R v Green - [2018] ACTSC 268

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 Crimes Act 1900 (ACT) ss 26, 28(2)
Cases Cited:	R v Chatfield [2017] ACTSC 325 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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] ACTSC 268
Decision Date: 25 September 2018

CaseChat Overview and Summary

The case of R v Green involved the respondent, Green, who had previously been denied bail by the Magistrates Court and subsequently by the Supreme Court of the Australian Capital Territory. Green sought a further review of his bail application, arguing that the delay caused by his committal for trial in the Supreme Court constituted a change in circumstances under section 20C of the Bail Act 1992 (ACT), and that the complainant's inconsistent evidence was fresh evidence that should be considered. The Supreme Court was tasked with determining whether these factors warranted a reconsideration of the bail decision.

The legal issues before the court centred on the interpretation and application of section 20C of the Bail Act 1992 (ACT). Specifically, the court had to decide whether the delay in trial due to the committal process amounted to a change in circumstances that could justify a re-evaluation of bail conditions. Additionally, the court needed to assess the relevance and weight of the complainant's inconsistent evidence, and whether this constituted fresh evidence that should be taken into account when determining the grant of bail.

The court found that the delay caused by the committal for trial did not constitute a change in circumstances sufficient to warrant a reconsideration of bail. The Supreme Court emphasised that the passage of time alone, without additional factors, was not enough to meet the threshold for a change in circumstances under section 20C. Furthermore, the court concluded that the inconsistent evidence of the complainant was not fresh evidence that would alter the balance of considerations in favour of granting bail. The court held that the previous denial of bail was still consistent with the balance of considerations at the time of the decision, and that the fresh evidence did not sufficiently alter the circumstances to warrant a change in the bail decision.

The Supreme Court dismissed Green's application for bail, maintaining the previous decision to deny bail. The court reiterated the importance of the balance of considerations in bail decisions and confirmed that the factors presented did not justify a re-evaluation of the earlier bail determination.

Orders

Orders of the court

The application for bail is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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