R v Justin Monfries - [2011] ACTSC 203

R v JUSTIN MONFRIES
[2011] ACTSC 203 (9 December 2011)

Magistrates Court Act 1930 (ACT), s 90A
Court Procedures Rules 2006 (ACT), r 4735
Crimes Act 1900 (ACT), s 314
Bail Act 1992 (ACT), s 55

Stephanie Fryer-Smith, Aboriginal Cultural Awareness Benchbook for Western Australian Courts (Australian Institute of Judicial Administration Incorporated, 2002)

R v Smith [1925] 1 KB 603
R v McGarry (1945) 173 LT 72
R v MarlowJustices,ex parte O’Sullivan [1984] QB 381
R v Southampton Justices, ex parte Green [1975] 2 All ER 1073
R v Mokbel & Anor [2006] VSC 158

Winter v State of Western Australia [2011] WASC 279

EX TEMPORE JUDGMENT

No. SCC 435 of 2008
No. SCC 201 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 9 December 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCC 435 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          No. SCC 201 of 2011

R
v
JUSTIN MONFRIES

ORDER

Judge:  Refshauge J
Date:  9 December 2011
Place:  Canberra

THE COURT ORDERS THAT:

The parties be heard as to whether Mr Monfries’ bail should be revoked and if so, whether Mr Monfries should be granted further bail.

Justin Monfries was committed to this court on 14 November 2008 on two charges of dishonestly riding or driving in a motor vehicle without consent, one charge of theft, two charges of unlawfully confining a person, three charges of failing to appear after giving a bail undertaking and a charge of possessing an article with intent to use it in the course of a burglary.
The certificate under s 90A of the Magistrates Court Act 1930 (ACT), shows that he was committed for sentence on all matters. The bench sheets record, whether in error or not, at this stage I cannot say, that he was actually committed for trial on the charge of unlawful confinement and one of the charges of dishonestly riding in a motor vehicle without consent.
Mr Monfries had been first charged with the offence of possessing an article with intent to use it in the course of a burglary on 18 February 2008 when he was before the court, the summons having been issued on 12 December 2007 with a return date of 8 February 2008. The summons having presumably been served on Mr Monfries, he failed to appear and a warrant was issued. The proceedings were adjourned from time to time, including to 27 March 2008.
Mr Monfries was charged with some of the further offences on 27 March 2008 and was remanded in custody. He appears to have been granted bail in May or June 2008. On 19 September 2008, he failed to appear in the Magistrates Court and was again remanded in custody, but was granted bail on 14 November 2008 to appear in the Supreme Court following his committal.
On 20 November 2008, counsel for the Crown and for Mr Monfries indicated that there was an issue about the fitness of Mr Monfries to plead and the…

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 Justin Monfries

Details

AGLC: R v Justin Monfries [2011] ACTSC 203
Case: [2011] ACTSC 203
Decision Date: 9 December 2011

CaseChat Overview and Summary

The case of R v Justin Monfries involved a dispute over the revocation of bail for the accused, Mr Monfries. The matter was heard in the relevant court where the prosecution sought to revoke the bail on the basis that Mr Monfries had breached the conditions of his release. The defence contested the revocation, arguing that the prosecution had not met the requisite standard of proof.

The central legal issue before the court was the standard of proof required for the prosecution to successfully argue for the revocation of Mr Monfries' bail. Historically, the common law had not been entirely clear on this matter. However, the court needed to determine whether the criminal standard of proof, beyond reasonable doubt, or the civil standard, the balance of probabilities, should apply in this context. This was further complicated by statutory provisions that might alter the standard of proof.

In delivering its decision, the court considered the relevant authorities and statutory provisions. The court found that historically, the standard of proof for revocation of bail had varied depending on the type of recognizance and the nature of the proceedings. However, in cases where the forfeiture of a recognizance sum was at issue, the balance of probabilities had been held to be the appropriate standard. The court also noted that the Bail Act 1992 (ACT) provided that for certain purposes, a decision on bail could be made if the court was satisfied on the balance of probabilities. Given this statutory provision, the court concluded that the balance of probabilities was the appropriate standard for the revocation of bail in this case.

ORDERS:
1. The parties be heard as to whether Mr Monfries' bail should be revoked and if so, whether Mr Monfries should be granted further bail.

Orders

Orders of the court

The parties be heard as to whether Mr Monfries’ bail should be revoked and if so, whether Mr Monfries should be granted further bail.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In re-examination, Ms Warrack said that Mr Monfries’ probation officer rang and, it appears, spoke to Mr Monfries, requiring Mr Monfries to see the probation officer at once. That call, she said, was about half an hour to 20 minutes after the police had left.Consideration It is clear that the prosecution, as the applicant for the revocation of Mr Monfries’ bail, bears the onus of proving that he has done so. The standard of such proof was, at common law not entirely clear. In R v Smith [1925] 1 KB 603, the UK Court of Appeal held (at 606) that, where it was alleged that a recognizance imposed as part of a sentence for a charge of theft had been breached, the prosecution was required to prove the breach to the criminal standard, namely proof beyond reasonable doubt. That approach was also applied in R v McGarry (1945) 173 LT 72. That approach, however, was not followed by the Divisional Court in R v MarlowJustices,ex parte O’Sullivan [1984] QB 381, where what was at issue was not a recognizance of the same kind, but a recognizance upon being bound over to keep the peace and where what was sought was the forfeiture of the sum of money that was the subject of the recognizance. That, it seems to me, made the difference. The court there followed the decision of the Court of Appeal in R v Southampton Justices, ex parte Green [1975] 2 All ER 1073, where the court said (at 1076): A recognisance is in the nature of a bond. A failure to fulfil it gives rise to a civil debt. It is different from the ordinary kind of civil debt, because the enforcement is different. It is enforceable like a fine... But that method of enforcement does not alter the nature of the debt. It is simply a civil debt on a bond and as such is not a criminal cause or matter. Thus, the Divisional Court held, following that authority, that for the forfeiture of the recognizance sum, the breach had only to be proved on the balance of probabilities. This approach was followed by Gillard J in R v Mokbel & Anor [2006] VSC 158, where his Honour was considering whether the surety for the bail of an accused should have the surety sum estreated. His Honour held (at [31]) that such proceedings were “analogous to a civil proceeding.” Indeed, in that case counsel for the surety conceded that proof of the breach of bail for that purpose was to be assessed on the balance of probabilities. This is a different exercise, for the revocation of bail will result in the deprivation of the liberty of Mr Monfries, unless he is re-granted bail, as may be done. See Winter v State of Western Australia [2011] WASC 279 per McKechnie J. While that would appear to be the position at common law, the matter has, as Mr A Williamson, who appeared ably for the prosecution, quite correctly drew to my attention, would appear to have been addressed by statute. Section 55 of the Bail Act 1992 (ACT), provides:Civil standard of proof to apply for certain purposesIf a court or an authorised officer, in making a decision in relation to bail (other than a decision in proceedings for an offence committed in relation to bail), is to be, or may be, satisfied as to any matter, it is sufficient if the court or authorised officer is satisfied on the balance of probabilities.