R v Paterson
[2006] VSC 268
•5 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1426 of 2004
| IN THE MATTER of an Application for Bail by: |
| MICHAEL PATERSON |
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JUDGE: | GILLARD J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2006 | |
DATE OF JUDGMENT: | 5 July 2006 | |
CASE MAY BE CITED AS: | Bail Application by Michael Paterson | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 268 | 2nd revision 19 October 2006 |
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BAIL – Show cause under s.4(4)(a) Bail Act 1977 – Two-fold enquiry – Burden on applicant to show cause – Burden on Crown to show unacceptable risk – Degree of overlap – Repeat application – General practice rule requiring proof of new circumstances – Applicant unacceptable risk – Failed to show cause – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Atkinson | Office of Public Prosecutions (Victoria) |
| For the Applicant | The Applicant appeared on his own behalf |
HIS HONOUR:
This is an application by Michael Paterson for bail pending the hearing of a trial fixed for August this year.
The applicant has been charged with two categories of offences. The first category concerns events which occurred back in May 2001. He has been charged with one count of burglary and two counts of theft which allegedly occurred on 24 May 2001. The second category of charges relates to events which occurred in November last year. He is charged with one count of making a threat to kill, a count of recklessly threatening serious injury and one count of harassing a witness. These three counts are alleged to have been committed on 29 November 2005. The victim was Constable Shannon Thompson, a member of Victoria Police. The alleged offences occurred after a hearing was completed in the Magistrates’ Court at Geelong involving the applicant’s de facto wife.
The applicant was arrested on 11 January 2006 and has been in custody since that date. A committal in respect to the second category of charges took place in June 2006 at the Geelong Magistrates’ Court, and the applicant was committed for trial in respect to those charges. They are fixed for trial in the County Court sittings at Geelong commencing on 21 August 2006. One can therefore say that the likelihood is that a trial will take place either in the latter part of August or into September. Accordingly, if bail was granted, it would be granted for an extremely short period of time, namely something in the order of six-and-a-half weeks.
The applicant was born on 28 July 1966 and is presently aged 39 years. He has numerous prior convictions, commencing with a Children’s Court appearance on 10 December 1979 when he was aged 13 years. He has been imprisoned not only in a youth training centre, but also in adult prisons on a number of occasions. His first imprisonment was in a youth training centre in June 1983, and since then he has been sentenced to imprisonment on a number of occasions. All told, there are 15 pages recording his prior convictions. His criminal record is appalling.
This is not his first application for bail. Bail was refused on 24 February 2006 by the Geelong Magistrates’ Court. He then made application to this Court, and on 12 April 2006, the Honourable Justice Osborn refused his application. He made a further application to His Honour on 23 June 2006. His Honour eventually adjourned to this day, when it was apparent that the applicant wished to place further material before the Court.
Today his mother is present in Court, as is his 17-year-old daughter. On the occasion before Osborn J they were not present, and one of the issues that arose was as to where he would live if he was granted bail. It was because there were doubts about this on the previous occasion, and also because there was some uncertainty about the trial date, that His Honour declined to finalise the matter and gave the applicant a further opportunity to make today’s application.
Evidence asserted by the applicant is to the effect that his mother has resided in a property in Footscray as a tenant for at least two years, and it is proposed, if bail was granted, that the applicant should live with her. Mr Atkinson, on behalf of the respondent to this application, accepts that the assertions as to her occupancy are correct.
The Crown opposes bail on a number of grounds, and I refer to what Mr Atkinson swore in his affidavit of 14 June 2006. The Crown opposes this application on the grounds, first, that the applicant is charged with an indictable offence that was alleged to have been committed whilst awaiting trial for another, and accordingly must show cause; secondly, that there is an unacceptable risk that if he was released on bail he would interfere with witnesses; and, further, that there is an unacceptable risk that the applicant, if released on bail, would fail to appear in answer to his bail.
By reason of s.7 of the Bail Act, if there is opposition to any application for bail, the person appearing to oppose the matter must indicate whether or not the application is opposed. It is very clear from the contents of the affidavit and what Mr Atkinson informed the Court this day that the Crown opposes the application for bail.
As stated, the applicant was charged on 12 January 2006, has been in custody since that date, and the trial date has been fixed. I was also informed that the other charges, which I have called the first category of charges, have been adjourned for the time being, and whether or not they proceed will depend to some extent upon the outcome of the trial of the second category of charges.
The matter of substantial concern is the applicant’s history of failing to answer bail. He has been involved in court appearances going back over many years for failing to appear whilst on bail. The court appearances are as follows: 10 December 1992; 19 March 1993; two matters on 6 December 1995; 17 January 1997; 7 April 1997; 14 November 1997; two matters on 17 December 1997; 22 April 1999; 6 July 2001; and 18 October 2005. Mr Paterson pointed out that he did have a good excuse for the latter.
Having said that, it is a bleak history and shows that a person who thumbs his nose at authority must be a matter of grave concern on any application for bail.
A person accused of an offence is entitled to bail. That is the general rule laid down by s.4(1) of the Bail Act 1977. However, that right is abrogated in certain circumstances. If the person is on bail for an indictable offence and commits another indictable offence, the Court is bound to refuse bail “unless the accused person shows cause why his detention in custody is not justified”. See s.4(4)(a) of the Act.
That is the situation here. The applicant was on bail pending the determination of indictable charges, being the first category of charges, when it is alleged he committed the later offences on 29 November 2005.
The applicant carries the burden of proof in establishing that his detention in custody is not justified. However, it is clear from the terms of the Act that that is not the end of the enquiry. The Court shall refuse bail if it is satisfied there is an unacceptable risk that if the applicant is released on bail, he may commit one or more of the prohibited acts set out in s.4(2)(d): by way of example, failing to answer bail, committing an offence whilst on bail, or interfering with a witness. These are matters which are described by the Act as being “unacceptable risks”. The factors that must be weighed in considering the question of unacceptable risk are set out in s.4(3). It is noted that the Court must consider all relevant matters and the list of specified ones is not exhaustive. Of course, the matters that are specifically referred to in s.4(2)(d) are matters that one would also consider and weigh in relation to the applicant’s obligation to prove that his detention in custody is not justified. In other words, there is a clear overlap between the two issues.
The principles which a court must apply in considering and determining an application for bail have been discussed in many cases, both prior to and after the passing of this Act. The right to bail goes back many hundreds of years and English law recognised the right to bail as early as the 13th Century.
Prior to the enactment of the Bail Act 1977, the law in this State was found in the common law and some statutory provisions. By way of example, see R v Light[1] and R v Harrison.[2] There were a number of statutory provisions which dealt with bail, for example s.60 of the Justices Act 1958 and s.458 of the Crimes Act in its unamended form.
[1][1954] VLR 152.
[2][1950] VLR 20.
The Bail Act was enacted after the Statute Law Revision Committee of the Parliament examined the bail procedures in this State. In a report dated 13 February 1975, the Committee reported to Parliament. In the Second Reading Speech, the then Minister of Labour and Industry, Mr McLellan, said:
“Its purpose [i.e. the Bill] is to improve and modernise the law relating to bail and in particular to implement recommendations made by the Statute Law Revision Committee in its report dated 13 February 1975 upon bail procedures.”[3]
[3]See Victoria, Parliamentary Debates Vol. 332 at p. 8256.
The Committee’s report was a result of an extensive investigation of the issues in Australia and overseas. Although the Minister observed that the Committee recommended that the Bail Act should set out the whole law on the subject, there is nothing in the Act which states that that is the position.
In my view, the common law, in so far as it is not dealt with by any provision of the Act, still applies: by way of example, whether an applicant can make another application to another judge after the first application was refused. Also see the observations of O’Bryan J in Re Anderson,[4] dealing with the burden of proof and the standard which rested upon an applicant for bail in a murder case. When the Bail Act was passed in 1977, the Act did not provide the standard that had to be proven by the accused in a murder charge. The standard of proof of exceptional circumstances came later. In this respect I refer to the Full Court decision of Re Clarkson.[5] The Act introduced the standard by amendments made by the Bail (Amendment) Act 1981 section 3, which inserted the standard of proof in s.13, and the Bail (Amendment)Act 1986, which inserted it at the end of s.4(2)(a).
[4][1978] VR 332.
[5][1981] VR 165.
The Bill, however, did set out to state all the relevant law on the matter, as the Minister said at p. 8257 of the Parliamentary Debates:
“The Committee also recommended that the whole concept of bail and its application be re-cast and this has been done.”
The general principles on an application such as the present I have already stated. In some circumstances, and this is an example, where the right to bail has been abrogated, it has been my opinion that the burden of proof rests upon the applicant to show cause why his detention in custody is not justified, and, depending on the circumstances, there is a second matter that the Court must consider if the Crown raises it. I have already referred to s.7 of the Act and the obligation upon the Crown to state whether it opposes any application. It is very clear that as part of that opposition, the Crown should give grounds and, if the ground of unacceptable risk is raised, then in my view the Court must consider the matters set out in s.4(2)(d), which are the matters which are described as “unacceptable risk”. It has been my opinion that the Court must consider that question, and it is clear from the opening words of s.4(2) that the Court must refuse bail if it is satisfied that there is an unacceptable risk. This must be the position in every application for bail, irrespective of whether the applicant has to establish anything. If the Court is satisfied that there is an unacceptable risk that if the accused person is released on bail, he would fail to do or carry out the specified matters, “the Court shall refuse bail.”
In my opinion, the onus rests upon the party opposing the application to establish the unacceptable risks to the satisfaction of the Court. Factors that must be weighed in considering the question of unacceptable risk are set out in s.4(3) of the Act. I accept in an application such as the present that the first issue, the burden of which rests upon the applicant, in most cases will overlap with the second issue raised for consideration. Indeed, the specified matters are relevant to the issue of show cause. I discussed the principles in DPP v Harika,[6] in a case where the applicant had to show cause why his detention in custody was not justified.
[6][2001] VSC 327.
In a recent decision, Maxwell P, when sitting in the Trial Division, disagreed with my approach and held that there was only one question to consider. See application by Fred Joseph Asmar.[7] In his opinion, there were not two steps to consider on an application such as the present. His Honour said, at [17]:
“At the same time I think it is important to make clear that once the applicant for bail shows cause that his detention is not justified, that is the end of the enquiry. There is no second step, nor, therefore, is there any shift of onus. But where s.4(4) applies, the applicant bears the onus from start to finish of showing that his or her detention is not justified.”
[7][2005] VSC 487.
His Honour’s reasoning is encapsulated in paragraph [14], where he stated, after referring to s.4(2)(d), the following:
“It follows that, if having considered the four risk issues the court is satisfied that the continued detention is not justified, there is no occasion for s.4(2)(d) to come into play. This is precisely because the matters with which s.4(2)(d) is concerned will have already been fully considered in deciding the s.4(4) question. There is no work for s.4(2)(d) to do.”
In my respectful opinion, his Honour is wrong. His reasoning overlooks not only the structure of s.4, but the report of the Statutory Law Revision Committee. I accept that in the majority of cases, the factors raised by the provisions of s.4(2)(d) will have been considered in relation to the applicant’s proof, but I do not accept that the provision does not have a part to play. It does, and it involves the respondent to the application proving, if necessary, certain factual matters. As a general rule, an applicant is not going to place any material prejudicial to the application before the Court. For example, he is unlikely to exhaustively reveal his criminal history or matters which adversely affect him. The respondent to the application will do that. This may raise contested factual matters which are relevant to the question of unacceptable risk. In those circumstances, s.4(2) clearly has a part to play. In other words, the respondent to the application places further material before the Court, there is a factual dispute as to the material, and in the circumstances, the onus is upon the respondent to satisfy the Court as to the factual matters and whether they amount to unacceptable risk.
In my view, s.4(2)(d) may, in some cases, have a part to play. First of all, it is important to note that s.4(2)(d) is concerned with “unacceptable” risk, and I refer to the section in its entirety. Not a risk which is relevant to any application, but an unacceptable risk. In order to better understand the application of this section, I invite the reader to look at the Bail Act as it was when it was passed in 1977. Section 4 covered half a page and set out in a step-by-step process what was involved in an application for bail. It was structured in a way which supports the conclusion that there were two enquiries to be made if unacceptable risk was raised by the respondent.
It is noted in s.4(3) that in assessing the events mentioned in s.4(2)(d)(i), whether the circumstances constitute an unacceptable risk, “the court shall have regard to all matters appearing to be relevant”, and then it goes on to specify a number of matters that should be taken into account, including the nature and seriousness of the offence, the background of the accused, the history of previous grants of bail, the strength of evidence and the attitude, if expressed to court, of an alleged victim of the offence to the grant of bail.
There is no doubt that in considering the question of whether the applicant has shown cause why his detention in custody is not justified, relevant to that enquiry are the risks which are specified in s.4(2)(d), and this accords with the cases decided prior to the Bail Act 1977. But what the sub-section seeks to do is to raise the question of what is “an unacceptable risk”. There is always a risk in considering an application for bail that if it is granted, the accused person may fail to attend court for his committal or trial, as the case may be. It is that risk which is the primary risk to be considered in any application. That has been recognised throughout the history of the law relating to bail for hundreds of years. That is the primary consideration. Is there a risk that the accused will not answer his bail? The Court must consider that question, and, in seeking to minimise what is a risk in every grant of bail, the Court imposes conditions and, in some cases, requires the provision of a surety. Indeed, no matter what a court may do, no matter how stringent conditions are, no matter how small or large the surety is fixed at, from time to time persons do fail to honour their undertaking to appear in answer to the bail. Indeed, in this State in any one year there would be dozens of persons who fall into that category. The fact is that bail is granted; the fact is it is granted subject to stringent conditions; the fact is that on occasions the surety is fixed at a very large sum; and despite all these steps being taken, the risk is always there, and from time to time persons fail to honour their undertaking. As I say, that is the primary question in every application for bail: is there a risk that the applicant will not honour his undertaking?
In addition, the question of safety to the community is also another important factor. In R v Light, Sholl J referred to the general principle stated by Herron J in R v Watson.[8] Herron J said that the first matter for consideration “is the probability or otherwise of the accused appearing at the trial”. In connection with that, there were three other issues to consider and which were of importance. His Honour stated that the first was the nature of the crime charged, secondly, the probability of conviction, or, as it was sometimes put, the strength of the prima facie case, and thirdly, the severity of the punishment that may be imposed. Herron J also added that it was appropriate for the Court to consider the character or behaviour of the accused, and His Honour added a number of relevant matters, stating, however, that it was not an exhaustive list. He referred to the prisoner’s property, the state of his family, his character, his antecedents, state of health, in rare cases the state of his business, and the probability or otherwise of tampering with Crown witnesses. Further, the fact that the Crown did not oppose an application and, in addition, that if he was not granted bail, the accused might be prejudiced in the preparation of his defence, were also relevant matters.
[8](1947) 64 WN (NSW) 100.
Those matters were all relevant prior to the passing of the Bail Act and constituted what may be called the relevant common law matters. In my view, they are still relevant when considering an application such as the present.
Sholl J, in an unreported case of R v Lumsden, made some observations which he again quoted in R v Light.[9] His Honour said:
“In my opinion, if there is any presumption in respect of bail, it is this, that in a non-capital case the presumption would be in favour of the granting of bail: see R v Sefton [1917] VLR 259 and R v McIvor [1929] VLR 50. The matter, however, must in every case be one for the exercise of the discretion of the court. I respectfully agree with the learned judge [Herron J] in so far as in the earlier part of the judgment he analysed the nature of a number of considerations which properly may be taken into account in the exercise of that discretion.”
[9]at p. 155.
What s.4(2)(d) seeks to do is to require the Court to consider whether there are any “unacceptable risks” of something happening or not happening. There is no doubt that there are risks in every order granting bail and they are matters that must be considered in deciding whether bail should be granted. On the other hand, there may be circumstances where there are particular risks which could be described as unacceptable.
This consideration of s.4 accords with what the Statute Law Revision Committee reported to Parliament. In paragraph 7 the Committee stated the basic principle as follows:
“7.This Committee strongly supports the basic principle that the person accused of an offence has a prima facie right to be released on his own recognisance subject to such conditions as appear necessary to the justice or magistrate to ensure the accused’s appearance in court and satisfy the need for public safety.”
The report further stated in paragraph 14:
“14.It appears to be a general finding of recent enquiries into bail procedures that, although prima facie an accused is entitled to release on bail, it has become accepted practice that the accused has to prove that he should be released, either on his own recognisance or with a surety in an amount within his reach. We now find a general move towards legislation being enacted to ensure that anyone who can be properly released on bail is released.”
In paragraph 63, the Committee was of the view that, if the prosecution opposed bail, any legislation should include a specific provision “placing a clear statutory onus on the prosecution to prove the case for bail being refused”.
Although there is no such express provision, in my view, the structure of s.4 places an onus upon the prosecution to satisfy the Court that there is an unacceptable risk. The fact is, as I have already stated, there are always risks in the grant of bail, namely, that the accused will not surrender himself, or that he may commit an offence, or he may endanger the safety or welfare of members of the public, or he may interfere with witnesses or otherwise obstruct the course of justice. They are the risk factors that are clearly relevant to the question whether the applicant has shown cause. On the other hand, if the Court is satisfied that the risk is unacceptable, then it shall refuse bail. Those are the opening words of s.4(2).
In my view, the wording of the section places the burden on the prosecution to establish that risk, which is always there, and that it is unacceptable because of particular circumstances. In my view, that interpretation accords with the thrust of the Statutory Law Reform Committee’s report. In other words, the applicant carries the burden of proof of showing cause, and in determining that question, the usual risk factors are to be considered, with particular emphasis on the risk that he may fail to surrender himself to answer bail. But, on the other hand, if there is an unacceptable risk because of some particular circumstance, then the onus is on the prosecution to place the evidence before the Court to establish what is the risk in the grant of bail that constitutes an unacceptable risk. As I have already stated, that will not happen too often, but in my view it may happen, and s.4(2)(d) has a part to play.
I do not agree with the approach of Maxwell P. The two-step procedure has a practical effect, namely, the benefit of focusing the judicial officer’s mind on the issues to be considered and determined. It also represents a structured step-by-step approach to the question of bail. Maxwell P referred to some of the difficulties in the application of s.4. In my respectful opinion, if a two-step approach is adopted, the difficulties are minimised. As I have already stated, reference back to s.4 in its original form when passed in 1977 demonstrates that it was the intention of Parliament that there be a two-step procedure in an appropriate case.
In my opinion, the history of the legislation supports my approach. When the Bail Act was passed in 1977, after stating the general right to bail in s.4(1), s.4(2) required the Court to refuse bail in a case where a person was charged with, inter alia, murder, except on the order of a Supreme Court judge. Reference to s.13 gave the power to this Court to grant bail in a murder case. Nothing was said about burden of proof or the standard that must be achieved before bail could be granted. In Re Anderson,[10] O’Bryan J held that the common law rules concerning bail where the charge was one of murder remained, despite the provision of the new Act, and further, that upon an application under the new Act, the onus was on the accused to show that unusual or special circumstances existed before bail could be granted.
[10][1978] VR 332.
Later, s.4(2) was amended to prescribe the standard which is encapsulated in the words “unless the court is satisfied that exceptional circumstances exist which justify the grant of bail”. Reference to s.4(2) when it was first enacted showed that the Court was obliged to refuse bail in certain circumstances, one of which was s.4(2)(d), that is, there was an unacceptable risk.
This was different to a situation where, under s.4(4), the Court was obliged to refuse bail in certain circumstances “unless the accused person shows cause why his detention in custody is not justified”. Section 4(2)(d) and s.4(4) are dealing with different topics. It is wrong, in my opinion, to say that if the accused person shows cause, s.4(2)(d) has nothing to do. Section 4(2)(d) imposes a burden, in my opinion, on the prosecution and s.4(4) imposes a burden of proof on the accused. There will be, just about in every application, an overlap, and in most cases it will be unnecessary to turn one’s mind to the second step. In some circumstances, however, that may be necessary.
The facts in the present matter can be briefly summarised, and I refer to the affidavit of Mr Atkinson sworn on 10 April 2006. Rather than refer to the first category of charges, it is appropriate just to refer to the events which occurred on 29 November, as set out in a statement made by Constable Shannon Thompson, who gave evidence at the committal and was cross-examined.
It shows that after a court appearance which occurred on that day at Geelong, and at which Mr Paterson was attending as a spectator, but an interested spectator, certain observations were made in the course of the hearing referring to Mr Paterson and the question of whether the person who was then applying for bail, apparently his de facto, Jodie Thomas, was not to have anything to do with him for a period of time. After the matter was finalised, the constable went out to the car park and observed Mr Paterson. This was some minutes after the Court had finalised the matter. Mr Paterson abused the policeman, who then drove off and Mr Paterson followed him. I must say that if the evidence of the constable is accepted at trial, it shows a very serious case. The applicant asserts, as he did before Osborn J and also in this Court today, that he is not guilty. In my opinion, the evidence of the policeman, if accepted, is compelling and indicates a serious offence.
The applicant was represented at the committal by counsel and he informed me today that the policeman was cross-examined. The magistrate committed the applicant for trial. I do not accept the implied assertion of the applicant that the Crown case is weak.
The applicant appeared before me this day unrepresented. He contended that he should be granted bail because his detention was not justified in the circumstances. He did refer to a number of matters which I will come to in a moment.
It was submitted, however, on behalf of the Director of Public Prosecutions, that the applicant had to show new or changed circumstances since his last application, before this Court should consider his application. Indeed, I have no doubt whatsoever that Mr Paterson was very alive to that matter because it was a matter that was raised on the last occasion before Osborn J.
However, having said that, I should point out and underline that this Court has an inherent common law jurisdiction to admit a person to bail - of course, subject to the Bail Act. However, the Bail Act does not constitute a complete code of the law relating to bail.
The right to bail is a very ancient jurisdiction and goes back many hundreds of years. It is closely aligned with the right of any person to come to this Court and seek a writ of habeas corpus. I refer to R v Spilsbury.[11] Whilst the issue of a writ of habeas corpus is an important right, it has its limitations where a person is detained pursuant to law. This ancient and important common law jurisdiction, of course, is subject to the Bail Act. However, there is nothing in the Act which, in my view, cuts across this ancient jurisdiction.
[11](1898) 2 QB 615 at 620.
It has been accepted over the years that any person has a right to come to this Court, as a superior court of this State, to seek bail; further, to make applications to various judges. However, having said that, this Court would be flooded with applications if practical steps were not taken to ensure that baseless applications or repetitive applications are not made to a variety of judges of this Court one after the other. There is no practice direction of which I am aware which requires an applicant to show new facts or circumstances, but in my view it is appropriate that the Court should have a practice, whereby if a new application is made very soon after a previous application has been refused, it is appropriate that the applicant is obliged to show new facts or changed circumstances.
This morning the question was raised. The Court was told by Mr Paterson that his mother and daughter were present, and indeed they were; that the address of his mother was in Footscray; and that his mother had been an occupant of those premises for at least two years. Those propositions were not denied by the Crown. They were matters that were raised in the proceeding before Osborn J. They were some of the matters that His Honour thought should be considered before the application was finalised. Whether or not they constitute new matters is very much open to debate.
However, one matter that is new is the fixing of his trial date. This was not known at the time of the application before Osborn J. Indeed, it was a matter that His Honour adverted to and a matter which may have been relevant to a grant of bail on the issue of delay. This is no longer an issue and it is a new circumstance that does not assist the applicant.
In a document which he forwarded to the Court, Mr Paterson has made a number of points and I have carefully considered those points today. I do not propose to go through them in any detail. He states that his mother resides in Footscray; that the mother of his daughter, who is now aged 17, passed away; that both the mother and the daughter need his support; further, that on 29 December last year his de facto wife gave birth to his son; and that he has been in custody since 11 January 2006. There is some dispute as to whether or not he is entitled to see his de facto wife. He said he was. Whether she wants to see him may be subject to some doubt. He also stated he had elected to participate in a drug program at Port Phillip Prison, and I note that. However, nothing has been done to finalise the assessment and I do not see how that is relevant to any question of bail, because if bail is granted then he will not be in prison to undergo the program, at least as part of the prison regime. He makes mention of the burglary matters, but in my view, they have no relevance in the present matter. He listed a number of matters about getting access to transcripts and reasons. He has told me that he has received the reasons of Osborn J, who refused bail on 12 April this year. He makes mention of matters that occurred on 29 November 2005, which do not seem to me in any way raise any doubts about the strength of the Crown case. He then notes that the Crown opposes bail on the ground that if released on bail, he would interfere with witnesses, and he said he has never been convicted or charged with doing that in his life, and that the other matter that the Crown relies upon is that if released, he would fail to appear. However, he makes the point that even though he has done that in the past, every time he has been, I suppose, re-arrested, he has been re-bailed and he has then honoured his undertaking of bail to appear at the hearing.
There are, in my view, no new circumstances which are relevant which assist the applicant, and indeed the fixing of a trial date does not assist him. This fact would be a reason for refusing the present application. The Court’s time cannot be taken up with multiple applications by an accused without new circumstances being established. However, I am prepared to consider his application on the material before the Court.
As I have stated at some length, the primary matter in any bail application concerns the question of the accused person answering bail. That, in my view, is the most important issue and always has been. There is always a risk, when bail is granted, that an accused person may not answer bail. The provision of a surety and conditions may to some extent minimise the risk. However, this man’s prior history concerning bail is clearly relevant to the exercise, and it shows that he has failed in the past on many occasions to answer bail, and, of course, that is a very cogent factor against the grant of bail. In addition, he has an appalling record in the criminal justice system.
The risk factors do loom large in this application, not only concerning the question of failing to appear, but the risk of committing further offences. The period of bail, if it was granted, would indeed be very short. The case against the applicant is indeed compelling and, if accepted, is a serious one. He has an appalling history of involvement with the criminal law system going back some 27 years. He has failed to answer bail on many occasions. He has spent time in prison. I have not been persuaded by any evidence placed before this Court that he has any reason to remain in this State. The risks, if bail were granted, are substantial, and in the circumstances, the risks are unacceptable. By reason of s.4(2)(d), the Court is bound to refuse bail in those circumstances, but in addition, the same factors also demonstrate that the applicant has failed to show cause why his detention in custody is inappropriate.
Accordingly, in all the circumstances, the application must fail and I dismiss the application.
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