R v Chatfield

[2017] ACTSC 325

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Chatfield

Citation:

[2017] ACTSC 325

Hearing Date:

25 October 2017

DecisionDate:

26 October 2017

Before:

Mossop J

Decision:

The application for bail is dismissed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – change in previous bail applications – threshold test in s 20C of the Bail Act 1992 (ACT) to show change in circumstances or fresh evidence or information – what is significant to meet threshold test – provision of brief of evidence – committal for trial – s 20C threshold requirement not met – bail not granted – application dismissed

Legislation Cited:

Bail Act 1992 (ACT), ss 20B(a), 20C, 20C(1)(a), 20C(2), 43A

Crimes Act 1900 (ACT), ss 23, 27(3)(d)

Firearms Act 1996 (ACT), ss 43(1)(a)(iii), 221(1)(b)

Cases Cited:

Re an application for bail by Allen [2009] ACTSC 64

Re an application for bail by Anderson [2011] ACTSC 121

Re an application in relation to the grant of bail to Lokvicic [2012] ACTSC 37

Re an application for bail by Massey (No. 2) [2009] ACTSC 70

Re an application for bail by Merritt [2009] ACTSC 56

Parties:

The Queen (Crown)

Wayne Chatfield (Accused)

Representation:

Counsel

M Kent (Crown)

J Purnell SC (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson (Accused)

File Numbers:

SCC 272 of 2017

SCC 275 of 2017

MOSSOP J:

1. Wayne Chatfield has applied for bail.  He is charged with:

(a)unlawfully discharging a firearm so as to cause another person reasonable apprehension of their safety, contrary to s 27(3)(d) of the Crimes Act 1900 (ACT);

(b)possessing a firearm when not authorised by a license or permit or otherwise under the Firearms Act 1996 (ACT), contrary to s 43(1)(a)(iii) of the Firearms Act;

(c)recklessly inflicting actual bodily harm on Luke Brown contrary to s 23 of the Crimes Act; and

(d)discharging a firearm in a public place contrary to s 221(1)(b) of the Firearms Act.

1. The applicant has previously made two unsuccessful bail applications of the ACT Magistrates Court on 29 August 2017 and 15 September 2017.  The applicant was committed for trial on 3 October 2017.

1. The application for bail is empowered by s 20B(a) of the Bail Act 1992 (ACT) because the proceedings are now before the ACT Supreme Court. Section 20C(1)(a) provides a constraint upon the power of the Supreme Court to grant bail. In the present case, because there were two previous bail applications made in the Magistrates Court when the proceedings were before that Court, s 20C(2) applies. That subsection provides:

The court may only consider a further application for bail (other than a bail review application) by the person in the proceeding if the court is satisfied—

(a) that since the last application for bail there has been a change in circumstances relevant

to the granting of bail; or

(b) that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.

1. Senior counsel for the applicant submitted that there were four matters which amounted to changed circumstances or fresh evidence or information for the purposes of this threshold requirement:

(a)the provision of the brief of evidence;

(b)the committal of the accused for trial;

(c)the information about the strength of the Crown case which was available from material in the brief of evidence; and

(d)that it was now possible to estimate the trial date, which the evidence disclosed would be unlikely to be in the March/April 2018 sittings but instead would be in the June 2018 sittings.

1. The parties referred to a number of authorities in relation to what constituted a change in circumstances for the purposes of s 20C of the Bail Act or equivalent provisions.  Senior counsel for the applicant referred to the decisions of Refshauge J in Re an application for bail by Merritt [2009] ACTSC 56 (Re Merritt) and Re an application for bail by Anderson [2011] ACTSC 121 (Re Anderson).  Counsel for the Crown referred to the decisions in Re an application in relation to the grant of bail to Lokvicic [2012] ACTSC 37 (Re Lokvicic), Re Anderson, Re an application for bail by Allen [2009] ACTSC 64 (Re Allen) and Re an application for bail by Massey (No. 2) [2009] ACTSC 70 (Re Massey (No. 2)).

1. In Re Merritt, Refshauge J accepted that the availability of a surety could satisfy the tests for fresh evidence or information or a change in circumstances notwithstanding that it may not ultimately justify the grant of bail.  Similarly, his Honour accepted that the new availability of a place to reside may amount to a change in circumstances or fresh information. 

1. In Re Anderson, the passage referred to by senior counsel was one which accepted that delay in the prosecution of a matter can be “a special or an exceptional circumstance” for the purposes of the Bail Act.  That is not relevant in the present case and as a consequence, not of assistance in determining the present application.  Senior counsel also relied upon Re Anderson to the extent to which Refshauge J assessed the Crown case as “not … a particularly strong case” and added that to two other matters so as to reach the conclusion that the circumstances together amounted to “special or exceptional circumstances” that would justify the grant of bail.  As with the other point made on the basis of Re Anderson, that test is not relevant to the present application and hence, the decision is not of assistance in resolving the present application.

1. In Re Lokvicic, Burns J was dealing with an application under s 43A of the Bail Act which incorporates the same threshold requirements as s 20C. His Honour found that the usual or inevitable delay in the conduct of proceedings did not amount to a change in circumstances relevant to the granting of bail. His Honour noted at [12] that the magistrate had declined to review the earlier decision of another magistrate 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 other magistrate had refused bail. His Honour said:

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, [the magistrate] 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.

1. In Re Massey [No. 2], Penfold J was considering an equivalent test.  Her Honour rejected the submission that passage of time alone could amount to a significant change in circumstances.  She did accept that a diagnosis of bipolar disorder and the provision of apparently effective treatment would amount to a significant change in circumstances relevant to the granting of bail.  It was not necessary for her Honour to resolve the question of whether the threshold test could be met by matters which were relevant to bail but that would tend against the granting of bail.  Her Honour went on to consider whether or in what circumstances delay in preparing the matter for trial could, in conjunction with other matters, amount to special or exceptional circumstances favouring the grant of bail.

1. In Re Allen, Penfold J was once again dealing with the issue of “special or exceptional circumstances” rather than the issues posed in the present case.  Her Honour gave detailed consideration as to when delay might amount to an exceptional circumstance.  Her Honour considered that delay, in the sense of the period that is normally required for normal processes, would not generally amount to special or exceptional circumstances (at [39]). However, her Honour did not rule out the possibility that the standard timeframes in conjunction with other circumstances particular to an applicant might amount to special or exceptional circumstances.

1. For the purposes of s 20C, my state of satisfaction in relation to each of the matters asserted to satisfy the threshold requirement in s 20C(2) is as follows.

1. The provision of the brief of evidence: I accept that there will be cases in which the provision of the material in the prosecution brief will constitute a change in circumstances or fresh evidence or information of relevance to the granting of bail.  That would be the case where the material in the prosecution brief casts a significantly different light upon the prosecution case than was available to the Court when considering the question of bail based upon only the Statement of Facts prepared at an earlier stage by police.  In the present case, the applicant tendered a transcript of the 000 call made by the complainant in which he declined to identify the alleged offender (there appears to be an incorrect date on this document as it is dated 17 November 2016 when the offences are alleged to have occurred on 16 November 2016).  The applicant also tendered a record of conversation between the complainant and police officers.  I am not satisfied that the provision of these documents amount to material that would satisfy the threshold test because the evidence provided there has not been shown to be inconsistent with that articulated in the Statement of Facts.  The fact that the complainant declined to identify the accused in the initial 000 call is not, having regard to the subsequent statement made to police, a matter which puts a different complexion on the facts or the strength of the Crown case.

1. The committal of the accused for trial: The committal of the accused for trial is something which has occurred since the previous applications for bail. This is something which will necessarily occur in circumstances where there is no plea of guilty and no consent to the jurisdiction of the Magistrates Court. In that sense it is simply the expected course of proceedings in circumstances where the accused does not plead guilty or consent to the Magistrates Court’s jurisdiction. It could be considered to be a change in circumstances because it is a step in the process which means that it is then clear that there will be that delay necessarily involved in the matter proceeding to trial in the Supreme Court. In this case, the evidence suggests that the delay may be as long as until June 2018. On the other hand, it could be treated as not being a change in circumstances in that, in the absence of the two applications on the part of the accused to which I have referred, it is simply what is expected to occur in order to have an indictable criminal charge resolved. As a consequence, there is no change in circumstance. To adopt the former approach would, in substance, mean that the threshold test in s 20C was met in all cases in which a person was committed for trial. This appears to me to be inconsistent with the legislative scheme which takes into account the existence of the earlier opportunities to apply for bail in the Magistrates Court as being relevant to determining whether the additional threshold requirement is imposed. If it was intended that any person who was committed for trial would have an entitlement to make an application for bail by reason only of that committal, then the threshold in s 20C would not have treated as relevant the existence of previous bail applications in the Magistrates Court. I therefore consider that it is more consistent with the legislative scheme to treat the mere committal for trial as not a change in circumstances which could satisfy the threshold in s 20C.

1. The information about the strength of the Crown case which was available from material in the brief of evidence:  Although articulated as a separate ground for the satisfaction of the threshold question, this is really an aspect of the earlier ground, namely, the provision of the prosecution brief of evidence.  The provision of the prosecution brief of evidence could only be relevant to the grant of bail insofar as it cast some different light upon the nature of the Crown case against the accused.  I have dealt with this substantive issue earlier.  I do not consider that the material pointed to from the prosecution brief of evidence is material which would satisfy either of the limbs of the threshold test.

1. That it was now possible to estimate the trial date which the evidence disclosed it would be unlikely to be in the March/April 2018 sittings but instead would be in the June settings: Once again, this ground is closely related to the fact of committal. It was not suggested that the period between committal and trial was outside the range of what could have been expected at all times since the plea of not guilty was entered. It is not, therefore, a factor or information which would satisfy either of the limbs of s 20C.

1. In those circumstances, s 20C denies jurisdiction to this Court to grant bail. I accept that this will have very significant consequences for the accused, most notably his mother and uncle who were present in Court during the hearing of the application and, in the case of his uncle, gave evidence in support of the application. The consequences for the accused and his family are a result of the legislative regime that exists. There is clearly a tension between the existence of a threshold requirement that must be met before the jurisdiction to grant bail can be exercised and the notion of individualised justice. That is particularly so where, despite the rejection of earlier applications, it is clear that the application for bail has considerable merit and the denial of bail will result in an accused person remaining on remand for a substantial period. However, for understandable reasons of policy, the legislature has significantly constrained the capacity of accused persons to make multiple applications for bail. Those constraints mean that accused persons need to consider very carefully whether to and when to make applications for bail so as to ensure that such applications may be considered on their merits.

1. Had the threshold requirement in s 20C been met, it would have been necessary to consider the detailed evidence which was given in support of and in opposition to the application for bail. Notwithstanding the detail of that evidence, in light of the conclusion that I have reached, I do not consider it appropriate to express any opinion in these reasons as to the conclusion that I would have reached about bail had the threshold requirement been met.

1. The order of the Court is:

1.    The application for bail is dismissed.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 7 September 2018