R v Walmsley - [2011] ACTSC 173

HUMAN RIGHTS ACT

R v JOHN CHRISTOPHER WALMSLEY
[2011] ACTSC 173 (11 October 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – bail – jurisdiction to grant bail before indictment filed – jurisdiction confirmed – Bail Act 1992 (ACT), ss 12B, 20B.

CRIMINAL LAW – jurisdiction, practice and procedure – bail – factors concerning a grant of bail – ties to the Territory – likelihood of absconding - warrants issued in another jurisdiction – interfering with witnesses – committing further offences – managed accommodation – bail granted.

Bail Act 1992 (ACT), ss 9B, 9C, 9D, 9E, 12B, 20B
Bail Amendment Act 2001 (ACT)
Court Procedures Rules 2006 (ACT), r 4733
Human Rights Act 2005 (ACT), s 18

W v The Queen (2001) 115 FCR 41
R v Scott (1993) 42 FCR 1
In the matter of an Application for Bail by Schwalm [2011] ACTSC 153
R v Sefton [1917] VLR 259
Dunstan v Director of Public Prosecutions (1999) 92 FCR 168
Collins v The Queen [2003] ACTCA 17
Saga v Reid [2010] ACTSC 59

EX TEMPORE JUDGMENT

No. SCC 313 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 11 October 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 313 of 2011
AUSTRALIAN CAPITAL TERRITORY )

R
V
JOHN CHRISTOPHER WALMSLEY

ORDER

Judge:  Refshauge J
Date:  11 October 2011
Place:  Canberra

THE COURT ORDERS THAT:

John Christopher Walmsley be granted bail to appear in the Supreme Court on a date to be notified to him by the Registrar on the following conditions:

(a)that he attend before the Supreme Court for a bail review at 9.30 am on 18 October and 9 November 2011;
(b)that he be released into the company of an officer of the Managed Accommodation Program conducted by ACT Corrective Services and remain in the company of that person until admitted to the program;
(c)that he admit himself into the program and remain in the program during the remand period and obey all reasonable directions of the officer in charge of the program;
(d)if for any reason he is discharged from the program, he to report to the Registrar of the Supreme Court within 24 hours with a view to having his bail reconsidered;
(e)that he subject himself to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him, including as to drug and alcohol treatment and counselling and mental health treatment and counselling;
(f)that he be present at the Managed Accommodation Program residence between the hours of 10 pm and 7 am, except with the express permission of the officer in charge of the program and that, during these hours, he present himself to any police officer on request;
(g)that he report to the officer in charge of Belconnen Police Station every Monday, Friday and Sunday between 8 am and 8 pm;
(h)that he not consume illicit drugs or alcohol;
(i)that he subject himself to breath analysis when reasonably required by a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Walmsley

Details

AGLC: R v Walmsley [2011] ACTSC 173
Case: [2011] ACTSC 173
Decision Date: 11 October 2011

CaseChat Overview and Summary

In the case of R v Walmsley, the respondent, John Christopher Walmsley, sought bail in the Supreme Court of the Australian Capital Territory. The court had to determine whether it had the jurisdiction to grant bail before an indictment was filed, as well as the factors relevant to granting bail. The court found that it did have jurisdiction under the Bail Act 1992 (ACT) to grant bail in such circumstances. The decision also considered the factors relevant to granting bail, including the likelihood of the respondent appearing for trial, the risk of re-offending, and the respondent's ties to the Territory.

The court held that there was a presumption in favour of bail, unless certain provisions of the Bail Act applied. The court considered the respondent's ties to the Territory, and found that while he had no domestic ties, he had no particular ties elsewhere, which somewhat diluted the concern that a court might otherwise have. The court also considered the risk of re-offending, and found that the risk must amount to an evidence-based real likelihood. The court found that the respondent's medical conditions and treatment, including his severe depression, heroin withdrawal, and treatment for Hepatitis C, were relevant to the consideration of bail.

The court also considered the managed accommodation offered by the respondent, and found that it would address the issue of place of residence. The court found that the outstanding warrants in New South Wales were not relevant to the consideration of bail, as no extradition was to be sought. The court concluded that the respondent was likely to remain in the Territory if granted bail.

ORDERS:
1. John Christopher Walmsley be granted bail to appear in the Supreme Court on a date to be notified to him by the Registrar on the following conditions: (a) he reside at the address of the MA Program House at 195 Northbourne Avenue, Campbell, ACT 2600; (b) he not possess or use any intoxicating liquor or any drug, other than those prescribed by a medical practitioner; (c) he not use any mobile phone, whether owned by him or not, without the prior written consent of the Police Liaison Officer; (d) he not have any contact with the complainant in this matter or any other witnesses, either directly or indirectly, unless the contact is facilitated by legal representatives; (e) he not commit any offence; and (f) he attend and abide by the directions of the MA Program Officer.

Orders

Orders of the court

John Christopher Walmsley be granted bail to appear in the Supreme Court on a date to be notified to him by the Registrar on the following conditions:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr O’Brien stated also that Mr Walmsley had spent six weeks in a secure unit with regular observations because of the risk of self harm, exacerbated by his severe depression and heroin withdrawal. He was now in the general remand section of the Alexander Maconochie Centre (AMC) and seeing a psychiatrist weekly and has been prescribed two antidepressants. He is also being treated for Hepatitis C, which is administered each Tuesday and renders him quite debilitated for the following two days. Consideration When making a bail decision, the court starts from the proposition that unless ss 9B, 9C, 9D or 9E of the Bail Act apply, there is a presumption in favour of bail. This is consistent with s 18 of the Human Rights Act and with the common law as set out, for example, in R v Sefton [1917] VLR 259 (at 262-3). None of the above provisions of the Bail Act apply to this case. The Bail Act requires a consideration of three principal issues under s 22: first, the likelihood of the person appearing to take their trial; secondly, the likelihood of the person while on bail committing further offences, harassing or endangering the safety or welfare of anyone or intimidating witnesses or interfering with evidence or obstructing the course of justice; and thirdly, the interests of the person. As to the first matter, there is, regrettably, little by way of statistical information to show how many people, granted bail, fail to appear, or more importantly, what kind of offences charged or other circumstances lead to non-appearance. Clearly, some factors would logically support the likelihood of appearance such as a regular place of residence or domestic ties with the Territory: R v Wakefield (1969) 89 WN (Pt 1) (NSW) 325 (at 329). Here, the accommodation in the MA Program House will address the issue of place of residence and it appears that Mr Walmsley, while having no domestic ties to the Territory, has no particular ties elsewhere, which somewhat dilutes the concern that a court might otherwise have. That he is, therefore, somewhat nomadic, needs to be considered. As to the warrants outstanding in New South Wales, I have said before and repeat that it is a matter for New South Wales authorities as to whether they wish to seek Mr Walmsley’s extradition and the court should not try to speculate about that. If the State does wish to do so, the court may well need to consider the relative seriousness of the offences to be faced by a person here and there. In this case, however, the information before the court is that no extradition is to be sought. In a sense, this may make it more likely that Mr Walmsley will remain in the Territory, for if he ventures into New South Wales, there is a heightened risk that he will be arrested and detained there. In my view, this is not a matter that is relevant to the consideration of bail. In considering the risk of re-offending, I am mindful of what Madgwick and Giles JJ each said in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168 (at 174, 185) that the risk of re-offending must amount to an evidence-based real likelihood. See also Collins v The Queen [2003] ACTCA 17 (at [28]).