Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Michael John BROWN [2013] NSWCCA 178 Hearing dates: 24/05/2013 Decision date: 02 August 2013 Before: Rothman J Fullerton J Beech-Jones J Decision: Bail Refused Catchwords: BAIL - application for review - exceptional circumstances - presumptions - protection of alleged victim - exceptional circumstances did not justify grant of bail - bail refused Legislation Cited: Bail Act 1978 Crimes Act 1900 Cases Cited: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Chehab [2013] NSWCCA 62 R v Daron John Wright (Supreme Court of New South Wales, Rothman J, 7 June 2005, unreported) R v Gregory William Jacobs (Supreme Court of New South Wales, Rothman J, 30 April 2008, unreported) R v Hamill (1986) 25 A Crim R 316 R v Hilton (1987) 7 NSWLR 745 R v Mahoney-Smith [1967] 2 NSWR 154 R v Medich [2010] NSWSC 1488 R v Newby (Supreme Court of New South Wales, Sully J, 27 January 2006, unreported) R v Pakis (1981) 3 A Crim R 132 R v PDR (No 2) (Supreme Court of New South Wales, Rothman J, 30 July 2007, unreported) R v Petroulias [2010] NSWCCA 95 R v Young [2006] NSWSC 1499 Texts Cited: Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report, (1991) Category: Principal judgment Parties: Regina (Crown) Michael John BROWN (Respondent) Representation: Counsel: M Cinque (Crown) T Quilter (Respondent) Solicitors: Director of Public Prosecutions (Crown) Aboriginal Legal Service (Respondent) File Number(s): 2013/85832 Publication restriction: None Decision under appeal Jurisdiction: 9111 Date of Decision: 2013-05-07 00:00:00 Before: Latham J File Number(s): 2013/85832 Judgment 1THE COURT: On 7 May 2013, the Director of Public Prosecutions (hereinafter, "DPP"), on behalf of the Crown, sought a review of bail granted by a judge of this Court. The hearing of the review was listed on 24 May 2013 on which date the Court refused bail and delivered very short reasons, reserving full reasons. These are the reasons for the order refusing bail. Jurisdiction 2The Court has jurisdiction to hear and determine the review pursuant to s 45(1)(b) of the Bail Act 1978 upon application of the DPP (see s 48(1)(a)(iv) of the Bail Act). In the context of the Bail Act, a review is a hearing de novo: R v Chehab [2013] NSWCCA 62; R v Pakis (1981) 3 A Crim R 132; R v Hamill (1986) 25 A Crim R 316; R v Petroulias [2010] NSWCCA 95. Charge and Allegations 3On 20 March 2013, the respondent was charged with an offence, contrary to s 112(2) of the Crimes Act 1900, being an Aggravated Break, Enter and Commit Serious Indictable Offence; the serious indictable offence being the indecent assault of a child, aged 14. 4The complainant was asleep and, it is alleged, the respondent, having broken into the house, lay on top of her, partially undressed her and attempted to remove her other clothing before forcibly making hand and/or penile contact with her breast and her vagina, on the outside of her underpants. The respondent exposed his penis and masturbated. 5The complainant knew the respondent, by a nickname. Identification does not seem to be a significant issue in the trial. Given the age of the complainant, consent cannot be an issue. 6The complainant made immediate complaint to her mother, by telephone, identifying the respondent as the assailant. The respondent was known to her mother. She also complained to a friend. 7At the time of the assault, the complainant was staying at her grandmother's home. When the complainant's grandmother returned home, she sought to make a complaint to the police, which had to be postponed because of the unavailability of a female officer. 8The respondent was arrested on the same day as the complaint to the police was finalised. He participated in an electronically recorded interview, and made no admissions. 9It has also been alleged that the respondent's partner attempted to contact the complainant. An apprehended violence order has issued restraining the respondent and his partner from approaching the complainant. Presumption as to Bail 10The statutory presumption in favour of the grant of bail in s 9 of the Bail Act is displaced in this case by the operation of s 9B(1)(d) and s 9B(3) of the Bail Act, respectively, because the respondent was, at the time of the alleged offence, subject to a bond to be of good behaviour and because he had previously been convicted of an indictable offence. Other even more stringent provisions apply that relate to the burden imposed on the respondent: see below at [12] and following. 11The displacement of the statutory presumption in favour of bail, without more, results in a residual common law preference for the grant of liberty. 12Nevertheless in this case, the respondent is a repeat offender having previously been convicted of a serious personal violence offence. As a consequence, the Bail Act requires the refusal of bail unless the Court is satisfied that exceptional circumstances justify the grant of bail: Section 9D of the Bail Act, is, relevantly, in the following terms: "9D Repeat offenders-serious personal violence offences (1) An authorised officer or court is not to grant bail to a person in respect of a serious personal violence offence if the person is a repeat offender unless the authorised officer or court is satisfied that exceptional circumstances justify the grant of bail. (2) For the purposes of this section, a person is a 'repeat offender' if the authorised officer or court is satisfied that the person has a previous conviction for a serious personal violence offence (other than the serious personal violence offence in connection with which bail is sought). (3) Sections 8C, 8E and 9 do not apply in respect of a grant of bail to a person in respect of a serious personal violence offence if this section applies to the person. ..." 13A "serious personal violence offence" is defined in s 9D(4)(a) to include, again relevantly for present purposes: Robbery with Striking (s 95 of the Crimes Act); Robbery in Company (s 97 of the Crimes Act); and the offence with which the respondent is presently charged. The respondent was convicted, in 1995, of two counts of the first and, in 2003, of one count of the second category of offence. 14As a consequence, for the respondent to obtain bail, with or without conditions, the Court must be "satisfied that exceptional circumstances justify the grant of bail". Construction of s 9D(1) of the Bail Act 15One of the most onerous burdens on an applicant for bail is where the Bail Act provides that the Court is not to grant bail, unless it were satisfied that exceptional circumstances justify the grant of bail: see s 9C and s 9D of the Bail Act. Section 9C of the Bail Act relates to persons charged with murder. Section 9D, the relevant provision on this application, relates, as earlier indicated, to repeat offenders where the charge on which bail is sought is a serious personal violence offence (in which category this charge falls) and the applicant for bail has previously been convicted of a serious personal violence offence (see earlier discussion). 16The Bail Act, like all statutes, must be read as a whole and in context, and on the prima facie basis that its provisions effect harmonious goals: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70] per McHugh, Gummow, Kirby Hayne JJ. 17As already stated, in ordinary circumstances there is a statutory presumption in favour of bail. The Bail Act then provides, in relation to certain circumstances (circumstances relating either to the applicant for bail or the nature of the offence), for the ordinary statutory presumption to be neutralised: see, for example, s 9A and s 9B of the Bail Act. In other cases the applicant for bail bears an onus to satisfy the Court that bail should not be refused: see, for example, s 8A, s 8B, s 8C, s 8D, s 8E and s 8F of the Bail Act. 18Lastly, in terms of the scheme of the Act, the provisions of s 32 of the Bail Act are central. Section 32 of the Bail Act prescribes the considerations relevant to the grant of bail and requires the Court to take those, and only those, considerations into account in determining the grant of bail. 19The mandatory considerations in s 32 of the Bail Act are criteria that were previously relevant to the grant of bail when exercised as part of the inherent jurisdiction of the Court. Now, these criteria are a mandatory, exhaustive and exclusive code of the considerations relevant to the grant of bail: R v Hilton (1987) 7 NSWLR 745 at 750B and 751A (per Street CJ, with whom Hunt and Rogers JJ agreed). 20Those criteria fall into major categories, with sub-categories, involving the risk of the applicant responding to bail (also sometimes referred to as "flight risks") (s 32(1)(a) of the Bail Act); the interests of the person being free, particularly where the period on remand will be lengthy (s 32(1)(b) of the Bail Act); the protection of the alleged victim or the family thereof (s 32(1)(b1) of the Bail Act); and, the protection of the community (s 32(1)(c) of the Bail Act). 21The refusal of bail is not, and should never be, a form of punishment or a form of duress to force the applicant for bail to do something that is otherwise not required. In R v Mahoney-Smith [1967] 2 NSWR 154 at 158, O'Brien J said: "But it is, I think, important to keep in mind that the grant or refusal of bail is determined fundamentally on the probability or otherwise of the applicant appearing at Court as and when required and not on his supposed guilt or innocence and that the detention of an accused person in lieu of bail cannot be imposed in any way as a retribution for any guilt which might be supposed from the fact of his arrest and charge and committal for trial. Even more so is it important to keep in mind that such detention cannot be imposed as an expression of resentment of his defence or the answer made by him or through his legal representative to the evidence led against him upon the proceedings for his committal for trial." Exceptional Circumstances 22Given the foregoing discussion, and the fact that the application before the Court is governed by the terms of s 9D of the Bail Act, it is necessary to examine whether there are "exceptional circumstances" justifying the grant of bail in this case. Before dealing with the term "exceptional circumstances", it should be noted that the terms of s 30AA of the Bail Act require the establishment of "special or exceptional circumstances". It seems that the legislature differentiates between "special circumstances" and "exceptional circumstances". 23The distinction, if there be one, between "exceptional circumstances" and "special circumstances" was discussed by Rothman J in R v Daron John Wright (Supreme Court of New South Wales, 7 June 2005, unreported), in which his Honour said: "[22] The use of the term 'special and exceptional circumstances' would require that the circumstances be both special and exceptional. The use of the term 'exceptional circumstances' means that the circumstances need to be exceptional but not necessarily special. 'Special' is defined by the Macquarie Dictionary as 'relating or peculiar to a particular person, thing, instance; having a particular function, purpose, of a distinct or particular character; being a particular one; extraordinary or exceptional'. Thus the distinction between 'special and extraordinary' and 'extraordinary' may be more illusory than substantial. [23] The Macquarie Dictionary defines the word 'exceptional' as: '1. forming an exception or unusual instance; unusual; extraordinary. 2. exceptionally good, as of a performance or product. 3. exceptionally skilled, talented or clever.' [24] The Oxford English Dictionary defines the word 'exceptional' as: 'Of the nature of or forming an exception; out of the ordinary course; unusual, special.' [25] Thus it would seem that if a Court or authorised officer is satisfied that one or more factors either singularly or combined produced a circumstance or situation out of the ordinary or unusual the mandatory requirement otherwise contained within s 9D(1) of the Act will be satisfied. 'Special' on the other hand, seems to imply a unique situation or one which pertains only to that individual." 24The need to satisfy the Court of special or exceptional circumstances, however, does not constitute a prohibition on the granting of bail: R v Young [2006] NSWSC 1499 at [19], per Johnson; R v Newby (Supreme Court of New South Wales, Sully J, 27 January 2006, unreported). In Young, Johnson J said: "[18] The concept of exceptional circumstances is, of course, not defined in the Bail Act 1978. It is a term that is used, from time to time, in statutes to place limits upon the exercise of various powers: cf R v Steggall [2005] VSCA 278; (2005) 157 A Crim R 402 at paragraph 12. It is helpful, however, to refer to the ordinary meaning of the word 'exceptional' in the Macquarie Dictionary: 'Forming an exception or unusual instance; unusual; extraordinary.' [19] Section 9C does not constitute a prohibition on granting bail in cases of murder. Cases of alleged murder, of course, can vary considerably. It is no doubt for that reason that in the second reading speech, emphasis was placed upon the need for a case-by-case examination. The context in which the term 'exceptional circumstances' is used is relevant to the construction of the term. The statutory context in which the term 'exceptional circumstances' appears in s.9C involves the existence of a murder charge against the applicant. Elsewhere in the Bail Act, in s.30AA, the term 'special or exceptional circumstances' is used in the context of an applicant who has been convicted of an offence on indictment and is appealing to the Court of Criminal Appeal. That difference in statutory context is not insignificant involving, as it does, bail determinations at different points along the path of the criminal justice process. [20] It seems to me that exceptional circumstances may be found in a case by the coincidence of a number of features. These can include features subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise that, absent this particular test, the applicant is otherwise a person who will answer bail." 25A similar approach was taken by McClellan CJ at CL in R v Pirini (Supreme Court of New South Wales, 8 September 2009, unreported), in which his Honour said: "All of the matters in s 32 must be considered. A primary consideration when determining whether to grant bail is whether the accused will attend to answer the charge at a later trial. However, the court must also be concerned with the protection of witnesses other persons including relatives of a victim and the protection and welfare of the community. These considerations must be balanced with the likely period of incarceration of an individual before trial." 26This approach was adopted by Price J in R v Medich [2010] NSWSC 1488. It is well to remember that the provisions of s 9D of the Bail Act were inserted by the Parliament in circumstances where the second reading speech included the following passage: "Exceptional circumstances will be left to the Court on individual case-by-case basis. However, as a general guide it might include cases including a battered wife, or a strong self-defence case or a weak prosecution case. It might also include a case in which the defendant is in urgent need of medical attention or has an intellectual disability, or a case in which the Court is satisfied the offender poses no threat to the victim or the community." 27As is clear from the foregoing judgment, the approach, for some period, has been that exceptional circumstances may be disclosed by a combination of factors or a particular factor which takes the circumstances of the offender and the grant of bail out of the ordinary: see also R v Gregory William Jacobs (Supreme Court of New South Wales, Rothman J, 30 April 2008, unreported); R v PDR (No 2) (Supreme Court of New South Wales, Rothman J, 30 July 2007, unreported). 28The approach that exceptional circumstances may be disclosed by a combination of factors taking the applicant or the circumstances of the offending out of the ordinary was recently applied by this Court in R v Chehab, where the Court (Latham, Fullerton and Adamson JJ), said: "[6] What constitutes, or might constitute, exceptional circumstances is a question of fact to be determined referable to considerations personal to the applicant for bail or the circumstances of the particular case. Where the preconditions to the operation of s 9D(1) are met, the applicant for bail (in this case the respondent to the bail review) has the evidential burden of establishing circumstances sufficiently exceptional to warrant bail being granted." 29It is the foregoing approach that is applied by the Court in this application. It has been remarked that, in dealing with the provisions of s 8A of the Bail Act, while the applicant for bail bears an onus to satisfy the Court that bail should not be refused, greater attention should be focused on whether the Crown case is a strong one or a weak one. In any event, the strength of the Crown case is a factor contained in s 32(1)(a)(iii) of the Bail Act as one of the criteria to be considered, its relevance being that, in cases where the Crown case is particularly strong, there may be greater reason for the person charged not to appear in court. Conversely, if the Crown case were particularly weak, there may be good reason to be satisfied that the person will probably appear. 30Nevertheless, it is not the function of the Court, on a bail application, to determine the guilt, or likely conviction, of the applicant for bail. 31Further, exceptional circumstances may be disclosed by the nature of the offence itself, or, in the case of the application of s 9D of the Bail Act, a comparison between the current offence and any earlier offence that renders the provision applicable or the period of time between the offences. Consideration 32There are a number of aspects of the respondent's circumstances which point to them being exceptional, justifying the grant of bail. First, the conditions upon which bail was granted (and those proposed in these proceedings) are such that the respondent is, in effect, under house arrest at a location significantly distant from where the alleged victim ordinarily resides, which seeks to have the practical effect of affording her protection. 33Secondly, the respondent does not have a driver's licence such as would allow him, legally, to travel from Brewarrina, where he is currently residing, to where the victim and her family reside. 34Thirdly, there are significant interests that warrant his liberty, including the distance from legal advisors. He also has, by his background and community ties, significant attachment to the community such that it is not likely that he would flee the jurisdiction. In addition, the respondent is a person of Aboriginal background whose extended family and kinship, and other traditional ties, warrant significant consideration in the determination of whether or not to grant bail. 35In the cases of Aboriginal accused, particularly where the applicant for bail is young, alternative culturally appropriate supervision, where available, (with an emphasis on cultural awareness and overcoming the renowned anti-social effects of discrimination and/or an abused or disempowered upbringing), should be explored as a preferred option to a remand in gaol. 36Since the Royal Commission into Aboriginal Deaths in Custody (see particularly Recommendations 89-91 and the National Report at 21.4 and following), the incidence of aboriginal incarceration has increased dramatically, overwhelmingly as a result of the increase in the numbers on remand. In this case, no such culturally appropriate alternative supervision is proposed or available. 37Notwithstanding the foregoing, the implicit threats to the victim and her family that have been made, not by the respondent but seemingly in his interests, are a matter of great concern. In addition, the respondent has a history of driving, even though not legally entitled so to do. 38Of significant weight since the circumstances of the alleged offence involve the abuse of alcohol and/or drugs is that the material before the Court, in this review, indicates that alcohol remains a feature of the respondent's current circumstances, suggesting higher risk factors associated with the protection of the alleged victim, her family and the community generally should his consumption of alcohol act as a disinhibitor. 39Lastly, his current residence in Brewarrina with relatives, to which reference has been made, does not allow for supervision by law enforcement agencies to a sufficient degree that any condition we might impose involving abstention from alcohol can be policed, or which completely safeguards the possibility of travel to the victim's location. 40In all of the circumstances, the Court was of the view that the circumstances pertaining to the respondent were not sufficiently exceptional to justify the grant of bail and, for that reason, bail was refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2013