Re an application for bail by Anderson - [2011] ACTSC 121

IN THE MATTER OF AN APPLICATION FOR BAIL BY MARK ANDERSON
[2011] ACTSC 121 (20 July 2011)

CRIMINAL LAW – jurisdiction, practice and procedure – bail – section 9C of Bail Act 1992 (ACT) – special or exceptional circumstances to grant of bail to individual charged with attempted murder – delay in setting trial date considered special or exceptional circumstance.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – breach of bail – accused contact with prosecution witness – risk of undermining integrity of evidence in criminal investigation.

Domestic Violence Protection Orders Act 2008 (ACT)
Court Procedures Rules (ACT)
Bail Act 1992 (ACT), s 9C

In the matter of an application for bail by Rebecca Massey (No 3) [2010] ACTSC 52
In the matter of an application for bail by Timothy Allen [2009] ACTSC 64

EX TEMPORE JUDGMENT

No. SCC 121 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 20 July 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 121 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

IN THE MATTER OF AN APPLICATION FOR BAIL BY MARK ANDERSON

ORDER

Judge:  Refshauge J
Date:  20 July 2011
Place:  Canberra

THE COURT ORDERS THAT:

Mark Anderson be granted bail to appear at the Supreme Court on a date to be notified, on the following conditions:

a) he accept supervision by the Director-General or the Director-General’s delegate and obey all reasonable directions of the officer delegated to supervise him;

b) he reside at [address supplied];

c)
to report to the officer-in-charge of Tuggeranong Police Station every Monday, Tuesday, Wednesday, Thursday and Friday, between the hours of

8 am and 8 pm;

d) other than to travel directly through the area to reach a destination outside it, not to enter within the area bounded by the intersection of the following roads: Sellwood Drive, Erindale Drive, Long Gully Road, Mugga Lane, Monaro Highway, Tharwa Drive, Drakeford Drive and Athllon Drive (between Drakeford Drive and Sellwood Drive) which encompasses the suburbs of Oxley, Wanniassa, Fadden, Macarthur, Chisholm, Gilmore, Richardson, Calwell, Isabella Plains, Monash and Gowrie;

e) not to assault, intimidate, threaten, or harass [name supplied];

f) not to contact [names supplied] except in accordance with an order made under the Family Law Act;

g) not to approach within 200 metres of [names supplied] except in accordance with an order made under the Family Law Act;

h) not to approach the maternity section of the Canberra Hospital;

i) not to approach within 100 metres of Sacred Heart Primary School, Pearce;

j) not to approach within 100 metres of Stromlo High School;

k) not to contact or approach any prosecution witnesses as listed on the list of witnesses filed in these proceedings on 11 July 2011; and

l) not to apply for a passport.

AND THE COURT DIRECTS THAT:

A copy of the list of witnesses be stapled to the bail undertaking.

Before me is an application for grant of bail by Mark Lesley Anderson. Mr Anderson was arrested following…

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.

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Details

Case: [2011] ACTSC 121
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Justice Refshauge heard an application for bail by Mark Lesley Anderson. Anderson had been in custody since his arrest on 18 June 2010, following charges including attempted murder, make a threat to kill, assault occasioning actual bodily harm, and contravention of a protection order under the Domestic Violence Protection Orders Act 2008 (ACT). Anderson's trial was scheduled for August or October 2012. The legal issues before the court were whether there were special or exceptional circumstances that warranted the grant of bail under s 9C of the Bail Act 1992 (ACT) and whether the conditions of bail could effectively mitigate the risk of interference with the trial process.

Justice Refshauge considered the delay in the prosecution as a special circumstance, noting that the trial would not occur until 2012, which was significantly longer than the ordinary course of proceedings. Additionally, Anderson's medical conditions, which had deteriorated while in custody, and his status as a former police officer, which had exacerbated his circumstances, were also considered special circumstances. The court acknowledged that the prosecution's case had credibility issues and that Anderson had legitimate challenges to the case against him. The combination of the delay in prosecution, Anderson's deteriorating medical condition, and the legitimate challenges to the Crown's case led the court to conclude that there were special and exceptional circumstances justifying the grant of bail.

In light of these considerations, Justice Refshauge granted Anderson bail to appear at the Supreme Court on a future notified date, subject to specific conditions. These included accepting supervision, residing at a specified address, reporting to police regularly, and refraining from contacting certain individuals and approaching specific locations. Additionally, Anderson was prohibited from applying for a passport and contacting any prosecution witnesses. The court also directed that a copy of the list of witnesses be stapled to the bail undertaking.

Orders