R v Williams
[2021] ACTSC 35
•11 March 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Williams |
| Citation: | [2021] ACTSC 35 |
| Hearing Date: | 10 March 2021 |
| Decision Date: | 11 March 2021 |
| Before: | Elkaim J |
| Decision: | The application for bail is refused |
| Catchwords: | CRIMINAL LAW – BAIL APPLICATION – Change of Circumstances – Medical condition – incident involving use of force – warrant for apprehension of applicant – application |
| refused | |
| Legislation Cited: | Bail Act 1992 (ACT) ss 9D, 20C and 22 Corrections Management Act 2007 (ACT) s 53 |
| Human Rights Act 2004 (ACT) s 10 | |
| Cases Cited: | Achanfuo-Yeboah v The Queen [2016] ACTCA 71 R v Al-Harazi (No 4) [2016] ACTSC 298 |
| Parties: | The Queen (Crown) Julieann Frances Williams (Accused) |
| Representation: | Counsel |
| V Conliffe (Crown) P Tierney (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Ken Cush and Associates (Accused) | |
| File Number: | SCC 279 of 2020 |
| ELKAIM J: |
1. On 4 March 2021 Ms Julieann Williams filed an application for bail. It came on for hearing yesterday. The application was opposed.
2. The application was supported by an affidavit of Mr Barrow affirmed on 3 March 2021. In addition a number of other documents were tendered and can be found in Exhibit A.
3. The Crown tendered a bundle which came to be Exhibit 1.
4. Both parties asked me to view CCTV footage said to support their respective positions.
5. The relevant sections of the Bail Act 1992 (ACT) are ss 9D, 20C and 22. Section 9D was activated because the offences were alleged to have been committed while the applicant was subject to a pending charge for another serious offence. The offences in respect of which the applicant is seeking bail are aggravated burglary and assault occasioning actual bodily harm.
6. Section 20C is relevant because this is the fifth application for bail, the previous four having been made in the Magistrates Court. One of those applications, made on 3 November 2020, is of little relevance because it was for a limited period to enable the applicant to attend a funeral. All of the previous applications were refused.
7. Section 22 contains the general criteria for granting bail to adults.
8. Section 9D says bail must not be granted unless there are special or exceptional circumstances that favour the granting of bail. Section 20C says the application can only be considered if there has been a change of circumstances relevant to the granting of bail since the last application.
9. Both the special circumstances and the change of circumstances are said to arise from an incident that occurred while the applicant was in custody at the Alexander Maconochie Centre (AMC) on 11 January 2021. This incident was the subject of the CCTV footage I was shown by the applicant.
10. The footage speaks for itself, but in short, it depicts the applicant being manhandled by four corrections officers in order to subject the applicant to a strip search which she had refused to take part voluntarily. The officers had apparently been informed that the applicant had been possibly hiding something in her clothing. In fact she was taking necessary actions to deal with her menstrual period.
11. I note here that the plaintiff has a history of a heart condition which has included the insertion of a pacemaker. The prison authorities were aware of her condition.
12. Once the applicant was wrestled to the ground, under the restraint imposed by the four officers, she can be heard to be complaining of chest pain but without any consequent
interruption to the officers’ endeavours.
13. The incident seems to have ended with the timely interruption of an apparently sympathetic officer who managed to pacify the obviously very upset applicant.
14. My first reaction upon viewing the video was that it depicted an entirely unwarranted attack upon the applicant, probably extending to a breach of s 10 of the Human Rights Act 2004 (ACT), in particular that she was subjected to degrading treatment.
15. I will not however make that finding, in fairness to the corrections officers whose side of the story has not been heard.
16. On 8 March 2021 the applicant spoke, over about 30 minutes, by telephone to a clinical psychologist, Mr Aldridge. He produced a report on the same day, which is part of Exhibit A. In his report Mr Aldridge details a number of historical incidents which led to the applicant suffering from a Post Traumatic Stress Disorder (PTSD).
17. When cross-examined about his report Mr Aldridge said that the incident in the AMC was yet another occurrence of trauma forming the basis of her continuing PTSD. Having viewed the CCTV footage, Mr Aldridge accepted that the description given to him over the phone by the applicant was exaggerated. Nevertheless his viewing of the footage did not cause him to reconsider his diagnosis.
18. In his report Mr Aldridge said that PTSD was amenable to treatment which could be carried out in the community. He said:
…
Remaining in custody is almost certainly causing her mental harm.
Remaining in custody is likely to retard her recovery from that recent trauma. Being released and so being able to receive culturally appropriate therapy especially for her PTSD may be useful.
...
19. The Crown submitted that the incident on 11 January 2021 did not give rise to either special circumstances or a change of circumstances. The Crown relied on two decisions of Refshauge J (R v Al-Harazi (No 4) [2016] ACTSC 298 and Achanfuo- Yeboah v The Queen [2016] ACTCA 71).
20. The Crown’s submission was essentially that failure to provide proper treatment was
not a good reason to grant bail and while a medical condition may be a relevant factor,
it is unlikely to create special or exceptional circumstances.
I disagree with the Crown’s position. In my view the two authorities relied upon do not
necessarily exclude a medical condition as the basis for a change in circumstances or constituting special circumstances. In this case, putting aside fault, the applicant experienced a particularly traumatic event which, taken with the background to her already existing mental health condition, gave rise to a need for treatment. More importantly her continuation in custody may not only hamper the treatment but possibly exacerbate her condition.
22. I am therefore satisfied that the threshold to the consideration of bail has been surpassed. This brings me to s 22.
23. The Crown relied on a number of arguments, most of them contained in a Bail Consideration Form included in Exhibit 1. Some of them might be regarded as the Crown putting its best foot forward. For example, I was shown CCTV footage, said to be of the subject offences, and designed to show that the Crown had a very strong case.
24. The CCTV footage does not establish a strong case. The applicant can be seen, accompanied by two other persons, entering a house in which the complainant resided. Screams are soon heard. The screams are said to be that of the complainant. However what precisely occurred in the house, and which person took what actions, is completely unknown.
25. The next submission of the Crown was that there was a risk of further offending, in particular, against the complainant. In addition the complainant has expressed concerns about her ongoing safety. Her concerns may well be genuine, however there is no evidence to suggest that the applicant would act upon them while awaiting trial.
26. I was taken to a number of threats made by the applicant to the complainant. They all predate the alleged assault. Again the likelihood of the threats being carried out while the applicant is on bail is speculative.
27. Thus far I thought the applicant’s case for bail had merit. Unfortunately the last matter
relied upon by the Crown cannot be overcome and dictates the result of the application.
28. On 4 November 2020 the State Parole Authority of New South Wales made an order revoking a parole order that had taken effect on 2 August 2019. As a result, a warrant
for the “apprehension and detention” of the applicant was also issued on 4 November
2020.
29. The Crown put the effect of the warrant in two ways: Firstly it said that once released on bail the applicant was liable to be arrested and extradited to New South Wales in order to serve the balance of her parole period (1 year, 11 months and 4 days). Consequently, she would not appear before her trial set for June or July of this year.
Secondly, and alternatively, the Crown submitted that the applicant’s knowledge of the
outstanding warrant would encourage her to flee and, again, therefore not appear for
her trial.31. Although the applicant has a very extensive criminal record, I cannot say that there is a likelihood that she will take flight of her own volition. However the outstanding, and recently issued warrant, does raise a real likelihood of her being arrested and taken to New South Wales where she could well remain for up to two years.
32. Her trial in the ACT would consequently be significantly delayed, an event which would not only be prejudicial to the administration of justice but against the interests of the applicant. If the applicant says she is not guilty, as she has, she should be entitled to be brought to trial as soon as possible in order to establish her innocence.
33. Finally I would say that a separate matter of concern to me arises from an email apparently sent on behalf of the Nursing Unit Manager and Medical Director at the Winnunga Health Care Centre which concludes with this sentence:
We do not have the resources to treat Ms Williams even if we did take her care on.
34. It may be that the reason for the opinion is that the applicant had been refusing to take her medication and the continued refusal would prejudice her health during a transition to care at the Centre. Whatever the case, the applicant needs treatment which the AMC is obliged to provide. Pursuant to s 53 of the Corrections Management Act 2007 (ACT) the director-general of the AMC must ensure that:
…
(a) detainees have a standard of health care equivalent to that available to other people in the ACT; and (b) arrangements are made to ensure the provision of appropriate health services for detainees; and (c) conditions in detention promote the health and well-being of detainees; and (d) as far as practicable, detainees are not exposed to risks of infection. 35. I do not know what consequences, if any, will flow from the incident of 11 January 2021. I note that Ms Tongs OAM, the CEO of the Winnunga Health Care Centre has written to the Minister for Corrections bringing the incident to his attention. Nevertheless, it is clear that the AMC must provide the applicant with the medical treatment she requires.
36. Consequently, and I should say with some regret, the application is refused.
I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim
Associate:
Date: 11 March 2021
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