R v Ross
[2015] ACTSC 223
•1 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v ROSS |
Citation: | [2015] ACTSC 223 |
Hearing Date(s): | 1 July 2015 |
DecisionDate: | 1 July 2015 |
Before: | Refshauge J |
Decision: | The application is dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Practice and Procedure – Bail – Assault occasioning actual bodily harm – Burglary – Choking so as to render insensible or unconscious – Service of a Protection Order – Failure to establish special and exceptional circumstances – Previous failure to appear for trial in accordance with a bail undertaking – Extensive criminal history – History of disregarding court orders – Real risk that the applicant would not attend court – Real risk of reoffending |
Legislation Cited: | Bail Act 1992 (ACT), ss 9D, 22 Domestic Violence and Protection Orders Act (ACT), ss 64, 66 |
Parties: | The Queen (Crown) Robert Campbell Ross (Accused) |
Representation: | Counsel Mr J Hiscox (Crown) Ms H Hayunga (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Accused) | |
File Number(s): | SCC 5 of 2015 |
REFSHAUGE J:
Robert Campbell Ross has been charged with assault occasioning actual bodily harm, burglary and choking a person so as to render them insensible or unconscious. These are serious offences. I have to say that I am not sure that, on the Statement of Facts, the third charge can be made out as there is no suggestion in the Statement that the victim was either insensible or unconscious. It may be that that would be a matter of an attempt at some stage.
Mr Ross was arrested on 21 April 2014 and subsequently bailed to appear on 27 May 2014. He failed to attend on that day and was arrested on 15 November 2014 and has remained in custody since then. During that time, he was sentenced, on the 26 February 2015, for 10 traffic offences including a drink driving offence and two offences of failing to appear in accordance with a bail undertaking. He was sentenced to imprisonment for a period from 27 November 2014 to 25 June 2015.
He was committed for trial in this Court on the current offences on 20 January 2015. The matters are next before the Court for callover on 24 August 2015, when it is expected that a trial date will be set for later this year.
The offences arise out of the alleged entry, by him, into the home of his ex-partner and an alleged attack on her, during which he placed his hands around her neck and squeezed until at least she felt light headed.
This was not the first occasion on which he had been involved in family violence against this woman. He has been convicted of assault against for arising out of matters on the 9 May 2008 and a contravention of a Protection Order which had been issued in her favour in 2012.
At the time it is alleged that these offences were committed, Mr Ross was subject to a Protection Order that had been issued at the request of his ex‑partner. The breach of that order is a serious offence for the purposes of the Bail Act 1992 (ACT) and, because the offences for which he now stands charged in this Court are also serious offences, s 9D of the Bail Act is activated. Section 9D is as follows:
9D Bail for serious offence committed while charge for another pending or outstanding
(1) This section applies if—
(a) a person is accused of a serious offence; and
(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.
(2) A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering
(a) for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or
(b) for a child—the matters mentioned in section 23 (Criteria for granting bail to children).
(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence—bail by authorised officer).
(5) This section does not affect the application of section 9F (4) and (5) to the accused person if—
(a) the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence; and
(b) an authorised person grants bail to the accused person.
(6) In this section:
outstanding — a charge against a person for an offence is outstanding —
(a) until the charge is finally dealt with in any of the following ways:
(i) the charge is withdrawn;
(ii) the charge is dismissed by a court;
(iii) the person is discharged by the Magistrates Court following a committal hearing;
(iv) the person is acquitted or found guilty by a court of the offence; and
(b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal—from the date the new trial is ordered until the earliest of the following happens—
(i) the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);
(ii) the order for the new trial is reversed on a further appeal.
pending —a charge against a person for an serious offence is pending if the person has not yet been charged with the offence, but the person has—
(a) been arrested for the offence (unless the person is later released without being charged with a serious offence); or
(b) been served with a summons to appear before a court to answer a charge for the offence; or
(c) at the invitation of a police officer, signed an agreement to attend court to answer a charge for the offence.
serious offence means an offence punishable by imprisonment for 5 years or longer (other than an offence in relation to which an election for summary disposal has been made under the Crimes Act 1900, section 374 (Summary disposal of certain cases at prosecutor’s election).
Thus, I am required to find special and exceptional circumstances favouring the grant of bail before a grant of bail can be made. That requires also, if the special and exceptional circumstances are made out, a consideration of the matters affecting bail set out in s 22 of the Bail Act.
It seems to me that, while the requirement for special and exceptional circumstances is, in some sense, a precondition to the consideration of bail, all the submissions and the evidence in an application for trial should be heard together, unless there is a special basis for not doing so, and the whole of the bail application can therefore be heard at the same time.
The offence of contravening a Protection Order has now been withdrawn. The basis for that is a little curious. The order, which is required under the Domestic Violence and Protection Orders Act (ACT), to be served personally, was, in fact, served by substituted service. There is an apparent inconsistency in the legislation and I can understand the difficulties that the Court and the prosecutors, and perhaps even the police, have in making that clear. Section 64(2) implies that an order can be served by substituted service under s 66. However, s 66 appears to be limited to those documents that do not have to be served by personal service and, under s 64(1), an order where the person subject to the order is not present in court must be served personally.
In any event, as I understand it, the Director of Public Prosecutions takes the view that substituted service is not available and an offence of contravening a Protection Order could not be made out where the order was not, either made when the person subject to the order was present in court, or had been personally served. In this case, the substituted service was not sufficient.
Nevertheless, at the time the offences were alleged to have been committed, Mr Ross was on bail for the charge. The fact of being on bail means that he had an obligation to the Court to attend when he was required by his trial undertaking to attend.
The object of bail is to allow people to be released into the community where there is an acceptable risk of them failing to attend court to answer their bail and that there is no realistic risk of them committing further offences. Mr Ross was subject to the bail conditions, even though, ultimately, the charge was withdrawn.
Section 9D still applies where a person is on bail for a serious offence of which offence, ultimately, that person is acquitted. The purpose of s 9D is to reinforce for people who are on bail that the further commission of offences is to be treated seriously. Therefore I do not think that the fact that the charge of contravening a Protection Order was ultimately withdrawn means that there are special and exceptional circumstances in favour of granting bail, simply because the charge that gave rise to the obligation under s 9D has been withdrawn. That may be different where the original charge was laid improperly or in some kind of breach of faith, but there is no suggestion of any such matter here but I make no final findings. Accordingly, it does not seem to me that there are special and exceptional circumstances favouring the grant of bail.
That would be sufficient to dispose of the application, but it seems to me that I should also point out that, even were special and exceptional circumstances to be made out, I would not have granted bail in these circumstances.
Mr Ross has been alleged to have committed very serious offences. They are offences of family violence and they are in relation to a complainant who has been the subject of family violence matters involving him in the past. In addition, he has a very bad record, including numerous traffic offences, violence offences, two offences of assault occasioning actual bodily harm, four offences of assault and at least two offences of contravening a Protection Order. While there is no guarantee that prior offending means that further offending will occur, the seriousness and the number of the offences is of concern.
What is of more concern is that Mr Ross has shown, by his attitude to the courts and their orders, that it is difficult to trust that he would comply with strict bail conditions which are proposed. Even were the bail conditions to be sufficient to ensure that he would attend court in due course and that he would not commit further offences, he has shown an outstanding disregard to court orders. There are five offences of failing to appear in accordance with a bail undertaking, two of those relatively recent, and in circumstances where he was at liberty for lengthy periods and did not surrender to the police, but was arrested following traffic violations when he was intercepted by police. He has on his record six offences of driving whilst disqualified, again a total breach and disregard of court orders.
He has breached a Good Behaviour Order, he has breached a Community Service Order and he has shown some disregard for honesty in having two offences of stating a false name or address to police and driving a motor vehicle with plates calculated to deceive.
Given his history and the real risk that he would not attend to take his trial and that he would probably commit further traffic offences, although not offences necessarily of the same kind, it seems to me that bail should not be granted, even were there to be special and exceptional circumstances shown to exist and which favour a grant of bail. Accordingly, the application must be dismissed.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment his Honour Justice Refshauge. Associate: Date: 12 August 2015 |
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