R v McLeish
[2021] ACTSC 263
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McLeish |
Citation: | [2021] ACTSC 263 |
Hearing Dates: | 13 October 2021 |
DecisionDate: | 13 October 2021 |
Before: | Elkaim J |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for bail – where accused was formerly employed as a corrections officer – COVID-19 situation affecting detention location of accused |
Legislation Cited: | Bail Act 1992 (ACT) ss 9D, 20B, 20C, 22 |
Parties: | The Queen ( Crown) Mark Ian McLeish ( Accused) |
Representation: | Counsel C Wanigaratne ( Crown) D Berents ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Accused) | |
File Numbers: | SCC 188 of 2021; 189 of 2021 |
ELKAIM J:
Mr Mark McLeish wishes to be granted bail. To this end he made an application dated 8 October 2021. It is supported by an affidavit of his solicitor, Ms Emma Bayliss affirmed on the same date.
The application is opposed by the Crown.
Generally speaking the application is made under s 20B of the Bail Act 1992 (ACT). In the circumstances of this application s 9D is applicable. This section requires that “special or exceptional circumstances exist favouring the grant of bail”. Further, even if such circumstances exist the provisions of s 22 must still be considered. Further, as this is the third application for bail, s 20C is also applicable. This requires there to have been a change in circumstances.
The special or exceptional circumstances said to exist in this case “relate to the conditions in which he is being held in custody, by virtue of his prior employment as a Corrective Services Officer at the Alexander Maconochie Centre (the AMC)”.
The applicant has been segregated, presumably for his own safety. Nevertheless, primarily due to the COVID-19 situation, his place of segregation has changed and his ‘minimum living standards’ such as being out of his cell for an hour a day have not been possible. In addition he has not been able to attend programs and he does not have access to a computer, telephone calls or exercise.
In addition, a number of inmates, and a staff member, have been diagnosed with COVID-19 so that extra restrictions are in place. Generally, therefore the environment at the AMC is tense, confined and restricted. In his oral evidence today, the applicant said that he was currently in the management unit where, albeit in other cells, positive COVID-19 inmates were also being held.
The applicant is facing three charges in an indictment dated 22 September 2021. There is also a transfer charge from the Magistrates Court. It is essentially alleged that, on 11 May 2021, armed with a firearm, the applicant broke into a residence in Charnwood in order to secure a drug debt.
The alleged facts contain the hallmarks of this type of activity. There was a sawn-off shot gun used to enhance demands for the return of monies allegedly owed to the applicant by the complainants. The Crown case is said to be strong although I note it will rely primarily on the evidence of persons who are possibly criminals themselves having regard to their alleged involvement in the drug trade.
The trial is not likely to proceed this year. February or March 2022 are the most likely trial dates.
The applicant has a criminal history. Some of it relates to driving offences. But there are also offences of burglary, theft and aggravated burglary. He was most recently sentenced for burglary and theft in September of this year. He was imprisoned for seven weeks, concluding on 18 August 2021. This term of imprisonment was however consumed within his imprisonment on remand.
The Crown submitted that there were not special circumstances. As we are now living with COVID-19, the applicant’s mental health is a normal expectation of a person who has been in custody for some time and that his fears for his safety from other prisoners are based more on assumptions than real facts.
Although this is the third application for bail, the affidavit of Ms Bayliss says the conditions of his incarceration were not put forward in the two earlier applications. The first was made immediately after his arrest on 12 May 2021 and the second, on 4 June 2021, was made by the applicant himself, without the benefit of legal representation. Mr McLeish however in his evidence did think that these considerations may have been mentioned.
The asserted facts of the offending all occurred on 11 May 2021.
In summary, besides the considerations in s 22 the applicant needs to show a change of circumstances since the last application for bail or the existence of exceptional or special circumstances.
In my view there has been a change of circumstances. The change is derived from the deterioration in the applicant’s mental health. This is confirmed by his oral evidence, but more particularly by the entry in the Segregation Review Form where an entry on 26 July 2021 reads as follows:
McLEISH reported to staff that he needed to see a doctor after receiving bad news. Justice Health nurses attended and subsequently contacted Forensic Mental Health. A short time later McLEISH was observed carrying a rope and walking into the external yard of his cell. McLeish was placed at risk and kept under constant observations. Forensic Mental Health arrived and determined that McLeish should move to CSU. Detainee was relocated to CSU.
I think that the change in the applicant’s mental health does amount to a change of circumstances. It is to be viewed in the context of him being confined to his cell in the management unit where he has little capacity to move about.
As far as special circumstances are concerned, I do think that the COVID-19 situation combined with the deterioration of his mental health and his location in the management unit do combine to create special circumstances. The Crown’s submission that the applicant was merely assuming he would be in danger as a result of his status as a former prison officer does not allow for the fact that the assumption is also a product of common sense.
The applicant has proposed a number of bail conditions including a set place of residence, a curfew, reporting to a police station, not approaching or contacting witnesses and not drinking alcohol or using illicit substances. I am not entirely happy with the conditions that he proposed. Firstly I do not think that he should reside alone. He is able to live with his mother and I think that is preferable.
Secondly I do not think he should have contact with his former wife, Ms Mills. I appreciate they are on good terms, but she is a potential witness in his forthcoming trial. I appreciated that they are working together to prepare a house for sale, but he will need to do so by arrangement with Ms Mills to ensure that they are not present at the house at the same time. I will allow for this limited contact in the conditions.
I am generally satisfied that there are no parts of s 22 that were raised against the granting of bail. It was suggested that the offences are serious, with which the applicant agreed. However that fact alone should not, in this case, prevent him from obtaining bail.
The accused is granted bail on the following conditions:
1. To reside at 2536 Sutton Road SUTTON NSW 2620;
2. To remain at that residence between 10:00pm and 8:00am the next morning;
3. Not to consume alcohol or illicit substances;
4. To report twice a week to Gungahlin Police Station, between the hours of 8:00am and 8:00pm;
5. Not to contact, by any means, directly or indirectly, Kaitlin-Lee Cargill or Jack Andrew Barton;
6. Not to approach within 100 metres of Kaitlin-Lee Cargill or Jack Andrew Barton;
7. Not to enter the suburb of Charnwood in the Australian Capital Territory;
8. Not to contact Gemma Mills other than in regards to arrangements for their respective presence at 13 Pinner Place, Macgregor, ACT;
9. To give surety in the sum of $1000 for compliance with his bail undertaking, and that sum be forfeited should he fail to appear in accordance with his undertaking.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: 13 October 2021 |
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