R v Chatfield No 2
[2017] ACTSC 397
•19 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chatfield No 2 |
Citation: | [2017] ACTSC 397 |
Hearing Dates: | 15, 19 December 2017 |
DecisionDate: | 19 December 2017 |
Reasons Date: | 31 January 2018 |
Before: | Penfold J |
Decision: | Bail is refused. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – jurisdiction – death of applicant’s sister found to be change in circumstances relevant to granting of bail – applicant’s obligations in relation to funeral and care of sister’s children – criteria for granting bail – real risk that applicant would not answer bail – history of evading arrest – recent failure to comply with intensive correction order – risk of offending while on bail raised by conceded offending during current custodial period – decision to refuse bail reached without reliance on unsubstantiated police suspicions. |
Legislation Cited: | Bail Act 1992 (ACT), ss 9A(2), 20C, 22, 22(1)(a), 22(1)(b) Firearms Act 1996 (ACT) |
Parties: | The Queen (Crown) Wayne Chatfield (Accused) |
Representation: | Counsel Ms K McCann (Crown) Mr J Purnell SC (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Numbers: | SCC 272 of 2017; SCC 275 of 2017 |
Introduction
Refusal of bail
On 19 December 2017 I refused to grant bail to Wayne Chatfield. I gave brief oral reasons for that refusal, but said that I would publish more detailed reasons. These are those reasons.
The offences
In August 2017, Mr Chatfield was charged with three offences, being:
(a)intentionally and unlawfully discharging loaded arms so as to cause another person reasonable apprehension for his safety;
(b)possession of a firearm whilst not authorised by a licence, permit or otherwise under the Firearms Act 1996 (ACT); and
(c)recklessly inflicting actual bodily harm on another person.
He has pleaded not guilty, and at this stage it appears likely that his trial will take place in June 2018. He applied for bail in the Magistrates Court and in this Court, but bail was refused on each occasion. Mr Chatfield has been in custody since 5 August 2017 when he was arrested in NSW, after which he was extradited to the ACT.
Previous bail application
On 26 October 2017, Mossop J declined to hear a bail application by Mr Chatfield on the grounds that he had no jurisdiction, because Mr Chatfield had shown no change in circumstances relevant to the granting of bail since the previous bail application, nor any relevant fresh evidence or information that was unavailable at the time of the previous bail application (as required by s 20C of the Bail Act 1992 (ACT)).
New bail application
On 12 December 2017, Mr Chatfield, apparently unrepresented, filed a further bail application, relying on the recent death of his sister and his obligation to organise and pay for her funeral, as the necessary change in circumstances. The application was listed for hearing on 15 December.
At the hearing on 15 December, counsel appeared to represent Mr Chatfield, being John Purnell SC, who had also appeared in the bail application before Mossop J. No new paperwork was filed, however, so it was not immediately clear to me or, presumably, to the Crown, whether matters would be raised that had not been specified in the application lodged by Mr Chatfield personally.
Jurisdiction
As with the application made to Mossop J, the first question to be determined was whether there was any jurisdiction to hear the new application.
Mr Chatfield gave evidence about his sister’s death by suicide, which went considerably beyond the matters mentioned by Mr Chatfield in the application he had filed himself.
Mr Chatfield said that his sister, [Ms D], had hanged herself, and that her body had been discovered by his father. [Ms D] had left a suicide note, which had been passed on to Mr Chatfield. The note tendered by Mr Chatfield in evidence read as follows:
I am sorry that things had to turn out like this, but sometimes in life there is only so much some one can take I go above and beyond for everyone but no one knows the battles I face everyday.
[naming the three children]
I will forever be looking over the three of you. Your uncle Wayne promised me he’d always take care of the three of you. I ♡ you with all my heart forever & always
Mumma! ♡
The father of the two older children was currently also in custody (as a sentenced prisoner); the father of the third child was apparently also unavailable to care for any of the children. At the time of the application they were being looked after in Sydney by their grandfather, but he is not well, and Mr Chatfield expected that in the absence of some other family member who can look after them, the children will be taken into care.
Mr Chatfield’s obligations in respect of his sister’s funeral were said to include not only organising the funeral, which had been done, but also releasing some $27,000 to pay for it from what Mr Chatfield referred to as a trust account, for his sister and the children, that is held in his name at a local branch of the National Australia Bank. Mr Chatfield asserted that this money could not be released except by him attending the bank in person.
On the basis of the evidence of the death of Mr Chatfield’s sister, his wish to be involved in organising her funeral and the issues raised about the care of her children, I accepted that there had been a relevant change in Mr Chatfield’s circumstances sufficient to give me jurisdiction to consider his bail application.
Status of application for bail
Under s 9A(2) of the Bail Act, Mr Chatfield had an entitlement to bail unless I was satisfied, after considering the matters mentioned in s 22 of that Act, that refusal was justified. Section 22 is relevantly as follows:
22 Criteria for granting bail to adults
(1)In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a) the likelihood of the person appearing in court in relation to the offence; and
(b) the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
The matters mentioned in s 22(1)(a) and (b) were relevant in this application.
Evidence relevant to s 22 consideration
Further evidence was given about matters said to be relevant to the granting of bail, including when the hearing resumed on 19 December.
Funeral arrangements
Additional evidence was given about the funeral arrangements and Mr Chatfield’s need to arrange payment for them, including evidence from Mr Chatfield’s girlfriend about her efforts to organise payment through the bank. She had been told that further documents would need to be given to the bank, but she did not claim to have been told that the money could not be released unless Mr Chatfield went to the bank in person.
Proposal to care for the deceased’s three children
Evidence was given about Mr Chatfield’s proposal to take custody of the three children (in accordance with his sister’s expectation as set out in the suicide note quoted at [9] above) and to bring them to Canberra, where he and the three children would live with his girlfriend and her mother and grandmother in a house in Tuggeranong. Mr Chatfield’s mother and his uncle (who gave evidence that he was terminally ill) both gave evidence that they would support Mr Chatfield in his care of the three children. Mr Chatfield’s father gave evidence that he was currently looking after the youngest child, but was finding this hard, and that he was due to have another operation in early February. Mr Chatfield’s girlfriend gave evidence that she would continue to work full-time and that Mr Chatfield would have day-to-day care of the children, and that they would not be able to be cared for at her house without Mr Chatfield.
Offer to provide surety
A surety of $10,000 was again offered (as it had been before Mossop J), but this time the surety was offered by a different person, a Mr Paunaski. In evidence, Mr Paunaski initially offered only the giving of security for the amount rather than the depositing of a cash surety, but when I commented on this, counsel was instructed that the surety could be lodged in cash.
When Mr Paunaski gave evidence, he did not appear to have a clear understanding of the obligations of a surety, and was not able to explain how he would monitor Mr Chatfield’s compliance with his bail obligations, relying instead on his firm belief that Mr Chatfield would comply with those obligations. Despite his evidence that he worked long hours including a lot of overtime, Mr Paunaski asserted that he would visit the place where Mr Chatfield was proposing to live three or four times a week.
Breach of intensive correction order
Mr Chatfield was ordered to serve a sentence of imprisonment by way of intensive correction order (ICO) in late 2016. There was evidence before me that very shortly after the ICO was made, Mr Chatfield began failing to comply with its conditions; it seems in particular that he had no contact with Corrective Services between 19 December 2016 and October 2017. A Sentence Administration Board (SAB) warrant was issued in December 2016.
Issue of first instance warrant
A first instance warrant for Mr Chatfield’s arrest had been issued in relation to the current charges.
Mr Chatfield’s knowledge of police interest in him
There was evidence from a police witness that from December 2016, Mr Chatfield was aware of the existence of both the first instance warrant and the SAB warrant. The witness was asked in cross-examination to explain the basis of this evidence, but his explanation was not challenged.
First instance warrants and breaches of good behaviour orders
Mr Chatfield’s criminal history was in evidence. It showed that before 2017 Mr Chatfield had twice been arrested on a first instance warrant (in 2008 and 2010), and had been dealt with twice (in 2009 and 2011) for breaching a good behaviour order.
Bail Consideration Form
The Bail Consideration Form prepared by police for the bail application before Mossop J, was also in evidence before me, as well as an updated version which added information received by police since that earlier application for bail.
A Bail Consideration Form provides police advice about issues relevant to the granting of bail. In this case at least, it was clear that much of the information was not backed up by sworn witness statements or any equivalent evidence, but reflected mainly “information reports” (being reports to police made by people who may not be willing to make, or at least have not made, sworn statements), as well as statements of police suspicions. To that extent, one must be careful about relying on such material as a ground for refusing bail, and counsel for Mr Chatfield attempted to discredit much of the material in the form by pointing out the absence of supporting evidence, and that one part of the form seemed to involve a police misunderstanding or misrepresentation of the incident concerned.
The updated version of the Bail Consideration Form:
(a)described the circumstances of the firearms charges and the actual bodily harm charge that Mr Chatfield currently faces;
(b)referred to a number of “information reports” that, among other things:
(i)alleged various attempts by Mr Chatfield to evade police;
(ii)suggested that Mr Chatfield has access to firearms;
(iii)described the concerns of witnesses to the shooting incident about the risk of Mr Chatfield or family members harassing them, especially if they assisted police; and
(iv)alleged Mr Chatfield’s involvement in the trafficking of illicit substances; and
(c)expressed the views of police that Mr Chatfield’s family would act to protect him from apprehension rather than attempt to control his behaviour or assist police.
As already recognised, it is necessary to be careful about relying on material in a Bail Consideration Form. However, two matters were raised in that form that in the course of the hearing became significant in my consideration of the application.
The first was the description of the circumstances of Mr Chatfield’s arrest in August 2017. In the Bail Consideration Form, there was a summary of information from NSW police about that arrest, which included the claim that Mr Chatfield’s late sister had caused a violent disturbance with police in an attempt to enable Mr Chatfield to evade arrest, and that her actions included biting a police officer’s finger so hard that she broke the finger.
Counsel for Mr Chatfield sought to discredit that claim by tendering a copy of the Court Attendance Notice issued to [Ms D] after the incident. That notice included a somewhat different report of the incident which, among other things, did not make any reference to finger-biting. The significance of the NSW notice tendered on behalf of Mr Chatfield is dealt with at [33] to [35] below.
The second was the description in the updated Bail Consideration Form of an incident since Mr Chatfield’s previous bail application that indicates further offending by Mr Chatfield while in custody in the Alexander Maconochie Centre (AMC). That incident, as described in the form, was conceded by counsel on behalf of Mr Chatfield. That matter is dealt with at [42] to [44] below.
Consideration
Much of the evidence called on behalf of Mr Chatfield is outlined at [16] to [19] above. Some of it (from various members of Mr Chatfield’s family) was not necessarily consistent with other evidence called by Mr Chatfield, and much of it seemed to be aimed at discrediting the information provided by police in the Bail Consideration Form. Much of that latter evidence was, however, not obviously relevant to any of the matters raised in s 22.
There is no need to refer again to all that evidence, but the following evidence before me was directly relevant to the issues raised by s 22.
Likelihood of appearing in court
The Court Attendance Notice addressed to Mr Chatfield’s sister that was tendered on behalf of Mr Chatfield recorded an incident involving Mr Chatfield and his sister outside the intensive care unit (ICU) where their father was in an induced coma, as follows:
About 3.55pm on Saturday the 5 August 2017, five plain clothes police from Sutherland and Miranda Local Area Command attended Sutherland Hospital to arrest [Mr Chatfield] who had extradition warrants to the ACT for serious criminal offences. NSW Police had made numerous efforts over the past fortnight to arrest this person however he has avoided detection.
When police arrived at the Intensive Care Unit (ICU) it was decided that police would not enter the unit and remain outside for [Mr Chatfield] to leave for the safety of the staff and patients.
Whilst police were waiting the accused [Ms D], who is the sister of [Mr Chatfield] walked into the foyer and noticed police. She walked towards the entry to the ICU and attempted to open the security doors to the ICU. At the same time [Ms D] began texting on her mobile phone.
Detective Sergeant Daley produced his ID and said, My name is Detective Sergeant Daley from Miranda Police. I know what you are doing and you are not to text your brother as he is wanted on warrants and you are hindering an investigation. [Ms D] said, Fuck you, you cant stop me I'm going in and continued to text. Detective Daley said, "You are Hindering an Investigation by warning him and are now under arrest."
Offence 1: Resist Arrest
Constable NAGHYOUI and Condon walked over to secure [Ms D] and she has resisted them by thrashing and waving her hands and kicking her feet, insisting to enter the ICU. The diversion caused police to leave their points and created an opportunity for [Mr Chatfield] to flee. As Detective Senior Constable Condon attempted to restrain [Ms D] he has injured his right hand during the arrest and released his grasp of her.
Whilst this was occurring [Mr Chatfield] exited the other door of the ICU about 15 metres away and was placed under arrest by Sergeant Gorick and Detective Senior Constable Tisdell.
In relying on this material to discredit the report in the Bail Consideration Form of [Ms D] biting a police officer’s finger (presumably as part of the attempt to discredit the material in that form more broadly), counsel did not challenge the material to the extent that it described Mr Chatfield’s attempt to avoid being arrested outside the ICU.
Mr Chatfield’s willingness to seek to evade police, and also the apparent willingness of one, albeit now deceased, member of his family to help him do so, even in the vicinity of the ICU where their father was apparently in an induced coma, gave me no confidence that he would comply with bail conditions requiring him to appear for his trial sometime in 2018.
As well as being concerned by the evidence of Mr Chatfield’s knowledge that he was being sought by police and of his attempts to avoid arrest, I was also directly concerned by the fact that within weeks after the ICO was made in late 2016, Mr Chatfield began failing to comply with the conditions of the order.
Nor did I find any comfort in Mr Paunaski’s offer of a $10,000 cash surety to guarantee Mr Chatfield’s compliance with his bail obligations. I considered that Mr Paunaski’s faith in Mr Chatfield to comply with his bail obligations was not necessarily well-founded having regard to other evidence before me.
As well, although it was not clear whether Mr Paunaski understood that the bail conditions proposed by Mr Chatfield included daily reporting to a police station and a strict overnight curfew, it was clear that Mr Paunaski would not be in a position to monitor Mr Chatfield’s compliance with such obligations.
Of course, a person providing a surety is not required to provide any such monitoring, or to report breaches to the Court or to police, but Mr Paunaski’s practical inability to play any role in ensuring that bail conditions were met suggested that the cash surety might have been offered as the price of Mr Chatfield’s release rather than as an incentive for Mr Chatfield to comply with his bail conditions and for Mr Paunaski to support Mr Chatfield in complying with those conditions.
Finally, I noted Mr Chatfield’s previous arrests on first instance warrants and his breaches of good behaviour orders.
Having regard to all those matters, I considered that there was a real risk that Mr Chatfield would not answer any bail granted to him.
Likelihood of Mr Chatfield offending while on bail
The updated bail consideration form provided by the Australian Federal Police recorded the following incident in the AMC on 4 December 2017 (although it seems that is the date on which a report was filed of an incident on the previous day):
On 4 December 2017, the defendant was seen on CCTV to place an item into his clothing during a visit. Corrections Officer’s brought the defendant to secure room where he was strip searched. Located on the defendant was:
-2 mobile phone SIM cards;
-Small clear parcel containing an orange coloured material, suspected of being Buprenorphine; and
-Large quantity of red coloured capsules.
Admissions by the defendant were that the red coloured capsules were a form of steroid.
This action was facilitated by the defendant’s brother, Dean WELSH, who brought the contraband into the AMC and placed the contraband into the packet of chips that they were retrieved from.
The defendant will be charged in relation to the prohibited items and enquiries are being conducted with Mr WELSH also.
That material was not challenged in cross-examination of the police officer, and indeed seems to have been conceded to be accurate by counsel for Mr Chatfield. Not only does it provide evidence of actual offending, but it also suggests, again, the risk of relying on Mr Chatfield’s family to keep Mr Chatfield compliant with the law.
I was accordingly not satisfied that the risk of Mr Chatfield offending while on bail was low enough to be disregarded in this case.
Other matters
I reached the conclusions set out above about the risk of Mr Chatfield not appearing in court as required and the risk of him offending while on bail by reference to material put before me that was either unchallenged, or was in fact relied on, by Mr Chatfield. I did not need to rely on any of the relatively unsubstantiated police suspicions about such things as Mr Chatfield’s alleged involvement in trafficking illegal substances, his alleged access to firearms and his alleged harassment of witnesses in relation to the current charges.
Conclusions
I have every sympathy with the plight of Mr Chatfield’s nieces and nephew, and I wish that there was someone obviously suitable to look after them. However, Mr Chatfield’s no doubt sincere wish to be that person, and the uncertainty about what will in fact happen to the children, cannot be allowed to obscure the risks I have identified already.
I note finally that the matters already canvassed also raised a concern in my mind that if Mr Chatfield were released to care for them, the unfortunate children could find themselves, like their mother and Mr Chatfield’s brother, drawn into any future attempts by Mr Chatfield to avoid or evade police or to re-offend.
Accordingly, I refused to grant bail.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 31 January 2018 |
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