R v Green
[2018] ACTSC 268
•25 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Green |
Citation: | [2018] ACTSC 268 |
Hearing Date: | 24 September 2018 |
DecisionDate: | 25 September 2018 |
Before: | McWilliam AsJ |
Decision: | The application for bail is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – where two previous bail applications have been made – s 20C of the Bail Act 1992 (ACT) – whether delay caused by committal for trial in Supreme Court amounts to change in circumstances – whether subsequent inconsistent evidence of complainant is fresh evidence relevant to the grant of bail – application for bail refused |
Legislation Cited: | Bail Act 1992 (ACT) ss 20B, 20C, 22 |
Cases Cited: | R v Chatfield [2017] ACTSC 325 Re an application in relation to the grant of bail to Lokvicic [2012] ACTSC 37 |
Parties: | The Queen (Crown) Timothy Green (Accused) |
Representation: | Counsel M Kent (Crown) R Thomas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal (Accused) | |
File Number(s): | SCC 204 of 2018 SCC 205 of 2018 |
Mr Green is charged with two counts of intentionally choking, strangling or suffocating another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act), the punishment for which carries a maximum penalty of imprisonment for 5 years. He is also charged with common assault contrary to s 26 of the Crimes Act, which carries a maximum penalty of imprisonment for 2 years. The alleged victim is his mother, with whom he lived and for whom he was the primary carer at the time.
The offences are alleged to have occurred on 13 March 2018, while Mr Green and his mother were at home. Mr Green was arrested on 9 June 2018, pursuant to a warrant issued on 16 March 2018.
Mr Green has been committed for trial in this Court and now applies for bail. It is not his first application in respect of these charges. He previously applied for bail in the ACT Magistrates Court on 11 June and 14 June 2018. Both applications were unsuccessful.
The Court’s power to grant bail
Section 20B(a) of the Bail Act 1992 (ACT) (Act) enables the Court to make a bail order in relation to an accused person. However, as Mr Green has made two previous applications in the Magistrates Court, the Court’s power is constrained by s 20C of the Act:
Repeat application for bail—Supreme Court
(1)This section applies application for bail (other than a bail review application) by an accused person in a proceeding if—
(a) the proceeding is one in which the Supreme Court has power to make a bail order under section 20B (a); and
(b) the accused person has—
(i) made 2 or more applications for bail in the Magistrates Court when the proceeding was before that court; or
(ii) if subparagraph (i) does not apply—made 1 application in the Supreme Court for bail in the proceeding
(2) 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.
Mr Green relies on subsection 2(a), namely that there has been a change of circumstances relevant to the granting of bail. Although the submission of counsel for Mr Green referred to subsection 2(a), I consider that Mr Green also impliedly relies on subsection 2(b), in that the alleged victim has recently signed a statutory declaration recanting her version of events.
Whether there has been a change in circumstances
Counsel for Mr Green submitted that the committal of the accused for trial in the Supreme Court, and what he described as the consequent delay in the trial being heard, amounted to a change in circumstances. It was common ground that the matter is likely to be heard in the April 2019 sittings, which means that Mr Green will be remanded in custody for a further 8 months (approximately). It was further submitted that the recently provided statutory declaration significantly reduces the strength of the Crown case because the complainant goes as far as to assert that she was telling lies in her original statement.
The parties referred to a number of authorities in various jurisdictions in relation to the issue of delay and what constitutes a change in circumstances for the purpose of s 20C of the Act.
The case which I have found to be of most assistance is one not cited by either party, namely R v Chatfield [2017] ACTSC 325 (Chatfield), where Mossop J was considering similar arguments, inter alia that the matter before his Honour had been committed for trial, that information about the strength of the Crown case was now available and that it was now possible to estimate a trial date, which the evidence disclosed would be in approximately 8 months.
Mossop J considered and followed Re an application in relation to the grant of bail to Lokvicic [2012] ACTSC 37 (Re Lokvicic) and Re an application for bail by Massey (No. 2) [2009] ACTSC 70 (Re Massey). The applicable principle is that the entry of a plea of not guilty does not enliven any presumption in favour of the grant of bail. It can only be relevant to the extent that it will, or is likely to, result in delay in the proceedings being concluded. However, some delay in the resolution of contested charges – in the sense of the simple passage of time – is inevitable. Usual or inevitable delay is anticipated by a court when bail is refused and an offender remanded in custody: Re Lokvicic at [12]; cited in Chatfield at [8].
Justice Mossop went on to state in Chatfield at [13] that to adopt an approach that a committal to trial in the Supreme Court and the associated delay amounted to a change in circumstance under s 20C is 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.
I consider the circumstances of this case to be on all fours with those in Chatfield. The fact that the proceedings are now in the Supreme Court with an expected trial approximately eight months away do not constitute a change in circumstances that satisfies the threshold in s 20C. I am not persuaded that such a lapse in time, even taking into account the two months that Mr Green has been in custody since his arrest, is a delay of such significance as to amount to a ‘change’ sufficient for the Court to revisit the question of bail.
As to the provision of the statutory declaration, I accept that there may be a change of circumstances sufficient to overcome the threshold in s 20C of the Act where further evidence is provided after a court has previously considered an application for bail, and such evidence casts a significantly different light upon the prosecution case: Chatfield at [12].
However, to accept the possibility is not to find that whenever inconsistent evidence comes to light after unsuccessful bail applications, the court will find a change of circumstances, nor that whenever fresh evidence is provided it will be relevant to the granting of bail. The Crown argued that the prosecution case remained strong, taking into account that there was evidence from the neighbour to whom Mr Green’s mother fled in distress on the day of the alleged incident, and that evidence was consistent with what the complainant then told ambulance officers and the police, both before and following her release from hospital.
In the context of alleged personal violence offences, where the complainant is both the mother of the alleged offender and is now dependent upon him for her primary care, the fact that there has been a change in her position is not sufficient to amount to ‘a change in circumstances’. Credibility of a witness is a common issue at trial and I do not consider that the statutory declaration does cast the prosecution case in a significantly different light, such as to make the contents of it relevant to the grant of bail.
In those circumstances, s 20C denies jurisdiction to this Court to grant bail. I appreciate the consequences not just for Mr Green, but for his family, and that there may be ramifications for the ongoing care and residential arrangements of his children. I echo the observations of Mossop J at [16] in Chatfield, that because the legislature has significantly constrained the capacity of accused persons to make multiple applications for bail, accused persons need to consider very carefully whether and when to make such applications.
I have given consideration to whether, in the event that I am wrong and the threshold in s 20C of the Act has been met, I should proceed to make findings in relation to what the discretionary outcome would have been on the application for bail, particularly having regard to the fact that the parties devoted full argument and written submissions to the application of the criteria under s 22 of the Act.
However, in Chatfield at [17], Mossop J did not consider it appropriate to express any opinion as to the conclusion that his Honour would have reached about bail. Respectfully, I again find myself in agreement with his Honour. This is because, on reflection, the finding is a matter of jurisdiction. Having found that the Court does not have the power to consider the application, it would not be appropriate to then go on to consider the discretionary factors on the application. Accordingly, I will refrain from doing so.
Conclusion
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 her Honour Associate Justice McWilliam Associate: Date: |