R v Justin Monfries - [2011] ACTSC 203

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 matter was adjourned to what was customarily called a “pre-arraignment conference” (see r 4735(1)(a) of the Court Procedures Rules 2006 (ACT).
On 28 May 2009, I was satisfied that there was a real and a substantial question as to the fitness of Mr Monfries to plead (s 314(3) of the Crimes Act 1900 (ACT)) and I reserved the question for investigation.
After further directions and delay in obtaining the relevant reports, the matter was initially heard on 2 February 2010 and then on 18 February 2010. After some tests were further undertaken on 2 March 2010 a further mental health report was ordered. That has delayed the consideration of the question of Mr Monfries’ fitness to plead.
I have located a copy of that report dated 14 April 2010 on the court file, but it does not appear to have been earlier drawn either to my attention or to the attention of any of the parties. I have arranged for copies to be provided to the parties and in the absence of any submissions, shall complete the decision on the fitness of Mr Monfries to plead, taking into account that report.
During this time, there were periods when Mr Monfries was in custody and periods when he was granted bail. I do not have a detailed schedule of these dates, but Mr Monfries was certainly in custody for a not inconsiderable period of time.
On 21 April 2010, Mr Monfries was admitted to bail. On 6 August 2010, he breached his bail. There had been earlier breaches of bail but I do not stay to consider them at this stage.
Since August 2010, however, Mr Monfries has had a number of breaches of bail. On 16 November 2010 a urinalysis showed that he had used illicit drugs. He surrendered to the court and bail was ultimately continued. A further breach was before the court on 16 March 2011. On 15 April 2011, Mr Monfries was remanded in custody in the Magistrates Court in respect of a theft charge, but bail with strict conditions was granted on 2 May 2011.

On 25 October 2011, Mr Monfries appeared on a further breach of his bail. He was remanded in custody, but granted bail on 26 October 2011. On 7 December 2011, Mr Monfries appeared in response to a breach of bail. It appears that he surrendered himself. It is in respect of this matter that this decision is concerned.
The allegation
When granted bail on 26 October 2011, the conditions of the bail included a curfew in the following terms: “Not to absent yourself from your place of residence between 8 pm and 8 am daily and present yourself to any police officer during those hours.” Two statements of police officers, Constable Brendan Steenbergen and Constable Anthony Giorgio were tendered by consent. No application was made for either officer to be cross-examined.
The evidence of the officers was that at about 7.20 am on Sunday 27 November 2011 they attended at the residence where Mr Monfries was bailed to reside to conduct a bail compliance check. They knocked at the door and it was opened by an “older male”. Constable Steenbergen asked if Mr Monfries was at home and the male said he would get him. A short time later, a female, Ms Jessica Warrack, came to the front door and told them that Mr Monfries was asleep and could not come to the door.
Constable Steenbergen told her that it was a condition of his bail that he present himself to police. After a short conversation, Ms Warrack told the police officers that Mr Monfries was not at the premises and had gone for a walk. The police officers “conducted a patrol of the surrounding area”, but did not find Mr Monfries.
Ms Warrack was called by Mr Monfries and gave evidence. She described herself as Mr Monfries’ girlfriend and that she lived at the residence. She said that her uncle had awoken her on Sunday 27 November 2011 and told her that two police officers were at the door. She said she was quite affected by sleeping medication she had taken. She was, at the time, in bed with Mr Monfries.
She went to the door and the police officers told her that they wished to see Mr Monfries. She said she went to the bedroom. Mr Monfries, who had also taken some sleeping medication, was very groggy and told her to tell the police he had gone for a walk, as he was afraid he would be taken into custody. Ms Warrack returned to the front door and told the police officers what Mr Monfries had asked her to tell them. She said the police officers told her that Mr Monfries was meant to be at this address as a condition of his bail and that they would have to breach him.
She admitted that she had lied to the police because Mr Monfries had asked her to do so. She also said that Mr Monfries had not gone for a walk. Indeed, she said that he never went for a walk that early in the morning. He normally woke up between noon and 1 pm in the afternoon.
Ms Warrack was cross-examined and agreed that she had lied to the police because of what Mr Monfries had told her to say. There was some cross-examination about Mr Monfries’ use of Ms Warrack’s prescribed sleeping pills. It does not, however, seem relevant to the issue of whether Mr Monfries has breached his bail condition to be present at his residence and present himself to police on request.
It was put to Ms Warrack that she lied to the police and she admitted that. She did not explain why she had lied. She also said that Mr Monfries gave no explanation as to why he wanted her to lie for him. Ms Warrack was unable to explain why, if she thought the police would arrest Mr Monfries, she did not just tell them the truth. She agreed when Mr A Williamson, who appeared for the prosecution, put it to her that it did not make much sense. It was put to her that Mr Monfries was not with her, but she denied that. She also denied lying to the court.

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 purposes
If 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.

The consideration of revocation of bail for breach of a condition is not a proceeding for an offence committed in relation to bail but it is a decision in relation to bail. Accordingly, it seems clear that the proof of the breach is to be considered on the basis of the balance of probabilities.

In this case, the evidence of Ms Warrack is broadly consistent with that of the police officers. She did say after the initial conversation that she went back to the bedroom and that Mr Monfries told her to tell them that he had gone for a walk. That, however, was not raised in cross-examination and is not entirely inconsistent with the statement of the two police officers.

I take into account that Mr Monfries has a premorbid intelligence quotient of lower intellectual ability, as attested to by the reports of Dr George, tendered in the fitness to plead proceedings. I also take into account his Aboriginality and in particular, that of his girlfriend, Ms Warrack.
Mr Williamson pointed out the inconsistency of Ms Warrack knowing that Mr Monfries would breach his bail by not presenting to police and yet maintaining the lie when she knew he was concerned about being arrested or detained. This assumes that Ms Warrack approaches the matter in the same way as Mr Williamson or, indeed, me.
The Aboriginal Cultural Awareness Benchbook for Western Australian Courts (Stephanie Fryer-Smith, Australian Institute of Judicial Administration Incorporated, 2002) notes, for example (at Ch 7 (33) and (35)) that:
· Aboriginal witnesses may tend to agree with real or apparent authority figures, rather than which tendency may result in the diminution of those witneses’ legal rights.
· Aboriginal women often face pressure from within their family and/or community not to involve another Aboriginal person in legal proceedings: to do so is likely to be perceived as ‘betrayal’.
Thus, the logic of Australian white society is not always a sure sign of the approach that should be adopted in the assessment of evidence from those of Aboriginal descent.
I will also note that contact was made with the probation officer assigned to supervise Mr Monfries and he told Mr Monfries in colourful language to present himself forthwith. This, no doubt, resulted from the report of the police officers that Mr Monfries had breached his bail. This was said to be about 20 minutes or so after the police officers had left.

The timing is not clear, but it may well be that this occurred shortly after 8.30 am, which I think I can take for judicial notice is the standard commencement time for ACT public servants. While the estimation of time for the relevant events is not such that an accurate prediction is possible, it is not beyond reasonable bounds.
The significance of this is that it supports the submission of Mr M Lalor, who appeared for Mr Monfries, that Mr Monfries was present at his residence at the relevant time. Taking all these matters into account, I am not satisfied to the relevant degree, namely on the balance of probabilities, that Mr Monfries was not at his residence.
Mr Monfries clearly breached the condition of his bail, that he present himself to any police officer during the period of the curfew.
I shall hear the parties as to whether I should revoke Mr Monfries’ bail and if so, whether I should grant him further bail.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 3 January 2012

Counsel for the Crown:  Mr A Williamson
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:   Mr M Lalor
Solicitor for the accused:  Aboriginal Legal Service (ACT/NSW)
Date of hearing:  7 and 9 December 2011
Date of judgment:  9 December 2011

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Citations

R v Justin Monfries [2011] ACTSC 203

Most Recent Citation

R v Monfries (No 4) [2011] ACTSC 212

Cases Citing This Decision

3

Director of Public Prosecutions v D'Alessandro [2024] ACTSC 69

R v Monfries (No 2) [2011] ACTSC 205

R v Monfries (No 4) [2011] ACTSC 212

Cases Cited

2

Statutory Material Cited

1

R v Mokbel & Mokbel [2006] VSC 158

Winter v The State of Western Australia [2011] WASC 279