Re Dunshea - [2021] QSC 163

SUPREME COURT OF QUEENSLAND

CITATION:

Re Dunshea [2021] QSC 163

PARTIES:
IN THE MATTER OF AN APPLICATION FOR BAIL BY JOSEPH DAVID DUNSHEA
(applicant)

v
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
(respondent)

FILE NO/S:

No 5881 of 2021

DIVISION:

Trial Division

PROCEEDING:

Bail Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2021

JUDGE:

Freeburn J

ORDER:

Subject to the court determining appropriate conditions, the applicant be granted bail.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – FURTHER APPLICATIONS – where the applicant has been refused bail on four previous occasions – where the applicant has been charged with and seeks bail, once again, in relation to many fraud offences – where the applicant is in a ‘show cause’ situation pursuant to s 16(3) of the Bail Act 1980 (Qld) – where the applicant must satisfy the Court that there are additional facts that have arisen, or additional facts that have been discovered, which are decisive in the sense that those new facts alter the balance in favour of granting bail – whether there has been a material change in circumstances – whether residential rehabilitation had been determined in previous applications for bail – whether delay constitutes a material change – whether delay amounts to a material change - whether the decrease in quantum of the alleged fraud amounts to a material change – whether ongoing family court proceedings amount to a material change – whether difficulties in accessing the brief in prison amounts to a material change – whether the applicant can show why his detention in custody is not justified

Bail Act 1980 (Qld)
Criminal Code Act 1899 (Qld)

Human Rights Act 2019 (Qld)

Baggaley v Commonwealth DPP [2020] QCA 179
DPP v Williamson [1999] QCA 356
Dunshea v Director of Public Prosecutions (Qld) [2021] QCA 102
Ex parte Edwards [1989] 1 Qd R 139
Fisher v DPP (Qld) [2011] QCA 54
Sica v DPP (Qld) [2011] 2 Qd R 254
Lacey v Director of Public Prosecutions [2007] QCA 413

R v Tesic [2015] QSC 205

SOLICITORS:

The applicant appeared on his own behalf

S Rigby for the Office of the Director of Public Prosecutions (Qld)

The applicant, Joseph David Dunshea, is nothing if not persistent. This is his fifth application for bail. He has been charged with and seeks bail, once again, in relation to a large number of fraud offences.

Mr Dunshea was incarcerated on 16 June 2020. He has therefore been in custody for more than 12 months. The trial of the fraud charges against him appears to be still some distance away.

The Previous Applications

Mr Dunshea’s four previous applications were heard on six separate days. Those applications were:

1. On 21 August 2020 before Boddice J;

2. On 8 October 2020 before Bowskill J;

3. On 27 November 2020 before Callaghan J; and

4. On 4 January 2021 before Bowskill J and then adjourned to 15 February 2021 pending the results of a committal…

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 Re Dunshea

Details

AGLC: Re Dunshea [2021] QSC 163
Case: [2021] QSC 163
Decision Date: 24 June 2021

CaseChat Overview and Summary

The applicant, Dunshea, has been before the court on four previous occasions, each time seeking bail in relation to multiple fraud charges. The latest application was heard in the context of section 16(3) of the Bail Act 1980 (Qld), which requires the applicant to demonstrate a material change in circumstances that would alter the balance in favour of granting bail. The court was tasked with determining whether there had been such a change in circumstances that would justify a reconsideration of the bail decision.

The court examined several factors proposed by the applicant as material changes. These included the delay in processing the bail application, the decrease in the quantum of the alleged fraud, ongoing family court proceedings, difficulties in accessing the legal brief while in prison, and the consideration of residential rehabilitation, which had not been addressed in previous applications. The court was required to assess whether any of these factors constituted a material change warranting a reevaluation of the bail decision.

The court found that the delay in processing the bail application, the decrease in the quantum of the alleged fraud, and the consideration of residential rehabilitation were material changes. The court noted that the delay in processing the application, while not a direct change in circumstances, contributed to the applicant's argument that detention was no longer justified. The decrease in the quantum of the alleged fraud was also seen as a significant factor, as it reduced the risk of reoffending and flight. Additionally, the court acknowledged that residential rehabilitation had not been previously considered and required further evaluation. These factors, taken together, altered the balance in favour of granting bail.

In light of the material changes identified, the court granted bail subject to the determination of appropriate conditions. This decision recognised the evolving circumstances and the need for a balanced approach to the applicant's bail application.

Orders

Orders of the court

Subject to the court determining appropriate conditions, the applicant be granted bail.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Re Dunshea [2021] QSC 163
PARTIES:	IN THE MATTER OF AN APPLICATION FOR BAIL BY JOSEPH DAVID DUNSHEA (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QLD) (respondent)
FILE NO/S:	No 5881 of 2021
DIVISION:	Trial Division
PROCEEDING:	Bail Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	24 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	25 May 2021
JUDGE:	Freeburn J
ORDER:	Subject to the court determining appropriate conditions, the applicant be granted bail.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – BAIL – FURTHER APPLICATIONS – where the applicant has been refused bail on four previous occasions – where the applicant has been charged with and seeks bail, once again, in relation to many fraud offences – where the applicant is in a ‘show cause’ situation pursuant to s 16(3) of the Bail Act 1980 (Qld) – where the applicant must satisfy the Court that there are additional facts that have arisen, or additional facts that have been discovered, which are decisive in the sense that those new facts alter the balance in favour of granting bail – whether there has been a material change in circumstances – whether residential rehabilitation had been determined in previous applications for bail – whether delay constitutes a material change – whether delay amounts to a material change - whether the decrease in quantum of the alleged fraud amounts to a material change – whether ongoing family court proceedings amount to a material change – whether difficulties in accessing the brief in prison amounts to a material change – whether the applicant can show why his detention in custody is not justified Bail Act 1980 (Qld) Criminal Code Act 1899 (Qld) Human Rights Act 2019 (Qld) Baggaley v Commonwealth DPP [2020] QCA 179 DPP v Williamson [1999] QCA 356 Dunshea v Director of Public Prosecutions (Qld) [2021] QCA 102 Ex parte Edwards [1989] 1 Qd R 139 Fisher v DPP (Qld) [2011] QCA 54 Sica v DPP (Qld) [2011] 2 Qd R 254 Lacey v Director of Public Prosecutions [2007] QCA 413 R v Tesic [2015] QSC 205
SOLICITORS:	The applicant appeared on his own behalf S Rigby for the Office of the Director of Public Prosecutions (Qld)