Re Pusey (No 2)
[2022] VSC 682
•10 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0228
| IN THE MATTER of the Bail Act 1977 |
| - and - |
| IN THE MATTER of an application for bail by RICHARD PUSEY |
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JUDGE: | Taylor JA |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 3 and 10 November 2022 |
DATE OF JUDGMENT: | 10 November 2022 |
CASE MAY BE CITED AS: | Re Pusey (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 682 |
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CRIMINAL LAW – Bail – Applicant charged with use carriage service to offend and bail offences – Contested hearing of charges completed in Magistrates’ Court – Decision pending – Applicant previously refused bail in Supreme Court on same charges – Whether exceptional circumstances exist that justify the grant of bail – Whether Applicant an unacceptable risk of endangering the safety or welfare of any person or committing an offence whilst on bail – Bail refused – Bail Act 1977, ss 1B, 3AAA, 4, 4AA, 4A, 4D, 4E, 18, 18AA and 18AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The Applicant appeared in person | |
| For the Respondent | Mr A Albore | Victoria Police |
HER HONOUR:
Introduction
The applicant is charged with using a carriage service to offend (two charges) and committing an indictable offence whilst on bail (two charges).
The contested hearing of those charges took place in the Sunshine Magistrates’ Court over three days, namely 9 and 10 August 2022 and 28 October 2022. The matter was originally listed for decision on 2 December 2022. By letter dated 7 November 2022, the criminal registry of this Court was advised by the Magistrates’ Court that the decision will now be delivered on 14 November 2022.
The applicant has been remanded on these charges since 8 February 2022. They[1] have since twice been refused bail: on 23 May 2022 in the Magistrates’ Court and on 8 July 2022 in this Court.[2]
[1]The applicant uses they/them pronouns.
[2]Re Pusey [2022] VSC 455 (‘Re Pusey’).
By a Notice of Intention to Make an Application for Bail dated 14 July 2022, the applicant again applies for bail in this Court.
For the reasons that follow, bail is refused.
Summary of allegations
The allegations are detailed in Re Pusey and are not here repeated.
It is sufficient to note that the applicant is accused of transmitting images of deceased and dying police officers to the Australian Financial Complaints Authority (AFCA) as part of a complaint about an insurance company refusing a claim in relation to their car. Those images were taken by the applicant at the scene of a collision on the Eastern Freeway in April 2020. The applicant is further accused of using one of the images as a profile picture in a Google Review of the Porsche Centre Melbourne in reference to that Centre’s refusal of a claim for damage to the same car. At the time of each allegation, the applicant was subject to a grant of bail.
Procedural history
As noted above, having been refused bail in this Court on 8 July 2022, the applicant again made application for bail on 14 July 2022. The grounds articulated in the relevant Notice are as follows:
Prison does not provide facilities to defend myself. Human rights.
Prison is cruel, inhuman and torture. Human rights.
Prison staff denied access to ambulance when urinating blood, delirious, feverish AND COVID POSITIVE. (Fancy that).
Staff are colluding with Victoria Police to stop me from defending MYSELF by withholding mail containing evidence needed to prove my case.
Court (SUPREME) previously failed to get me court ordered documents prior to hearing ie Medical Records.
Do I mention Jason Roberts? Dying words? How vulgar to push such a story. How awful. To think that I hoped to capture a dying persons words for the benefit of her real family and then get put in here. Imagine!
James Gargasoulos writes letters that are nice about the good value of the smiths crisps multi-packs. He must be better now based on what I’ve heard from courts and police about letter content.
Following receipt of the application for bail, on 22 July 2022 the chambers of Judicial Registrar Freeman wrote to the applicant enclosing a copy of Practice Note SC CR-2 – Bail Applications and Appeals (‘Bail Practice Note’). The letter explained that the application could not be accepted for filing unless an affidavit in support of the application was also filed.
On 23 July 2022 the applicant wrote to the criminal registry of this Court requesting copies of ‘all case docs’ sent to them also be sent to Ms Tammy Sleep. On 2 August the chambers of Freeman JR wrote to the applicant requesting them to specify the documents in question and reminding them of previous orders made by Freeman JR regarding the copying and/or dissemination of material produced to the Court pursuant to subpoena.
On 28 July 2022 the applicant requested that the criminal registry send them the ‘Affidavit’.
The criminal registry received an ‘Affidavit of Application’ affirmed by the applicant at the Metropolitan Remand Centre on 2 August 2022 stating that the contents of their application are true and correct.
On 5 August 2022, the applicant wrote to the criminal registry requesting that copies of ‘all documents sent to and from the court in relation to SECR 2022 0138’ (being the 8 July 2022 bail application in this Court), except those disallowed by Freeman JR, be sent to Ms Sleep.
On 12 August 2022[3] the applicant wrote a letter addressed to me in the following terms:
[3]I note that Re Pusey was published on 10 August 2022.
To Hon Lesley Taylor
Lithium is a mood stabilizer used for bipolar generally but rarely prescribed nowadays.
Schizoid types use anti-psychotics.
The May 2022 CISP refers to is wrong and dates May of 2001 if you read and heard the correct materials.
Hey, I must be nuts to point out the facts.
Histrionic actually which nobody understands.
Opinion is the medium between knowledge and ignorance.
Prescribed 4 B12 shots weekly on 12 April 22.
1st dose 28/4
2nd dose not given until late May
3rd dose not given until June
4th dose never given.
Your system is a failure hence 50% return rate and permanent pensioners produced.
A good question is better than a good answer.
Richard
On 18 August 2022 the chambers of Freeman JR again wrote to the applicant and again enclosed a copy of the Bail Practice Note. The letter explained that the 2 August 2022 ‘Affidavit of Application’ did not satisfy the requirements of the Practice Note because it did not contain any information upon which the applicant relied in support of their bail application. The letter further enclosed a template affidavit to assist the applicant and reiterated that the application for bail could not be accepted for filing until the affidavit in support was received. The remainder of the letter detailed the copy documents requested by the applicant that were enclosed. A copy of the letter including its enclosures was also sent to Ms Sleep.
On 25 August 2022 the applicant wrote to the criminal registry and stated that they would rely on documents from SECR 2022 0138 in relation to the new bail application.
On 27 August 2022 the applicant wrote to the criminal registry stating that I had said at the last hearing that not all documents had previously been served correctly and requesting a copy of those documents.
On 2 September 2022 the chambers of Freeman JR wrote to the applicant notifying them that the instant application had been allocated proceeding number SECR 2022 0228 and that a mention was listed on 7 September 2022.
Freeman JR presided over the mention on 7 September 2022. Freeman JR explained to the applicant that they were required to file an affidavit in support of the application and it was not sufficient to say that they relied upon a bundle of documents previously filed. It was further explained that the applicant had the onus of satisfying the Court of the existence of exceptional circumstances that justify the grant of bail and that the respondent had the onus of satisfying the Court that the applicant is an unacceptable risk of any of the s 4E(1)(a) Bail Act 1977 (‘Act’) factors.[4] Certain orders as to the filing of material were made.
[4]These matters were explained numerous times to the applicant during the hearing of the July 2022 bail application.
Following the mention on 7 September 2022, the chambers of Freeman JR wrote to the applicant enclosing a copy of the transcript of the mention, a copy of the orders and a template affidavit.
On 16 September 2022 the applicant affirmed an affidavit in support of the bail application. That affidavit is a hand annotated version of the template affidavit. A number of the annotations are unorthodox. Under the heading ‘Previous applications for bail’, the applicant wrote ‘July 2022. Unicorn in eye cloud’. Under the heading ‘Bail onus and applicable legislation’, the applicant wrote ‘exceptional’, followed by ‘No care. No betterment to society. Zip’. Under the heading ‘Criminal history’ the applicant wrote ‘Breached jailed police officers own breach of my human rights’. In the paragraph directed to the s 3AAA(1) surrounding circumstances, the applicant wrote that the strength of the prosecution case was ‘fabricated illusion’, that their criminal history was ‘invented by thugs’, that there was no family violence intervention order made against them ‘but they are welcome to play’, that their personal circumstances and associations involve ‘no friends’, that their special vulnerability was ‘intelligence’, that ‘death row acacia’ was the length of time they would be likely to spend in custody if bail is refused and that the likely sentence in the event of a finding of guilt was ‘public hanging.’ As to whether they had an association with a terrorist organisation, the applicant wrote ‘Victoria Police? No.’ Under the heading ‘Proposed bail conditions’, the applicant wrote that they proposed to reside ‘in a house. pillow, blanket, dog mat, water bowl, candle’.
The affidavit has a single exhibit entitled ‘Victoria Police Coercive Control Collage’. This comprises hundreds of pages of documents of various types, such as letters written by the applicant to public entities seeking to agitate complaints, newspaper articles, policy documents of Corrections Victoria, witness statements, screenshots of Instagram posts, search warrants, intervention orders and an annotated copy of the Charter of Human Rights and Responsibilities Act 2006.
Also on 16 September 2022 the criminal registry received a letter from the applicant requesting copies of all documents from the first bail application. On 4 October 2022 the chambers of Freeman JR sent a letter to the applicant enclosing copies of a bundle of documents delivered to the Court by Ms Sleep on 6 June 2022, the respondent’s affidavit dated 2 June 2022 and the respondent’s submissions dated 7 July 2022. The letter acknowledged the material previously provided to the applicant under cover of the letter dated 18 August 2022. The letter and enclosures were also sent to Ms Sleep.
On 12 October 2022 the applicant wrote to the criminal registry asserting that the Court had failed to send them all the documents.
On 20 October 2022 the affidavit in response was filed by the respondent.
On 25 October 2022 the criminal registry received from the applicant a subpoena to produce addressed to Alasdair Farrell and dated 18 October 2022. There was an extant order (made by Freeman JR at the mention on 7 September 2022) that, pursuant to r 42.02(2)(a)(ii) of the Supreme Court (General Civil Procedure) Rules2015, the Prothonotary not issue any subpoena filed on behalf of the applicant in this proceeding without leave of the Court.[5]
[5]Prior to the hearing of the July 2022 bail application the applicant had filed approximately 60 subpoenas. I made an order under r 42.02(2)(a)(ii). After hearing the applicant, they were granted leave to issue three subpoenas.
On 26 October 2022 the criminal registry received by email from the MRC on behalf of the applicant a bundle of documents comprising some 286 pages. The first page is a hand annotated certificate identifying exhibit entitled ‘AFCA’s Harry Ganavas for profit. Word salad medley’. There follows a number of documents including AFCA’s Privacy Policy and Complaint Resolution Scheme Rules. There are further hand annotated certificates identifying exhibits. These are entitled ‘Legacy Police Sergeants son in laws IVO’, ‘Jailed Police Officer’, ‘Police mans daughter’, ‘Police Legacy Heads IVO’, ‘Thug Life’, ‘Save My Soul’, ’Pusey’s Law’, ‘Police harassment’, ‘Sargent Laureina Everetts Anger Issues’ and ‘Googles Giant Private Internet’. Behind these certificates are various intervention order documents, press clippings and Google policy documents. This bundle of documents was provisionally accepted for filing by the criminal registry pending my determination of the matter.
On 2 November 2022 the criminal registry received from the applicant by post a bundle of documents dated 14 October 2022 and comprising 23 pages. The first page is a hand annotated ‘certificate identifying exhibit’ entitled ‘TRUTH BEHIND IVO’S’. A one page handwritten document follows. There is a second hand annotated certificate entitled ‘Code 351 FUN’. There follows a number of pages of the applicant’s Eastern Health medical records dating from 2016. The applicant has written on the documents ‘section orders for fun (retaliation and a good laugh)’. Again, this bundle of documents was provisionally accepted for filing pending my determination of the matter.
On 3 November 2022 the matter came on for hearing. I refused the applicant leave with respect to the subpoena addressed to Alasdair Farrell. After hearing submissions from the parties, I indicated that I would consider the two bundles of documents provisionally accepted for filing in chambers and determine the relevance, if any, of the material contained within them. The respondent then made submissions. The applicant sought an adjournment of the hearing as they were without the notes they had prepared. The applicant stated that on 2 November 2022 following an external medical appointment they had been returned to a cell different from their normal one and that most of their materials relating to this application had not been returned to them.
On 10 November 2022 the hearing of the matter concluded.
Applicant’s personal circumstances
The personal circumstances of the applicant, including their criminal history, were detailed in Re Pusey. There have been no material changes to those matters in the intervening months.
Legal considerations
Section 18(1) of the Act allows an accused who has been refused bail and who is in custody pending the hearing of a charge to make a further application for bail in the circumstances prescribed by s 18AA(1). Those circumstances include where the applicant satisfies the Court that new facts or circumstances have arisen since the refusal of bail or where the applicant was not represented by a legal practitioner when bail was refused. Subsection 18AA(2) establishes that nothing in s 18AA derogates from the right of a person in custody to apply to the Supreme Court for bail.
The interplay of these provisions has produced some divergence of opinion within this Court as to whether an applicant has a right to make repeated applications.
In Bail Application by Michael Paterson,[6] Gillard J said:
It has been accepted over the years that any person has a right to come to this Court, as a superior court of this State, to seek bail; further, to make applications to various judges. However, having said that, this Court would be flooded with applications if practical steps were not taken to ensure that baseless applications or repetitive applications are not made to a variety of judges of this Court one after the other. There is no practice direction of which I am aware which requires an applicant to show new facts or circumstances, but in my view it is appropriate that the Court should have a practice, whereby if a new application is made very soon after a previous application has been refused, it is appropriate that the applicant is obliged to show new facts or changed circumstances.[7]
[6][2006] VSC 268 (‘Paterson’).
[7]Paterson, [49]. See generally [45] ff.
In Re Alimic,[8] Tinney J considered that it was appropriate for this Court to hear an application for bail where previous applications had been made to and refused by the County Court trial judge and an application was then made to the Supreme Court without further application to the trial judge.
[8][2021] VSC 235R.
The respondent accepted that in this case the applicant did not need to demonstrate the existence of new facts or circumstances and submitted that I should hear the application either because the applicant was not represented during the hearing of the July 2022 bail application or as an exercise of this Court’s inherent jurisdiction.
I agree. Notwithstanding that the present application was submitted for filing some seven days after bail was refused in this Court and very few of the surrounding circumstances have since changed, the applicant cannot – at this stage – be described as having flooded the Court with repetitive applications. There is currently no basis to refuse to exercise the Court’s jurisdiction. Accordingly, the application was conducted as a fresh hearing and is determined in accordance with s 4 of the Act.[9]
[9]Act, s 18AB.
The test for bail remains as it was at the time of the July bail application. The applicant is charged with Schedule 2 offences and therefore bail must be refused unless they satisfy the court that exceptional circumstances exist that justify the grant of bail. If exceptional circumstances are satisfactorily shown, bail must still be refused if the respondent demonstrates that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) of the Act and that such a risk is an unacceptable one. At both steps the Court must take into account the relevant surrounding circumstances delineated in s 3AAA(1).
The Court must also have regard to the guiding principles set out in s 1B(1) of the Act.
Applicant’s contentions
The materials filed by the applicant are singular and bizarre. The materials exhibited to the affidavit are irrelevant and appear to reflect the psychological and psychiatric difficulties experienced by the applicant.
At the oral hearing, the applicant’s submissions were often grandiose and elaborate. I summarised for the applicant what I understood to be their contentions in relation to the dual issues of exceptional circumstances and unacceptable risk. They were as follows.
First, their history of compliance with intervention orders was good. Of the many orders to which they have been subject, only three were breached.[10] And, those three breaches concerned police officers or the family members of police officers who acted with mala fides towards them. Second, the applicant has a solid employment history. Third, the applicant’s criminal history is limited and the conduct underpinning the proven charges is more anodyne than the nature of the charges suggest. The applicant described their previous convictions as ‘forced’. Fourth, they are not guilty of the offences currently before the Learned Magistrate as conduct that induces distress or repugnance is not offensive. Fifth, there is an error in the CISP report dated 16 May 2022 and the author of that report has refused to speak to the applicant since the report was made. Sixth, their conditions in custody are unacceptable. This submission had numerous parts including that the medical and psychiatric care provided to the applicant in custody is inadequate, that remand prior to a finding of guilt is, in principle, wrong, that the justice system is a failure, that they have had no opportunity for rehabilitation and that on more than one occasion they have been forced to smear their faeces in cells to get appropriate attention from custodial officers. The applicant submitted that the conditions were ‘deranging’. Seventh, the ‘deranging’ effect of the remand environment explains the phone calls of 10 March 2022 and intercepted letter of 11 March 2022[11] as exercises in venting or coping with the custodial environment.
[10]The criminal history of the applicant discloses five findings of guilt with respect to personal safety intervention orders.
[11]See Re Pusey, [60] and [70].
Respondent’s submissions
The respondent submitted that there was no material change to the applicant’s surrounding circumstances from the time of the July bail application. While the applicant was not required to demonstrate new facts or circumstances, it was submitted that the absence of material change compelled a finding consistent with the last determination that bail must be refused on both limbs of the test. What change there had been in their circumstances did not warrant a different outcome.
With respect to exceptional circumstances, the respondent submitted that the prosecution case against the applicant, which has now been heard, was stronger than at the time of the July bail decision. The respondent referred to the evidence led before the presiding Magistrate, which was not before me previously, and which bolstered the identification of the applicant as the relevant offender and the element of offensiveness. The respondent further submitted that as the evidence had concluded, the applicant could suffer no handicap arising from custody relating to the preparation of their defence.
The respondent did acknowledge that the applicant has been in custody for a longer period now than at the time of the July bail application. As at 3 November they had been in custody for 268 days. As at 2 December, the date originally listed for decision by the learned Magistrate, they will have been in custody for 297 days. On 14 November 2022, the new date for decision, the figure will be 279 days. It was submitted that notwithstanding that period, the severity of the offending, the applicant’s prior criminal history, the cumulation of sentences and the sentencing considerations relevant to them combine to show that, in the event of findings of guilt, the likely overall sentence will exceed the time spent by the applicant on remand. Indeed, it was submitted that a sentence less than the pre-sentence detention would be considered by the respondent to be manifestly inadequate.
Further, the respondent emphasised that the applicant has not provided evidence of the availability of ‘an established, community-based, comprehensive and detailed treatment plan’,[12] a matter that was of significance in the July bail decision.
[12]Re Pusey, [65].
With respect to unacceptable risk, the respondent submitted that there had been no change in the relevant circumstances and the Court could have no confidence that the applicant would abide by any conditions of bail.
Analysis
I accept the characterisation of the respondent that there has been no material change to the applicant's circumstances that would cause me to be satisfied, contrary to the July bail decision, that the applicant had demonstrated exceptional circumstances that justify the grant of bail or that the respondent had failed to demonstrate that the applicant posed an unacceptable risk of endangering the safety or welfare of any person and of committing an offence while on bail. The material filed by the applicant on this occasion, plainly, does not support the grant of bail.
In the July bail decision, I described the period of time spent on remand as being of moment in the application. It remains so in the current application. But I am not persuaded that that period will necessarily exceed any overall sentence in the event of a finding of guilt. The date for the Magistrate’s decision has been brought forward to 14 November 2022. And, when this issue is considered with the other surrounding circumstances, particularly the unmet complex treatment needs of the applicant in the event that they were to reside in the community, exceptional circumstances have not been demonstrated.
The observations made as to unacceptable risk in the July bail decision remain apposite. No further or different material was submitted to the Court.
Conclusion
It follows that bail must be refused.