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Supreme Court of the ACT |
Last Updated: 20 July 2009
HUMAN RIGHTS ACT
IN THE MATTER OF AN APPLICATION FOR BAIL BY REBECCA MASSEY [No. 2] [2009] ACTSC 70 (26 June 2009)
CRIMINAL LAW – bail – application for review of bail
decision by another judge – new application for bail – circumstances
in which each is appropriate – Bail Act 1992 (ACT), ss 19 and
43.
CRIMINAL LAW – bail – jurisdiction to hear application
– significant change in circumstances relevant to the granting of bail
– passage of time not sufficient – diagnosis and treatment of
mental illness sufficient in this case – no need
to consider changes
tending against the granting of bail – Bail Act 1992 (ACT), s
19(5)(b).
CRIMINAL LAW – bail – statutory presumptions
– presumption against bail where applicant charged with murder –
applicant
must show special or exceptional circumstances favouring the grant of
bail – circumstances must be unusual or uncommon –
Bail Act
1992 (ACT) s 9C.
CRIMINAL LAW – bail – special or
exceptional circumstances – weakness of prosecution case –
possibility of raising diminished
responsibility following diagnosis of mental
illness – finding of alleged weapon – case not weak enough to
justify finding
of special or exceptional circumstances.
CRIMINAL LAW
– bail – special or exceptional circumstances – kinds of delay
that might be a special or exceptional circumstance
– standard delays
would not usually amount to special or exceptional circumstances –
prosecution brief not ready for
scheduled committal hearing despite five months
notice – prosecution unable to estimate delivery dates for proposed expert
reports – magistrate not willing to consider applications to cross-examine
witnesses until prosecution brief complete –
case may be test case for new
committal processes so applications to cross-examine may not be decided ex
tempore – delays are
excessive or inordinate.
CRIMINAL LAW
– bail – special or exceptional circumstances – excessive
delays, combined with availability of surety, son’s
problems and alleged
minor weaknesses in prosecution case, amount to special or exceptional
circumstances.
CRIMINAL LAW – bail – special or
exceptional circumstances – no reason to assume interpretation of
legislation will be different
under human rights legislation – no reason
to assume that authorities from pre-human rights era are of little significance
– incompatibility of legislation with human rights needs to be established
by substantive argument – Human Rights Act 2004 (ACT), ss 18, 28,
30.
CRIMINAL LAW – bail – criteria for grant of bail
– likelihood of applicant appearing in court – likelihood of offence
being
committed – not appropriate to keep applicant in custody because of
non-specific risk of minor offences – likelihood
of obstructing course of
justice – no convincing concerns about interference with witnesses –
all or most civilian witness
statements now taken – interests of applicant
– applicant claims to be drug-free – no evidence that applicant at
risk from members of community – delays in bringing matter to trial
– needs of applicant’s young son – benefits
and disadvantages
of serving time in custody before trial – bail may be granted.
Bail Act 1992 (ACT), s 43, s 19, s 9C, s 22, Div 2.2
Crimes Act
1900 (ACT), s 14
Crimes Legislation Amendment Act
2008
Human Rights Act (2004) (ACT), s 30, s 18, s
28
Magistrates Court Act 1930 (ACT), s 90AB
Dunstan v Director of Public Prosecutions [1999] FCA 921 (7 July
1999)
In the matter of an application for bail by Rebecca
Massey [2008] ACTSC 145 (19 December 2008)
In the matter of an
application for bail by Timothy Noel Allen [2009] ACTSC 64
(28 May 2009)
No. SCC 317 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 26 June 2009
IN THE SUPREME COURT OF THE )
) No. SCC 317 of
2008
AUSTRALIAN CAPITAL TERRITORY )
IN THE MATTER OF AN APPLICATION
FOR BAIL BY REBECCA MASSEY [No. 2]
ORDER
Judge: Penfold J
Date: 26 June 2009
Place: Canberra
THE COURT FINDS THAT:
1. Bail may be granted to the applicant subject to strict conditions to be determined.
Introduction
1. Rebecca Anne Massey was arrested on 25 July 2008 and charged with murder as a result of the death of another woman after an altercation between her and Ms Massey at the Charnwood shops earlier that evening (the Charnwood shops incident). She has been in custody ever since, and is currently held in the Alexander Maconochie Centre (AMC).
Evidence
2. A substantial amount of evidence was provided in the course of the hearing of
this application, including:
(a) oral evidence from Ms Massey, her mother
Anne Fredrickson, Constable Scott Raven (one of the investigating officers),
Joanne Smith
(Community Education and Corrections Manager for Directions ACT),
Shelley Cox (Team Leader, Alcohol and Drug Unit, ACT Corrective
Services),
Deborah Howell (Probation and Parole Officer) and Charles Starkey (Correctional
Officer with ACT Corrective Services,
based at the AMC);
(b) affidavits from
Ms Massey’s solicitors Sarah Avery (dated 11 December 2008) and Ben Aulich
(dated 14 April and 3 June 2009),
and from Ms Fredrickson (dated 12
December 2008 and 15 April 2009); and
(c) various exhibits, including an
updated police Statement of Facts and several urinalysis reports relating to Ms
Massey.
Jurisdiction to deal with bail application
3. Ms Massey was refused bail by a magistrate on 28 July 2008, and by Refshauge J, on a review of the magistrate’s decision, on 19 December 2008 (In the matter of an application for bail by Rebecca Massey [2008] ACTSC 145 (19 December 2008) (Massey [No. 1]).
Nature of application
4. This is a new application for bail. The application was initially described
as being for a review under s 43 of the Bail Act 1992 (ACT) of Refshauge
J’s decision in Massey [No. 1], but counsel for Ms Massey agreed that
the application should be heard
as a new application under s 19 of that Act.
This approach appears to be consistent with the views of the Federal Court in
Dunstan v Director of Public Prosecutions
[1999] FCA 921 (7 July 1999), which
found both:
(a) that there was no scope under the Bail Act for a review by
the Supreme Court (whether conducted by a single judge or by a Full Court
exercising jurisdiction that could be exercised
by a single judge) of a Supreme
Court judge’s review of a magistrate’s bail decision (Gyles J at
[32] to [40]); and
(b) that a review of an earlier decision should be sought
under s 43 where the contention is that the earlier decision was wrong but a
bail application relying on changed circumstances should be dealt
with under s
19 of the Bail Act (Gyles J at [36]).
Matters necessary to establish jurisdiction
5. Section 19(5) of the Bail Act is set out in the Appendix to this judgment. Under s 19(5)(b), Ms Massey first has to establish that the court has jurisdiction to hear her application, and to do that she must 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.
6. The matters identified by Ms Massey’s counsel as developments that might satisfy the requirements of s 19(5), and my views on them, are discussed below.
The passage of time
7. Counsel submitted that the passage of time since Ms Massey was refused bail
in December last year (four months when the submission
was made) could amount to
an adequate change in circumstances. I do not consider that in ordinary
circumstances the simple passage
of time could itself provide, for the purposes
of s 19(5)(b), a change in circumstances relevant to the granting of bail
(clearly it is not fresh evidence or information). For many people held
in
custody, the passage of time will see changes in circumstances of the required
kind. It is also possible that the failure of
certain things to eventuate as
time passes might be relevant to a bail application; for instance, if there were
inordinate delays
in the processes of bringing a person to trial.
8. However, an acceptance that the passage of time alone could be a
significant change in circumstances would make nonsense of s 19(5). Anyone held
in custody could make repeated bail applications irrespective of any other
changes in their circumstances, and the only
question for the court in deciding
whether to hear the application would be whether the time that had passed was
enough. This in
turn could require the court to continue to rehear, more or
less indefinitely, what was in effect the same bail application. It
is true
that under s 19(4) the court may refuse to deal with a frivolous or vexatious
bail application, but if the passage of time were accepted as potentially
a
significant change in circumstances, it could be difficult for a court to reject
as frivolous or vexatious an application based
on the passage of what was
claimed to be a significant period of time.
Diagnosis of bipolar disorder and consequences of treatment
9. Ms Massey has been diagnosed as suffering from bipolar disorder and is being medicated for that condition, and her treating doctor believes that her medication requirements are now stable. Counsel pointed to the insights that Ms Massey has gained as a result of that diagnosis and treatment she is receiving, and her ability (also resulting from the diagnosis and treatment) to recognise the onset of manic moods and to self-medicate appropriately. These improvements were the subject of evidence from Ms Massey herself that she felt “much more level” and from her mother, Ms Fredrickson, that Ms Massey is “settled” and “seems calmer in herself”. I accept that the diagnosis of bipolar disorder, and the provision of apparently effective treatment, together amount to a significant change in circumstances relevant to the granting of bail.
Lack of counselling services in custody
10. It was put on behalf of Ms Massey that she was having trouble obtaining the
counselling support she needed in the AMC, although
Ms Massey, while commenting
that her access to counselling was “limited”, did not emphasise this
claim in her own evidence.
11. The counselling services available to
Ms Massey at the AMC were the subject of conflicting evidence. On behalf
of Ms Massey
counsel tendered an email from Victoria Bradley, a case
manager at the Remand Centres, claiming that there had been no drug and alcohol
workers attached to either of the remand centres since early December 2008. Ms
Massey is now in the AMC and the Belconnen Remand
Centre has been closed. The
relevance of Ms Bradley’s claim in those circumstances is not clear.
12. However, the DPP called evidence to rebut this claim from Shelley Cox,
Team Leader of the Alcohol and Drug Unit with ACT Corrective
Services, based at
the AMC.
13. Ms Cox gave evidence that drug and alcohol workers had been
available in both remand centres, that Ms Massey’s file showed
requests to
see counsellors on “welfare-related issues” which had been
addressed, and that there were no outstanding
requests on Ms Massey’s
file to see alcohol or drug counsellors. She said that at the AMC, there are
group therapy sessions
available, and any required one-on-one counselling is
provided by an external agency. There are also three case managers providing
welfare-related services, and some of the correctional officers also do the
administrative work related to requests for such services.
14. Noting Ms
Cox’s evidence, I find that if there has been any change in Ms
Massey’s ability to access counselling, it
has been an improvement in Ms
Massey’s position since she has been moved to the AMC. Such a change
might be “relevant”
to the granting of bail, but only to the effect
that there was less reason to grant bail than there might previously have been.
Son’s enrolment in a different school
15. Ms Massey’s 8-year-old son, whose behavioural problems were considered by Refshauge J in Massey [No 1] at [9] and [10], is now enrolled in a different school, but there have been only minor improvements in his behaviour. I do not consider that the boy’s enrolment in a different school is of itself relevant, or of material significance, to the granting of bail. The fact that there has been a minor improvement in his behaviour, like the improvement in the availability of counselling for Ms Massey, would not make the granting of bail more justifiable; the fact that despite the move there has been only a slight improvement in the boy’s behaviour might be relevant in consideration of other questions relevant to the granting of bail. I shall consider the significance of the boy’s difficulties further in due course.
Conclusion—jurisdiction
16. I find that Ms Massey’s diagnosis of bipolar disorder and the provision of treatment is a relevant change in circumstances since Ms Massey’s last application for bail that is significant enough to permit me under s 19(5) of the Bail Act to consider this bail application. I therefore do not need to consider the impact of changes in circumstances that are relevant to bail but that would tend against the granting of bail.
Special or exceptional circumstances
17. Because she has been charged with murder, Ms Massey’s application is
subject to the presumption against bail set out in
s 9C of the Bail Act (set out
in the Appendix). To rebut that presumption she is required to show that there
are special or exceptional
circumstances favouring the granting of bail. The
test of “special or exceptional circumstances” for bail applications
has been interpreted as requiring the court to find circumstances affecting the
applicant that are in some way unusual or uncommon
(see Massey [No. 1] at [7]
and [8] and In the matter of an application for bail by Timothy Noel Allen
[2009] ACTSC 64 (28 May 2009) (Allen) at [9] and [10]).
18. Ms Massey relied
on the same four matters as were relied on to constitute special or exceptional
circumstances in her last application
for bail (Massey [No 1]). These are as
follows:
(a) her son’s behavioural difficulties, which are claimed to
result from her continued detention;
(b) the availability of a
surety;
(c) the weakness of the prosecution case (noting the claim of
self-defence, and possibly also a claim of diminished responsibility
in reliance
on her diagnosis of bipolar disorder);
(d) past and expected delays between
her arrest and likely trial.
19. Counsel for Ms Massey initially raised Ms
Massey’s bipolar diagnosis, her claimed success in dealing with her drug
problem,
and the new committal processes provided for in the Crimes Legislation
Amendment Act 2008 (ACT) as further special or exceptional
circumstances to be
considered. These matters were dropped from the special or exceptional
circumstances submissions in the course
of the hearing, with the bipolar
diagnosis being relied on as both a significant change in circumstances relevant
to the granting
of bail and a matter relevant to the s 22 criteria for the
granting of bail, the drug progress being pursued only in the s 22 context,
and
the new committal processes being relevant as providing part of the context in
which delay in bringing the matter to trial needed
to be assessed.
20. In
Massey [No 1], Refshauge J at [30] found that none of the four matters raised
before him and mentioned in [18] above
individually amounted to special or exceptional circumstances, but, “with
some hesitation”, found that the four
matters taken together did amount to
such circumstances.
21. Apart from the availability of a surety to be
provided by Ms Massey’s mother, which I understand has not changed, there
have been developments in respect of each of these matters.
Ms Massey’s son’s difficulties
22. Before Ms Massey was arrested, she was the day-to-day carer of her young son
(now 8 years old), while Ms Massey’s
mother, Ms Fredrickson, formally
has parental responsibility under what Ms Fredrickson believes to be a Family
Court order. The
boy’s behavioural problems since his mother’s
arrest were considered by Refshauge J in Massey [No. 1]. Ms Fredrickson
gave evidence that since Ms Massey’s last bail application, the boy
has been moved to another school, and that there has
been a slight improvement
in his behaviour since the move. She asserted, however, that he was still
suffering significant behavioural
problems due to his mother’s absence.
23. Evidence was given by Charles Starkey, a Correctional Officer at the
AMC, about a recent visit to Ms Massey by Ms Massey’s
son, daughter,
mother and partner. The AMC Case Note records a report from an officer
that:
... the visit was not going well. Det Massey had smacked her son a number of times and a lot of verbal abuse and swearing had occurred during the visit.
Det Massey’s son punched her quite hard on the nose and her boyfriend responded with a hard smack over the back of his head. I attended visits and observed the family for a few minutes. After listening to verbal abuse and watching Det. Massey’s son get smacked over the legs by herself and then Michael Marshall I ceased the visit. It was 5 minutes before the intended end. Det. Massey’s son ran from the room crying. I asked him to stop and wait for the others which he did. He was sobbing and appeared completely distressed. I asked him if he wanted to say goodbye to mum to which he stated no.
24. This disturbing report was seized on by Ms Massey’s counsel as graphic
evidence of the seriousness of the boy’s current
behavioural problems,
although it was presumably tendered by the DPP to suggest that being in Ms
Massey’s day-to-day care would
not necessarily be a benefit to her son.
It may be true that, at least while in custody, Ms Massey is ill-equipped
to offer
any particular comfort to her son. On the other hand, if the real
source of her son’s behavioural problems is simply her absence
from his
day-to-day life, then Ms Massey’s return home might reduce his problems
even in the absence of any high-level parenting
skills on her
part.
25. However, while one must always sympathise with the plight of a
young child deprived of maternal care, it cannot be the case that
special or
exceptional circumstances can be constituted by the entirely predictable
consequences of a person’s imprisonment
on family members who are
accustomed to the person being part of their domestic arrangements. The
difficulties apparently being
suffered by Ms Massey’s son do not seem
to me to be of themselves special or exceptional circumstances in this
case.
Weakness of prosecution case
Diminished responsibility
26. As already mentioned, Ms Massey has been diagnosed with bipolar disorder.
Her counsel has suggested that this may enable her
to raise diminished
responsibility in response to the murder charge, rendering the prosecution case
on the murder charge even weaker
than it was previously alleged to be.
27. Diminished responsibility is dealt with under s 14 of the Crimes Act
1900 (ACT); s 14(1) prevents a person being convicted of murder if:
... when the act or omission causing death occurred, the accused was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent cause or whether it was induced by disease or injury) that substantially impaired his or her mental responsibility for the act or omission.
28. The effect of establishing diminished responsibility is that (subject of course to proof of the elements of the charge) the person is liable to be convicted of manslaughter rather than murder (s 14(3)). However, no substantive argument was made about the likelihood that Ms Massey’s particular illness might support the diminished responsibility defence.
Developments in the murder investigation
29. The DPP provided a large volume of material that was not available on the last bail application but that has been obtained as a result of continuing investigations into the alleged murder. This material contained information about the finding of a knife alleged to be the murder weapon, and comments made by Ms Massey to her partner, Michael Marshall, about the incident, which contained both inculpatory admissions about her role in the killing and exculpatory claims about her intentions in relation to it. Without going into the details of this material I can say that the self-serving exculpatory statements of Ms Massey do not seem to outweigh the inculpatory effect of the other material.
Conclusion—weakness of prosecution case
30. Even taking account of the new possibility of Ms Massey raising a defence of diminished responsibility, the developments since her last bail application have on balance made the prosecution case stronger rather than weaker. Of themselves any weaknesses in the prosecution case do not amount to special or exceptional circumstances.
Circumstances other than delay
31. As already mentioned, there has been no change in the availability of a surety, while the slight improvement in the behaviour of Ms Massey’s son and the overall strengthening of the prosecution case weaken two of the three other factors that contributed to Refshauge J’s finding of special or exceptional circumstances. However, since the decision in Massey [No. 1], likely delays in Ms Massey being brought to trial have become a more significant issue.
Delay
What constitutes delay?
32. In Allen, I referred at [27] and [28] to Victorian cases arising under the Bail Act 1977 (Vic), and at [29] to [31] to the dictionary meaning of “delay”, and concluded at [39] to [41]:
I am not convinced that the need to undertake the normal processes for dealing with a serious criminal charge, and the time taken by those processes in the normal course of events, could properly be described as delay. As long as the work of bringing the matter to trial in a proper way is being done at a reasonable pace, whether by investigating officers, forensic analysts, prosecuting authorities, court officials, magistrates or legal representatives, I cannot see that the matter is being delayed.
...
Even if there is a sense in which the word “delay” could appropriately be used to describe periods normally required for the normal processes, it is hard to see that the likely passage of that time could amount to special or exceptional circumstances.
...
It is ... possible to imagine a situation in which, perhaps because of a significant shortage of resources within the criminal justice system or during a transitional period while an earlier set of procedures was being replaced by a new and different set of procedures, the normal elapsed time between arrest and trial blows out so as to exceed substantially that which has previously been regarded as acceptable, or which is currently regarded as acceptable in comparable jurisdictions. In such a situation, a court might come to the view that most or all accused persons were being subjected to inordinate delays, and therefore that special or exceptional circumstances applied to most or all accused persons being held in custody (with potentially dramatic results for bail applications).
33. Counsel for Ms Massey made written submissions to the effect that,
having regard to ss 18 and 30 of the Human Rights Act 2004 (ACT), the
expression “special or exceptional circumstances” needs to be read
as imposing a “relatively low threshold”
in relation to delay in
bringing an applicant to trial, and that authorities from jurisdictions without
a Human Rights Act are now of only limited assistance in interpreting the
expression as used in ACT legislation.
34. Sections 18 and 30 of the Human
Rights Act are set out in the Appendix. The relevant provisions of s 18 are s
18(4), (5), and (6), in particular the right “to be tried within a
reasonable time or released” and the right not to “be
detained in
custody as a general rule”. Section 28 of the Human Rights Act, not
mentioned in counsel’s submissions, is also set out in the Appendix.
35. Counsel’s submission that the effect of s 18 is that “a
person is entitled to be tried without unreasonable delay and ... to be released
if that cannot be achieved”
is an unobjectionable paraphrase of the
relevant elements of s 18(4) and (5), but does not particularly advance the
argument in this case.
36. Section 18 of the Human Rights Act does not
replace the Bail Act. Rather, s 30 of the Human Rights Act requires the Bail
Act to be interpreted in a way that is compatible with human rights. This
requires the provisions of the Bail Act to be tested against s 18 of the Human
Rights Act, in the context of s 28 of that Act which permits human rights being
subject to “reasonable limits ... that can be demonstrably justified in a
free
and democratic society”. That exercise might in fact produce
interpretations of particular provisions of the Bail Act that differ from
pre-Human Rights Act interpretations, but there is no basis for assuming that
the Human Rights Act will necessarily require a new and different interpretation
of any or all provisions of the Bail Act. It is not an inevitable consequence
of the passage of a Human Rights Act that earlier interpretations of
“special or exceptional circumstances”, including those from
jurisdictions without a
Human Rights Act, will have little ongoing
significance—rather, the suggestion that pre-Human Rights Act
interpretations must be abandoned in
favour of new ones would need to be made
out, case by case, by substantive arguments demonstrating that those earlier
interpretations
are incompatible with human rights and cannot be
“demonstrably justified in a free and democratic society”. No such
substantive argument has been offered. As it happens, that has made no
difference to the decision in this case.
Delay in this case
37. In Massey [No. 1], Refshauge J said at [22] that in December 2008 “the
delay in this case is significant, and is at the
upper end of what might be
considered acceptable”.
38. In December 2008 Ms Massey’s
committal was scheduled for 1 June 2009; in the event, it was to be the
first matter dealt
with under the changes to committal processes made by the
Crimes Legislation Amendment Act. Since 1 June it has become apparent
that this
committal process will be significantly delayed beyond the period of several
weeks that might have been expected when the
date was set in December.
39. On 1 June 2009 in the Magistrates Court, the DPP produced a substantial
number of documents included in the prosecution brief
that either had not been
sent to the defence or, although sent, had not reached the defence. The DPP
also advised the court that
there was still significant material outstanding
from the brief, including analysis of a variety of forensic material, material
generated
by the “enhancement of over 500 hours of listening device
product”, and experts’ reports (to which I shall return).
40. As
required under the new committal processes (see s 90AB of the Magistrates Court
Act 1930), counsel for Ms Massey applied to the magistrate for leave to
cross-examine about 40 witnesses identified by the Crown (43 witnesses
are
listed in the application in several categories, but there is some duplication
among different categories). The matter was adjourned
to 15 June.
41. On 15 June counsel for the DPP advised that there was still some
important prosecution evidence outstanding, and the magistrate
indicated that he
would not deal with any of the applications to cross-examine witnesses until all
the outstanding evidence had been
served on the defence. The matter was
adjourned for a mention in the Magistrates Court on 14 July with a view to the
prosecution
serving further documents on the defence by then. Only then, it
seems, might a date be set for hearing the applications to
cross-examine.
42. As well as the latest bundle of evidence, which was to be
served on the defence around 17 June, there are two possibly important
pieces of
evidence for which no delivery dates can yet be given by the DPP. The details
of these are as follows:
(a) Expert biomechanical evidence about the
stabbing: The prosecution is dealing with an expert in this area with a view to
obtaining
a report; on 17 June counsel for the DPP told this court that it
was hoped that by 26 June the DPP would know whether the
expert who had
been identified would be engaged to provide a report, and that it was further
hoped that if that expert were engaged,
a report would be available within a
further period of two to four weeks. No information was available about what
would happen if
the identified expert was not engaged to provide a report (that
is, whether another relevant expert would be sought, or whether the
issue would
be dropped).
(b) Expert evidence about knives and knife-related injuries:
The prosecution is hoping to obtain such evidence from a police officer
who is
currently on indefinite sick leave. The DPP was unable to provide any advice
about:
(i) when a decision would be made about how long the investigating
officers would await this expert’s return to duty;
(ii) whether, if
they decided that the expert would not return to work within a reasonable time,
the investigating officers proposed
to look for another expert; and
(iii) if
so, whether they had already identified other possible experts who would be
approached.
43. Thus, there is no basis on which I could be satisfied that
even by the time the matter comes before the Magistrates Court again
on 14 July,
the magistrate will be able to set a hearing date for the applications for
cross-examination. Even if at that point
he does agree to set such a date
without all the relevant evidence having been served, the date fixed is not
likely to be before
August.
44. The magistrate has indicated that the
applications to cross-examine will be listed for two weeks of hearings. Even if
he is then
able to decide on all the applications ex tempore and immediately set
a date for any permitted cross-examinations, it seems unlikely
that such
cross-examinations would start before September. Ex tempore decisions on the
applications may be unlikely, since it seems
that this will be the first
significant consideration of such applications under the new committal
provisions, and Ms Massey’s
solicitor understands that the
applications on her behalf to cross-examine witnesses are being treated in the
Magistrates Court as
something of a test case for the new committal processes.
Even if cross-examinations do start in September, the committal is unlikely
to
be completed before the end of that month, and Ms Massey’s trial
would seem unlikely to be listed before mid-2010 at
the earliest (long trials
are currently being listed for around April 2010). Counsel for Ms Massey has
indicated that if the applications
to cross-examine are refused, an appeal is
likely, and this would extend the setting of a trial date even further.
45. Counsel for the DPP said on 17 June that he was “more optimistic
than [counsel for Ms Massey] in relation to whether
[the committal
processes] could be finalised by the end of this year”, which seems to be
a concession that those processes
are unlikely to be finished much earlier than
the end of the year.
46. In these circumstances, I assume that counsel for
the DPP would not press the submission he made on 26 May 2009 that “it
is
more likely than not Ms Massey’s trial will come on sooner rather than
later given [the new committal processes]”.
47. Counsel for the DPP
sought to explain the fact that the prosecution brief had not been ready before
1 June, even though that date
had been set more than 5 months earlier. He said
that, although the early days of an investigation such as this would have
involved
a lot of police investigators, many of those police officers would now
have moved on to other matters, leaving the informant and
perhaps one other
officer to conduct the investigations largely on their own and possibly on the
basis that even those remaining
investigators would have “other serious
investigations to attend to”; he said that “police do have to
prioritise
their matters”.
48. If this accurately reflects the police
approach to the investigation, it does not seem to me to be good enough. This
is a case
involving the most serious of charges, namely murder, and the
particular circumstances of the alleged murder are such that there
is clearly an
enormous amount of detailed investigative work required to bring this matter to
trial.
49. I accept entirely the assertion that the police have to
prioritise their work, but apart from active murder investigations in
which no
arrests have yet been made, and any police work aimed at preventing crimes such
as major terrorist attacks, it is hard to
see that there could be many
investigations currently being conducted by ACT Policing that should have a
higher priority than this
one, especially while the accused remains in custody.
As well, it is not clear that the investigation has been well-planned, given
that nearly six months after the committal date was set, the investigating
officers have still not sorted out the availability,
or even the identity, of
two expert witnesses
Conclusion—delay
Conclusions—special or exceptional circumstances
51. Noting Refshauge J’s finding that the four matters raised by Ms Massey, as they stood in December 2008, taken together, amounted to special or exceptional circumstances, and that the issue of delay now tends to favour the granting of bail to a significantly greater extent than it did when Refshauge J considered the matters, I find that, taken together, the four matters do amount to special or exceptional circumstances favouring the granting of bail.
Section 22 criteria
52. It is accordingly necessary to consider whether Ms Massey can appropriately be granted bail under s 22 of the Bail Act (set out in the Appendix). The criteria that the court is required to consider under that section are dealt with below.
The likelihood of the person appearing in court
53. Ms Massey has a lengthy criminal record; I respectfully adopt Refshauge J’s description of it in Massey [No. 1] at [32] to [33] as:
... a long and depressing criminal history extending back to 1993. It appears to consist of mostly relatively low level offences, although there are serious drug offences involved and more serious assaults. She has been sentenced to prison, though most such sentences have been fully suspended.
She has on five occasions failed to appear to answer bail and since 1995 has shown a concerning disregard for court orders. As noted, she has a history of assaults, and worryingly these recently have appeared alongside offences involving knives.
54. Counsel for Ms Massey accepted that her record for answering bail has not
been good in the past, but he submitted that Ms Massey’s
recent diagnosis
of bipolar disorder, and the medication she is now receiving for this, have
provided her with insights into her
past failures to comply with the
requirements of the court, and that she would now be able to comply with bail
conditions reliably.
Ms Massey’s mother, a person with no criminal
history, has offered to provide a surety, and it is proposed that Ms Massey
will
live with her mother if released on bail. Ms Fredrickson, the mother, has given
evidence that she understands the obligations
of a surety and the risks to her
of a failure by Ms Massey to comply with bail conditions, and that she is
prepared to contact police
if Ms Massey does not comply with any bail
conditions. Ms Massey gave evidence that she would recognise an onus on her to
show up
at court as required, to ensure that her mother did not lose her money
under the surety arrangements.
55. I do not place substantial reliance on Ms
Massey’s new insights, especially to the extent that they rely on her
continuing
to take her medication as prescribed, but I note that Ms Massey
has strong ties to the ACT (in particular her relationship with
her young son,
her daughter and her mother), and that a regular reporting condition would
ensure that any departure from the jurisdiction
would quickly come to light. To
enhance the likelihood of Ms Massey appearing in court, I would require a
surety from Ms Fredrickson
and would impose conditions specifying residence
requirements, daily reporting to police, and continuing acceptance of prescribed
medication.
The likelihood of the person committing an offence
56. Ms Massey’s record as already described does not give cause for particular optimism as to her ability to refrain from committing any offence at all. However, it would not be appropriate to keep her in custody for an extended period because of the risk that she may commit another offence in the nature of those for which she has previously been convicted. There is no evidence before me on which I could find a likelihood that Ms Massey will intentionally commit, or that she will be driven by uncontrollable impulse to commit, an offence of the kind with which she is now charged, or even another serious offence. However, in an attempt to reduce any such risk, I would impose bail conditions prohibiting her from carrying any kind of knife or other weapon outside her mother’s home, prohibiting the use of illicit drugs and possibly alcohol, and requiring Ms Massey to submit to random drug testing.
The likelihood of the person harassing or endangering others or obstructing the course of justice
57. Counsel for the DPP led evidence from one of the investigating police
officers about concerns that Ms Massey might try to
interfere with
witnesses. In cross-examination it emerged that concerns have been expressed by
the parents of some young people
who on the night of the Charnwood shops
incident were working at those shops and who have been identified as possible
witnesses.
Concerns have also apparently been expressed that if Ms Massey were
released on bail to live with her mother in a suburb not far
from Charnwood,
“her path would cross with all these witnesses”.
58. The
prosecution did not claim that there was anything, whether in
Ms Massey’s intercepted phone calls or otherwise,
that suggested that
she intends to harass, endanger or interfere with witnesses or otherwise to
obstruct the course of justice.
Now that most or possibly all of the witness
statements have been taken from civilian witnesses, there is little scope for Ms
Massey
to interfere effectively with the stories that those witnesses might
tell. Appropriate non-contact and place-exclusion bail conditions,
including a
condition prohibiting Ms Massey from approaching the Charnwood shops, would
seem to be an adequate approach to this
perceived but fairly non-specific
risk.
The interests of the person
Access to counselling
59. Counsel for Ms Massey suggested that while in custody Ms Massey does not have access to appropriate counselling for her drug problems. This evidence was rebutted by evidence about the facilities available to Ms Massey in the Alexander Machonocie Centre (see [10] to [17] above). However, there is evidence from Joanne Smith (Community Education and Corrections Manager, Directions ACT) that community-based counselling and other support would also be available to Ms Massey if she were released on bail.
Use of illicit drugs
60. Ms Massey gave evidence that on Anzac Day 2008 she made a commitment to
becoming drug-free, and that she has maintained this
commitment.
61. Deborah Howell, Probation and Parole Officer, gave evidence of
urinalysis testing of Ms Massey on 3 June 2008, before the Charnwood
shops
incident but while she was subject to an unrelated good behaviour order. This
revealed the presence only of opiates and benzodiazepine
(which were explained
in the report as reflecting the legitimate use of pain killers and prescription
medication respectively) and
cannabis. It seems that Ms Massey does not
consider cannabis a drug, and certainly her focus appears to be on addressing
her heroin
habit.
62. Since being taken into custody, Ms Massey appears
(whether voluntarily or not) to have remained largely drug-free, even having
apparently abandoned the use of cannabis, although she has been disciplined once
in custody for a positive urinalysis result showing
the presence of
methylamphetamine (ICE). Other urinalyses in custody have produced negative
results, and her counsel sought to explain
the circumstances that led to the
positive test result in a way which would have reduced her culpability somewhat.
This explanation
was not rebutted by the prosecution but was not supported by
any evidence either, so I maintain some scepticism about it. In total,
however,
the evidence before me suggests that Ms Massey has avoided heroin at least since
June 2008 (which includes a period while
she was at liberty), and that she is
accepting methadone. Continued participation on a methadone program would be
another necessary
condition of any grant of bail.
Dangers to Ms Massey
63. The bail proposal is that Ms Massey would return to live in an area that is close to the scene of the Charnwood shops incident, and near where relatives of the victim live. However, no evidence was led suggesting that she would be at risk from other members of the community if she were released.
Delay in bringing matter to trial
64. I have already found that the period that may elapse before Ms Massey comes to trial is likely to be long (at this stage it could be at least two years) and, perhaps more significantly, is affected by events for which no time frames can currently be specified or even estimated by the prosecution.
Needs of Ms Massey’s son
65. I have already noted matters relating to the needs of Ms Massey’s
young son. While I have found that those needs do not
of themselves amount to
special or exceptional circumstances, that does not preclude me taking account
of them in consideration of
the criteria set out in s 22 (see s 22(3)(c)).
While noting the report of Ms Massey’s dealings with her son during the
AMC
visit, I cannot exclude the possibility that Ms Massey’s return
home would benefit her son, and that this in turn would
be in Ms Massey’s
interests as a mother.
66. For many bail applicants who appear likely to be
found guilty and sentenced to a term in custody, the best approach may be not
to
apply for bail but to serve their time in custody sooner rather than later, so
as to put the matter behind them more quickly and
move on (ideally towards
rehabilitation). For Ms Massey, however, given her son’s problems, it is
arguable that she has a
good reason to delay serving any sentence that might be
passed on her if her trial does result in a verdict of guilty, that reason
being, that any custodial sentence imposed on Ms Massey may have less of an
impact on her son if he is a bit older when it begins.
Conclusion—Ms Massey’s interests
67. Apart from the fact that Ms Massey might find it easier to refrain from using illicit drugs and to take her prescribed medication regularly while in custody, there is nothing to suggest that it would be contrary to Ms Massey’s interests to release her at this stage.
Conclusion—scope for granting bail
Conclusion
69. For the reasons set out above, I am inclined to grant bail to Ms Massey, on very strict conditions including as to matters mentioned in [55], [56], [58], and [62] above. Whether she is released on bail will depend on whether she is willing and able to accept the conditions proposed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 26 June 2009
Counsel for the applicant: Mr J Pappas
Solicitor for the applicant: Ben
Aulich & Associates
Counsel for the respondent: Mr J Lundy
Solicitor
for the respondent: ACT Director of Public Prosecutions
Date of hearing: 17
April, 1, 26 May, 17 June 2009
Date of judgment: 26 June 2009
Appendix—Relevant legislation
Bail Act 1992 (ACT)
9C Bail for murder and certain serious drug offences
(1) This section applies to a person accused of—
(a) murder; or
(b) an offence against any of the following provisions of the Criminal Code, chapter 6 (Serious drug offences):
...
Note A reference to an offence against a territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).
(2) A court or authorised officer must not grant bail to the 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).
(5) If a court has made a decision in relation to an application for bail by an accused person, 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.
(1) In making a decision about the grant of bail to an adult in relation to an offence, a court or authorised officer must consider—
(a) the likelihood of the person appearing in court in relation to the offence; and
(b) the likelihood of the person, while released on bail—
(i) committing an offence; or
(ii) harassing or endangering the safety or welfare of anyone; or
(iii) interfering with evidence, intimidating a witness, or otherwise obstructing the course of justice, in relation to the person or anyone else; and
(c) the interests of the person.
Examples for par (c)
1 the need of the person for physical protection
2 the period that the person may be held in custody if bail is refused and the conditions under which the person would be held
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) Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.
(3) In considering the matters mentioned in subsection (1) or (2), the court or authorised officer may have regard to any relevant matter, including—
(a) the nature and seriousness of the offence; or
(b) the person’s character, background and community ties; or
(c) the likely effect of a refusal of bail on the person’s family or dependants; or
(d) any previous grants of bail to the person; or
(e) the strength of the evidence against the person.
Example
In considering under subsection (1) the likelihood of the person appearing in court in relation to the offence, the court or authorised officer may have regard to whether the person failed to comply with a bail condition previously.
(4) The reference in subsection (1) (b) (i) to an offence includes a reference to an offence against a law of the Commonwealth, a State or another Territory (including an external territory).
Human Rights Act 2004 (ACT)
(1) Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2) No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
(3) Anyone who is arrested must be told, at the time of arrest, of the reasons for the arrest and must be promptly told about any charges against him or her.
(4) Anyone who is arrested or detained on a criminal charge—
(a) must be promptly brought before a judge or magistrate; and
(b) has the right to be tried within a reasonable time or released.
(5) Anyone who is awaiting trial must not be detained in custody as a general rule, but his or her release may be subject to guarantees to appear for trial, at any other stage of the judicial proceeding, and, if appropriate, for execution of judgment.
(6) Anyone who is deprived of liberty by arrest or detention is entitled to apply to a court so that the court can decide, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful.
(7) Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
(8) No-one may be imprisoned only because of the inability to carry out a contractual obligation.
(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
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