R v RH
[2011] ACTSC 160
R v RH
[2011] ACTSC 160 (12 September 2011)
EX TEMPORE JUDGMENT
No. SCC 213 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 September 2011
IN THE SUPREME COURT OF THE )
) No. SCC 213 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
V
RH
ORDER
Judge: Refshauge J
Date: 12 September 2011
Place: Canberra
THE COURT ORDERS THAT:
The conditions of RH’s bail that were varied on 7 September 2011 be revoked.
Condition 3 be substituted in the following terms: “subject to any order of the Federal Magistrates Court, [applicant’s name] is not to attend at the premises of [address provided], or be in [street name]”.
On 7 September 2011, on an application made by RH for a variation of his bail, I deleted condition three and substituted two other conditions. That condition related to access to the premises of [address provided], where RH and his former wife resided and where it was said to me he had property that was owned by him, but to which he had not had access since the grant of bail.
The question of property owned jointly and separately by RH and his former wife is currently the subject of proceedings in the Federal Magistrates Court. Those proceedings, as I understand it, have now been heard and the only outstanding matter were some written submissions from the parties, some of which have been filed, and then judgment, which I am told is expected in one or two months time.
The applicant sought access to the premises in order to collect his personal property and to inspect the common property to see that it was still there and in good condition. In his original bail conditions, he was given the capacity to attend on one occasion at those premises, in company with a police officer, to collect personal belongings. He has not done so.
I was influenced by that circumstance, recognising that, as I understood it, he would have been denied access to his personal property for some considerable time. Thus, I made the variations to allow him to attend on one occasion in company with his partner and his son, but in the presence of at least one police officer, in terms set out in the conditions.
Subsequent to that, the prosecutor who has carriage of the criminal proceedings, contacted my associate and sought to have the matter re-listed because it was considered that the basis on which I had made that variation to the bail was not sustainable.
I heard Ms S McMurray, from the ACT Director or Public Prosecutions, on 8 September 2011. RH was not able to be there. By an email exchange with court staff, I indicated to him that I would not make any substantive order on 8 September 2011, nor did I, but that if I felt the matter required further consideration, I would re-list it at a time that he indicated was convenient for him, namely this morning at 9.30 am. Having heard Ms McMurray, I considered that it was appropriate that the matter be further investigated and I listed it for today.
Ms McMurray indicated that an affidavit would be prepared and filed and that she expected she was able to send it to RH by email. That affidavit was prepared and has been filed today. It was sent to RH, but at his work address, and he did not see it until a hard copy of it was handed to him shortly before these proceedings this morning.
I have read that affidavit and the circumstances of it show that the assertions by Ms McMurray are supported by RH’s former wife, namely that, although he has not availed himself of the opportunity to attend on one occasion at the former matrimonial home, arrangements have been made through his sister to have access to his property and a number of items of personal property have been returned to him.
RH’s former wife also deposes in the affidavit to a list of items that are RH’s property and that she is prepared to arrange for him to have and to be taken from the premises, although she still opposes him having access to the premises.
This makes the matter more complicated and, in my opinion, justifies the initial view I took when the application for variation was first before me, namely, that the mechanics of this matter should be dealt with in the Federal Magistrates Court, which currently is seized with the property dispute between the parties and where the full details of the matter can be resolved. That would simply require that this court only except from the condition that RH not be on the premises or indeed in [street name provided], where the Federal Magistrates Court makes an appropriate order.
Although I have read the affidavit by RH’s former wife, I make no findings on it. Given that RH has only just seen it and has not had an opportunity to consider its contents, I make no findings as to whether any of the allegations and any of the facts deposed in it can be found.
Nevertheless, RH consents to a variation of the bail, which would have the effect of rendering the prohibition on him accessing the premises and the street, subject to an order of the Federal Magistrates Court.
That is reinforced by the fact that he has already made application for appropriate orders in the Federal Magistrates Court and in order to prevent him having to come back to this court, and also to indicate to the Federal Magistrates Court that this court will not stand in the way of any appropriate orders that are made in that court, I am prepared to vary the bail to revert to a prohibition, but in this case, not subject to a single occasion of access, but to any orders that the Federal Magistrates Court might make, so that the proper forum for this dispute about the property is in the Federal Magistrates Court and this court will not stand in the way of any orders that are properly made in that court.
Accordingly, I revoke the conditions of the bail that I varied on 7 September 2011 and substitute condition 3, namely, “subject to any order of the Federal Magistrates Court, [applicant’s name] is not to attend at the premises of [address provided] or be in [street name provided]”.
It was unfortunate that this matter had to be re-listed and RH required to appear again, but that arose it appears because counsel appearing for the Director of Public Prosecutions on the application to vary the bail had not been fully prepared to meet the matters that were ultimately determinative of the application. Whether that was inadequate briefing or otherwise, I am unable to say.
It is not always possible for the prosecutor responsible for a proceeding to be available to appear at all bail applications; that would not be efficient. Where, as here, however, there were some particular sensitivities involving a complex and emotionally-charged situation, especially where the application is opposed, either extensive briefings or an appearance by the relevant prosecutor is preferable. It would have saved everyone’s time, including that of the court and, of course, RH.
Care should be taken to avoid such a situation in the future.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 15 September 2011
Solicitor for the applicant: The applicant appeared for himself
Counsel for the respondent: Ms S McMurray
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 12 September 2011
Date of judgment: 12 September 2011
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