The Queen v David Anthony O'Brien - [2012] ACTSC 199

THE QUEEN v DAVID ANTHONY O’BRIEN
[2012] ACTSC 199 (19 December 2012)

CRIMINAL LAW – bail – jurisdiction, practice and procedure – Bail Act 1992 (ACT) s 21 – bail in relation to several offences – bail in relation to offences pending in the Magistrates Court – s 21 directed to court or authorised officer dealing only with matters within jurisdiction of that court or officer

CRIMINAL LAW – bail – whether bail justified – risk of re-offending – risk of non-appearance – risk of interference with witnesses – refusal of bail justified in the circumstances

Bail Act 1992 (ACT), ss 8, 9A, 9B, 20B(a), 21, 22, 43
Crimes Act 1900 (ACT), ss 19, 24, 26, 34, 114B, 114C, 374, 375
Crimes (Sentencing) Act 2005 (ACT), s 63
Drugs of Dependence Act 1989 (ACT), ss 164, 169, 171
Medicines, Poisons and Therapeutic Goods Act 2008 (ACT), s 36

Road Transport (Vehicle Registration) Act 1999 (ACT), ss 18, 22

Criminal Code 2002 (ACT), s 603(7)

Dunstan v Director of Public Prosecutions (1999) 92 FCR 168
Footscray City College v Ruzicka (2007) 16 VR 498
Grey v Pearson (1857) 6 HLC 61; 10 ER 1216
Markarian v The Queen (2005) 228 CLR 357
Re Martin (Unreported, Supreme Court of the Northern Territory, Kearney J, 23 October 1997),
R v Rubino [2012] ACTSC 157
Veen v The Queen (No 2) (1988) 164 CLR 465

EX TEMPORE JUDGMENT

No. SCC 204 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 19 December 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCC 204 of 2012
AUSTRALIAN CAPITAL TERRITORY    )

R
v

DAVID ANTHONY O’BRIEN

ORDER

Judge:  Refshauge J
Date:  19 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

The application for bail be dismissed.

As a result of an incident on 19 August 2012, the applicant for bail, David Anthony O’Brien, went with the complainant in these proceedings to Calvary Hospital where the complainant was treated for some injuries.

While being treated, the complainant made some allegations about Mr O’Brien and a member of the nursing staff contacted police. The police attended and spoke to the complainant and then arranged for a warrant to be issued permitting them to search Mr O’Brien’s residence. They did so on 20 August 2012. Later that day, Mr O’Brien was charged with an offence of assault occasioning actual bodily harm, an offence against s 24 of the Crimes Act 1900 (ACT), and unlawful confinement, an offence against s 34 of the Crimes Act.

Mr O’Brien appeared in the Magistrates Court on 21 August 2012 and entered a plea of not guilty. He was remanded in custody. The magistrate’s note on the bench sheet helpfully explains: “risk to victim having regard to severity of assault, false story at hospital, history of offending, previous threats, ongoing investigation”.

After some adjournments, Mr O’Brien was committed for trial to this Court. It is not clear whether that was because the prosecution declined under s 374 of the Crimes…

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 The Queen v David Anthony O'Brien

Details

AGLC: The Queen v David Anthony O'Brien [2012] ACTSC 199
Case: [2012] ACTSC 199
Decision Date: 19 December 2012

CaseChat Overview and Summary

In the case of The Queen v David Anthony O'Brien, the respondent sought bail under the Bail Act 1982 (ACT) while facing multiple charges pending before the Magistrates Court of the Australian Capital Territory. The application was heard by the Supreme Court of the Australian Capital Territory, which was tasked with determining whether the respondent was eligible for bail, considering the nature and seriousness of the offences, as well as the risk of reoffending, non-appearance, and interference with witnesses.

The court was required to address whether it had the jurisdiction to consider bail for offences pending in the Magistrates Court. This involved interpreting the provisions of section 21 of the Bail Act, which directs that bail applications in relation to offences pending in the Magistrates Court should be dealt with by the Magistrates Court or an authorised officer, rather than the Supreme Court. The court also needed to assess whether the refusal of bail was justified given the risk factors associated with releasing the respondent.

In its decision, the Supreme Court found that it did not have the jurisdiction to consider the bail application for offences pending in the Magistrates Court. The court relied on the explicit wording of section 21 of the Bail Act, which confines the authority to grant bail in such cases to the Magistrates Court or an authorised officer. Furthermore, the court determined that the refusal of bail was justified due to the significant risk of reoffending, non-appearance, and potential interference with witnesses. These factors outweighed any considerations in favour of granting bail.

The orders of the court were that the application for bail be dismissed, reflecting the findings on both jurisdictional and substantive grounds.

Orders

Orders of the court

The application for bail be dismissed.

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

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