reference was made to the fact that Mr Charles had now been charged with another offence punishable by 500 penalty units (that is, at the time, a fine of $55,000) and imprisonment for five years, alleged to have been committed while Mr Charles was on bail for a similar offence, punishable by the same maximum penalty.
The significance of this is that, since Mr Charles was charged with committing an offence that was, because of the maximum penalty, a serious offence within the meaning of s 9D of the Bail Act, the Court was prohibited under that section from granting him bail unless satisfied that special or exceptional circumstances exist favouring a grant of bail.
It appears that, at the hearing of the bail application, the prosecution failed to draw that issue to the attention of the learned Magistrate, who made no reference to it or, apparently, complied with it.
On 7 November 2011, the Director of Public Prosecutions advised the solicitors for Mr Charles that he was seeking a review of the decision to grant Mr Charles bail. That review, it appears, would have to be conducted under s 42A of the Bail Act. The allegation was to be that Mr Charles was not living at the Red Hill address.
The matter returned to court on 8 November 2013, the date to which the proceedings had been adjourned. Again, Mr Charles did not appear. The prosecution informed the Court that it would be alleged that Mr Charles was not living at the address at which the condition of his bail required him to live but the learned Magistrate continued his bail.
On 13 November 2013, Mr Charles was arrested because it was suspected that he had breached a condition of his bail. He was brought before the Court the next day. It was asserted by the prosecution that Mr Charles had not been living at the Red Hill address as was required by the condition of his bail. The arrest was said to be under s 56A of the Bail Act.
The bail hearing in the Magistrates Court
At the hearing, the prosecution proceeded as though the Court was to determine an application for bail by Mr Charles. As a consequence, it was asserted that s 9D of the Bail Act applied to the application. Thus, it was submitted, there was a presumption against bail and Mr Charles had to show special or exceptional circumstances favouring the grant of bail before the Court could consider his alleged application.
Counsel for Mr Charles submitted that the arrest of Mr Charles did not revoke his bail. Thus, it was submitted, the Court had power only either to revoke his bail, review it, if there was jurisdiction to do so, or to continue it. Mr Charles did not have to apply for bail, though he might need to apply for bail to continue.
The prosecutor submitted that, because Mr Charles was in custody, bail had been revoked and that he had to make an application for bail which would, of course, then be subject to s 9D of the Bail Act because of the charges he was facing.
The learned Special Magistrate seemed to accept that view, saying:
Once the person is brought before the court, I have power to treat him as – in relation to bail – as any other person in custody ...
In my view, the defendant is in custody as a result of being brought before the court pursuant to section 56A and will remain in custody until someone makes an application for bail.
The facts of the arrest were then given orally by the informant. She told the Court that Mr Charles had to report annually and to report any change of address.
The informant said that she had only one contact with Mr Charles on 4 April 2013. She also asserted that Mr Charles was regarded as a “high risk offender”, an assessment that was made by “a computer program” to reduce subjectivity in the assessment. That level of risk would result in at least three compliance checks a year on the residence at which Mr Charles has notified the Chief Police Officer (through CSOR) he is living. So far as the informant was concerned, that was at the Chifley address.
The informant stated that a check was made in May and Mr Charles was not at the Chifley address, the address he had given to CSOR in April. The officers conducting the compliance check were told by officers of the Commissioner for Social Housing that the residents at the premises had been moved out as the residence was due to be demolished.
The informant tried to contact Mr Charles on the mobile phone number that he had given to CSOR in April but the person who answered the phone call said it was not his number.
These events gave rise to the first charge laid against Mr Charles under s 54 of the Crimes (Child Sex Offenders) Act.
Information was later obtained from some of Mr Charles’ family members that he may be living in the Civic or Red Hill area, but without identifying a specific address. The informant also investigated the address given on the bail undertaking that Mr Charles had signed on 25 July 2013 and attended at that address. She stated that a female living there told her that she had been living there since 1997, that she lives alone and that Mr Charles had never lived there. The informant checked an adjacent address because police information had linked him with that address, but there were no persons there at that time or on other occasions when police attended at it.
The informant then said that, on 13 November 2013, police were called by a person using a mobile phone, the owner of which had been linked with the Chifley address. The person reported a disturbance at an address in Rivett. When police attended at that address, they found Mr Charles in company with two teenage females. Mr Charles was intoxicated. He was arrested and a breath analysis undertaken at the Watch House showed a blood alcohol concentration of 0.216 per cent. Mr Charles gave the sergeant in the Watch House his residential address in Griffith, New South Wales.
The informant also stated that Mr Charles had failed, on four occasions, to report to police in accordance with his bail condition to do so. The informant had contacted the medical centre from which Mr Charles had provided medical certificates and confirmed that a medical certificate for the period from 20 August to 13 November had been provided to him.
The informant expressed fears that Mr Charles might re-offend while on bail. No details were given of the basis of those fears so the court would be, on that evidence, unable to discharge its obligation to assess the strength of such a fear, as required by the law as stated in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168.
The informant also stated that Mr Charles had not complied with his reporting obligations and that this constituted an ongoing breach of the Child (Sex Offenders) Act. The concern expressed was that, without a proper report, police would not be able to locate Mr Charles. The informant also stated that there were children linked with the adjacent Red Hill address at which police had attended.
In cross-examination, the informant, though referring to a failure by Mr Charles to report to police in accordance with another condition of his bail, agreed that the breach of bail for which Mr Charles had been arrested was because he was not living at the address where he was required to live in accordance with his bail conditions.
The informant was shown a medical certificate stating that Mr Charles was receiving medical treatment from 8 to 14 November 2013. Despite this, for unexplained reasons, the informant said that she did not accept that he was “in poor health [with] difficulties reporting to police”. When asked on what evidence her opinion was based, she simply stated, “He’s a registered child sex offender who needs to report to our office”. She was not aware that Mr Charles had been, it was suggested, living, at the adjacent Red Hill address, for the last four or five months.
The prosecutor then submitted that, despite two signed bail undertakings with conditions requiring Mr Charles to live at the Red Hill address, he had not done so. She further submitted that the medical certificate had no weight because Mr Charles was found at a different address in Rivett, intoxicated, where a disturbance occurred. Further, the address conflicted with that reported to the CSOR, which was the Chifley address.
The prosecutor then submitted that the alleged breach of bail permitted the police to arrest the defendant without a warrant and bring him before the Court. To breach a condition of bail is not, contrary to what the learned Special Magistrate seemed to think, an offence. See the Bail Act and, though on slightly different legislation, but on which the Bail Act was initially closely based, see also R v Harborne (Unreported, New South Wales Court of Criminal Appeal, Grove and Newman JJ, 60229/94, 12 October 1994) at 9.
The prosecutor then submitted that the Court, when dealing with the defendant, had the usual powers with respect to bail.
Counsel for Mr Charles submitted that the breach of bail had not been made out. He had, she submitted, made an honest and reasonable mistake by giving the number of the street address in Red Hill for the house next door to the one at which he was actually living, 47 instead of 45.
The prosecutor interrupted counsel’s submission, saying, “There’s no evidence of that”, and counsel for Mr Charles offered to call a witness for that purpose.
The learned Special Magistrate then made what must be a curious comment when he said, “I’m not sure why I need to make a decision about whether the bail has been breached”. The prosecutor agreed that this was not necessary. All his Honour said he needed to do was “to determine, just on general principles, whether the defendant should be granted bail”. His Honour also held that s 9D of the Bail Act applied and that, in this case, there were no special or exceptional circumstances. I do not need to record the submissions in relation to that.
As a result, his Honour then refused bail. Mr Charles was remanded in custody.
The proceedings
Initially, these proceedings were conducted as an application for bail. Mr Charles filed his own application. This initial application was, however, withdrawn and the Court was advised that a new application would be filed by lawyers for Mr Charles.
A few days later, a fresh application was filed by lawyers for Mr Charles. It came before the learned Master who was concerned about his jurisdiction to deal with it. No judge being available, it was listed for hearing a few weeks later.
It came before me and I made directions about the conduct of the matter, including the filing of an amended application. That was done and the following orders were sought:
1.That the applicant be granted bail pursuant to section 20 of the Supreme Court Act 1933 (ACT) (‘the Act’) on the conditions stated in the applicant’s supporting affidavit;
2.In the alternative, the applicant be granted relief by way of habeas corpus pursuant to section 34B of the Act;
3.An order in the nature of a declaration that on 14, 18, 22 November 2013 and 2 December 2013 that the Magistrates Court erred in finding found that the applicant was required to apply for bail following his arrest on 13 November 2013 pursuant to section 56A of the Bail Act 1992 (ACT);
4.An order in the nature of a declaration that on 14 November 2013 the applicant was not before the Court for the purposes of section 56A of the Bail Act 1992 (ACT);
5.An order in the nature of a declaration that on 14 November 2013 the Magistrates Court incorrectly found that section 56A of the Bail Act 1992 (ACT) did not require the finding of a breach to enable the Court to exercise its powers under section 56A of the Bail Act 1992 (ACT);
3.[sic] Any other orders that the Court considers appropriate.
Because, by the time the application was ultimately made, Mr Charles was to be sentenced the next day, the orders for grant of bail or, in the alternative, habeas corpus, not pressed.
Counsel for both parties filed comprehensive and helpful written submissions.
The Bail Act
The issue in these proceedings concerned the status of a person granted bail who has been arrested under s 56A of the Bail Act and how the hearing of such proceedings should be conducted. The role that s 9D of the Bail Act should play in such proceedings, if, as here, the defendant is in the position where it might apply, was also in issue.
In order to understand the issues, it is necessary to consider the terms of the Bail Act. The Supreme Court originally had, as inherited from the Supreme Court of New South Wales, an inherent power to grant bail. See R v Spilsbury [1898] 2 QB 615 at 620; Blyth v Appeals Committee of Lancaster [1944] 1 All ER 587 at 588; R v Light [1954] VLR 152 at 154; R v Pett (1957) 75 WN (NSW) 434 (note); Beljajev v Director of Public Prosecutions (Vic) (Unreported, Supreme Court of Victoria, Appeal Division, Young CJ, Crockett and Ashley JJ, 1487 at 1991, 8 August 1991) at 7-8.
The legislature has, however, now provided comprehensively for the grant of bail in the Bail Act and, by s 57AA of that Act, abolished any inherent power of this Court to grant bail. Thus, the exercise of the grant of bail in this Court is now entirely regulated by statute.
The Bail Act is now a somewhat complex statute, with categories of bail and thresholds and limitations. See R v McGrail [2016] ACTSC 142 at [33]; R v Celeski [2016] ACTSC 140 at [23]-[34].
In order to understand these proceedings, it is necessary to refer to ss 5, 6, 9D, 19, 33 and 56A of the Bail Act. These provisions are in the following terms:
5 When may bail be granted?
(1) An accused person may be granted bail in relation to any period when the person is not required to attend court in relation to the offence with which the person has been charged.
(2) However, an accused person who is in custody in relation to an offence must not be granted bail in relation to any period when—
(a) the person is in custody for another offence or reason in relation to which the person is not entitled to be granted bail; or
(b) the person is serving a sentence of imprisonment.
6 Rights following grant of bail
(1) This section applies if—
(a) bail is granted to an accused person in relation to an offence; and
(b) the person gives an undertaking to appear; and
(c) if a bail condition mentioned in section 25 (1) (b) (ii) or (c) is imposed—the security is given or the deposit made.
(2) The person is entitled—
(a) if the person is in custody—to be released from custody; and
(b) to remain at liberty in relation to the offence until required to appear before a court in accordance with the undertaking.
(3) This section is subject to section 56A (Arrest without warrant of person on bail).
...
9D Bail for serious offence committed while charge for another pending or outstanding
(1) This section applies if—
(a) a person is accused of a serious offence; and
(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.
ExampleClaude is served with a summons to attend the Magistrates Court to answer a charge that he has committed the offence of taking a motor vehicle without consent (punishable by 5 years imprisonment under the Criminal Code, section 318 (1), and so a serious offence for this section). Before the court date, Claude is arrested and charged with having committed an aggravated robbery the day after being served with the summons (punishable by 25 years imprisonment under the Criminal Code, section 310, and so also a serious offence for this section). At the time of the alleged aggravated robbery, the charge of taking a motor vehicle without consent was still pending. This section will apply to any decision about the grant of bail to Claude in relation to the aggravated robbery charge.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering—
(a) for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or
(b) for a child—the matters mentioned in section 23 (Criteria for granting bail to children).
(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence—bail by authorised officer).
(5) This section does not affect the application of section 9F (4) and (5) to the accused person if—
(a) the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence; and
(b) an authorised person grants bail to the accused person.
(6) In this section:
outstanding - a charge against a person for an offence is outstanding—
(a) until the charge is finally dealt with in any of the following ways:
(i) the charge is withdrawn;
(ii) the charge is dismissed by a court;
(iii) the person is discharged by the Magistrates Court following a committal hearing;
(iv) the person is acquitted or found guilty by a court of the offence; and
(b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal—from the date the new trial is ordered until the earliest of the following happens—
(i) the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);
(ii) the order for the new trial is reversed on a further appeal.
Note Found guilty, of an offence, includes—
having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders—general)
having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing) (see Legislation Act, dict, pt 1).
pending—a charge against a person for an serious offence is pending if the person has not yet been charged with the offence, but the person has—
(a) been arrested for the offence (unless the person is later released without being charged with a serious offence); or
(b) been served with a summons to appear before a court to answer a charge for the offence; or
(c) at the invitation of a police officer, signed an agreement to attend court to answer a charge for the offence.
serious offence means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor’s election).
...
19 Court bail—general
(1) A court may, in accordance with this part, make any of the following orders in relation to bail (a bail order):
(a) an order granting bail to an accused person who is being held in custody in relation to an offence with which the person has been charged;
(b) an order enlarging, varying or revoking bail granted to the person.
(2) In deciding whether to make a bail order in relation to an accused person, a court may have regard to any information it considers relevant and reliable.
(3) This Act does not limit the number of applications in relation to bail that an accused person may make to a court in accordance with this Act.
(4) A court must deal with an application in relation to bail as soon as reasonably practicable.
(5) However, a court may decide not to hear an application in relation to bail if the application is frivolous or vexatious.
...
33 Continuation of bail and undertakings
(1) If an accused person has given an undertaking to appear at a place, date and time at which proceedings in relation to the offence may be continued, whether on any adjournment, postponement or other deferment of the proceedings, or by way of committal, a court may continue the bail already granted in relation to the offence, whether or not the accused person is present in court.
(2) If bail is continued under subsection (1), the undertaking to appear and the bail conditions continue to apply, except to the extent that the undertaking or condition otherwise provides or the court otherwise orders.
Note A court continuing bail must give notice of the continuation, bail conditions and place, date and time to which the proceedings are adjourned, postponed or deferred (see s 34 (4)).
(3) If no direction is made by the court in relation to bail, whether or not the accused person appears in accordance with the undertaking -
(a) the court is taken to have continued bail; and
(b) the undertaking to appear and any bail conditions continue to apply.
(4) If the hearing of a charge against an accused person is adjourned or postponed, the court may—
a) continue the person’s bail; or
(b) make another order about bail.
(5) However, if a deposit has been made, or security given, by a surety in accordance with a bail condition, the court must not continue bail without the surety’s consent unless it is a condition of bail that the deposit or security continues to apply if bail is continued.
(6) If bail is continued—
(a) the undertaking to appear is taken to be an undertaking to appear at any time when, and at any place where, proceedings in relation to the offence with which the person has been charged may be continued; and
(b) any bail conditions continue to apply.
(7) If an accused person has been released on bail and the court is satisfied that the accused person is because of illness or accident or other sufficient cause unable to appear personally before the court on the day when the person is required to appear, the court may, in the absence of the accused person, order the person to be further remanded to the place, date and time that the court considers appropriate and may order that the undertaking to appear given by the accused person and any agreement entered into under a condition of the grant of bail be continued so as to require the appearance of the accused person at every place, date and time to which the accused person is remanded or the hearing adjourned, postponed or otherwise deferred.
...
56A Arrest without warrant of person on bail
(1) This section applies if a person has been granted bail in the ACT, a State or another Territory.
(2) A police officer may arrest the person without warrant if the officer believes on reasonable grounds that the person -
(a) has failed to comply with a bail condition; or
(b) will not comply with a bail condition.
(3) The police officer must bring the person before a court as soon as practicable.
(4) The court may -
(a) for a person granted bail in the ACT - exercise the same powers in relation to bail as it has in relation to any other accused person in custody; or
(b) for a person granted bail in a State or another Territory -
(i) release the person unconditionally; or
(ii) grant the person bail subject to the conditions that the court considers appropriate; or
(iii) remand the person in custody for a reasonable time while a warrant for the person’s arrest is obtained from the State or other Territory.
(5) A release mentioned in subsection (4) (b) (i) does not affect the grant of bail in the State or other Territory.
Submissions
Mr J Hiscox, who appeared ably for the respondent informant, submitted that, in essence, an arrest under s 56A of the Bail Act interrupts the bail of a defendant so as to remove that person’s right to liberty. Because his or her liberty has been removed, the person is required to be brought before the court so that the court can exercise the same powers that it has for any other person in custody; that is, it can dispense with bail, grant bail to the person or remand the person in custody.
Thus, it was submitted, when the person is brought before the court, he or she is in the custody of the court and cannot be released without the court granting bail or dispensing with bail, however the person came to be before the court, namely arrested to answer a charge or having been arrested under s 56A of the Bail Act.
Accordingly, so the submission runs, a person who has been granted bail but is arrested under s 56A of the Bail Act by a police officer who “believes on reasonable grounds that the person ... has failed to comply with a bail condition”, must apply again for bail under the Bail Act.
This is, of course, the approach taken by the learned Special Magistrate. In my view, it is not how the Bail Act should be construed.
Consideration
Section 5 of the Bail Act provides that a person may be granted bail in relation to any period when he or she is not required to attend court. This necessarily implies that the person is in custody at the time.
This has been used to suggest that, when a person appears in court, he or she is in the custody of the court. I have held, however, in R v McGrail at [41]-[52], that this is not necessarily so. A person who has been arrested is in the custody of the police and then of the Director-General (who has responsibility for officers of ACT Corrective Services) and is then required to be in court in accordance with statute (such as s 17 of the Bail Act). While in court, the person is then to be dealt with by the court either by the court dispensing with bail, granting bail or remanding the person in custody.
As held in Dainer v Foster; Ex parte Tange (1984) 14 A Crim R 327, this does not apply to a person who has been summonsed to appear in court.
While I do not have to decide, it seems to me that, on the authority of that decision, bail cannot be required of a person who has appeared in court in response to service on the person of a summons. Of course, if the person does not appear and is brought to court, having been arrested under a warrant issued by the court, the position would be different.
In R v McGrail, I referred (at [50]), to the NSW decision of R v Peehi (1997) 41 NSWLR 476 which had held that a person appearing before the court was in the custody of the court. I noted that this seemed to be based on a general understanding rather than the law and that the Court had, at 481, urged the legislature to clarify the position, along the lines of the English legislation which specified that, when appearing in court, a person is in the custody of the court.
I mentioned (at [51]), that neither NSW nor the ACT had not made any such amendment. Unfortunately, because bail applications have to be decided as urgently as possible, I erred. New South Wales has included in the Bail Act 2013 (NSW) (the NSWBail Act) s 92 which provides:
A person granted bail for an offence who is present in a courtroom or court premises when the matter is called is taken to be in the custody of the court on and from the calling of the matter concerned until the court completes its dealing with the matter (whether or not the person surrenders to the custody of the court).
What is significant about this provision is that, consistently with Dainer v Foster; Ex parte Tange, a person who appears in court following service of a summons or a court attendance notice, is not covered by the section and, apparently not in the custody of the court.
The provision does not specify that, upon the person being in the custody of the court, any bail is revoked. I do not need to consider that issue further, for the Bail Act is different now in material respects from the NSW Bail Act.
Accordingly, once a person, who has been arrested for an offence (not for breaching a bail condition) or, indeed, has been remanded in custody, is brought before the court, then the court may make any of the orders appropriate to deal with that person by dispensing with bail, granting the person bail or remanding the person in custody. Their custodial position seems to me to be as follows. If they have been arrested, then, once they are before the court, the power of the police to detain them is at an end. They can only be detained further by order of the court.
If, however, they are in the custody of the Director-General (under s 16 of the Crimes (Sentence Administration) Act 2005 (ACT)), then the custody depends on the terms of the remand and may continue without any further order of the court.
A person who has been released on bail, however, is, under s 6 of the Bail Act, entitled to be released from custody (if he or she is in custody) and to be and remain at liberty until required to attend court in accordance with the bail undertaking they must sign under s 28 of the Bail Act. If the bail is granted on conditions then, clearly, the person is obliged to comply with the conditions, though a breach of the conditions is, unlike a breach of the undertakings to appear (s 49 of the Bail Act), not an offence in itself.
The terms of s 6 of the Bail Act might suggest, by the use of the words “remain at liberty ... until required to appear before a court”, that the person, upon attending court, is no longer at liberty. That might suggest that, on the person’s surrender to the court, the person is in the custody of the court. I held in R v McGrail that, in the absence of a provision such as s 92 of the NSW Bail Act, that was not so.
In any event, it seems to me that, under the Bail Act, the person’s liberty might be interrupted or suspended while in court, but the grant of bail is not revoked. I rely for this on two matters: in the first place, I rely on the terms of s 33 of the Bail Act and, in the second place, I rely on the fact that the comprehensive and mandatory provisions of ss 22 and 23 of the Bail Act do not then apply, making the concept of a revocation or cessation of bail quite inappropriate. It seems to me that a person’s liberty can be constrained without the revocation of bail.
Section 56A of the Bail Act makes it clear that a bailee is meant to comply with the conditions of bail. Thus, if a police officer reasonably suspects that a person has breached a condition of his or her bail, the officer may arrest the person and bring that person before the court.
There is nothing in the Bail Act that says that this revokes or ends the bail that has been granted to the person. Indeed, it appears that only a court can revoke the grant of bail.
This must be reinforced by s 56A(4)(b) of the Bail Act which deals with persons granted bail in a State or another Territory. The section deals with such persons relevantly identically. Of course, however, the Bail Act could not permit the bail revocation of granted to a person by another court outside the ACT. The approach of the section does not proceed on the basis that this will be the position for such persons and there is no reason to see any distinction.
The powers of the court in respect of persons granted bail by a court outside the ACT are naturally somewhat different because of the “foreign” element. These powers, as set out in the section, however, do not imply that the bail of a person whose bail was granted by an ACT court has been revoked. Indeed, the inability of the ACT legislature to empower a court or a police officer to revoke bail granted by a court outside the ACT strongly suggests that this is not the effect of an arrest under s 56A of the Bail Act.
In R v McGrail at [59], I incorrectly held that the Bail Act does not provide an express power to revoke bail. That appears not to be correct, for s 19(1)(b) of the Bail Act expressly so provides. It is a curious provision for it refers to the court acting in accordance with Pt 4 of the Act, but that Part deals only with the grant of bail and revocation (and, indeed, the other powers given to the court in that paragraph, namely enlarging or varying) is a power that is only exercisable after a grant of bail has been made.
That is to say, a grant of bail is only meaningful for a person who is in custody, whether of the police or the Director-General, and at first sight, Pt 4 of the Bail Act deals only with persons in such custody. It is not clear how Pt 4 impacts on a matter such as revocation of bail.
Section 19 of the Bail Act has a reach rather wider than Pt 4 of the Bail Act and applies, it appears, to persons already the subject of a grant of bail and who would, therefore, not be in custody.
As I have noted above (at [72]), the appearance in court of a person who has been granted bail does not seem to me to revoke the grant of bail. Thus, a person who appears in court, for example, to have the terms or conditions of the bail granted to him or her varied does not, upon appearance in court, have again to apply for bail because he or she is somehow in the custody of the court and which has thereby revoked his or her bail. The express power in s 19(1)(b) of the Bail Act to permit variation would be inconsistent with that.
Further, s 33 of the Bail Act is also inconsistent with such a view. That is to say, when a person appears in court in answer to his or her bail undertaking, the bail can be merely continued, including if the court makes no reference to bail at all. If the bail had been revoked, then it would seem logical that a fresh application for the grant of bail would have to be made. Indeed, the person does not even have to appear in court for the section to have effect.
What, then, is the situation of a person has been arrested under s 56A of the Bail Act? The section does not, in terms, state that the bail of the person has been revoked. Given the need to construe the legislation consistently with the rights in the Human Rights Act 2004 (ACT), at least so far as is consistent with the Bail Act purpose, as required by s 30 of the Human Rights Act, and since the right of liberty is specified in s 18 of the Act as one of those rights, the revocation of bail should not be implied, in the absence of express terms, unless it is the only construction reasonably given.
Further, as Gleeson CJ pointed out in Al-Kateb v Godwin (2004) 219 CLR 562 at 577; [19], the principle of legality applies to the interpretation of legislation that confers on the Executive (as the police are) a power of administrative detention. Thus, courts do not impute in the legislature an intention to abrogate or curtail human rights or freedoms, of which personal liberty is the most basic, unless the intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question and has consciously decided upon abrogation or curtailment.
Indeed, s 6(3) of the Bail Act appears to me to re-inforce that the arrest under s 56A does not revoke bail. That sub-section would not be necessary if the arrest had that effect, for the person would no longer be a person to whom bail had been granted for the bail would have been revoked. The purpose of the sub-section is to ensure that the arrest, which derogates from the entitlement of the person otherwise to remain at liberty, justifies the temporary suspension or, in the words of Mr Hiscox, an “interruption” to, the liberty to which the person is otherwise entitled.
The respondent, however, pointed to s 56A(4)(a) of the Bail Act to submit that the person who is arrested under that section must apply for bail. I do not agree.
In the first place, the court’s powers are those set out in s 19 of the Bail Act. As I have indicated, those appear in the Part dealing with the court’s powers when a person in custody is brought before it, though this does not neatly fit into that limited circumstance. Thus, the paragraph might reasonably be referring to s 19, being within the Part of the Act dealing with the powers in relation to an accused person in custody. That is reinforced, to some extent, by the different approach in s 56A(4)(b) for persons whose bail has been granted by another court outside the ACT. Of course, a court in this Territory could not revoke the bail of a person which bail had been granted by a court in another jurisdiction and so reference to the plenary power under s 19 is not appropriate.
Further, however, the reference in s 56A(4)(a) is, in my view, to ensure that the court has the powers to respond to the situation. That is, it has express power, then, to enlarge, vary or revoke bail. If the sub-section had merely meant power to grant bail because the bail which had already been granted had been revoked, then it would have been easy for the section to have said so.
In my view, what the section provides is that the arrest of the person who has been granted bail does not revoke the grant of bail but provides for the person to be brought before the court so that the court can hear an application to revoke the bail, can continue the bail or can enlarge or vary the grant of bail.
To hold otherwise seems to me to have two serious complications. In the first place, it means that there is no easy means for a person who has been arrested under s 56A of the Bail Act to challenge the alleged breach of bail. It may be that the suspicion of the police officer turns out to be actually unfounded, no matter how reasonable it may have been.
In this case, the fact that Mr Charles was found at the address in Rivett does not, of itself, show that he was not residing at Red Hill. Given the inquiries that had been made, the suspicion that he was not may have been reasonably founded, but may have been wrong if, indeed, he was living in Red Hill. He may well have wished to challenge the assertion that he was not residing there. It would be difficult for him to do so if the prosecution was not required to prove the breach in order to justify any application to revoke the grant of bail. Were the prosecution required to prove the breach, then evidence on which it relied could then be challenged and, of course, answered, if the defendant chose to do so and can answer it.
Secondly, it seems to me that the only power to revoke bail under the Bail Act is by order under s 19. That is a power, unlike the grant of bail, that is not given to an authorised officer. It is only given to a court. It is not given to a police officer. It is an order that the court must make. To imply from s 56A that a police officer can, by having a reasonable suspicion that a condition of bail has been breached, revoke bail granted by a court is inconsistent with the Human Rights Act and the general scheme of the Bail Act.
As a practical matter, the Bail Act provides a requirement that, for a grant of bail, a court considers the matters set out in ss 22 and 23 and 23A of the Bail Act. Further, the Evidence Act 2011 (ACT), applies to applications that relate to bail: s 4 of the Evidence Act. To provide that, on the hearing of every allegation of a breach of bail, no matter how trivial, a court must, whatever the views of the parties, consider the matters required to be considered under the Bail Act (as the sections refer to “must consider” and “must tell”) and have evidence for them, would put an intolerable burden on the courts. Many of the persons brought before the court under s 56A of the Bail Act have failed to report because they forgot or have reported a little late. To require each of those persons to make a full bail application when the prosecution in many, if not most, cases, do not seek to revoke the bail and often invite the court merely to continue it, would put an intolerable burden on the courts.
In my view, the position is that, when Mr Charles was arrested under s 56A of the Bail Act, he was brought properly before the Court, which had to consider whether to revoke his bail or vary or enlarge it in any way. Unless the breach was admitted, the prosecution would have been required to prove it in the usual way. Mr Charles was not required to apply for bail, though, if it were revoked, he could do so thereafter. See R v McGrail.
While, of course, not directly relevant to the construction of the Bail Act, this is the process followed by most other Australian jurisdictions, though more clearly articulated in the relevant legislation. See, for example, ss 77 and 78 of the NSW Bail Act, ss 54, 55 of the Bail Act 1982 (WA), s 26 of the Bail Act 1994 (Tas), s 18 of the Bail Act 1985 (SA) and s 24 of the Bail Act 1977 (Vic).
Accordingly, s 9D of the Bail Act was not relevant to the consideration by the learned Special Magistrate when Mr Charles appeared before him, as that section only prohibits the grant of bail, if a person is subject to the section, unless the person shows special or exceptional circumstances that favour the grant of bail. That was not the position when Mr Charles was before the court, for, in my view, the court was not required to consider whether to grant bail. That had already been done.
The informant could also have applied under s 41 of the Bail Act for a review of the bail decision which had originally granted Mr Charles bail. That review would, of course, have to meet the tests in s 42 of the Bail Act. It is not appropriate for me to speculate on whether there were any grounds that would meet those tests.
Given that this issue was raised in these proceedings, it would seem to me that the oversight of the court (and the prosecution) to address s 9D of the Bail Act at the time of the original grant of bail, would not seem to me to meet those tests. That, however, is not something I have to decide.
I will, accordingly, make declarations to give effect to these reasons.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 21 July 2016 |
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