In the matter of an application for bail by Day [2008] ACTSC 121 (10 November 2008)

Last Updated: 23 December 2008

IN THE MATTER OF AN APPLICATION FOR BAIL BY BENJAMIN PAUL DAY

[2008] ACTSC 121 (10 November 2008)

CRIMINAL LAW – Jurisdiction, practice and procedure – Bail – Bail Act 1992 (ACT) s 43 review – Grounds for granting or refusing – desirability of properly prepared applications – duty of practitioners.

Bail Act 1992 (ACT), ss 9B, 43

R v Fraser and Jacobs (1892) 13 LR(NSW) L 150

In the matter of an application for bail by Roland Chauveau (ACTSC, SCC 241 of 2008, 1 July 2008, unreported)

In the matter of an application for leave to appeal by Collins [2003] ACTCA 17

EX TEMPORE JUDGMENT

No. SCC 284 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 10 November 2008

IN THE SUPREME COURT OF THE )

) No. SCC 284 of 2008

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION FOR BAIL

BY

BENJAMIN PAUL DAY

ORDER

Judge: Refshauge J

Date: 10 November 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The application for bail is dismissed.

1. The applicant, Mr Benjamin Paul Day, has been charged with aggravated robbery. He was arrested on 19 July 2008 and has been in custody since then. For the fifth time he has applied for bail in this court. It is this fifth application that is before me for determination.

The facts

2. A statement of the facts alleged against Mr Day to support the change has been tendered in previous bail applications, including an earlier application before me. Although I did not expressly confirm with counsel, Mr S Stubbs for the applicant and Mr S Drumgold for the prosecution, that I should do so, I have relied on that statement, particularly as both counsel proceeded in their submissions on the clear basis that I was well aware of the facts alleged on which the charges were based.
3. In summary the alleged facts are as follows. The business known as Campbells Cash and Carry located at 6 Hume Place Griffith in the Australian Capital Territory traded on Saturday 19 July 2008 from 7 am to 11 am. Mr Day was an employee of that business and one of the four employees working on that day.
3. At 11.45 am the store was closed and the public entrance and exit had been locked. Shortly after that time, variously put between 11.50 am and 12.15 pm, two males entered the premises brandishing large knives. The four employees were detained in the office of the premises and their hands tied behind their backs.
4. The intruders demanded, and were given, the phones, wallets and keys of the staff save for those of Mr Day who claimed that he did not have his keys or wallet on him. Two of the staff also gave bank and pin numbers upon demand because they said they feared being stabbed. In fact Mr Day had hidden his wallet so carefully that it was not even discovered by a police pat down search later at the watch-house, but subsequently surrendered by him to police.
5. The intruders further threatened the staff saying, “Don’t go to the cops. We have your addresses and we will hurt your families.”
6. Mr Day was shortly after led out of the office where the intruders untied him and had him unlock the large roller door to the despatch area, leave the building and open a gate to the driveway about 20 metres away.
7. He was then directed to a metal securable cage, called the smoke cage, containing a large quantity of cigarettes, and was required to drive the forklift to uplift a pallet of cigarettes which had been removed from the cage. He was then required to drive the forklift with the pallet of cigarettes to the despatch area where a white van had been reversed into the area. Police suspected Mr Day in fact had moved the van into the area and stated that this was consistent with various observations or lack of them by the other staff members.
8. Mr Day apparently made three trips with the forklift and the cigarettes were loaded into the van. The intruders took some bottles of whisky from a cabinet adjacent to the smoke cage. Mr Day was then tied up again.
9. The four staff members, including Mr Day, were then taken to the smoke cage and locked in. The intruders threatened them saying, “Don’t call the cops or no-one. We’ll send someone in two hours. Think of your families. We know where you live. We aren’t the only two in our circle.” Similar threats had been made during the robbery. The intruders then left.
10. The staff managed to get free from their bonds. Although the landline phone in the smoke cage had been smashed, one of the staff attempted to fix it and it was repaired sufficiently to enable an emergency 000 call to be made. ACT Fire Brigade and ACT Police attended and the staff were released.
11. The total property stolen was later found to be valued at approximately $135,000. It was, as can be seen, a major robbery committed with dangerous weapons and which put the staff in fear for themselves and their families.

The case against Mr Day

12. Mr Day had booked into the Kingston Hotel on 16 July 2008. When doing so he advised that he would be the only occupant of the room. He paid cash for the booking.
13. On 19 July 2008 a staff member of the Kingston Hotel noticed a male, suspected by police of being one of the robbers, in a car park adjacent to the hotel.
14. The person dumped some items in a garbage hopper and then was seen standing next to a van that appears to have been stolen the day before from the Civic Pool car park, Constitution Avenue, Reid.
15. Another person, suspected by police of being the other robber, was seen driving a white Econovan in the car park of the alleyway at the rear of the hotel.
16. The staff member noted the registration number of the van. It later became clear it had been stolen from the car park at the Target building in the Canberra Centre, off Ainslie Avenue, Canberra City, the previous day.
17. Later that morning, hotel staff saw these two persons upstairs in the hotel outside the room occupied by Mr Day, one bending over a green plastic Makita drill box and the other walking into Mr Day’s room. They later left the premises and hotel staff, concerned about what they had been doing, went to the room and after knocking without response, entered and found three mattresses which appeared to have been used for sleeping, three pairs of shoes and a number of bags.
18. One of the staff also returned to the garbage hopper and found in it a sports bag containing personal items, later identified as belonging to the owner of the stolen Ford Econovan.
19. When interviewed by police Mr Day initially denied that anybody was staying with him at the Kingston Hotel, but later stated he “picked up one night”. He later acknowledged there were two males, but refused to provide their details and asked for a lawyer.
20. The police then searched the room of the Kingston Hotel under the authority of a search warrant. They located a map of the Campbells Cash and Carry premises with notations, including the location of surveillance cameras. Marked on the map were terms such as “the smoke cage” and “dispatch” used by Mr Day in his interview.
21. Police also located a Gregory’s street map book with a page marked with a Canberra Centre parking card. The page was that on which the map included the location of Campbells Cash and Carry. The card had a location date and time consistent with the time of the theft of the Ford Econovan.
22. On 21 July 2008 Dusan Pavicevic and Prasatphone Phimphisane were arrested in Canberra.
23. Mr Pavicevic was in possession of a mobile phone which had been contacted by Mr Day six times between 10.43 am and 11.47 am on the day of the robbery, the last one being a few minutes before the robbery.
24. There was also a photograph on the phone of a person wearing a black hooded top and bandana, consistent with the description of one of the robbers. Police also seized two black long-sleeved hooded shirts, two pairs of dark-coloured pants and two black

beanies brought into the premises by Mr Pavicevic and Mr Phimphisane, and consistent with the clothes that the staff at Campbells Cash and Carry had described the robbers as having worn.

25. Mr Pavicevic denied involvement in the robbery and stated he was at Sunnybrook Hotel near Cabramatta on the Hume Highway at the time. Police went to that hotel and located in the room occupied by Mr Pavicevic a blue rectangular petty cash tin believed to have been stolen in the robbery, two pairs of sunglasses and two pairs of black steel-capped boots. Parked outside the hotel was the Ford Econovan referred to earlier.
26. Following investigation of Mr Pavicevic’s phone a call was noted to Kennards Storage at Campbelltown. Under warrant, police searched the unit that had been leased by Mr Pavicevic who had provided photographic identification and a proof of age card. That card was found in Mr Pavicevic’s possession when he was arrested.
27. In the unit, police located 48 large cartons of cigarettes of the same brand as those stolen from Campbells Cash and Carry with labels stating “Campbells C and C Griffith, Hume Place, Griffith” which was some but not all of the cigarettes stolen from the premises.
28. Fingerprints of Mr Pavicevic and Mr Phimphisane were found on items on Mr Day’s room at Kingston Hotel and in the stolen vehicle beside which one of them had been standing in the car park adjacent to Kingston Hotel.
29. In addition to this Mr Day tendered on his hearing a letter from Mr Pavicevic. It stated:

My name is Dusan Pavicevic. I am currently remanded in custody at Symonston Temporary Remand Centre.

I wish to inform you that I convinced Ben Day to draw me a map of Campbells Cash and Carry when he was affected by drugs and alcohol. I told him that the use of this map was to do a break and enter. At no stage did I inform Ben that it was for the use of an armed robbery as I know Ben would not have agreed to this.

I sincerely apologise for misleading Ben Day and putting the staff at Campbells Cash and Carry and Ben’s family through a traumatic time.

In my view the case against Mr Day is a strong one.

The Bail Applications

31. Mr Day first appeared in court on 21 July 2008. Ms K. Fryar, Magistrate, refused bail because Mr Day had no ties to the Territory, there was a likelihood of Mr Day interfering with evidence or otherwise obstructing the course of justice, especially as Messrs Pavicevic and Phimphisane had not then been arrested, and the other staff had expressed fears for themselves and their families.
32. On 22 July 2008, Mr Day applied for a review of that decision and I heard that application on 25 July 2008. In the application Mr Day noted that his “partner” was willing to pledge $1,500 as a surety and that he had never failed to appear. He also appeared to assert that detention was unfair as he was “a victim”: “I was tied up, had a knife to my throat and told my family would be hurt if I did not cooperate.” I dismissed the application.
33. On 28 July 2008 a further application was made based on an alleged change of circumstance which was that “More money raised for asurety [sic] and I have more family and friends willing to go asurety [sic] in a supervisory roll [sic].”
34. The application initially came before me, but I felt it fair that another judge hear the application and referred it to Gray J.
35. His Honour heard evidence from Constable Bradley McEwan, the police officer who corroborates the informant, and from a friend of Mr Day, a Ms Kate Louise Gibbs.
36. His Honour noted that the co-accused were then in custody, there was a surety available and some but not all of the stolen property had been recovered.
37. On 1 August 2008 his Honour refused the application, being unconvinced that there was a relevant change in circumstance and being concerned about the likelihood of interference with witnesses and the seriousness of the offence.
38. On 26 August 2008 Mr Day applied for bail for one day so that he could attend a dental appointment. ACT Corrective Services arranged for Mr Day to see a dentist within a few days, and I dismissed the application.
39. On 12 September 2008 Mr Day made a further application for bail. His grounds were that the case had been further adjourned for four weeks and the brief of evidence had not been provided to him. The application came before Penfold J on 19 September 2008. It was then adjourned to 10 October 2008.
40. On that day the form of surety was submitted as a motor vehicle owned by Ms Gibbs. Ms Gibbs also wrote a letter to the court which was tendered. She noted that Mr Day had a job he could commence if released and that her studies required her to be away from home, leaving her with difficulties in having her four-year-old daughter cared for and which difficulties Mr Day would, if released, be able to resolve. Her Honour permitted the application to be withdrawn. It appeared she did so after expressing the view that there had not been a significant change in circumstances on the evidence as tendered.
41. On 3 November 2008 this application was made. Mr Stubbs submitted that Penfold J had been moved by the fact that a car was the only surety sum, not really a practicable option, and that the job offer was merely an assertion in Ms Gibb’s letter. To meet these, he tendered a letter from Traffic Technologies Limited. The letter dated 3 November 2008 stated:

Benjamin Day was employed at Traffic Technologies Traffic Management Division Pty Ltd as a casual traffic controller since 3 March 2008.

In this time Ben was considered to be a very reliable and diligent employee up until his unavailability in April 2008 due to current circumstances.

We have been requested by Ben’s partner at the request of his solicitors to advise the courts whether we would consider re-employing Ben.

After discussion with the Queanbeyan Depot supervisor, Joanne McDermott, we have agreed to assist Ben and could offer him, on his availability, his position of casual traffic controller at the Queanbeyan Depot.

Stipulations would be in place for Ben to attend any shifts required of him, and if he is unavailable for these shifts he would be required to notify Joanne immediately of any reasons for absences.

If Ben is unable to abide by these stipulations then I would be contacting his solicitor, Stephen Stubbs, on [a telephone number set out] to notify him of this.

42. He also tendered an original letter from Ms Gibbs. It appears to be identical to the letter tendered to Penfold J, although it does have attached to it the clinical placement schedule for Ms Gibbs and a copy of her student card. A copy of the letter from Mr Pavicevic, quoted above, was also tendered. Mr Stubbs also stated that a cash amount of $2,000 could be lodged with the court as a surety sum.

Grounds Justifying a Review

43. As so often happens, Mr Day prepared and lodged the application himself. He had, however, been represented by Mr Stubbs before Gray and Penfold JJ and also on this application. That he prepared it himself meant that the paperwork left much to be desired.
44. It was, for example, unclear what the statutory basis for the application was and while it referred to “a significant change of circumstances and evidence, letter of employment” these were also not particularised. No documents, such as were tendered at the hearing, were attached to the supporting affidavit as would be expected.
45. Where a practitioner is to appear on an application it is highly undesirable for the practitioner to let the detained person prepare the application by himself or herself. The court is rarely assisted very much by such applications and the brief information in accompanying affidavits. Where practitioners complete the forms, they are usually really helpful for the court to identify the issues and the relevant material in support. They also give the prosecution proper notice, to which it is clearly entitled, as to the matters it may need to be prepared to meet.
46. In the absence of any statements in the papers and in the submissions of Mr Stubbs, I have assumed that this is an application to review the decision of Gray J on 1 August 2008. Nevertheless, it does appear that the hearing before Penfold J is not irrelevant.

47. My jurisdiction is regulated by s 43 of the Bail Act 1992 (ACT) which provides:

43 Power of Supreme Court to Review.

1. The Supreme Court may, on application under this division, review any decision of an authorised officer of the Magistrates Court or the Supreme Court (however constituted) in relation to bail.

2. However the Supreme Court may review the decision only if the applicant for review is based on:

(a) a significant change in circumstances relevant to the granting of bail; or

(b) the availability of fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application in relation to bail.

3. The power of the Supreme Court to review a decision under this section may be exercised whether or not any power to review the decision under s 38 or s 42 has been exercised or has been sought to be exercised.

48. It will be seen that the new facts or information have to be such as was “unavailable on the most recent application in relation to bail”. That application must be the one before Penfold J, even though, as it was withdrawn, I am prepared to say that the decision sought to be reviewed can only be that of Gray J. It is relevantly the operative decision.
49. The first question then is whether the pre-conditions under s 43 of the Bail Act (1992) have been met. Three matters were put forward; the availability of a cash surety of $2,000; the clear offer of employment as in the tendered letter; and the letter of attempted exculpation from Mr Pavicevic.
50. I am not satisfied that the surety is in the circumstances a “significant” change in circumstances. A surety had been proffered in each application since that before Gray J. That it was now a cash sum offered is a change but not of such significance in all the circumstances as to justify me embarking on a review.
51. The offer of a job is in a similar situation. While the evidence is clearer than apparently it was before Penfold J, the fact is that the availability of a job was then asserted as a ground for the grant of bail. This may seem hard but it reinforces the legislative position that has been taken, namely that the pre-Bail Act position no longer pertains: “[a]n applicant can no longer make an unlimited number of applications going from judge to judge until bail is granted.” R v Fraser and Jacobs (1892) 13 LR(NSW) L 150 at 153.
52. Now, s 43 of the Bail Act 1992 (ACT) imposes great limitations on such a process. Hence, it becomes incumbent upon legal practitioners who act for applicants to make sure that each application, which after all involves liberty of the subject, is made as competently, fully and effectively as possible with the best evidence available.
53. Where, as with Mr Day, the likely period of custody on remand is not going to be short, an adjournment, sufficient to ensure that the best evidence is adduced and a fully prepared application is made, will be fully justified and unlikely to prejudice the applicant substantially while perhaps avoiding the likelihood that a subsequent application for bail will then almost inevitably fail because of the limitations imposed by s 43 of the Bail Act 1992 (ACT).
54. Finally, however, the letter of Mr Pavicevic does seem to me to be a significant change in circumstances that is relevant to the grant of bail, and is new information, though I am not sure that it is of material significance to the granting of bail. Accordingly, with some hesitation, I am prepared to accept that the threshold under the Act has been met and I can consider whether Mr Day should be granted bail.

The Grounds for the Grant of Bail

55. Mr Stubbs submitted that bail should be granted because

(a) There was a surety available, Ms Gibbs, who could deposit up to $2,000 in cash;

(b) Mr Day had a job that he could immediately commence and which would not involve him entering the Territory;

(c) A condition could be imposed prohibiting him from entering the Territory so as to maximise protection of witnesses, though one was said by the informant to live in New South Wales;

(d) Mr Day had never failed to appear in answer to bail before, even when he was on bail after being charged with murder, a charge later withdrawn;

(e) Ms Gibbs was able to supply him with accommodation and he would have access to, and give her great assistance in caring for, her 4-year-old child, who, though not his biological child, regarded him as in a parental role; and

(f) Mr Day would not be a danger to the community.

56. Against this, Mr Drumgold who pointed to:

(a) The serious nature of the charge;

(b) The strength of the prosecution case;

(c) The long and significant criminal history of Mr Day;

(d) The expressed fears of the staff members whose families had been threatened a number of times during the course of the robbery.

57. In relation to the letter from Mr Pavicevic, Mr Drumgold invited me to infer that it had been created as a result of pressure placed on Mr Pavicevic by Mr Day. Mr Drumgold pointed out that as recently as 30 October 2008, at the most recent case management hearing, Mr Pavicevic had denied the charges laid against him, yet the letter was all but an admission of them. The letter, in which he had all but confessed to committing the offence, had been written a day or so after that hearing.
58. Mr Drumgold further pointed out that Mr Day had, prior to the letter being written, made a formal request to be moved into the same yard as Mr Pavicevic and that request had been granted.
59. While I would find it difficult to make a finding that Mr Day has improperly pressured Mr Pavicevic into writing the letter, it certainly does nothing to allay the concerns that have been expressed about the possibility of interference with witnesses.
60. A condition that Mr Day not enter the Territory goes some way to meeting that concern, but I note that one witness lives in New South Wales, and in any event I have little information about the witnesses and their families.
61. I have, as I am obliged to do, considered the submission by Mr Drumgold that the witnesses are quite frightened of Mr Day and fear for their safety if he is granted bail: s 23 of the Bail Act 1992 (ACT). I am not satisfied that such a condition, as proposed, would meet the risk of interference with witnesses.
62. Mr Stubbs has made what he acknowledges is a bold and perhaps rather radical submission, namely that Mr Day was granted bail after being charged with murder in

New South Wales in 2003 and did not breach that bail in any way, despite the seriousness of the charge.

63. Mr Stubbs submitted that he was on bail for that charge for 12 months before it was withdrawn, but it appears from the criminal record that he was charged on 18 July 2003 and the charge was withdrawn on 19 November 2003. Nevertheless there was no contradiction to the assertion by Mr Stubbs that Mr Day did not breach that bail.
64. It is to be noted, however, that, since that time, he has continued to offend, committing offences of personal violence and dishonesty as well as serious traffic offences.
65. He has also, as recently as June 2007, been charged with a drug offence, though he was released with a no conviction order and no penalty on that charge. He was, however, imprisoned on the same day for 12 months with a non-parole period of six months for another personal violence offence.
66. The offence for which he now stands charged comes less than a month after he completed his parole following that period of imprisonment. Of concern, too, is a record of apprehended violence orders made against him including as recently as March 2008. I counted seven of them on his record.
67. Finally I note that Mr Day has on his criminal history a series of breaches of court orders. These includes breaches of community service orders, though now relatively old, a breach of recognizance, also relatively old, a breach of an apprehended violence order and a breach of bail.
68. Though not determinative by any means, these, and his extensive criminal history, are not a good omen for compliance with court orders or strict bail conditions.
69. As I noted, Ms Gibbs gave evidence. She indicated that she and Mr Day were currently friends though over the four years of their “relationship” the nature of it had clearly varied. Her daughter regards Mr Day as her father.
70. Ms Gibbs and Mr Day were presently not in an intimate relationship, although she was open to that developing. Their relationship had not been stable. This appears to have been caused by Mr Day’s misuse of alcohol.
71. She had most recently required him to move out of her house because of problems caused by this abuse about three weeks prior to the robbery at Campbells Cash and Carry. I was not informed whether the apprehended violence orders of March 2008 involved her.
72. Evidence was also given of telephone calls made by Mr Day from the remand centre to another woman as recently as September in which Mr Day has expressed strong affection for this woman and that his relationship with Ms Gibbs was over. Ms Gibbs has spoken to that woman and knew of the telephone calls.
73. In my view, the relationship with Ms Gibbs is too volatile and uncertain for it to provide a basis on which I could be satisfied that Mr Day was likely to find a sufficiently structured and supportive environment to justify a grant of bail in the circumstances. The risk of problems leading to him offending, including by assaulting her, which he has done in the past, or absconding when problems arise, is too great.
74. Mr Stubbs relied heavily on a bail decision by Penfold J in In the matter of an application for bail by Roland Chauveau (ACTSC, SCC 241 of 2008, 1 July 2008, unreported). No formal reasons have been delivered.
75. In any event, it is always hard to compare bail decisions, particularly where, as in that case, no formal reasons were given. I have, however, read the transcript of the hearing, the statement of alleged facts, and the applicant’s prior criminal record. I have also had regard to the conditions under which the bail was granted.
76. In my view the circumstances are quite different. While it was a serious aggravated robbery where a baseball bat and a gun were the weapons, and the amount involved was similar, namely $125,598.70 in cash stolen, there were significant differences.
77. Mr Day’s prior criminal record is extensive, serious and includes periods of imprisonment. Mr Chauveau had been convicted of three traffic matters.
78. Mr Chauveau had a relatively stable home situation with his mother, which is much more favourable than the problematic home situation of Mr Day.
79. The case against Mr Day is, though circumstantial, a strong one showing a direct relationship with the robbers in connection with the robbery, whereas the connection of Mr Chauveau with the robbery was much more tenuous. Indeed, the letter from Mr Pavicevic is all but an admission to Mr Day’s involvement with the planning of the robbery.
80. There are other differences in evidence. For example Mr Chauveau tendered four substantial character references attesting that it was out of character for him to commit such an offence, had he done so. He also had an order of the Federal Magistrates Court of Australia setting out custody arrangements, including substantial periods during which he was responsible for the care of his children.
81. While the decision on an application for bail always involves a degree of speculation as to the future conduct of the applicant, it is clear that this does not require that bail must be granted unless the prosecution can prove on the balance of probabilities that the applicant will act in a particular way.
82. As was said in In the matter of an application for leave to appeal by Collins (2003) ACTCA 17 at par 34.

It is sufficient for the Crown to demonstrate that in the circumstances of the case the need to protect the community outweighs the prima facie entitlement to bail provided by s 8.

Here of course there is the added circumstance that there is no presumption in favour of bail because of the nature of the offence (s 9B of the Bail Act 1992 (ACT)).

83. Having regard to the seriousness of the offence, the strength of the prosecution case, the risk that Mr Day may interfere with or intimidate witnesses, the likelihood that he may not answer his bail especially as his ties to this community are not strong, and the real risk that he may commit offences if released, I do not consider it is appropriate to grant bail to Mr Day and the application is dismissed.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: November 2008

Counsel for the Applicant: Mr S Stubbs

Solicitor for the Applicant: Diana Burns Solicitors

Counsel for the Defendant: Mr S Drumgold

Solicitor for the defendant: Director of Public Prosecutions (ACT)

Date of hearing: 7 November 2008

Date of judgment: 10 November 2008