R v Matas
[2014] ACTSC 139
•11 April 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Matas |
Medium Neutral Citation: | [2014] ACTSC 139 |
Hearing Date(s): | 11 April 2014 |
DecisionDate: | 11 April 2014 |
Before: | Penfold J |
Decision: | The court has no jurisdiction to hear the bail application under s 43A of the Bail Act 1992 (ACT). |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail – requirement to show change in circumstances or fresh evidence previously unavailable – bail application previously made on ground that applicant’s mother needed help caring for applicant’s grandmother – previous application dismissed despite this claim due to concern that applicant was a flight risk – at time of earlier bail application, protection order in force excluding applicant from mother’s home – change of circumstances identified as fact that protection order no longer in force so applicant now able to live with mother – fresh evidence was letter from doctor confirming grandmother’s need for care – applicant’s circumstances may have changed, but circumstances considered by court on previous bail application have not changed – no jurisdiction to hear bail application. |
Legislation Cited: | Bail Act 1992 (ACT), ss 20A, 20C, 42A, 43A, 43A(2)(b) |
Parties: | The Queen (Crown) Alan John Matas (Accused) |
Representation: | Counsel: Mr M Reardon (Crown) Mr P Bevan (Offender) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Bevan & Co Lawyers & Conveyancers (Offender) | |
File Number(s): | SCC 67 of 2014 |
Publication Restriction: | No |
Introduction
Mr Matas was charged with offences relating to unlawful confinement, unauthorised firearms and ammunition, escape from custody, common assault, as a passenger interfering with a driver’s control of the vehicle, stalking, using a carriage service in a harassing manner, and resisting a territory public official. He appeared in the Magistrates Court on 7 December 2013 and applied for bail, but was remanded in custody.
Previous bail applications
Mr Matas’s bail application came on for hearing before me on 11 April 2014, at which point I had no papers from the Magistrates Court about the proceedings against him.
Accordingly, much of the information I relied on in determining this application was provided orally by the prosecutor (without challenge by counsel for Mr Matas). The prosecutor advised that Mr Matas had made three previous bail applications in the Magistrates Court, on 7 December 2013, 22 January 2014 and at some time in March 2014 (the exact date was apparently not clear from the prosecutor’s file). The March 2014 application was for a bail review as required by s 43A of the Bail Act 1992 (ACT).
Jurisdiction to hear bail application
Under s 43A(2) of the Bail Act, my jurisdiction to hear Mr Matas’s bail application depended on the identification of:
(a)a change in circumstances relevant to the granting of bail since the [previous bail] decision; or
(b)the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made [that previous bail] decision.
In this case, Mr Matas needed to point to a change in circumstances relevant to the granting of bail since bail was refused in March 2014, or the availability of fresh evidence or information relevant to the granting of bail that was unavailable when bail was refused in March 2014. There was no information before me about what had been relied on in the March application, but in the event it was not suggested that any such information would have made a difference to the question I needed to determine.
Change in circumstances/fresh evidence
Counsel for Mr Matas said that there was material to be put before me that would establish jurisdiction to hear the bail application. His submissions were somewhat difficult to follow, because he did not appear to recognise that the concepts of a change in circumstances and the availability of previously unavailable fresh evidence or information were not in fact interchangeable.
The material relied on consisted of an affidavit sworn by Mr Matas’s mother on 2 April 2014 and an attached report by a Dr Voon dated 25 March 2014. When pressed, counsel explained that this material was evidence that Mrs Matas was the full-time carer for her own elderly mother (Mr Matas’s grandmother) who lived with her, that Mr Matas’s grandmother needed substantial care, and that Mrs Matas wanted him to help her care for his grandmother by looking after her in the evenings so that she (Mrs Matas) could get some rest. Counsel said that the affidavit was evidence demonstrating a change in circumstances, and that the letter from Dr Voon amounted to fresh evidence, which had been unavailable previously in that Dr Voon had been asked to provide the letter but had failed to do so before an earlier bail application.
Counsel conceded that Mrs Matas’s role as the full-time carer of Mr Matas’s grandmother was not new. What was new, it seemed, was that Mrs Matas now wanted Mr Matas to help her with that caring role. Counsel said that although Mr Matas and his mother had previously been estranged, they were now reconciled and Mrs Matas now wanted him to help with the caring.
Mrs Matas was not available to give evidence, but her affidavit did not on its face identify a change in her relationship with him since the previous refusal of bail. It relevantly said:
1.I am the mother of Alan Matas.
2.Alan has been in gaol since 7 December 2013. He is 27 and he had his birthday in gaol.
3.Alan has always worked and lived in Canberra and before he went to goal I used to see him nearly every week.
4.Police asked me to sign two statements about Alan. I did not read those statements but I signed them.
5.I know Alan suffered depression and we have had arguments in the past. Since Alan has been in goal I have visited him and want to help him so we can both have a relationship with his children and my grandchildren. I have no fears of him.
6.My mother is 88 and has recently been discharged from hospital. She lives with me and I am her full time carer. I need rest during the evening and although I have a daughter, she has children and cannot help me.
7.I have complained to my doctor, Dr Voon, about the problems, I have in looking after my mother.
...
8.If Alan was released on bail he could stay with me and help me by looking after my mother during the evenings. I could care for her during the day and he would be able to work.
However, the prosecutor pointed out that the need for Mr Matas to participate in the provision of care for his grandmother had been raised before the Magistrate in the bail application made on 22 January 2014. In that case, he submitted, Mrs Matas’s expressed wish for Mr Matas to help with that care could not be a change in circumstances for the purpose of the current bail application.
Counsel for Mr Matas conceded that in a previous bail application it had, on instructions, been put to the court that Mr Matas had an elderly grandmother who needed care and that, if granted bail, Mr Matas could reside with his mother and assist in providing that care. However, counsel noted, at the time that application had been made, there was in force a protection order made in favour of Mrs Matas excluding Mr Matas from her home, and accordingly there would have been “some difficulty” in Mr Matas residing with his mother or providing care for the grandmother. Counsel conceded that Mr Matas’s instructions had subsequently turned out to be incorrect, and that Mr Matas could not have resided with his mother because of the existence of the protection order.
Counsel said that the relevant change was that Mrs Matas “is now amenable to the son residing with her and looking after the grandmother”. He conceded that, in effect, the change in circumstances being put on Mr Matas’s behalf was that an incorrect proposition that had been put to the court on a previous occasion had now become true and was able to be supported by evidence.
There may in fact have been a change in Mr Matas’s circumstances since the 22 January 2014 bail application. In January he could not have lived with his mother and it seems that by the time this application was made he could have done so.
Significance of changed circumstances and fresh evidence
It may be the case in some circumstances (for instance where a bail applicant has innocently misled the court but circumstances subsequently change to align with the earlier claims) that the new position should be accepted as a change in circumstances sufficient to found jurisdiction. I am far from convinced, however, that such a change should be accepted as a sufficient basis for jurisdiction where the applicant knowingly misled the court on the first occasion.
However, at least in the current case, neither any change in the relationship between Mr Matas and his mother, nor the availability of the letter from Dr Voon attesting to some of the information previously put to the Magistrates Court, provided any assistance to Mr Matas in his application. Whatever the truth of Mr Matas’s claim in January, it seems that it was not challenged by the prosecutor and was apparently accepted by the Magistrate. Counsel conceded that there had been no indication to the Magistrate that the letter had been sought from Dr Voon but not provided, and that there had been no indication from the Magistrate that the absence of evidence about the grandmother’s condition had been relevant to the decision to refuse bail.
It seems that, despite the unchallenged claim about Mr Matas’s possible caring role, bail was refused because the Magistrate was concerned that Mr Matas was a flight risk. There was in my view nothing in Mrs Matas’s affidavit or Dr Voon’s letter that, if available to the court, would have reduced concerns about Mr Matas as a flight risk, or enhanced Mr Matas’s claim (that the grandmother needed substantial care which could be provided by him) to such an extent that it might have outweighed the flight risk concern.
Thus, the fact that Mr Matas’s claim that he could help care for his grandmother and that she needed such care could now be made with more justification did not seem to be a change in circumstances in the sense that it might provide a basis for a different decision on the bail application. Nor did evidence supporting a claim that had previously been made and accepted without challenge before the court seem to me to be “fresh evidence or information relevant to the granting of bail that was unavailable” when bail was previously refused.
The Bail Act provides that reconsideration of bail applications is, after two applications in the Magistrates Court, or one in the Supreme Court, confined to cases in which something has changed since the previous decision (see ss 20A, 20C, 42A and 43A). This is clearly intended to exclude repeated reconsiderations based on the same facts and circumstances.
Mr Matas’s actual circumstances might have changed, and he might have been able to produce better evidence for a circumstance that has not changed, but the circumstances he put before the court had not changed. I could not see that he should be permitted to make in the Supreme Court effectively the same application that had already been refused in the Magistrates Court, nor that, more generally, he should be allowed to benefit from having made a premature bail application that relied on misleading the court.
No jurisdiction to hear bail application
For these reasons, I concluded that s 43A of the Bail Act was not satisfied and I had no jurisdiction to hear Mr Matas’s bail application.
Significance of misleading the court
As already indicated, the position might have been different if it seemed that the earlier refusal of bail had resulted from the absence of evidence for Mr Matas’s claims about the needs of his mother and grandmother and his ability to address those needs; the provision of evidence for those claims, being evidence that had not previously been available, might have been sufficient to give jurisdiction to the court under s 43A(2)(b). Even in such a case, however, the court would then have been entitled, in determining substantive issues such as whether the applicant could be relied on to appear for his trial, to have regard to the applicant’s willingness to mislead the court on a bail application.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 12 June 2014 |
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