In the matter of an application for bail by Skeen [2009] ACTSC 30 (13 March 2009)

Last Updated: 19 May 2009

IN THE MATTER OF AN APPLICATION FOR BAIL BY FRANK DANIEL SKEEN

[2009] ACTSC 30 (13 March 2009)

BAIL – special and exceptional circumstances – Bail Act 1992 (ACT), ss 9D, 43.

PRACTICE AND PROCEDURE – affidavits in support of bail applications – need for care by lawyers in making affidavits.

JUDGMENTS AND ORDERS – power to re-open.

Crimes Act 1900 (ACT), ss 24, 26

Bail Act 1992 (ACT), ss 9D, 9G, 19(6), 23A, 43, 43(2)(b)

Court Procedures Rules 2006 (ACT), rr 4734, r 4735

Criminal Code 2002 (ACT), s 308

In the matter of an application for bail by Benjamin Paul Day [2008] ACTSC 121

Pittorino v Meynert (as Executrix of the Wills of Guissepe Pittorino (dec) and Guiseppina Pittorino (dec) & Ors [2001] WASC 245

Jovanovic v R [1999] FCA 1008; (1999) 92 FCR 580

Re Sinanovic’s Application [2001] HCA 40; (2001) 180 ALR 448

Dunstan v DPP [1999] FCA 921; (1999) 107 A Crim R 358;

Achanfuo-Yeboah v The Queen [2001] FCA 1152; (2001) 115 FCR 8

De L v Director General, NSW of Department of Community Services & Anor [No 2] [1997] HCA 14; (1997) 190 CLR 207

Hammer v Sunman [1999] FCA 1570

Autodesk Inc & Anor v Dyason & Ors [No 2] [1993] HCA 6; (1993) 176 CLR 300

Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38

In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145

Tieleman v the Queen [2004] WASCA 285; (2004) 149 A Crim R 303

R v Chaveau (unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 June, 2008)

Beljajev v DPP (1998) 101 A Crim R 362

Re Application for Bail for Zoudi (2006) 168 A Crim R 444

EX TEMPORE JUDGMENT

No. SCC 355 of 2007

Judge: Refshauge J

Supreme Court of the ACT

Date: 13 March 2009

IN THE SUPREME COURT OF THE )

) No. SCC 355 of 2007

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION FOR BAIL BY FRANK DANIEL SKEEN

ORDER

Judge: Refshauge J

Date: 13 March, 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The application for bail be dismissed.

1. Frank Daniel Skeen, the applicant, has applied to me to review my decision of 13 February 2009. It is a somewhat unusual application. To understand it, the full background is probably necessary, or at least desirable.

Factual background

2. On 15 October 2007, Mr Skeen was committed for trial on two counts of assaulting Luke Credlin and one count of theft of a white Nissan motor vehicle. He was granted bail. In the usual way these proceedings came before the Supreme Court on 25 October 2007 for initial directions and the usual orders were made about preparing and filing a draft indictment and case statement and the completion of the questionnaire, which under r 4734 of the Court Procedures Rules 2006 (ACT) the court may require the Director of Public Prosecutions and the accused person to complete.
3. As at today, no current trial date has been set but a pre-arraignment conference, r 4735, has been set for 9.00 a.m. on 31 March 2009. The trial had been set for 25 August 2008, but was vacated on 12 August 2008 because of difficulties with legal representation.
4. It appears from the court file that there were subsequent delays in listing these proceedings for a trial and these difficulties were in Mr Skeen’s solicitors obtaining instructions from him. This is, however, of no significance to this application.
5. On 22 January 2009, however, Mr Skeen was arrested and further charged with assaulting Louis Darren Skeen and assaulting Ellie Maree Trewartha and occasioning her actual bodily harm. Ms Trewartha was described in the police statement of facts as Mr Skeen’s “de facto partner of three years and the mother of the child Louis Skeen, Mr Skeen’s son”.

6. The charges of assault attract a maximum penalty of two years imprisonment but the charge of theft attracts a maximum penalty of ten years imprisonment or 1000 penalty units or both. The charge of assault occasioning actual bodily harm attracts a maximum penalty of five years imprisonment - see ss 24 and 26 of the Crimes Act 1900 (ACT) and s 308 of the Criminal Code 2002 (ACT).
7. Both the later offences are, therefore, “serious offences” within the meaning of s 9D of the Bail Act 1992 (ACT) (the Bail Act). I shall deal with this more fully later.
8. On his arrest, Mr Skeen appeared before Magistrate Campbell on that day. I do not have a transcript of those proceedings.
9. That can often be a problem for this court on bail review applications, because what takes place before the Magistrates Court can have a significant impact on the proceedings for review. Her Honour refused Mr Skeen bail. It appears that this was because of the provisions of s 9D of the Bail Act.
10. I do not have details of the specific reasons. Sometimes the court is provided with a copy of the bench sheets from the Magistrates Court on which the Magistrate very helpfully notes in a summary form the issues canvassed and the reasons for decision. This is usually of considerable assistance to this court, especially where the applicant is not legally represented. Regrettably there were no bench sheets with such notes provided to me in this case.
11. In any event, Mr Skeen applied to this court on 23 January 2009 for a review of the decision. This application came before Master Harper on 29 January 2009 and was adjourned so that Mr Skeen could obtain legal advice. The application was next before Gray J on 6 February 2009 when, although Mr Skeen was then legally represented, his Honour further adjourned the application to enable proper material to be provided to support this application – see: In the matter of an application for bail by Benjamin Paul Day [2008] ACTSC 121.
12. The application then became before me on 13 February 2009. On this occasion, I had a fresh application. That is not necessary and I did not consider that it commenced a different proceeding.
13. I also had an affidavit affirmed by Stephen Raymond Stubbs setting out certain matters in support of the application. Mr Stubbs is the solicitor for Mr Skeen. There is no inherent impropriety in the lawyer for an applicant for bail making an affidavit in support of such an application. It would be rare that it would be necessary for there to be cross-examination on the affidavit though that could make it difficult, if not impossible, for the same person to be advocate and witness: see Pittorino v Meynert (as Executrix of the Wills of Guissepe Pittorino (dec) and Guiseppina Pittorino (dec) & Ors [2001] WASC 245 at [7]- [10].
14. That can, however, occur and needs to be considered when a lawyer decides whether or not to make such an affidavit. One consideration is whether the affidavit deposes to facts within the actual knowledge of the deponent, the lawyer, or not. This affidavit was drafted and sworn as if the deponent had personal knowledge of the facts set out in the affidavit.
15. At least in relation to some of the facts asserted that would have been very surprising. The affidavit was not made, as the court often sees, on the basis of “I am instructed by my client that ...”. Given the wide power that a court has to receive information under s 19(6) of the Bail Act, such evidence would be readily admissible and usually is admitted and reliance placed on it.
16. In any event, there was no objection to the affidavit. I also heard oral evidence from a police officer and Mr Skeen’s mother. Both were cross-examined. I also received an email which had been sent from the Domestic Violence Crisis Service to the court. It was tendered by the prosecution, purportedly under s 23A of the Bail Act, purportedly as an expression of concern by the victim, as defined in the Bail Act, about the need for protection from violence by Mr Skeen.
17. It relevantly stated “[w]e believe this person represents a danger to our client if he is released.” The tender was not opposed. Having heard submissions, I dismissed the application not being satisfied that there were special or exceptional circumstances existing that favoured the grant of bail.
18. The matter appeared in my list on 27 February 2009. Mr Stubbs had asked for it to be listed. He asked me to receive a statutory declaration from the victim which stated that she had no objections to a grant of bail to Mr Skeen and that she trusted Mr Skeen to abide by the terms of a domestic violence order about which I had no information, and that he would not make contact. She said she had no fear of him.
19. As the prosecution needed to investigate the material in the statutory declaration, the matter was adjourned to 11 March 2009 when it was fully heard.

Power to re-open

20. Initially it appears that Mr Stubbs sought to have my decision re-opened. I rejected that. I may have been too hasty in doing so, but for reasons that will appear there has been no disadvantage in that rejection.
21. Ordinarily, a court will not re-open a judgment made when it has been perfected. The question of when it is perfected is not always easy and probably applies in a bail application in accordance with the decision of Jovanovic v R [1999] FCA 1008; (1999) 92 FCR 580.
22. That principle, however, does not apply to interlocutory judgments, where such a judgment may be varied or set aside where the interests of justice so require: Re Sinanovic’s Application [2001] HCA 40; (2001) 180 ALR 448 at 450. The question of whether a decision on a bail application is interlocutory in this territory is still an open one: Dunstan v DPP [1999] FCA 921; (1999) 107 A Crim R 358 at 361-2, 381-2; Achanfuo-Yeboah v The Queen [2001] FCA 1152; (2001) 115 FCR 8 at 10.
23. Even where there is power to re-open, the courts do not lightly do so, as was said in the joint judgment by Toohey, Gaudron, McHugh, Gummow and Kirby JJ in De L v Director General, NSW of Department of Community Services & Anor [No 2] [1997] HCA 14; (1997) 190 CLR 207 at 215 (omitting citations):

The power of this court to re-open its judgments or orders is not in doubt. The court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law” or where “there is some matter calling for a review” or where the interests of justice so require. It has been said repeatedly that a heavy burden is cast upon the applicant for re-opening to show that such an exceptional course is required “without fault on his part”, i.e. without the attribution of neglect or default on the party seeking re-opening.

24. As Lehane J commented on this passage in Hammer v Sunman [1999] FCA 1570

at [19]:

The use of phrases such as “heavy burden” and “exceptional course” emphasise, in my view, that (contrary to the submissions made by counsel for the applicants) the considerations relevant to the exercise of the power under o 35 r 7 [the power to vary a judgment before it is entered] are not simply those which arise on an application to amend a pleading made before (State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146)) or during trial: the principle of finality is not likely to be brushed aside.

25. See also Autodesk Inc & Anor v Dyason & Ors [No 2] [1993] HCA 6; (1993) 176 CLR 300 at 302-3. These principles apply to the criminal law: Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 at 50.
26. The statutory declaration in this case went to the weight and admissibility of the email which was only relevant to the issue of whether, assuming that I had power to review

the decision of the learned Magistrate (s 43 of the Bail Act) and was not prevented

from granting bail (s 9D of the Bail Act), I should then grant bail or not (s 22 of the Bail Act).

27. That is to say, it went to the question of whether bail should be granted, a decision that I would not get to consider until I found first there to be changed circumstances or new facts since the hearing before the learned Magistrate and then that there was special or exceptional circumstances favouring the grant of bail.
28. That is the structure of the Bail Act and that is the law which requires me to proceed in that way. I held that there were no special or exceptional circumstances favouring the grant of bail, so the question raised by the statutory declaration was never directly relevant to the decision. Accordingly, on the basis of the above principles, I would not have permitted the applicant to re-open the case on that basis, even if I had the power to do so.

Further review

29. As a result of the particular provision of the Bail Act, however, this did not preclude Mr Skeen from making a fresh application, this time to review my decision. This was permitted on certain conditions by s 43 of the Bail 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, 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 application 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 section 38 or section 42 has been exercised or has been sought to be exercised.

30. The statutory declaration however, was fresh material of significance to the granting of bail and thus would satisfy s 43(2)(b) of the Bail Act. The prosecution, which was represented by Mr Drumgold, did not contend to the contrary. Accordingly, and without objection from the prosecution, I permitted an oral application to be made for review of my decision of 13 February 2009.
31. In doing so and by consent, I received all the material adduced on that application, except the email and in particular had the transcript of the oral evidence then given before me.

Section 9D of the Bail Act

32. The next threshold to be surmounted by Mr Skeen was the requirement that, as he had been alleged to have committed an offence punishable by imprisonment for five years or more (a serious offence) while on bail for another serious offence, he had to show first that special or exceptional circumstances existed favouring the grant of bail before I could grant bail.

33. This is provided by s 9D of the Bail Act which is in the following terms:

9D Bail for serious offence committed while charge for another pending or outstanding

(1) This section applies if—

(a) a person is accused of a serious offence; and

(b) the person is alleged to have committed the offence while a charge against the person for another serious offence is pending or outstanding.

Example

Claude is served with a summons to attend the Magistrates Court to answer a charge that he has committed the offence of taking a motor vehicle without consent (punishable by 5 years imprisonment under the Criminal Code, section 318 (1), and so a serious offence for this section). Before the court date, Claude is arrested and charged with having committed an aggravated robbery the day after being served with the summons (punishable by 25 years imprisonment under the Criminal Code, section 310, and so also a serious offence for this section). At the time of the alleged aggravated robbery, the charge of taking a motor vehicle without consent was still pending. This section will apply to any decision about the grant of bail to Claude in relation to the aggravated robbery charge.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

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

(3) However, even if special or exceptional circumstances are established, the court or officer must refuse bail if satisfied that refusal is justified after considering—

(a) for an adult—the matters mentioned in section 22 (Criteria for granting bail to adults); or

(b) for a child—the matters mentioned in section 23 (Criteria for granting bail to children).

(4) Also, if the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence, an authorised person must not grant bail to the accused person if satisfied that refusal of bail is required under section 9F (Domestic violence offence—bail by authorised officer).

(5) This section does not affect the application of section 9F (4) and (5) to the accused person if—

(a) the serious offence mentioned in subsection (1) (a) or (b) is a domestic violence offence; and

(b) an authorised person grants bail to the accused person.

(6) In this section:

outstanding—a charge against a person for an offence is outstanding—

(a) until the charge is finally dealt with in any of the following ways:

(i) the charge is withdrawn;

(ii) the charge is dismissed by a court;

(iii) the person is discharged by the Magistrates Court following a committal hearing;

(iv) the person is acquitted or found guilty by a court of the offence; and

(b) if the person is acquitted or found guilty by a court of the offence charged, but a new trial on the charge (or a charge based on the same facts) is later ordered on appeal—from the date the new trial is ordered until the earliest of the following happens—

(i) the charge (or a charge based on the same facts) is finally dealt with as mentioned in paragraph (a) (i), (ii) or (iv);

(ii) the order for the new trial is reversed on a further appeal.

Note Found guilty, of an offence, includes—

• having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders—general)

• having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing)

(see Legislation Act, dict, pt 1).

pending—a charge against a person for an serious offence is pending if the person has not yet been charged with the offence, but the person has—

(a) been arrested for the offence (unless the person is later released without being charged with a serious offence); or

(b) been served with a summons to appear before a court to answer a charge for the offence; or

(c) at the invitation of a police officer, signed an agreement to attend court to answer a charge for the offence.

serious offence means an offence punishable by imprisonment for 5 years or longer.

34. Also relevant to construing s 9D is s 9G which is in the following terms:

9G Special or exceptional circumstances

(1) This section applies if a court or authorised officer is required under this part to be satisfied of the existence of special or exceptional circumstances favouring the grant of bail to a person.

(2) A circumstance that would be an applicable bail criteria for the person is not a special or exceptional circumstance only because it is an applicable bail criteria.

(3) Also, the court or authorised officer must consider the applicable bail criteria for the person only after the court or authorised officer is satisfied of the existence of the special or exceptional circumstances.

Examples for s (3)

1 Damien is before the court charged with having committed an aggravated robbery. He has earlier been charged with having committed aggravated robbery. Section 9D applies and there is a presumption against bail unless there are special or exceptional circumstances. Damien argues that there are special circumstances as he needs to support his child, he may lose his job and he may lose an opportunity to take up public housing. The court considers that the circumstances are not special or exceptional. Bail is not granted and the criteria in section 22 are not considered.

2. Jason is facing similar charges. Jason has had a car accident before his arrest for the second offence. His kidneys are damaged requiring dialysis every 3 days. Jason argues that his need for regular treatment and his reduced mobility mean that he is highly unlikely to abscond. The court considers these circumstances are special or exceptional. The court then considers the criteria in section 22 in deciding whether to grant bail.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

35. There was no dispute that s 9D applied to Mr Skeen’s application. Thus, before the court can consider whether to grant bail it must first be satisfied that special or exceptional circumstances exist favouring the grant of bail. The words “favouring the grant of bail” were clearly included to avoid the problems created by the earlier version of this provision which used the phrase, “justifying the grant of bail” and which gave the court difficulty in Achanfuo-Yeboah v The Queen (at 13-14).
36. I have dealt with the meaning of special and exceptional circumstances in In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145. There I said at [7]-[8]:
    7. “The term special and exceptional circumstances have not been defined in the Bail Act. It is however, a phrase commonly used in relation to bail. In DPP v Tang (1995) 83 A Crim R 593, Beach J said (at 596):

“Exceptional” is a word commonly used in legislation. One definition of it in the New Shorter Oxford English Dictionary is “of the nature of or forming an exception, unusual, out of the ordinary, special” (see vol 1, p 872). Webster’s Dictionary contains the following definition; “relating to or forming an exception, out of the ordinary course, unusual, uncommon, extraordinary.” In my opinion, it does not matter which of these definitions one chooses to adopt. I consider it was the clear intention of the legislature that any person charged with an offence falling within the provisions of 4(2)(aa) bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a case is justified in releasing him on bail.

8. That is to say, the applicant has, in my view, to establish that there are some unusual or uncommon circumstances which justify the granting of bail and those circumstances must relate to the granting of bail.
37. I also refer to what was said in Tieleman v the Queen [2004] WASCA 285; (2004) 149 A Crim R 303 by Murray J (with whom Templeman J agreed) at 306:

“[e]xceptional” is an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases.

38. In the same case Steytler J, generally agreeing with Murray J, added at 312:

It seems to me, as it does to Murray J, that, in considering whether or not there are “exceptional reasons” [in a bail application] the word “exceptional” is to be given its ordinary meaning. That is to say, the reasons must be unusual or out of the ordinary. As was pointed out by Gleeson CJ in Baker v The Queen [2004] HCA 45; (2004) 78 ALJR 1483 at [13], this kind of formula is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where circumstances of potential relevance are so various as to defy precise definition. Each case will depend upon its own circumstances.

39. Thus, each matter must be considered. That, however, is not sufficient. Again, I addressed this in In the matter of an application for bail by Rebecca Massey, where I said at [28]:

Even if each of the factors referred to by the applicant do not in themselves amount to special or exceptional circumstances, it is also clear that such circumstances may exist as a result of the interaction of a variety of factors, each of which might not be regarded as special or exceptional. Thus, a court has to consider the totality of factors put forward in considering this issue: DPP (Vic) v Cozzi (2005) 12 VR 211 at 215. That does not relieve the court, however, from identifying each of the factors put forward, as constituting such circumstances and considering them to determine whether they constitute such circumstances, as I have done: Abbott (1997) 97 A Crim R 19 at 27.

Are there special or exceptional circumstances?

40. The evidence before me consisted of the affidavit of Mr Stubbs, the statutory declaration of Ms Trewartha, a hand written letter to me from Mr Skeen, two notices from Community and Infrastructure Services showing that Mr Skeen’s licence had been suspended for failure to pay traffic fines totalling $450, a letter from Dr Daniel Bonner of the Canberra Hospital Psychiatric Unit, some email correspondence about a hearing in relation to a housing matter in the ACT Civil and Administrative Tribunal, an affidavit of Ms Trewartha and the oral evidence of Constable Kelly Luk and of Jeanna Georgella Skeen, Mr Skeen’s mother. The makers of neither affidavit were cross-examined. The material shows the following matters:
41. Ms Skeen is willing to provide a cash surety of $1,000 (and this was the matter which enlivened the s 43 changed circumstances in the first application before me).
42. Mr Skeen is 28 years of age and has three children. One is a 3 month old son with Ms Trewartha, the others are a daughter aged 11 and a son aged 8, both with a former partner. Mr Skeen has a “care percentage” of the two older children of 51% as calculated by the Child Support Agency. He has a “cost percentage” of 50% for those children as well. The document, attached to the affidavit of Mr Stubbs, shows that Mr Skeen, however, is not required to pay any child support to the mother of the children but she has to pay him annually $134. It is asserted in the affidavit that Mr Skeen provides “week about care prior and after school and on weekends”. This was confirmed in the evidence of Ms Skeen.

43. Ms Trewartha, in her affidavit, asserted:

17. I understand that Frank Skeen cares for his other two children on a week on week off basis. The mother of those children has told me that after learning of those offences she will be applying for sole custody of the children and does not want Frank Skeen to see them until he changes and grows up. However, she has said this to me on a previous occasion and has never followed through with it.
44. That evidence was supported by the oral evidence of Constable Luck, though the information he had was at least second-hand from the informant who was not able to be present.
45. In relation to the son Mr Skeen has by Ms Trewartha, Mr Stubbs asserted that Mr Skeen would “continue to provide financial support for the victims in this matter, his partner and their 3 month old son.” Ms Trewartha, however, asserted that she did not rely on Mr Skeen for financial support, that she resides with her mother and receives a government benefit and assistance from her father. She does not rely on Mr Skeen for child care which is provided by her mother and her son’s godmother. She would, she stated, wish Mr Skeen to have contact with her son though this should initially be supervised. She does not rely on Mr Skeen for accommodation.
46. Mr Skeen has been residing at an address in Downer with Ms Trewartha. That obviously is no longer available. In the affidavit of Mr Stubbs, it is asserted that he will reside with his parents at an address in Evatt. Ms Skeen was not asked about this. It was curious that the papers relating to the proceedings in the Act Civil and Administrative Tribunal related to these same premises and were entitled “Between Commissioner for Social Housing and the ACT [Applicant/Lessor] and Frank Skeen and Rhiannon Skeen [Respondent/Tenant]”. I can draw no conclusions at all about these premises nor what the proceedings concerned. Indeed, more information would clearly be required about these premises before Mr Skeen would be bailed to live at them.
47. Mr Skeen is said to have been offered a full-time position at a café in Civic. A letter from the café to that effect was tendered. I accept that it is genuine and the job is available. Curiously, it refers to Mr Skeen as being “of” a different address in Evatt.
48. The affidavit of Mr Stubbs also refers to Mr Skeen’s own business. The affidavit stated:
    8. he operates his own small business, being the sole owner of the registered business, Undr8ed Detailing, a mobile car cleaning business that has been operating for the last six months.
49. This information, but no more, was confirmed by Ms Skeen in her oral evidence. Ms Trewartha asserted in her affidavit:
    16. I understand the business has been set up but has no customers. I believe Frank Skeen is yet to derive an income from it.
50. Mr Skeen has a very significant criminal record for personal violence offences for which he was imprisoned, for traffic and motor vehicle offences, a number of breaches of protection orders and failures to appear to answer bail and dishonesty offences. His record extends from Childrens Court matters in 1995 up to offences committed in 2006, which resulted in imprisonment with a non-parole period ending on 11 September 2007.
51. The most significant matter in this application, however, related to his grandmother. Annexed to the affidavit of Mr Stubbs was a statutory declaration which read:

Frank Skeen, my grandson, is my sole and full-time carer. Frank assists me with my medication and its administration. I rely on Frank for all my transportation needs including medical appointments plus grocery shops. Without Frank and in the event of an emergency I am afraid I will be stranded.

52. Constable Luk gave evidence that Mr Skeen’s driving licence had been suspended for non-payment of traffic fines. Details of these were in the material tendered before me. The material showed that the fines, being imposed by traffic infringement notices, had been imposed on 11 October 2008 and 21 October 2008. It was not contested that they had still not been paid.
53. Ms Skeen gave evidence about this matter. She explained that her mother was ill. Her evidence was as follows, in answer to the following question by Mr Stubbs:

MR STUBBS: ... She is your mother. can you tell the court her current situation? --- Well, she relies on Frank, she is a diabetic, she takes insulin. She has had a bypass. She relies on him because – because - I work during the day. Frank has always looked after her, taking her to doctors’ appointments and keeping her company at times. And yes, she depends on him.

When he transports her, how does he transport her? --- Well he did - he has a licence, It is just that he has got two fines at home that I saw that need to be paid on 27 February.

So what you are saying to the court is, up until now he has had a licence? --- Yes.

And he has transport and a car? --- Yes.

And you were aware of two fines that are at home? --- Yes.

They have not been paid? --- No they have not.

HIS HONOUR: Sorry, you said that they were due to be paid on? Due...27 February? --- Yes.

This month? --- Yes.

54. Under cross-examination Ms Skeen said she had a sister with two children living in Canberra though the mother has nothing to do with them. She said that Mr Skeen himself has two brothers and a sister who live in Canberra and have driving licences though they all work full-time. Ms Trewartha in her affidavit stated:
    18. I am aware that Frank Skeen was involved with some levels of care of his grandmother - for example, taking her to appointments, maintenance around the home and assistance with managing her diabetes.
    19. I understand that since Frank Skeen has been in custody, his brother has taken on this responsibility. However, I believe that Frank’s brother would not be there for his grandmother as often as Frank would be when she is in need.

The applicant’s submissions

55. Mr Stubbs submitted that the following matters amounted to special or exceptional circumstances satisfying the requirements of s 9D of the Bail Act.
    • The cash surety of $1,000
56. This is neither an insignificant sum for a family of modest means nor irrelevant. By itself however, it is neither unusual nor out of the ordinary. It is not a special or exceptional circumstance. Mr Stubbs relied on the case of R v Chaveau (unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 June, 2008). In that case the cash surety of $2,000 was offered in support of Mr Chaveau’s bail application and no such support had been forthcoming in the Magistrates Court. It was accepted that this was “a significant change of circumstances”: see p 6 of the transcript. I would respectfully agree. That then met the requirements of s 43 of the Bail Act. The matter of R v Chaveau however, was not a matter involving s 9D of the Bail Act and that case has nothing to say about whether a cash surety is a special or exceptional circumstance.
    • Mr Skeen has employment
57. Again, by itself, this is not a special or exceptional circumstance. Many applicants for bail have employment. Many have their own businesses. If the business was likely to fail because bail was refused, that might amount to a special or exceptional circumstance, especially if that resulted in other people also becoming unemployed. That is, however, not the situation here. The business has not really started, and the other full-time employment is not so unusual that it becomes a special or exceptional circumstance. There is nothing special or exceptional about the employment or the need for employment that meets the requirement of section 9D of the Bail Act.
    • Mr Skeen’s care of his children.
58. The evidence of this is somewhat unclear. I accept that he has had care of his older children on a shared basis. That this will no longer be able to be provided is regrettable, but by no means unusual. At this stage, their mother accepts that this is so and is prepared to deal with it. Indeed, she seems now to prefer it. There is nothing that is special or exceptional about this.
    • Mr Skeen’s care of his grandmother.
59. I accept that Mr Skeen has provided significant care for his grandmother. There are, however, other family members who can provide and seem now to be providing at least some of that care. Whilst Mr Skeen may have been able to provide more than his brother presently can because of his brother’s full-time work, I note that Mr Skeen is proposing himself to obtain and take up full-time work. Mr Skeen is also without a licence at present and this may persist for some time, limiting the assistance he could provide, but no doubt he will regain his licence in due course. Were there were no other options this may have approached a special or exceptional circumstance but at present it does not do so.
60. The two other matters were briefly mentioned but not pressed. One was the report from Dr Bonner as to the psychiatric situation with Mr Skeen and the medication which he was taking. There was nothing particular about that which would make it a special or exceptional circumstance and it was only faintly pressed.
61. The other matter was the difficulty, apparently, with the housing situation indicated by the proceedings in the Civil and Administrative Tribunal. Again, there was really no information before me on which I could make any sense of what was happening in

relation to that matter and it became more complicated as I looked at the material before me, and clearly is not, on the present state of the material before me, a special or exceptional circumstance.

62. The question then is whether, taken together, these matters amount to special or exceptional circumstances favouring bail. I do not consider they do. They are all matters that would be relevant in considering the decision under s 22 of the Bail Act. I cannot tell whether they would justify a grant of bail but they are not sufficient to show that they are unusual in character or that they are out of the ordinary so as to meet the criteria of s 9D of the Bail Act.
63. One matter has not been canvassed and could not be properly canvassed at this stage. It may be that, at some stage, the delay in dealing with Mr Skeen’s matters is so protracted that the delay may amount to a special or exceptional circumstance favouring the grant of bail. Delay can amount to such a special or exceptional circumstance: Beljajev v DPP (1998) 101 A Crim R 362 at 368. That may particularly apply where the time in custody might exceed any punishment: Re Application for Bail for Zoudi (2006) 168 A Crim R 444 at 445. That point has not been reached and may never be reached.
64. There is, therefore, no present special or exceptional circumstances favouring the grant of bail that permit me to hear the matter further.

65. Accordingly, the application for bail be dismissed.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 26 March 2009

Counsel for the applicant: Mr S R Stubbs

Solicitor for the applicant: Diana Burns Solicitors

Counsel for the respondent: Mr S Drumgold

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

Date of hearing: 11 March 2009

Date of judgment: 13 March 2009