The Queen v David Anthony O'Brien
[2012] ACTSC 199
•19 December 2012
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 Act to consent to the summary hearing of the assault charge or whether Mr O’Brien declined under s 375 of the Crimes Act to consent to the summary hearing of the charges.
On 19 September 2012, Mr O’Brien was further charged with a series of drug and motor vehicle offences. They were:
· two offences of trafficking in cocaine contrary to s 603(7) of the Criminal Code 2002 (ACT);
· two offences of possessing cocaine contrary to s 169 of the Drugs of Dependence Act 1989 (ACT);
· one offence of possessing a prescription only medicine, dextromethorphan contrary to s 36 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT)
· one offence of possessing cannabis contrary to s 171 of the Drugs of Dependence Act;
· one offence of money laundering contrary to s 114B of the Crimes Act;
· one offence of possessing the proceeds of crime contrary to s 114C of the Crimes Act;
· one offence of using an unregistered vehicle contrary to s 18 of the Road Transport (Vehicle Registration) Act 1999 (ACT);
· one offence of using a vehicle with number plates issued to another vehicle contrary to s 22 of the Road Transport (Vehicle Registration) Act; and
· one offence of supplying cocaine contrary to s 164 of the Drugs of Dependence Act.
So far as I can tell, Mr O’Brien has not been committed to this Court for trial or sentence on any of the indictable offences included in these further charges.
On 20 September 2012, Mr O’Brien was charged with yet additional offences, being four further offences of assault occasioning actual bodily harm, one offence of intentionally inflicting grievous bodily harm contrary to s 19 of the Crimes Act and one offence of common assault contrary to s 26 of the Crimes Act, all arising out of the incident on 19 August 2012. The complainant in each case was the same person and the complainant in the offences committed to this Court. These additional charges (save for the non-indictable common assault charge) have also been committed to this Court.
All of the additional charges on which Mr O’Brien was committed to this Court, save for one charge of assault occasioning actual bodily harm, were, however, discontinued by the filing of a Notice Declining to Proceed on 7 December 2012.
The maximum penalties for all the above offences vary. The most serious offences, unlawful confinement, trafficking in cocaine, and money laundering, attract a term of imprisonment for a maximum of 10 years. They are, therefore, quite serious offences in accordance with the approach to maximum penalties stated by the High Court in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]–[31].
THE APPLICATION FOR BAIL
On 2 October 2012, Mr O’Brien applied for bail. The application was heard on 24 October 2012. Because he had been committed for trial on the charges arising out of the incident on 19 August 2012, the application was not a review of the decisions of the Magistrates Court. See Bail Act 1992 (ACT) s 20B(a).
Bail in relation to several offences
At the hearing, it was also submitted that I should, were I minded to grant bail, do so on all charges for which he had been charged. It is clear that a court considering bail should have regard to all the offences charged. That does not mean that a person cannot be granted bail on some charges but refused bail on others. Indeed, s 8 of the Bail Act gives a person an entitlement to bail for certain offences and a refusal of bail for other offences cannot take away that entitlement, though the remand in custody in respect of those offences for which bail has been refused would mean that the entitlement is not able to be exercised in that case. Of course, there are reasons, especially given the effect of s 63 of the Crimes (Sentencing) Act 2005 (ACT), why a person charged with offences may wish to be remanded in custody on all of them if he or she is to be remanded on any one of them.
It was, however, put to me by both counsel that s 21 of the Bail Act required me, if I were to grant bail, to grant bail on the offences which were still pending in the Magistrates Court. That section provides:
21 Bail in relation to several offences
If an accused person has been charged with 2 or more offences for which bail may be granted and is being held in custody in relation to those offences –
(a)a court or an authorised officer must, in considering whether to grant bail to the accused person, have regard to all the offences with which the person stands charged; and
(b)if the court or authorised officer decides that the accused person should be granted bail—
(i)the accused person must be granted bail in relation to all the offences with which the person has been charged for which bail may be granted; and
(ii)the accused person need give only 1 undertaking to appear in relation to all the offences with which the person has been charged for which bail may be granted; and
(iii)if the accused person is granted bail subject to conditions—the conditions apply in relation to each offence with which the accused person is charged for which bail may be granted.
At first sight, the plain words of this section seem to be consistent with what was submitted to me, namely, that I could grant bail on the matters that are pending in the Magistrates Court as well.
Further consideration, however, leads me to reject that interpretation. It seems to me that such a construction would lead to inconsistency with the Act and to an absurd result. Lord Wensleydale said in Grey v Pearson (1857) 6 HLC 61 at [106]; 10 ER 1216 at 1234,
that in construing will and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency but no farther.
That this principle is not limited to linguistic absurdity is clear from what Chernov JA, with whom Warren CJ and Maxwell P agreed, said in Footscray City College v Ruzicka (2007) 16 VR 498 at 505; [16].
Read literally, the section would mean that, if a person to whom bail had been granted in the Supreme Court or the Magistrates Court or both was arrested for a further offence, he or she, when before the Watch House Sergeant, would have to have all the pending offences, including those in the courts, subject to the same bail with the same conditions. It is by no means clear what that would do to the other grants of bail. Would they then be revoked?
Again, were an accused person to be charged with further offences whilst he or she was on bail from the Supreme Court, say between trial at which he or she was found guilty and sentence, on this interpretation, the Magistrates Court would have to interfere with that bail of the Supreme Court when granting bail for the further offences. That would be so startling a conclusion that, in my view, it cannot be accepted.
Interpretation of Bail Act 1992 (ACT) s 21
The provisions in s 21 are, in my view, directed to the court or authorised officer dealing only with matters within the jurisdiction of the court or officer and is probably intended to refer to the situation where multiple charges are preferred at or about the same time, though in its plain terms, it is clearly wider than that.
That Mr O’Brien has been denied bail by the Magistrates Court in respect of those charges still in that court does not mean I cannot hear the bail application, nor does it mean that I cannot grant bail. It also does not mean that I cannot take into account the fact that he has been charged with the further offences to which I have referred above (at [7]). It means, however, that I cannot deal with the charges pending in the Magistrates Court, unless otherwise authorised, for example under s 43A of the Bail Act.
It seems to me that they are relevant to issues of whether Mr O’Brien, if released on bail, would be likely to commit an offence (Bail Act s 22(1)(b)(i)). While, of course, they are only allegations, it seems to me that they must be assumed, for the purposes of a bail application, to have been assessed by a prosecutor from the Office of the Director of Public Prosecutions to be charges for which there is a reasonable prospect of securing a conviction.
THE FACTS OF THE ALLEGED OFFENCES
The facts of the offences alleged against Mr O’Brien are briefly as follows.
He and the complainant had been in a relationship and she regularly stayed with him. On Saturday, 18 August 2012, they attended a party but did not seem to become intoxicated.
They drove home early the next day, and, when parked in Mr O’Brien’s driveway, the complainant says that Mr O’Brien for no apparent reason punched the complainant once in the head with a closed fist, causing her immediate pain.
The complainant says that during the next day Mr O’Brien continued to assault her, she said about 12 times, and attempted to choke her using his hands. The complainant says she lost a large amount of blood as a result, which splattered on the floor and walls of the premises.
The complainant says that later she attempted to leave the premises but was prevented by Mr O’Brien from doing so. She says she made repeated requests to go to hospital for treatment of injuries, but Mr O’Brien refused to let her.
On Monday, however, Mr O’Brien drove the complainant to the hospital where she was seen by two registered nurses at the triage desk. She initially told them she had been assaulted at a club, a story that she says Mr O’Brien told her to tell them.
One of the nurses, concerned that Mr O’Brien may have been the perpetrator of the assaults, arranged for the other nurse to interview the complainant privately. The complainant then disclosed that it was Mr O’Brien who she says had assaulted her.
As also noted, Mr O’Brien was refused bail when he applied for it in the Magistrates Court on 21 August 2012. I have referred above to the laying of further charges.
He now faces, in this Court, one count of unlawful confinement and two counts of assault occasioning actual bodily harm. He is to defend these charges.
CIRCUMSTANCES OF THE APPLICANT
Mr O’Brien is now 51 years old. He is divorced with a son who is 13. He has sole custody of his son. The mother of his son does not live in Canberra and his son has no contact with her. Mr O’Brien lives with his son in rental premises. He has lived in the ACT since 1969.
Mr O’Brien has a long criminal history. It includes some periods of custody but not for many years. While there are 53 convictions since 1980, most of these are traffic offences but there are also two offences of dishonesty, two offences of violence and 10 drug offences.
The other offences arose out of a search of Mr O’Brien’s house conducted on 20 August 2012. It is said that, during the search, police saw a chair in the backyard of his premises which would facilitate someone getting over the back fence to the neighbouring premises.
The neighbours were contacted and it is alleged they told police they believed that someone had been accessing their under-house storage area without their consent. Police reported searching the storage area and found bags containing a large amount of money, 931 grams of a substance which a presumptive test indicated was cocaine and 25 grams of a substance suspected of being dextromethorphyan, a narcotic used as a dry cough suppressant.
According to police, a search of Mr O’Brien’s premises found more cash in a guitar amplifier and an amount of cannabis. Later, a vehicle with registration papers and a vehicle service receipt in Mr O’Brien’s name was also said to have been searched and about 25 grams of a substance suspected of being cocaine was found.
The motor vehicle was seized. It was said to have been driven by Mr O’Brien when unregistered and with incorrect number places attached.
Police stated that they seized a mobile phone from Mr O’Brien’s property and that a search of it disclosed 17 637 saved SMS text messages, a significant number of which were said to relate to Mr O’Brien’s involvement in trafficking illicit substances. That is the figure referred to, but it seems to me that it would be more likely to be somewhat over 1 700 messages.
Evidence of the Applicant
Mr O’Brien gave evidence before me. He was comprehensively cross-examined by Mr A Williamson, who appeared for the Respondent. Much of the cross-examination was about his employment.
It appears from that cross-examination that Mr O’Brien works for his brother-in-law who is the owner and operator of a number of hotels in Queanbeyan and Goulburn. He books entertainment to be presented at the hotels. He also plays in a band which performs in the hotels and arranges functions for the hotels. He has a more regular involvement with the Queanbeyan Hotel. His son assists with the functions from time to time.
Questions were asked of Mr O’Brien clearly suggesting that this evidence was not credible. It was said only to come from Mr O’Brien and some of the questions sought information about staff he would likely to meet if so employed, which he was only minimally able to answer and bands which he had booked which, again, he could only answer to a limited degree and in very vague terms.
Mr O’Brien also agreed that he had not submitted Income Tax Returns to the Australian Taxation Office for the last two years.
Mr O’Brien stated that he regularly collects cash from the Queanbeyan Hotel, between $5 000 and $10 000, given to him by the manager, who is his brother-in-law. He explained that it may be because “if it was late something to do with banking” but that he also needed money to pay for the entertainment in advance. He would not pay cash, he said, but deposit in his bank account and then distribute it. He said such arrangements were done “not that regularly” and that he “rarely get[s] amounts of cash” though the cash found in his house was from the business. His affidavit, in support of the bail application, did refer to him “frequently [having] in [his] possession sums of cash collected on behalf of the businesses”.
Mr O’Brien also denied striking his daughter or his son and said he may have accidentally struck his sister.
He referred in re-examination to the break-up with his former wife, his son’s mother, which was a somewhat unhappy one and she applied for and had issued a restraining order against him. He breached it the day it was obtained because, when he left the Court, he could not find his car and he rang his former wife to find out where it was. This contact, a non-violent one, was in contravention of the order.
Evidence of the informant
Evidence was given by Senior Constable Shaw. He reported that inquiries he had made showed that Mr O’Brien has not lodged any Income Tax Returns since 2005. He had received $14 000 in government benefits annually since then.
He also gave evidence of previous incidents of violence which amounted to a picture on his mobile phone showing Mr O’Brien’s sister with bruising on her face and a series of text messages in May 2010 which appeared to allege that Mr O’Brien had hit her and had not only bruised her but had caused damage to her teeth. One message, not from Mr O’Brien’s sister stated, “Your job is to protect, not bash YOUR YOUNGEST SISTER ... You have seriously damaged her ... Emotionally and physically.” A later one from the same sender said “I find it hard to imagine what could justify the vicious shaming you have to her [sic] ... She may have a broken jaw, internal bleeding and a dislocated elbow”.
Mr O’Brien sent a message which included the following “I can’t begin to tell you how sorry I am for last night!!!... I lost my temper and I’m ashamed”.
Senior Constable Shaw also produced records of a number of protection orders made, it appears in 1994 (1), 1995 (2), 2001 (1) and 2003 (2). He had, it appeared from cross-examination, not spoken to any of the applicants about these orders, though police have spoken to one of them.
Senior Constable Shaw also advised that police, including Senior Constable Shaw it appears, had spoken to an unspecified number of unidentified people about Mr O’Brien and drugs. Some of them told police that they had bought drugs from him, but no statements were obtained from any of them.
Evidence of the Applicant’s daughter
Mr O’Brien’s daughter gave evidence. She agreed that she had sought an apprehended violence order against Mr O’Brien in the past. She said:
I was very young. I don’t even remember the incident, but I do remember that I was pushed by my mum ... I was pushed, too. I guess, be a pawn, like, between their grudges, which were mainly instigated by my mum.
She said that she had contact with her father within a few days after getting the order. Her mother, she said, died in 2009 and she has since then had a really good relationship with her father. He had supported her financially and emotionally.
In cross-examination, she denied that Mr O’Brien had been violent to her. She did not recall speaking to police about the incident in September 1994. She did not, however, deny speaking to police. She added, “even if it did happen at that age I was quite troubled so, you know, I probably did [have a conversation with police]”. She said she had suffered from an eating disorder. She also denied that she would have lied to police.
Mr Williamson was unable to produce a tape of the conversation with Mr O’Brien’s daughter but copies of police field books were produced. They record the following matters extracted from the notes:
· Mr O’Brien’s daughter was spoken to at a Canberra high school on 6 September 2004.
· She said she was “reluctant to speak with police about it because she does not want to get him into trouble. She just wants a house to go to that is safe”.
· She felt “she brought it on”.
· Her brother “[w]ould like a safe house to be able to go to too”.
· She said that the previous Thursday she had gone out after school and got drunk and threw up. Her father got angry and hit her, her head hurt and she went to bed.
· He hit the left side of her head above her ear. It hurt very much in the morning.
· Her father knew it was wrong.
· She said “stuff like this happened last year when she was really naughty and he hit her 3 times on separate occasions, when she had done stuff”.
· She said “there has [sic] been times that she has run away when he has hit her.”
· In winter last year, he hit her and left a mark on her face and punched her several times with his fist in her face.
A further record referred to an interview on 8 November 2004. Mr O’Brien’s daughter said she understood the need to tell the truth. She said that her father “hit [her] quite a lot of times when he’s angry”. She also referred to an occasion when he had kicked her in the ribs. He also recounted again the incident earlier reported.
In the notes, she is recorded as having referred also to an incident in December 2003 or January 2004, where Mr O’Brien threw a coke bottle at her. She commented “It hurt”. The next day, he accused her of stealing things and punched her in the head.
She referred to another incident where she said Mr O’Brien punched her “for about 5 minutes”, leaving her with a bruise above her left eye.
A record of ACT Policing says that [deleted for legal reasons] Mr O’Brien became abusive and hostile.
In further cross-examination, Mr O’Brien’s daughter said “I mean something definitely did happen” but she did not remember specific details.
She said, however, that Mr O’Brien was now the most important person in her life.
She said, under further cross-examination, that she could not remember any of these details but added “I don’t doubt that I would have over dramatised them, especially if I was feeling bitter towards my dad at the time”.
Further evidence adduced by the Applicant
Mr J Pappas, who appeared for Mr O’Brien, tendered the statements of police involved in the investigation. The first described the search of the neighbour’s property. That recorded that the neighbours told police that they did see Mr O’Brien in their property and when spoken to, told them he was looking for his son’s cricket ball, which they thought unusual. When they became suspicious that someone was accessing their under-house storage area they had a new door with a deadlock fitted to the space.
Mr Pappas also tendered a statement of Sergeant Douglas Inwood who attended at the search of Mr O’Brien’s premises. He said he saw Mr O’Brien had a wad of $50 notes and when asked about it, Mr O’Brien said “It’s $5 000. It’s the takings from the poker machines from the pubs”. He said he was uncomfortable about taking the money and asked if Mr O’Brien has “a safe or something similar that you would keep it in?” and Mr O’Brien said he did. He then put it down into the rear of one of three large amplifier speakers; saying that this is what he would normally do.
SUBMISSIONS ON THE APPLICATION
Mr Pappas submitted that the evidence about violence was “a pastiche of bits and pieces that when you really analyse it doesn’t add up to the sort of threat to the community that can’t be adequately dealt with by stringent bail conditions”.
He submitted that the protection orders were old and in the specific context of a marital break-up. There is a current order protecting the complainant. The criminal record discloses no violence offences since 2004, when a lenient penalty was imposed. There were earlier offences, but only in 2001 and 1991.
He submitted that the evidence of Mr O’Brien’s daughter should be accepted that her complaints in 2004 were exaggerated. He pointed to some internal contradictions in them. In any event, he submitted, she was now supportive of her father.
Mr Pappas submitted that Mr O’Brien was in employment.
He submitted that the evidence in support of the drug charges was weak, especially as to the drugs found in the neighbour’s premises. He pointed to the fact that the complainant was an admitted user of cocaine and that the cocaine found in the motor vehicle could have been hers.
Mr Williamson submitted that I should proceed as though on all the charges there is a reasonable prospect that the Crown will prove its case. I will do so.
He submitted that I should accept that the charges are objectively serious and that significant terms of imprisonment would be imposed on convictions, especially in the light of Mr O’Brien’s long and extensive criminal history. This would be, he said, a motivation to abscond.
Mr Williamson submitted that I should be reluctant to accept the evidence of Mr O’Brien’s employment, pointing to his vague and unspecific answers to questions about staff and band engagements. He referred to the inconsistencies between Mr O’Brien’s supporting affidavit and his oral evidence about the custody of cash from the businesses. He noted, too, the reference in the Statement of Sergeant Inwood, tendered by Mr Pappas, where it is recorded that Mr O’Brien says that the cash was the takings from poker machines which did not feature in his oral evidence. He also submitted that the explanation was not a credible one.
He further submitted that I should rely on the contemporaneous notes about the incident involving Mr O’Brien’s daughter. That meant, he submitted, that I should regard it as extraordinary that she could consider Mr O’Brien the most important person in her life and not remember these allegations. That, he submitted, was not credible.
He relied, further, on the fact that the protection orders were issued. He noted that, of course, the threshold for the issuing of such orders had to be made out to the Court before they would issue such an order.
He submitted that his main concerns were the risk of absconding because of the serious nature of the charges and the inevitability of a lengthy sentence of imprisonment if convicted. He also relied on the concerns he had noted about whether Mr O’Brien’s employment was as stated, and his lengthy criminal history with drug and violence offences.
In reply, Mr Pappas submitted that I should disregard the asserted discrepancy as to the source of the $5 000 as no cross-examination addressed that. He also submitted that there was no cross-examination about the likelihood of flight.
He submitted that Mr O’Brien had ties to the Territory; he had been living at the same address for a number of years. Any risk of absconding could be dealt with by suitable bail conditions.
CONSIDERATION
Because at the time of the hearing of this application, the charge under s 19 of the Crimes Act was pending, s 9B of the Bail Act, in conjunction with sch 1, meant that there was no presumption in favour of bail. Despite that, Kearney J in Re Martin (Unreported, Supreme Court of the Northern Territory, Kearney J, 23 October 1997), held that the Crown still carries the onus of showing that bail should not be granted. I made a similar point, but in a slightly different context in R v Rubino [2012] ACTSC 157.
The situation has now changed, for the charge under s 19 of the Crimes Act has been discontinued. That reverts to the position that there is an entitlement to bail under
s 9A of the Bail Act unless I am satisfied, having regard to the matters in s 22 of that Act, that a refusal of bail is justified. The onus there is clearly on the Crown.
Nevertheless, I must consider the matters set out in s 22 of the Bail Act.
The risk of non-appearance
The first is the likelihood of the person appearing. It is true that the offences are serious, especially the drug offences, and that if convicted, Mr O’Brien is likely to receive a lengthy term of imprisonment. Even for the assault offences, a prison term on conviction seems to me more likely than not, given the serious injuries disclosed in the photographs I was shown and the criminal history of Mr O’Brien. Though there are only a few offences of violence and, from the sentences imposed, they were at the lower end of seriousness so far as his record is concerned, together with his other convictions, he is unlikely to be afforded much leniency on that account: Veen v The Queen (No 2) (1988) 164 CLR 465.
It must also be taken into account that he has no convictions for any breach of bail. In 1982 and 1987, he was dealt with for breaching a recognizance and in 2001 he breached a protection order, the details of which are set out above.
He has resided in Canberra for many years, but is currently living in rented premises. His son, aged 13, lives with him, but is currently apparently living with his mother [deleted for legal reasons]. He has a daughter, who gave evidence before me. She is now 24 and though she expressed devotion to her father, is not dependent on him in any material way.
I am somewhat sceptical of Mr O’Brien’s employment situation. The receipt of benefits of $14 000 per annum are quite unexplained. I have no doubt that he is involved with activities at the various hotels of which evidence has been given, but I am not satisfied that I have an accurate picture of entirely what is involved and whether that provides the relevant stability that employment often is said to contribute to a consideration of the risk of absconding.
The music scene in licensed premises is also an excellent milieu in which to traffic in drugs, especially drugs such as cocaine, and the availability of cash takings also means that there are opportunities to mingle that cash with funds received from drug trafficking.
The risk of future offences
This is also relevant to the second issue, whether Mr O’Brien will commit an offence if granted bail. I am mindful of the test for the assessment of this factor as set out in Dunstan v Director of Public Prosecutions (1999) 92 FCR 168, where Madgwick J said (at 174; [21]):
It is a wrong approach to deny a person bail in an effort to eliminate the risk that such a person might commit offences if free to do so. There is no legislative warrant for preventative detention based on a fear that the worst possibility will come to pass. The question posed by the Bail Act is whether the Court is satisfied that any risk is sufficient to justify the Court denying the accused person a legal right, the right to bail, established by s 8.
Gyles J said in the same case (at 184; [55]–[56]):
In my view, it is wrong to approach the issue under ss 8(2) and 22(1)(c) on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not: see the explanation by Deane J in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346-348 ... If the answer is yes, then that factor, and the extent of the likelihood, will be taken into account in the general weighing process. If the answer is no, then any possibility short of real likelihood is simply to be ignored in the balancing process.
It should be borne in mind, when considering this topic, that refusal of bail upon the basis of s 22(1)(c) alone is tantamount to preventative detention. In my view, this is a cogent reason for not permitting a finding to be made on this issue on the basis of suspicion and speculation. Discussion of the matter in terms of risk is calculated to encourage that basis.
I am, however, satisfied that there is a real risk of Mr O’Brien engaging in drug offences if admitted to bail.
The likelihood of him committing further offences of violence is less certain. The current charges relate to a complainant with whom he was in a relationship. Earlier problems experienced also were with other relationships. His daughter does not appear to live with him. I am satisfied that there was an incident of violence he committed against his sister. Mr O’Brien does appear to have an anger management problem. There is, of course, a risk that the stress of these proceedings will increase the chance of him becoming angry. Were these the only offences he was facing, I would not consider that there was a real likelihood of further offences of violence such as to deny him bail.
The risk of interference with witnesses
I am concerned that there may be attempts to interfere with witnesses. Mr O’Brien has, on the facts, attempted to deflect disclosure of the offences by refusing to take the complainant to hospital and then creating a false story which he insisted she give as to the injuries. This, were it the only matter of concern, may be able to be addressed by bail conditions to support the protection order already in place.
The interests of the Applicant
Finally, there are the interests of Mr O’Brien. There was no material specifically addressing this issue. Of course, he is entitled to his liberty, which is more desirable than custody. There were, however, no particular factors urged on me that were relevant.
CONCLUSION
I have given careful thought to the application. Weighing up all the factors, however, I am of the view that the refusal of bail is justified.
Accordingly, the application is dismissed.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 16 January 2013
Counsel for the Crown: Mr A Williamson
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr J Pappas
Solicitor for the accused: Kamy Saeedi Lawyers
Date of hearing: 24 October 2012
Date of judgment: 19 December 2012
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