R v JM - [2011] ACTSC 157

R v JM
[2011] ACTSC 157 (31 August 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – bail – no trial date set – applicant awaiting an appeal of a fitness to plead finding – time spent in custody – factor in the determination of a bail application – bail granted.

CRIMINAL LAW – jurisdiction, practice and procedure – bail – special and exceptional circumstances – combination of circumstances can amount to special and exceptional – bail granted.

Crimes Act 1900 (ACT), s 315A
Legislation Act 2001 (ACT), s 84
Bail Act 1992 (ACT), s 9D

EX TEMPORE JUDGMENT

No. SCC 26 of 2009
No. SCC 362 of 2009
No. SCC 363 of 2009
No. SCC 128 of 2011
No. SCC 129 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 31 August 2011

IN THE SUPREME COURT OF THE     )          No. SCC 26 of 2009
  )          No. SCC 362 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 363 of 2009
  No. SCC 128 of 2011

No. SCC 129 of 2011

R
V
JM

ORDER

Judge:  Refshauge J
Date:  31 August 2011
Place:  Canberra

THE COURT ORDERS THAT:

JM be granted bail to appear in the Magistrates Court on 6 October 2011 and in this court on a date to be notified to him by the Registrar of the Supreme Court, on the following conditions:
(a)there be a surety in the sum of $200.00, [name provided] being declared a suitable person for that surety;
(b)that he reside at [address provided];
(c)that he accepts the supervision of the Director General or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to participation in cognitive skills programs or alcohol and drug counselling or vocation and employment training, including his attendance at the Canberra Institute of Technology to enrol in and, if accepted, to participate in the Yurana Program;
(d)that he report to the officer in charge of Woden Police Station each Monday, Wednesday and Friday between the hours of 8.00 am and 8.00 pm;
(e)that he not approach within 100 metres of [address provided];
(f)that he not approach or contact, directly or indirectly, [names provided]; and
(g)that he report to ACT Corrective Services at Eclipse House, London Circuit, Canberra City ACT forthwith for the purpose of arranging supervision.
The matter be listed at 9.30 am on 18 October 2011 for a bail review.

AND THE COURT NOTES THAT:

On 18 October 2011, if JM is enrolled in the Yurana Program and is progressing well in that program, a reduction of the reporting requirements will be viewed favourably by the court.

JM was, on 19 January 2009, committed for trial to this court on charges of aggravated robbery, the circumstances of the aggravation being that he was in company, and two counts of dishonestly driving a motor vehicle without consent, which are alleged all to have occurred on 16 October 2008.
On 27 May 2009, I found JM unfit to plead to these…

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.

Continue reading R v JM

Details

AGLC: R v JM [2011] ACTSC 157
Case: [2011] ACTSC 157
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, JM was granted bail pending the resolution of several criminal charges against him, including aggravated robbery, theft, and assault. The court considered JM's extensive time in custody, the uncertainty of his fitness to plead, and his pending appeal against a previous finding of unfitness to plead. The court also took into account JM's behaviour while in custody, his intention to enroll in a course at the Canberra Institute of Technology, and the availability of a surety.

The legal issues before the court included whether the combination of circumstances presented by JM's case amounted to special and exceptional circumstances warranting bail, and whether JM was eligible for bail under the Bail Act 1992 (ACT). The court determined that despite none of the individual circumstances being sufficient to justify bail, their combination, particularly the significant delay in the proceedings, warranted granting bail. The court also considered the impact of JM's past breaches of bail conditions and his overall conduct while in custody.

Refshauge J concluded that JM's prolonged detention, combined with his exemplary behaviour in custody, his intention to pursue educational opportunities, and the availability of a surety, constituted special and exceptional circumstances. The court granted JM bail under specific conditions, including residing at a specified address, accepting supervision, reporting to police, and refraining from approaching certain individuals or locations. The court also scheduled a bail review to assess JM's progress in his educational program. The orders were made to ensure JM's appearance in court and to facilitate his reintegration into the community while mitigating the risk of reoffending.

Orders