In the matter of an application for bail by Raeyers [2009] ACTSC 88 (10 July 2009)

Last Updated: 14 August 2009

IN THE MATTER OF AN APPLICATION FOR BAIL BY NICHOLAS RAEYERS
[2009] ACTSC 88 (10 July 2009)

BAIL – application for day release following refusal of bail – preferable application to officer in charge of facility – exceptional power to be exercised by the court – bail granted.

EX TEMPORE JUDGMENT

No. SCC 270 of 2009

Judge: Refshauge J
Supreme Court of the ACT
Date: 10 July 2009

IN THE SUPREME COURT OF THE )
) No. SCC 270 of 2009
AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION FOR BAIL BY NICHOLAS RAEYERS

ORDER

Judge: Refshauge J
Date: 10 July 2009
Place: Canberra

THE COURT ORDERS THAT:

1. Mr Nicholas Raeyers be released into the custody of Mr Allan Raeyers, no earlier than 9 am on 11 July 2009 upon the deposit by Mr Allan Raeyers of $250 in cash, with Mr Allan Raeyers signing as a surety.
2. He proceed directly to the Canberra Hospital into the ward where his girlfriend, Ms Serena Patricia Condon-Reid, is and remain there except for when he returns directly to the Alexander Maconochie Centre.
3. He remain in the company of Mr Allan Raeyers at all times until he returns to the Alexander Maconochie Centre.

4. He not to consume alcohol or illicit drugs.

5. He not drive a motor vehicle or be in the driving seat or in the possession of the keys of a motor vehicle during the period of bail.
6. He return to the Alexander Maconochie Centre no later than 11.30 am on 11 July 2009.
7. If his girlfriend or the staff at the Canberra Hospital request him to leave he must return to the Alexander Maconochie Centre forthwith.

1. Nicholas Raeyers, the applicant, has sought bail for one day to visit his girlfriend, Serena Patricia Condon-Reid, in hospital. She is in hospital because she was injured seriously in a motor vehicle accident caused when the applicant drove a car away from police who wished to pull him over and question him. At the time he was on bail for offences, a condition of which required him not to drive a motor vehicle, be in the driving seat of a motor vehicle or possess the keys of a motor vehicle.
2. These facts would be sufficient to justify refusing bail and this indeed I did this morning, on the basis that Mr Raeyers posed too great a risk to the community.
3. He has a long history of offending including failure to comply with court orders which comprised failures to answer bail and other matters. He has never, however, breached bail granted by the Supreme Court.
4. Although he has not been convicted of any offences for the previous two years, he is currently facing two series of charges, one for which he was originally on bail and the current offences which, as I have mentioned, include offences, to the majority of which he has pleaded guilty, arising out of the motor vehicle accident in which his girlfriend was seriously injured.
5. There were real risks that Mr Raeyers would not appear to take his trial or that he would commit further offences. I could also not be satisfied that he would comply with his conditions of bail. Bail is granted on conditions that need to be obeyed for they are the protection that the court considers necessary to justify the liberty of an applicant for bail. Breach negatives that justification and entitles the court to remand the person in custody.
6. After I refused bail, Mr Raeyers sought bail for one day, tomorrow, to visit his girlfriend, whose 21st birthday he said it was. Normally it is not the function of the court to manage the corrections system and to grant day release on such occasions when the superintendent of the remand centre has power to do so. In the usual case such an arrangement should be left for the superintendent and not for the court to determine.
7. Having said that, this court and, to my knowledge, all of the present judges, have made such orders from time to time so that accused persons can attend funerals, weddings, medical appointments and the like. It is, however, an exceptional power that should not be used regularly and should be left for special circumstances.
8. As the date of the birthday is tomorrow, there was little time for Mr Raeyers to apply to the superintendent and for that application to be processed. That should, however, be the norm and recourse to the court should only be permitted where that is unavailable or where, in the exceptional case, the superintendent has refused the application and there is some justification for reviewing that refusal by the court. The advantage of leaving the decision to the superintendent is that corrective services officers can then escort the detainee and ensure that there is no opportunity for him to de-camp or to commit further offences. Indeed in the past, I have refused bail for special occasions because of the unavailability of that advantage.
9. Mr Lawton, who appeared and argued ably and persuasively for the prosecution, submitted that Mr Raeyers should not be permitted to visit his girlfriend whose injury he had caused. That is a relevant matter. It is, however, by no means always the case that a person injured ceases to have affection for those who caused the injury. Mr Raeyers said that the accident had been a ‘wake-up call’ for him. I am, of course, sceptical about that but he is entitled to be given some benefit of the doubt for it.
10. If Mr Raeyers is to rehabilitate himself and to cease to continue committing the offences he has been committing for a long period, and of a distressing number and nature, then one of the matters of stability is a relationship, if he can maintain it, and there is much to be said about that.
11. Further, it is not just any birthday, it is his girlfriend’s 21st birthday, which she will spend in hospital as a result of the actions of Mr Raeyers. A 21st birthday only occurs once and in our community it is still regarded as a very special occasion.
12. While otherwise I may not have been prepared to grant bail, this, to my mind, tips the balance. It is necessary, however, to give very strict conditions to the bail which will be granted for a very limited time. There is much I have not been told in this application and, had there been proper time and availability, I would have wished to have been told more. I did, however, hear sworn evidence from Mr Allan Raeyers, who is the brother of Mr Nicholas Raeyers and I had the benefit of hearing him give evidence and also to see him cross-examined.
13. While I would prefer to have known much more on more sworn evidence, Mr Raeyers clearly understands that the consequence of any breach of this very special opportunity for bail will be fatal to him in any further applications for a grant of bail. In all the circumstances, however, I am prepared to allow him a short period of bail to visit his girlfriend.
14. I will grant Mr Raeyers bail on the following conditions:

1. That he be released into the custody of Mr Allan Raeyers, no earlier than 9 am on 11 July 2009 upon the deposit by Mr Allan Raeyers of $250 in cash, with Mr Allan Raeyers signing as a surety.
2. That he proceed directly to the Canberra Hospital into the ward where his girlfriend, Ms Serena Patricia Condon-Reid, is and remain there except for when he returns directly to the Alexander Maconochie Centre.
3. That he remain in the company of Mr Allan Raeyers at all times until he returns to the Alexander Maconochie Centre.

4. That he not to consume alcohol or illicit drugs.

5. That he not drive a motor vehicle or be in the driving seat or in the possession of the keys of a motor vehicle during the period of bail.
6. That he return to the Alexander Maconochie Centre no later than 11.30 am on 11 July 2009.
7. That if his girlfriend or the staff at the Canberra Hospital request him to leave he must return to the Alexander Maconochie Centre forthwith.
   

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 10 July 2009

Counsel for the Crown Mr J Lawton
Solicitor for the Crown: Director of Public Prosecutions (ACT)
Counsel for the defendant: Self-represented
Solicitor for the defendant: Self-represented
Date of hearing: 10 July 2009
Date of judgment: 10 July 2009