SUPREME COURT OF QUEENSLAND
CITATION:
Re JMT [2020] QSC 72
PARTIES:
IN THE MATTER OF AN APPLICATION FOR BAIL BY JMT
R
(respondent Crown)
v
JMT
(applicant)FILE NO:
BS No 3122 of 2020
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
Orders made on 1 April 2020, reasons delivered on 9 April 2020
DELIVERED AT:
Brisbane
HEARING DATE:
27 March 2020
JUDGE:
Davis J
ORDER:
The applicant be admitted to bail on the terms appearing in the order attached and marked as “A”.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – MURDER CASES – where the applicant applies for bail for charges of murder and grievous bodily harm – where the application was opposed by the Crown – where four others, all juveniles, are conjointly charged with the applicant on both charges – where the Crown case is not without difficulties – where the applicant is not the primary offender – where the Crown case is that the applicant is party to a common purpose with the primary offender – where lack of evidence demonstrating knowledge by him of the intention of the primary offender – where lack of evidence demonstrating that offences charged were a probable consequence of the execution of any common purpose – where COVID‑19 will undoubtedly cause delay in the finalisation of the proceedings against the applicant – where curfew conditions and conditions preventing him from contacting known associates will militate against the risk of him being involved in street violence while on bail – whether the applicant has demonstrated that his continued detention in custody pending trial or other resolution of the charges is not justified – whether there is no unacceptable risk of the kinds identified in s 16(1) of the Bail Act
Bail Act 1980, s 7, s 8, s 10, s 13, s 15, s 16
Bail Act 1977 (Vic)
Bail Act 2002 (ACT)
Bail Act 2013 (NSW), s 18
Corrective Services Act 2006, s 263
Criminal Code, s 2, s 7(1)(a), s 7(1)(b), s 7(1)(c), s 8, s 293, s 300, s 302, s 303, s 305, s 317(1), s 596
Human Rights Act 2019, s 4, s 5, s 9, s 30, Part 3, Divisions 1, 2 and 4
Public Health Act 2005, s 362BAckland v Director of Public Prosecutions (Qld) [2017] QCA 75, cited
Barlow v The Queen (1997) 188 CLR 1, cited
Crump v New South Wales (2012) 247 CLR 1, cited
Edwards v R (1993) 178 CLR 193, cited
Elliott v The Queen (2007) 234 CLR 38, cited
Giorgianni v The Queen (1985) 156 CLR 473, cited
Keys v Director of Public Prosecutions [2009] QCA 220, followed
Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413, followed
Matsoukatidou v Yarra Ranges Council (2017) 51 VR 625, cited
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, followed
Moukhallaletti v Director of Public Prosecutions (NSW) [2016] NSWCCA 314,…
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- AGLC
- Re JMT [2020] QSC 72
- Case
- [2020] QSC 72
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the applicant’s continued detention in custody pending trial or other resolution of the charges was justified and whether there was no unacceptable risk of the kinds identified in s 16(1) of the Bail Act. The court considered the evidence, which did not demonstrate that the applicant knew of the primary offender’s intention to commit murder or that the charged offences were a probable consequence of the execution of any common purpose. The court also noted that the applicant’s involvement in the fight was relatively minor, and the s 8 case was dependent upon proof of a plan which the Crown identified as a plan to rob with violence. The admission of evidence against the applicant on his trial was by no means certain.
The court found that the applicant had demonstrated that his continued detention in custody pending trial or other resolution of the charges was not justified. The applicant was admitted to bail on the terms appearing in the order attached and marked as “A”. The court considered that the curfew conditions and conditions preventing the applicant from contacting known associates would mitigate against the risk of him being involved in street violence while on bail. The court also considered that the COVID-19 pandemic would undoubtedly cause delay in the finalisation of the proceedings against the applicant.
Orders
Orders of the court
The applicant be admitted to bail on the terms appearing in the order attached and marked as “A”.
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
What is made clear in numerous cases[57] is that critical to any potential liability under s 8 is proof of the “unlawful purpose” embarked upon by the offenders. It is necessary to identify what was intended to be involved in the prosecution of the unlawful purpose before one can consider whether the “offence” which was ultimately committed “was a probable consequence of the prosecution of such purpose”. It is possible, depending upon the scope of the plan for the actor (here Tom) to be guilty of a different offence than other participants. Relevantly here, Tom may be guilty of murder, being an intentional killing, whereas other participants may only be guilty of manslaughter if an unlawful killing, but not an intentional one, was a “probable consequence of the prosecution of [the plan]”.[58][57]See, for example, R v Barlow (1997) 188 CLR 1 and R v Keenan (2008) 236 CLR 397.[58]Barlow v The Queen (1997) 188 CLR 1.Consideration It is well recognised that where an applicant for bail is charged with murder, the fact that the applicant is facing the possibility of a mandatory life sentence itself gives rise to a serious concern about flight.[59][59]R v Hughes [1983] 1 Qd R 92 at 97 and Scrivener v Director of Public Prosecutions (Qld) (2001) 125 A Crim R 279. However, the Crown case is not without its difficulties, particularly in relation to the count of murder.[60] At this stage, only a preliminary view can be formed on fairly limited material,[61] but there are obvious obstacles facing the Crown proving that the applicant intended to aid (whether by encouragement or otherwise) a murder by Tom. The applicant may have known, from the barbecue, that Tom had a knife. It is quite another thing to prove that the applicant knew that Tom would stab John and/or Alan let alone know that Tom intended to kill or do grievous bodily harm to John or do grievous bodily harm to Alan.[60]Section 16(2)(d).[61]Williamson v DPP [2001] 1 Qd R 99 at 103 and Sica v Director of Public Prosecutions (Qld) [2011] 2 Qd R 254 at [51]-[52]. The applicant’s involvement in the fight is relatively minor. He clearly is in the background when the fight commences and the violence perpetrated by him seems limited to hitting someone with a plastic bottle, hardly a lethal weapon. The s 8 case is dependent upon proof of a plan which the Crown identifies as a plan to rob with violence. Much of the Crown case is dependent upon the admission against the applicant of statements made by members of his group to various people. Those statements will only be admissible against the applicant upon proof that they were said in prosecution of the plan to rob.[62] The admission of that evidence against the applicant on his trial is by no means a certain thing. While the Crown relies on the text message sent by the applicant that was sent hours before the incident and not to an alleged co-offender. There is certainly no admission in the applicant’s police interview or statement of knowledge of any murderous intention of Tom’s.[62]Tripodi v R (1961) 104 CLR 1 and Ahearn v R (1988) 165 CLR 87.