Tasmania v Wooders - [2022] TASSC 15

[2022] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Wooders [2022] TASSC 15

PARTIES:  STATE OF TASMANIA
  v
  WOODERS, Ann Louise

FILE NO:  698/2021
DELIVERED ON:  Monday, 28 February 2022
DELIVERED AT:  Launceston
HEARING DATE/S:  14 and 22 February 2022
JUDGMENT OF:  Pearce J

CATCHWORDS:

Criminal Law – Procedure – Bail – Recognizances – Forfeiture and estreatment – Relief from estreatment and reduction of liability – Recognizance of $10,000 for man who breached curfew condition – Forfeiture of $7,000 ordered.

Bail Act1994 (Tas), ss 7, 20.
Aust Dig Criminal Law [3005]

REPRESENTATION:

Counsel:
             Appellant:  C Darvell
             Respondent:  In person
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number: [2022] TASSC 15
Number of paragraphs: 22

Serial No 15/2022
File No 698/2021

STATE OF TASMANIA v ANN LOUISE WOODERS

REASONS FOR JUDGMENT PEARCE J

28 February 2022

While he was on bail for indictable offences, Robert Williams contravened the conditions of his bail by failing, on three specified occasions, to comply with a curfew. The respondent, Ann Wooders, had entered into a recognizance under the Bail Act 1994, s 7(5)(b), in the sum of $10,000, to secure Mr Williams' compliance. The State applies for an order under s 20 of the Bail Act that all or part of the recognizance be forfeited to the Crown.
Mr Williams was charged with trafficking in a controlled substance, wounding and aggravated burglary, all alleged to have been committed on 21 June 2020. On 1 July 2020 he appeared in the Court of Petty Sessions. He pleaded not guilty, and was committed to the Supreme Court for trial. He was admitted to bail by a magistrate to appear in the Supreme Court on 12 October 2020. The bail order was made against the opposition of the prosecution. Conditions were imposed on the grant of bail which included that:
·Mr Williams live at a specified address in Waverley and be present at the address between 10pm and 7am;
·Mr Williams not contact a named person; and
·the respondent provide a "cash surety" in the sum of $10,000.
The order of committal, signed by Mr Williams though not by the respondent, recorded the surety condition in these terms:
"That Ann Louise Wooders has paid to the Clerk of Petty Sessions at Launceston the sum of $10,000, to be forfeited if you do not comply with these bail orders."
The amount of the surety was paid to the Clerk of Petty Sessions on 23 September 2020. On the same day the respondent signed a document headed "Surety Recognizance" in terms that she had:
"… offered myself as surety for the appearance of Robert Craig Williams, a person about to be granted bail under the Justices Act 1959, who is required to appear at the Supreme Court at Cameron Street, Launceston, and I acknowledge that if he does not appear as specified in his bail document or if he fails to comply with a condition of his bail I shall be liable to forfeit to the Crown the sum of $10,000."
At the time the respondent agreed to the recognizance, Mr Williams had a long history of drug use, offending (including for serious offences of dishonesty) and non-compliance with community-based sentencing and parole orders. The risk that he may not comply with conditions of bail was obvious to any reasonable observer. I have little doubt that it was for that reason that the magistrate required deposit of a substantial sum, without which there is a good chance Mr Williams would not have been admitted to bail. There is no evidence of what, if any, enquiries were made by the magistrate at the time about the resources available to the respondent to enable her to pay the amount of the recognizance or about the impact on her were the recognizance to be forfeited. It is self-evident that the sum was paid.
Mr Williams' original bail address was with the respondent at her home. However, about three months after having been admitted to bail, Mr Williams applied to vary the conditions of his bail by allowing him to live at a different address, albeit in the same suburb. The application was heard on 2 October 2020. The respondent was present in court when the application was made and, after being reminded that she had "paid a significant amount as surety", she agreed to the change.
The evidence submitted in support of this application satisfies me that, a little over two months after changing his address, Mr Williams breached the conditions of his bail by being absent from his bail address during the curfew hours on 16 November 2020, 18 December 2020 and 23 December 2020. He was arrested on 22 January 2021 on an unrelated matter. On 15 March 2021 he pleaded guilty to three counts of breaching a condition of his bail contrary to the Bail Act, s 9. He was sentenced by a magistrate.
This application for forfeiture of the surety was made on 29 January 2021, even before Mr Williams pleaded guilty to the offences which form the basis of the application. It was listed for hearing on 22 February 2021. The respondent was served with the application on 13 February 2021. She appeared in court on 22 February 2021 and was represented by counsel. The application was adjourned. The court records indicate that, since then, the application has been adjourned from time to time. That was principally to enable the respondent to obtain legal advice and to prepare her response to the application. She appeared and was represented on 30 April 2021. On 14 May 2021 counsel appeared but the respondent was not present. On 23 July 2021, 3 September 2021 and 15 October 2021 the respondent appeared and was represented. On 15 November 2021 the respondent was not present. Her counsel appeared but sought, and was granted, leave to withdraw. Notice of the next date to which the application was adjourned was given to the respondent and she appeared unrepresented on 31 January 2022. She sought time to organise representation, and the application was adjourned for hearing on 14 February 2022. On that day the respondent did not appear when called.
Until 11 February 2022 no evidentiary material was filed or served by the prosecution in support of the application, although none of the factual background is complex. When I was informed that the respondent was not given a copy of the supporting material until a day or so before the hearing, I directed that notice of a further adjournment be given to the respondent. She appeared apparently in response to that notice on 22 February 2022. From the body of the Court she described her concern that she had not been informed by the police that Mr Williams had breached his bail until after the event. She was informed, in general terms, of the matters which may be relevant to the exercise of the Court's power to order forfeiture of all or part of a recognizance. She had filed no material in opposition to the application, declined the invitation to give evidence and did not wish to say anything else. Thus I have no evidence about her financial circumstances, the source of the funds used to meet the surety or the effect on her should I make the order that the sum be forfeited. Nor is there any evidence of what steps, if any, the respondent took to attempt to ensure that Mr Williams complied with the conditions of his bail.
The most important condition for a person admitted to bail is to appear and surrender to the order of the court at the time and place specified in the order and for any subsequent adjournment of the proceedings: s 7(3). The purpose is to ensure that a person appears at trial.
However, an order for bail may be made subject to such other conditions as the judicial officer thinks desirable in the interests of justice: s 7(4). Conditions may serve a number of purposes. They may be directed not only to reducing the risk that the person admitted to bail will abscond. They may also be directed to other matters relevant to the decision to grant or refuse bail, including the risk that a person will use the opportunity of bail to continue to offend, may present a risk to a person or persons, or influence potential witnesses. I infer that the conditions imposed by the magistrate on Mr Williams' bail were directed to all of the purposes to which I have referred.
Section 7(5) relevantly provides:
"(5) Without limiting the generality of subsection (4), an order for bail may be made on condition that –
(a) a person must deposit a specified amount of money to be forfeited to the Crown if the person admitted to bail fails to appear before a court as required by subsection (3) or fails to comply with a condition of the order for bail; or
(b) - GS19@Hpa@ENone or more suitable persons (other than the person admitted to bail) must enter into a recognizance in the prescribed form before an authorized person to forfeit a specified amount of money if the person admitted to bail fails to appear before a court as required by subsection (3) or fails to comply with a condition of the order for bail; …".
The provision of a deposit under s 7(5)(a) or recognizance under s 7(5)(b) are important parts of the bail system. Both provide for forfeiture of a specified amount of money not only if the person admitted to bail fails to appear before a court as required by an order for bail, but also if the person fails to comply with a condition of the order. In this State, the provisions of the Bail Act do not expressly guide or limit the discretion to order forfeiture of the amount of a recognizance. A judge may order forfeiture of the whole amount, or such part as the judge "considers appropriate". It is plain enough that legislation in those terms confers discretion, despite some past expressions of judicial opinion to the contrary. See the analysis by Foster J in Re Nevil Martin Schoenmakers v Director of Public Prosecutions (1991) 31 FCR 429. The terms of s 20 are to be distinguished from s 19 which, as I interpret it, applies to a sum deposited by a person admitted to bail with a condition imposed under s 7(5)(a) to secure compliance with the terms of his or her own bail. In such a case, on conviction for breach, a court "must" order forfeiture of the full sum deposited unless the convicted person demonstrates "excessive hardship to that person or the dependants of that person" not relieved by allowing payment by instalments, or satisfies the court that it is otherwise just to order forfeiture of part only.
Examination of the purpose of the provision of a recognizance assists understanding of the operation of s 20. A person who provides a recognizance has an important role, not to be entered into lightly. He or she is, unlike the Court, in a position to supervise obedience to the order and the conditions. A surety undertakes a real and substantial obligation to ensure that the person admitted to bail appears when required and complies with the conditions, and must understand the obligations of the accused and the consequences of breach. As Kourakis CJ explained in R v Agius [2012] SASC 136, the risk of forfeiture of money which is the subject of a recognizance motivates the surety to supervise the person granted bail to ensure compliance with the conditions. It is the risk of its forfeiture that is meant to provide the incentive to the surety to perform his or her duty: Re Wilkinson [1983] 2 VR 250. The surety is required to take positive steps. It is not enough that the surety does nothing and states that he or she believed the accused would attend trial or abide by conditions: Mokbel v DPP (2006) 14 VR 405 at [42] and [54]. He or she must take all reasonable steps to ensure compliance: Re Condon[1973] VR 427 at 431. Evidence that reasonable steps were taken will be a factor, although not determinative, in an application for forfeiture. It is generally not enough for a surety to say that there was no complicity or connivance in, or culpability for, the breach: Re Nevil Martin Schoenmakers v Director of Public Prosecutions (above) at 284. At issue in Schoenmakers was forfeiture of a very large surety given as a condition of bail granted to a person who subsequently absconded.
Secondly, the recognizance also serves to motivate the person released on bail to comply by the assurance that, if they fail to appear or breach a condition, the person who agreed to provide the recognizance will suffer the forfeiture. The accused must know that, if he or she breaks the trust that has been placed in them by a surety, often a family member or friend, the surety will suffer: Mokbel v DPP. The object is to dissuade an accused from breach because of the adverse consequences which might otherwise flow to a surety. In R v Crown Court at Maidenstone; ex parte Lever [1995] 2 All ER 35, Hoffman LJ said at 41:
"It follows that in one sense the system has unfairness built into it. It may result in persons entirely innocent having to suffer on account of the wrongdoing of another. The courts rely upon the moral pressure which this prospect should apply to the mind of the accused. But the pressure would evaporate if judges were not willing, as a general rule, to harden their hearts against a plea of lack of culpability when it turns out that the surety's trust in the accused was misplaced."
As a result, even if a surety does as much as reasonably can be expected, the deterrent effect of a recognizance as it applies to the person released on bail will only work if sureties lose a substantial amount of the sum deposited or promised in the event of breach: R v Agius.
In Re McKinnon (1986) 40 SASR 326, Matheson J stated at 328 that the burden carried by a guarantor to show that the full sum should not be forfeited is a heavy one. His Honour cited with approval the following passage from the reasons of McCullough J in R v Uxbridge Justices; Ex parte Heward-Mills [1983] 1 WLR 56 at 62:
"I would draw together the more important principles to be derived from the authorities, as follows. (1) When a defendant for whose attendance a person has stood surety fails to appear, the full recognizance should be forfeited, unless it appears fair and just that a lesser sum should be forfeited or none at all. (2) The burden of satisfying the court that the full sum should not be forfeited rests on the surety and is a heavy one. It is for him to lay before the court the evidence of want of culpability and of means on which he relies. (3) Where a surety is unrepresented the court should assist him by explaining these principles in ordinary language, and giving him the opportunity to call evidence and advance argument in relation to them."
I would apply those principles in relation to s 20 with the qualification that I do not see that a formal onus should be inferred when none is stated. A judge may make the order considered to be "appropriate". In the absence of a legislative provision to the contrary, a judge ought not to be precluded from informing the exercise of discretion by reference to all of the relevant circumstances of the case. That is so even in the absence of evidence from the surety, although the absence of evidence will be a factor to be taken into account.
It is not contended that Mr Williams breached the conditions of his bail by failing to appear when required. There is no evidence that he attempted to flee the jurisdiction or to otherwise escape his obligation to answer the charges. Mr Williams subsequently appeared in this Court, pleaded guilty and was sentenced for trafficking, although by the time of the sentencing hearing his appearance was secured by reason of him being held in custody. I am aware of those matters because I was the sentencing judge. I was informed that the wounding charge was to be, or had been, resolved by an alternative summary charge to be dealt with in the Court of Petty Sessions.
There is some evidence however that Mr Williams committed other offences, apart from the bail breaches, while subject to the bail order. On 15 March 2021 he was sentenced for offences including, on 22 January 2021, breaching the non-contact conditions of a family violence order and driving while disqualified. On 22 June 2021 Mr Williams was sentenced to imprisonment for eight months for serious driving offences, but they were committed in 2019 and are not relevant. On 28 July 2021, he pleaded guilty to three other family violence order breaches, one of which was breach of a non-approach condition committed on 13 December 2020, only a few days before one of the occasions on which he was found to be in breach of his curfew.
Having observed the respondent in court, I would infer that forfeiture of such a sum may have a significant impact on her and may even lead to financial hardship. In Mokbel Gillard J concluded at [60] that, unless there had been a change of the surety's financial circumstances since the giving of the recognizance, the financial impact of forfeiture should not be taken into account. His Honour referred to a number of authorities, not all of which were to the same effect. In Re Condon, Crockett J found that the legislation he was dealing with permitted resort to compassion or benevolence. The means of the surety were considered relevant by Kirby J in Cucu v District Court of New South Wales (1994) 73 A Crim R 240. The Tasmanian legislation does not impose any fetter on the discretion I am to exercise and I think some limited allowance for such factors is appropriate. In general terms however, a court should take care in attributing significant weight to considerations of financial hardship. To do so would discourage proper consideration of provision of the surety in the first place, would undermine the importance of understanding the genuineness of the surety and would reduce the incentive to discourage breach.
The overriding consideration is maintenance of the integrity of the bail system by emphasis on the purposes to be served by provision of surety, the importance of the obligation it imposes and the consequence of breach. For that reason the greater part of the recognizance should be forfeited. The nature of the breaches, given that Mr Williams complied with the primary obligation to appear and answer the charges, leads me to moderate the order. I order that $7,000 of the recognizance is forfeited to the Crown. The balance is to be returned to the respondent.