R v Freeman (No. 2) [2001] ACTSC 86 (13 August 2001)

Last Updated: 12 April 2002

The Queen v Robert Kevin Freeman (No. 2)

[2001] ACTSC 86 (13 August 2001)

CATCHWORDS

BAIL - committal proceedings on several charges - defendant pleads guilty to some charges - Magistrate remands in custody until committal proceedings on remaning chages are heard - interest of defendant in speedy resolution of charges to which he pleaded guilty especially where bail refused.

Bail Act 1992, s 9A, s 19, s 43

Magistrates Court Act 1930, s 70, s 90A

Dunstan v Director of Public Prosecutions (1999) FCA 921

No. SCC 211 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 13 August 2001

IN THE SUPREME COURT OF THE )

) No SCC 211 of 2000

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ROBERT KEVIN FREEMAN (No 2)

ORDER

Judge: Miles CJ

Date: 13 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The application made by notice of motion dated 23 July 2001 be dismissed.

2. Bail be refused.

1. This matter comes before the Court by way of notice of motion dated 23 July 2001 seeking an order that the applicant be admitted to bail. Bail applications should be simple, often they are not, and this one is not.

2. The first question, in accordance with the decision of the Federal Court in Dunstan v Director of Public Prosecutions (1999) FCA 921 is whether in substance the proceedings constitute an application for a grant of bail under s 19 of the Bail Act 1992 (the Bail Act) or an application for review of a bail decision under s 43 of the Bail Act and otherwise under Part 4 of the Bail Act.

3. The applicant, Mr Freeman, appears in person and, quite understandably, is not concerned about which section he uses as long as he gets bail. As I have already indicated in argument, it seems that in respect of some of the offences in respect of which the applicant seeks his freedom, the application is in substance an application for a grant of bail, and in respect of others, it is an application for a review of a previous bail decision.

4. Again, in accordance with the decision of the Federal Court in Dunstan, the case reflects the need for judges and magistrates, court officials, prosecuting officers, informants and defence lawyers, to keep in mind very carefully and to record accurately the charges in respect of which a bail decision is made.

5. This applicant is facing a multitude of charges. Details, I gather, appear on a document which was handed up and which will be Exhibit A in the present proceedings.

6. It was acknowledged that the document may not be accurate and it was amended by me according to information from the bar table given by Ms de Veau, for the Director of Public Prosecutions, supplemented by evidence from the appellant himself which I accept as given truthfully to the best of his knowledge.

7. The material before me does not permit of a conclusion that at the time of the alleged offences in respect of which the present application is made, the applicant was already on bail in respect of another serious offence or serious offences, hence s 9A of the Bail Act which provides in effect for a presumption against the grant of bail does not apply. The ordinary statutory presumption in favour of the granting of bail does apply.

8. Mr Freeman has made several previous applications for bail, the most recent of which in this Court was made by notice of motion dated 23 May 2001 in terms identical for practical purposes with the application made today. That application was dismissed on 25 May 2001 and the remarks I made at the time may be taken to be incorporated in these remarks.

9. Following that dismissal on 25 May, further charges for offences of burglary, theft and trespass alleged to have occurred on 13 May 2001 were laid against the applicant and he came before a magistrate in relation to those charges on 12 July 2001.

10. He pleaded or sought to plead guilty. It is not perfectly clear, but I assume that he tendered the plea and he was remanded to 5 September 2001 in custody. According to his evidence before me he was unrepresented before the Magistrate and, despite his application in person for bail, bail was refused.

11. In those circumstances it seems to me that he is entitled to make a further application for bail under s 19 of the Bail Act. There were further appearances in the Magistrates Court on 19 July 2001 and 1 August 2001. I am told that these were "14 day" remands under s 70 of the Magistrates Court Act 1930 (the Magistrates Court Act), although I note that that section provides for remands of up to 15 days, and no further charges were raised in any event on those dates nor were any changes in circumstances alleged.

12. I do not know whether the applicant applied for bail on those dates. It appears that he was, in relation to each appearance, again remanded in custody until 5 September 2001 on whatever charges were before the Magistrate on the respective occasions.

13. Apart from the fresh charges relating to the offences alleged to have occurred on 13 May 2001, and I think also on 16 and 18 May, there have been no changes in relevant circumstances since the last hearing in this Court on 25 May 2001.

14. The applicant himself said in evidence that his progress towards ridding himself of his drug dependence has continued and that, accordingly, there is little or no risk of his further offending if released on bail. Another aspect is that a cash surety, so he says, is now available.

15. However, I do not think that those circumstances either by themselves or taken as a whole provide a change in circumstances sufficient to provide cause for overturning the decision given on 25 May 2001. I am still of the view that despite the presumption in favour of the grant of bail, the risk of the applicant committing further offences if on bail and any other aspect which favours the grant of bail, including the presumption, are displaced.

16. This conclusion, I think, should be regarded as effective regardless of whether the proceedings before me constitute an application for review or an application for bail or a combination of both.

17. I think it should be said, however, for the record, that, on the material before me, I regard the proceedings as an application for bail in respect of charge cases 01/6128-30, 01/5797/9 and 01/4817-8, and either a fresh application or alternatively an application for review of a bail decision in respect of all the other matters which appear in Exhibit A.

18. There is one remaining matter which calls for comment. I am told that the applicant has pleaded guilty, or has sought to plead guilty to a considerable number of offences for which he must, in relation to some, or might in relation to others, be committed for sentence in this Court. However, the Magistrate, or perhaps more than one Magistrate, has taken the view that there should be no committal for sentence until conclusion of the committal proceedings on the charge or charges in respect of which the applicant intends to defend and enter a plea of not guilty.

19. It appears likely to me that the defended proceedings will still take some considerable time. I may not understand the position completely, or I may not have been given full information, but it seems that the applicant may well be entitled to be committed to the Supreme Court for sentence forthwith in respect of at least some of these charges to which he has pleaded guilty in the Magistrates Court.

20. A magistrate, under s 90A of the Magistrates Court Act, may accept or reject a plea of guilty to a charge of an indictable offence, but ordinarily one would not expect the defendant to be remanded for a lengthy period after the plea has been taken for the decision to be made whether or not to commit to the Supreme Court for sentence.

21. I commend that aspect of the case to the attention of the Director of Public Prosecutions and of the Magistrate when the applicant is next before the Magistrates Court. Otherwise I simply order that the application made by notice of motion dated 23 July 2001 be dismissed and bail be refused.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 13 August 2001

Counsel for the Prosecution: Ms P de Veau

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Accused in person

Date of hearing: 10 August 2001

Date of judgment: 13 August 2001