R v Freeman (No. 1) [2001] ACTSC 85 (25 May 2001)

Last Updated: 12 April 2002

The Queen v Robert Kevin Freeman (No. 1)

[2001] ACTSC 85 (25 May 2001)

CATCHWORDS

BAIL - Bail Amendment Act 2001, s 9A - whether section applies to person who is charged with serious offence committed whilst a charge of another serious offence is pending but person is at large and not on bail in respect of pending charge - it does not - person entitled to presumption in favour of bail in respect of later charge.

Bail Act 1992, s 22

Bail Amendment Act 2001, s 9A

No SCC 211 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 25 May 2001

IN THE SUPREME COURT OF THE )

) No SCC 211 of 2000

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ROBERT KEVIN FREEMAN (No 1)

ORDER

Judge: Miles CJ

Date: 25 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Bail be refused.

1. This is an application for bail by Mr Robert Kevin Freeman, made by notice of motion dated 23 May 2001 and supported by his affidavit of the same day. The case is an illustration of how careful judicial officers and legal practitioners need to be in matters of bail, particularly as the law relating to bail becomes increasingly complex.

2. The applicant appeared for himself and was unaware that yesterday the Bail Amendment Act 2001 (the Bail Amendment Act) appears to have come into force. I say "appears" because, although a copy of the Act became available in the ordinary way, that is by way of government printers copy being available for purchase at the ACT Government Shopfront, and no doubt in other ways, the Gazette notice notifying the commencement dated 18 May 2001 was not published until after the Court business finished yesterday, and it did not become available in the ordinary way until quite late in the day. The result of all this is that it was not certain that the new law was in force until many hours after it actually came into force.

3. The Bail Amendment Act provides for a new s 9A, which for present purposes is as follows:

"Bail for serious offence committed while on bail for another serious offence

1. This section applies if -

(a) a person is accused of an offence punishable by imprisonment for 5 years or more (a serious offence); and

(b) the person is alleged to have committed the offence while on bail for another serious offence (or a number of offences including a serious offence).

2. A court or an authorised officer must not grant bail to the accused person unless satisfied that special or exceptional circumstances exist justifying the grant of bail."

4. The initial approach taken by Ms Cronan, who appeared for the Director of Public Prosecutions, to oppose the application was that s 9A should be held to apply because Mr Freeman is accused of burglary alleged to have been committed whilst on bail. Burglary is a serious offence, being punishable by imprisonment for 14 years.

5. It was also alleged that he committed an earlier offence of burglary on 28 February 2001 and in respect of which Crispin J had granted bail on 20 April 2001. The record indicates that on 20 April his Honour did grant bail and that Mr Freeman accordingly entered into a bail recognizance to appear in the Magistrates Court at 10 am on 8 May 2001 and to comply with certain conditions, including reporting to the police station.

6. In his application, Mr Freeman had given evidence that he did appear in the Magistrates Court as he was bound, and that on that date the Magistrate dealt with a number of charges apart from the burglary on 28 February and in respect of which Crispin J had granted bail.

7. These other charges included a charge of driving under the influence, as I understand it. At the end of the hearing on 8 May 2001 the Magistrate stated that bail was not required. That statement was made apparently in a general way. No precise reference was made to the particular charges which remained outstanding at that stage.

8. In particular, nothing was said about the charges in respect of which Crispin J had granted bail, nor that that bail expired when Mr Freeman answered his bail at 10 o'clock earlier on the same day. Nothing was done to continue the bail that had previously been entered into under par 2 of the bail undertaking, and nothing was done or said to indicate that bail was extended pursuant to par 7 of the previous bail undertaking.

9. At that stage Mr Freeman said that, being unsure of the position, he attended the bail room of the Magistrates Court, spoke to his probation officer and went to the Woden Police Station, but was told on every occasion that bail was no longer required.

10. At the hearing before me the Director was in no position to contradict Mr Freeman's evidence, and I am not prepared to reject it as inherently unlikely. It follows that it has not been shown that Mr Freeman was on bail for another serious offence when he is alleged to have committed burglary on 18 May 2001. Section 9A therefore does not apply, and the presumption in favour of bail continues despite his conviction on 22 May last before the Magistrate.

11. The Magistrate has remanded him for sentence in relation to that conviction to 5 June 2001 and has refused bail. I leave aside the difficult question whether what is before me is an application for bail or a review of a bail decision by another judicial officer. According to the provisions of the Bail Act 1992 I apply the ordinary criteria under s 22. It is not necessary to set out everything contained in that section.

12. On those statutory criteria the two most important issues for the present purposes, in my opinion, are the likelihood of Mr Freeman answering bail in the forthcoming hearing before the Magistrate. In that respect he has strong ties in the area, and the other circumstances mean that that issue has to be decided in his favour.

13. The other issue, however, is the likelihood of further offences being committed if bail is granted. I am satisfied that there is such a likelihood. The risk of the commission of further offences if on bail is, in my view, almost overwhelming, and on any view is so great that the other factors which lead to a favouring of a grant of bail, including the presumption in favour of bail, are displaced. The application therefore is dismissed and bail is refused.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles

Associate:

Date: 25 May 2001

Counsel for the Prosecution: Ms S Cronan

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Accused in person

Date of hearing: 25 May 2001

Date of judgment: 25 May 2001