R v Kristiansen [2008] ACTSC 83 (15 August 2008)

Last Updated: 15 September 2008

HUMAN RIGHTS

R v THOR KRISTIANSEN

[2008] ACTSC 83 (15 August 2008)

Criminal Code Act 1995 (Cth), s 149.1(1)

Bail Act 1992 (ACT) pt 6, ss 19, 57AA, 22, 23A

Crimes Act 1900 (ACT), ss 26, 27(3)(c)

Human Rights Act 2004 (ACT), ss 18, 30

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)

Bail Act 1982 (WA), Sch 1, s 14(2a)

Criminal Code 2002 (ACT), ss 308, 311, 312, 318

In the matter of an application for bail by Nuno Rodrigues [2008] ACTSC 50

Western Australia v Sturgeon [2005] WASC 256; (2005) 158 ACR 34

Mercanti v Western Australia [2005] WASCA 254

EX TEMPORE JUDGMENT

No. SCC 62 of 2008

SCC 93 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 15 August 2008

IN THE SUPREME COURT OF THE )

) No. SCC 62 of 2008

AUSTRALIAN CAPITAL TERRITORY ) SCC 93 of 2008

R

v

THOR KRISTIANSEN

ORDER

Judge: Refshauge J

Date: 15 August 2008

Place: Canberra

THE COURT ORDERS THAT:

1. Bail is refused and application be dismissed.

1. On 24 December 2007 the applicant, Mr Thor Kristiansen, appeared in the ACT Magistrates Court charged with aggravated burglary (s 312 of the Criminal Code 2002 (ACT)), four charges of intentionally and unlawfully using a rifle that was likely to endanger life (s 27(3)(c) Crimes Act 1900 (ACT)) and three charges of common assault (s 26 Crimes Act 1900 (ACT)). All these offences are alleged to have been committed on 6 December 2007.
2. The charges attract penalties of imprisonment being up to 20 years, 10 years and 2 years respectively. The applicant was also charged with three other summary offences arising out of the same events. In addition, when arrested, he is alleged to have resisted his arrest and was also charged with an offence under s 149.1(1) of the Criminal Code Act 1995 (Cth) with attracts a maximum penalty of two years imprisonment.
3. The applicant applied for bail. He was refused bail and remanded in custody. He has now, by application dated 1 April 2008, applied for a review of that decision under Pt 6 of the Bail Act 1992 (ACT). The events alleged by the prosecution leading to these charges were, if proved, very serious. The applicant is said to have pointed a rifle at the head of one of the complainants said, “You’re dead” and pulled the trigger several times though the rifle did not fire.
4. The applicant is said then to have pointed the rifle at the head of a female complainant telling her the safety catch was on and pulled the trigger. The applicant is said to have turned the rifle on the third complainant, another male, and pulled the trigger several times. Unsurprisingly, the complainants all said that they were worried the applicant would shoot them or were very scared.
5. A warrant was issued for the applicant’s arrest and when executed on 23 December 2007 he is said to have attempted to break free from the arresting officers, to have kicked out at them and to have refused to place his hands behind his back in order to be handcuffed.
6. Since the applicant was refused bail a number of things have happened which are relevant to this application. A further charge of common assault has been preferred arising out of the events of 6 December 2007. He has been charged with a number of offences alleged to have been committed between 6 and 23 December 2007. These include taking a motor vehicle without consent on 10 December 2007 (s 318 of the Criminal Code 2002 (ACT)), driving whilst disqualified on the same day (s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT)), burglary on 17 December 2007 (s 311 of the Criminal Code 2002 (ACT)) and theft on the same day (s 308 Criminal Code 2002 (ACT)). The applicant is also alleged to have breached a Community Service Order made by the Children’s Court on 19 January 2007.
7. The indictable offences arising out of the events alleged to have occurred on 6 December 2007 came before the Magistrates Court again on 21 February 2008 when the applicant was committed for trial to this court.
8. An application to sever the indictment has been listed for hearing on 22 September 2008 and a pre-arraignment conference listed for 30 September 2008 when a date for trial or trials is expected to be set. The applicant has pleaded guilty to the charges of resisting police, burglary, taking the motor vehicle without consent and theft. The applicant has been committed for sentence to this court on those charges. The applicant has also admitted breaching the Community Service Order and will be dealt with in the Children’s Court for that matter.
9. The charges of burglary and theft arise out of allegations that the applicant entered residential premises by forcing open a door and rifled through drawers in the kitchen

and bedroom and stole certain items including some cash and a television set and no doubt, worryingly to the female resident, a set of keys for the premises.

10. The charge of taking a motor vehicle without consent arises out of allegations that the applicant removed a red four door Ford Courier light truck from a shopping centre parking area damaging the ignition barrel, no doubt in order to take the vehicle, and a number of other parts of the vehicle.
11. An application for bail was made on 7 January 2008 and adjourned to 11 January 2008 and then adjourned generally, as his Honour Gray J was not satisfied that there was a change in circumstances.
12. The application does not seem to have been further heard. The present review application came before Gray J on 4 April 2008 and was adjourned to 11 April 2008. The application was based principally on the ground that the applicant’s father needed moral support in hospital and his grandfather needs the applicant’s help with his everyday life and is very sick.
13. His Honour further adjourned the application to permit the prosecution to seek information about the necessity for the applicant to care for his father. The matter came before Gray J again on 17 April 2008 and his Honour indicated that he would be assisted by information from ACT Corrective Services about the applicant’s attitude when under supervision.
14. On 1 May 2008 his Honour adjourned the matter generally with liberty to apply on the basis that further information was required about the need of the applicant to assist his father, whether a surety was available and his attitude to supervision. The matter appears, however, not to have been considered part heard and on 4 July 2008 came before Higgins CJ.
15. His Honour adjourned it on 7 July 2008 and on that day made an order permitting the applicant to be released from custody for one day to visit his father in The Canberra Hospital. He appears to have complied with the conditions under which that release on bail occurred.
16. On 25 July 2008 the applicant revived his application for bail. It came before me. I noted that the material required by Gray J had not been provided and adjourned the application. In the meantime, however, I made a similar order for day release as had been made by the Chief Justice. Again, the applicant appears to have complied with the conditions of his release.
17. Under the Bail Act 1992 (ACT) the legislature has given a certain primary responsibility of the Magistrates Court in the matter of granting bail. This comes about because although s 19(2) provides that there is no limit to the number of applications for bail that a person in custody may make, under s 19(5) a court may only consider a further application for bail by the accused person if

...

(a) the accused person was not represented by a lawyer at the hearing of his or her first application to a court for bail in relation to the offence with which the person is charged; or

(b) the accused person can show:

(i) that since the most recent application to a court for bail there has been a significant change in circumstances relevant to the granting of bail; or

(ii) that there is fresh evidence or information of material significance to the granting of bail to the person that was unavailable on the most recent application to a court for bail.

18. The Act has abolished the inherent jurisdiction of the Supreme Court to grant bail (s 57AA of the Bail Act 1992 (ACT)) and, so far as review is concerned, s 43 only

permits the Supreme Court to review a decision of the Magistrates Court in relation to bail if 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.

19. This can be challenging to the Supreme Court for it will rarely have a transcript of the bail application before the Magistrates Court and it can be difficult to ascertain the circumstances or evidence or information before that court to determine whether the circumstances have changed or the evidence or information is fresh.
20. Nevertheless, as I have noted before In the matter of an application for bail by Nuno Rodrigues [2008] ACTSC 50, this provision should be given a liberal interpretation because the Human Rights Act 2004 (ACT) requires ACT legislation, so far as it is possible to do so consistently with its purposes to be interpreted in a way that is compatible with human rights (s 30) and a right to liberty and not to be detained in custody as a general rule is one of those rights (s 18).
21. An issue has arisen in these proceedings about whether the terms, “relevant to the granting of bail” in s 43(2) of the Bail Act 1992 (ACT)), similar to s 19(5)(b), refers to a circumstance or fresh evidence or information that favours a grant of bail or whether such matters can be relied on even if they would ordinarily tend to justify refusal of bail.
22. The words themselves would appear to justify the former construction especially when the Act seems to use a more neutral expression, a decision ‘in relation to bail’,

when referring to the situation where bail may have been either granted or refused - see, for example, ss 41, 41A(1), 42(1) and indeed 43(1) of the Bail Act 1992.

23. Nevertheless, Pt 6 in which s 43(2) appears is the provision of the Act which gives power to both the accused person or the prosecution to apply for a review of bail: s 41. If the review power under s 43(2) was limited to circumstances where review is only possible where the changed circumstances or fresh information or evidence favour the grant of bail, it would seem that the prosecution could never, or hardly ever, seek a review of a bail decision.
24. This has, however, the odd result that an accused person could apply for a review of a bail decision based on a factor that would ordinarily favour the refusal of a grant of bail. This happened here where Mr Perkins, who appears for the applicant, submitted that the fact that the applicant had pleaded guilty to a number of charges that had been preferred against him while he was in custody was a change in circumstances.
25. While further charges would ordinarily favour a refusal of bail Mr Perkins ingeniously submitted that the entry of the pleas of guilty showed that the applicant was showing some maturity and, of course, the pleas would save the community the cost of a trial. These, he submitted, were factors relevant to a decision to the grant of bail. Section 43(2) seems to be a relatively original provision.
26. There are some similarities with cl 3A(2) of Pt C of Sch 1 of the Bail Act 1982 (WA) which provides:

Notwithstanding section 7(1), where an accused is refused bail under subclause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for that offence unless he satisfies the judicial officer who may order his detention that –

(a) new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused; or

(b) he failed to adequately present his case for bail on the occasion of that refusal.

27. This also is similar in terms to s 14(2a) of the same Act. In Western Australia v Sturgeon [2005] WASC 256; (2005) 158 ACR 34, EM Heenan J in granting an application for bail, considered that she could consider the application because of the fact that the jury of the first trial, prior to which bail had been refused, had been discharged as unable to reach a verdict and held that this was a change in circumstances.

28. Her Honour did hold, however, that she ultimately did not have to rely on this change in circumstances to provide power to consider the bail application - see at 38. This could, of course, be seen as a change in circumstances favouring the grant of bail. Indeed in Mercanti v Western Australia [2005] WASCA 254 McClure JA, with whom Pullin and Murray JJA agreed, did hold at [28]

The parties accepted that the new or changed facts or circumstances must be a material change in relevant facts or circumstances. In order to enliven jurisdiction the matters referred to in section 14(2a)(a) must be matters that would have been likely, if known to the judge who previously refused bail, to alter the balance in favour of the grant of bail: Musarri v The Queen [2001] WASC 200 at [10]- [12] per White AUJ.

29. This, of course, is on somewhat different legislation. I have been unable to find any relevant ACT decision. In my view, the change in circumstances or fresh evidence or information need not favour the grant of bail but full effect must be given to the words, “based on”, and so an accused person can only rely on such factors to grant entitlement to a review where they form a part of, and are relied on, in support of the application.

30. In this case, I formed the view that it was a very weak basis but in part because of the right to liberty have erred on the side of accepting jurisdiction not without considerable hesitation. Having accepted jurisdiction to review, the applicant must still show that, having regard to the factors set out in s 22 of the Act, he should be granted bail.
31. The applicant is 19 years old but in that time has managed to accumulate a distressing record of over 70 offences spanning four years although many are traffic offences. A number of them are serious. It is fair to note, however, that the most recent convictions were for offences committed in May 2007. Mr Perkins’ relied heavily on the claim for need for the applicant to assist his father and grandfather.
32. There was little evidence given about the applicant’s grandfather but I accept that he is quite ill. A medical certificate from Dr Robert Allen, dated 14 January 2008 was produced to Higgins CJ which stated that Dr Allen had consulted with Kevin Quinn, the applicant’s grandfather, “today” and “I confirm that he is being cared for by his grandson, Thor Kristiansen”.
33. The evidence is a little vague and must be, strictly speaking, incorrect, as on 14 January 2008 the applicant had been in custody for about three weeks. I note, however, that in a hearing before Higgins CJ the applicant did claim that his grandfather had difficulty with his everyday living and the applicant visited him on a daily basis to help him with his groceries and shopping.
34. The applicant’s father gave evidence. He indicated that he had had an operation on his right patella arising from an acute case of cellulitis. He sought the assistance of his son as he was to leave hospital prior to having to undergo a further operation later. He was, however, vague about the precise nature of the support required and not clear about his release from hospital.
35. Accordingly, I adjourned the hearing to obtain a medical report. On the adjourned hearing a letter was produced purporting to come from Damian Jiang, an orthopaedic resident medical officer, on letterhead purporting to come from Orthopaedic Surgery at The Canberra Hospital. Despite the letter not being signed, I admitted it into evidence.
36. The letter stated, in part, “[w]e are in the process of arranging housing for Mr Kristiansen that would enable him to have medical treatment safely in the community. Currently he is fully independent with the activities that are required of him in the hospital and frequently takes day leave for personal affairs. However, he may benefit from additional help at home”.
37. I also received a report from a probation and parole officer of ACT Corrective Services who stated, “Mr Kristiansen has been held in remand regarding the current offence since 24 December 2007. During that time he attended one Alcohol and Other Drug program session. His behaviour during this remand period has been average and included two ‘Disciplines’, the first for returning a urinalysis positive for cannabis and the second for abusing staff”.
38. Mr Hickey who appeared for the prosecution opposed the application. He relied on the risk of reoffending, a risk of absconding and a risk of interference with witnesses. He urged that the case against the applicant on the charges to which he had pleaded not guilty was a strong one. Although there was an issue of identification, the complainants said they knew the applicant. One of the complainants had known him for approximately nine years.
39. There was also a sample of DNA consistent with the applicant’s DNA found on an item in the room where the incident occurred. Mr Hickey pointed out that, if convicted, the applicant would be in breach of four suspended sentences rendering it very likely he would be imprisoned. Indeed, it appears to me that the pleas of guilty the applicant has already entered, would breach those suspended sentences, making him already liable to imprisonment.
40. Mr Hickey further relied on the applicant’s record, in particular, the fact that he had two previous convictions for failing to appear under a bail undertaking. He had breached recognizances on at least two occasions. He admitted breach of a Community Service Order and numerous convictions for offences of driving whilst disqualified showing a frank disregard for court orders.
41. The applicant’s record gives no confidence that he will not reoffend in at least some way and although bail conditions can prohibit activities such as driving he has shown no inclination to abide by court orders to this effect in the past.
42. Mr Hickey tendered the record of prior convictions of the applicant’s father although he had already admitted them in his oral evidence. It is a bad record, though with no offences of very significant seriousness. The last offence was committed in October 2003. I do not consider it affects the decision I have to make in any significant degree.
43. Mr Hickey submitted that the complainants would be worried were the applicant to be granted bail. He expressly disavowed that this was being submitted under s 23A of the Bail Act 1992 but that I could deduce that from the nature of the allegations. I do not consider this has much weight.
44. It is, however, a serious matter to deprive a young man of his liberty and it should be avoided if possible. The Bail Act 1992 (ACT) does, in s 22(3)(c) expressly permit me to have regard to the likely effect of refusal of bail on an applicant’s family or dependents. While the evidence about the dependence of his father on the applicant is somewhat vague and contradictory, it is nevertheless, likely that he would be able to provide valuable assistance to his father.
45. The evidence about his grandfather is little clearer, though he has been managing now for eight months and there was no evidence from him about the details of that situation.
46. I have carefully considered the matter. In my view the seriousness of the offences, the likelihood of a sentence of imprisonment for the offences he currently faces, the record of the applicant’s prior convictions, especially as evidence of his past failure to comply with court orders, his limited attempts while in custody to address his issues that have led to his criminality and the vagueness of the needs of his father and grandfather outweigh his right to liberty and the effect of his father and grandfather and he has slight signs of insight and maturity despite the fact that a surety was available.
47. I refuse to grant bail and dismiss the application.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 5 September 2008

Counsel for the defendant: Mr Darryl Perkins

Solicitor for the defendant: Perkins & Saunders

Counsel for the Crown: Mr Trent Hickey

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

Date of hearing: 11, 14 and 15 August 2008

Date of judgment: 15 August 2008