SUPREME COURT OF QUEENSLAND
Lynch v Director of Public Prosecutions (No 2)  QSC 64
JASON BRIAN LYNCH
DIRECTOR OF PUBLIC PROSECUTIONS
BS No 3379 of 2020
Supreme Court of Queensland
9 April 2020
31 March 2020
Application for bail dismissed.
CRIMINAL LAW – PROCEDURE – BAIL – FURTHER APPLICATIONS – where applicant had been refused bail – where applicant made a fresh application for bail – where applicant argued there had been a material change in circumstances – where a new police brief had been disclosed since the first application – where the police had elected summary jurisdiction for certain charges since the first application – where certain offences cannot now be dealt with in the Magistrates Court – where COVID-19 will result in a delay in the trial listing – where there has been a declaration of restrictions within prisons since the first application – whether there had been a material change in circumstances
CRIMINAL LAW – PROCEDURE – BAIL – FURTHER APPLICATIONS – where the defendant is required to show cause under s 16(3) of the Bail Act 1980 – whether the applicant has shown cause why the defendant’s detention in custody is not justified
Bail Act 1980 (Qld) ss 15, 16
Bail Act 2013 (NSW)
Bail Act 1977 (Vic)
Uniform Civil Procedure Rules 1999 r 668
Briginshaw v Briginshaw (1938) 60 CLR 336, applied
Ex parte Edwards  1 Qd R 139, applied
Fisher v Director of Public Prosecutions (Qld)  QCA 54, cited
Lacey v DPP (Qld)  QCA 413, cited
Moukhallaletti v DPP (NSW)  NSWCCA 314, cited
R v Slough Justices; Ex parte Duncan (1982) 75 Cr App Rep 384, cited
R v Stott (No 2)  ACTSC 62, cited
Rakielbakhour v DPP (NSW)  NSWSC 323, cited
Re Broes  VSC 128, distinguished
Re Tong  VSC 141, cited
Sica v Director of Public Prosecutions  2 Qd R 254, applied
S Lynch for the applicant
R Guppy-Coles for the respondent
Phillips Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent
On 6 March 2020, Williams J dismissed an application by Jason Lynch for bail. On 31 March 2020, he applied again for bail on the basis that, since his first application, there had been a material change in circumstances.
He is charged with a large number of drug offences and drug related offences. There are three sets of charges:
The first set is alleged to have been committed on 16 November 2019. The charges concern possession of dangerous drugs such as cocaine, morphine, cannabis, oxycodone and others.
The second set consists of one alleged breach of the Bail Act 1980 on 20 November 2019.
The third set consists of the most serious charge, namely, trafficking in dangerous drugs and associated drug offences.
With respect to the first set of charges, he was released on bail with a reporting condition. On 20 November 2019, he failed to report and that failure constitutes the second set. I note that he did report on 22 November 2019 claiming that he had forgotten the requirement.
He has been on remand for all these charges now since 27 November 2019, a period of about four and a half months.
He is required, by s 16(3) of the Act, to show cause why his detention in custody is not justified. In these circumstances, the applicant must pass through two doorways to obtain a grant of bail. First, he must demonstrate that there has been a material change in circumstances since the last application. Secondly (assuming there has been a material change), he must show cause why his detention is not justified.
The Bail Act 1980
Section 9 of the Bail Act 1980 prima facie confers upon any unconvicted person who has been brought before the court the right to a grant of bail. The court’s obligation to grant bail is, though, “subject to this Act”. The principal source of the court’s power of refusal is s 16. That section also contains the provision which reverses the prima facie entitlement in identified cases and requires an applicant to show cause why detention is not justified.
So far as is relevant, s 16 of the Bail Act provides:
Notwithstanding this Act, a court or police officer authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court or police officer is satisfied—
that there is an unacceptable risk that the defendant if released on bail—
would fail to appear and surrender into custody; or
would while released on bail—
commit an offence; or
endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or
interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
that the defendant should remain in custody for the defendant’s own protection.
In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant—
the nature and seriousness of the offence;
the character, antecedents, associations, home environment, employment and background of the defendant;
the history of any previous grants of bail to the defendant;
the strength of the evidence against the defendant;
if the defendant is an Aboriginal or Torres Strait Islander person—any submissions made by a representative of the community justice group in the defendant’s community, including, for example, about—
the defendant’s relationship to the defendant’s community; or
any cultural considerations; or
any considerations relating to programs and services in which the community justice group participates;
if the defendant is charged with a domestic violence offence or an offence against the Domestic and Family Violence Protection Act 2012, section 177(2)—the risk of further domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012, being committed by the defendant;
See section 15(1)(e) for the power of a court to receive and take into account evidence relating to the risk of further domestic violence or associated domestic violence.
any promotion by the defendant of terrorism;
any association the defendant has or has had with—
a terrorist organisation within the meaning of the Criminal Code (Cwlth), section 102.1(1); or
a person who has promoted terrorism.
Where the defendant is charged—
with an indictable offence that is alleged to have been committed while the defendant was at large with or without bail between the date of the defendant’s apprehension and the date of the defendant’s committal for trial or while awaiting trial for another indictable offence; or
with an offence to which section 13(1) applies; or
with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or
with an offence against this Act; or
For this paragraph, a person proceeded against under section 33(3) is taken to be charged with an offence against this Act—see section 33(6).
with an offence against the Penalties and Sentences Act 1992, section 161ZI or the Peace and Good Behaviour Act 1982, section 32; or
with an offence against the Criminal Code, section 359 with a circumstance of aggravation mentioned in section 359(2); or
with a relevant offence;
the court or police officer shall refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified and, if bail is granted or the defendant is released under section 11A, must include in the order a statement of the reasons for granting bail or releasing the defendant.
A material change in circumstances - the test
The source of the test which has to be satisfied by the applicant is the decision of McPherson J in Ex parte Edwards. In that case, his Honour examined the old rules relating to applications for bail and the history of relevant statutory provisions. He held that a second application for bail can be made, following the refusal of an earlier application, but that such application would “ordinarily prove fruitless unless some additional facts have arisen, or have been discovered, so as to bring the application within the terms of O.45, r.1.” That decision has been applied in this court on many occasions and, in Fisher v Director of Public Prosecutions (Qld), it is described as “binding authority for the principle that where bail is refused under the Bail Act and a subsequent application is made, it can succeed only if the applicant demonstrates a material change in circumstances between the two applications justifying the grant of bail.”
Has there been a “material change in circumstances”?
The applicant relies on five matters:
since the first application, the police brief has been disclosed and, the applicant says, the evidence is different and weaker,
the police have elected summary jurisdiction for the offences in the first set of charges,
the offence against the Bail Act cannot now be dealt with in the Magistrates Court,
the delay in a trial being listed for these matters as a result of the effect of the COVID‑19 pandemic, and
the declaration of restrictions within prisons since the last application.
I will deal with each of those matters in turn, but first, I must consider an argument advanced by the respondent. The respondent concedes that there has been a change in circumstances but submits that the change is not material to the reasons for the refusal of bail on 6 March 2020, namely, the risk of committing further offences. The respondent argues that, therefore, no material change in circumstances has been demonstrated and the application should be dismissed.
In Ex parte Edwards, McPherson J said that the question to be determined was whether there are any new considerations which were not before the court on the occasion of the previous application when bail was refused. His Honour referred to the reasons of Ormrod LJ in R v Slough Justices; Ex parte Duncan where the following was said:
“Mr Smith contends that the committal itself is ipso facto a material change of circumstances for this purpose and so requires the court to reconsider the question of bail. In many cases there will, in fact, be a material change or changes in the circumstances at this stage for obvious reasons. For example, the strength of the prosecution case may be better known, or it may be possible to re-evaluate the seriousness of the offence, or the time likely to elapse before the case comes to trial. Other relevant considerations may emerge at this stage.”
A change that is material is one that is material to any circumstance relevant to the grant or refusal of bail. It need not be confined to a circumstance considered or relied upon by the judge who heard the first application.
A second application is not a review of, or an appeal from, the original decision refusing bail. If a material change is demonstrated, then the judge hearing the second application must consider the matter afresh in the light of that material change so far as it is relevant. The task facing a judge hearing any application for bail was described in Lacey v DPP (Qld) in the following way:
“The essence of the exercise of the judge’s discretion is to balance competing considerations and to weigh the relative importance which the different factors bear in the context of the decision which needs to be made. That exercise of discretion is not an empirical exercise; there are no bright lines drawn to determine conclusively when one important factor outweighs another.”
Disclosure of the police brief
The first set of charges appear to be for offences relating to personal use of unlawful drugs. The third set is of particular concern because part of the alleged trafficking took place while the applicant was on bail for possessing drugs.
The provision of the police brief leads the applicant to submit that, with respect to the trafficking charge, the evidence of the telephone intercepts only demonstrates the possession and supply of some small quantities. Further, it is argued that the communications only show two weeks of street level trading between 15 November and 27 November 2019.
I do not accept that the material on the brief that has been disclosed weakens the Crown case in any material way. The applicant has been captured purchasing unlawful drugs between 29 July and 29 October 2019. It is alleged that he then sold on to his “customer base”. The chronology of the telecommunication intercepts is sufficient to raise a case of reasonable strength of the trafficking which has been alleged.
The case for the Crown on the first set of charges has some force. The drugs referred to in the first set of charges were located in the applicant’s car, next to his seat.
The drugs the subject of the third set were located in his bedroom and there are over 1000 intercepted calls where the applicant seeks to buy commercial quantities of methylamphetamine to sell to his customers.
I do not accept that the disclosure of the police brief has shown that the Crown case is relevantly weaker than it was at the time of the first application. It is not appropriate to explore in great detail the factual bases for the charges. The necessary assessment should be made by taking a broad view of the allegations and the supporting evidence.
(b) Election of summary jurisdiction for the offences in the first set of charges
The requirement for the applicant to show cause under s 16(3) of the Bail Act arises out of the charges that:
he committed an indictable offence (the third set) while he was at large with or without bail between the date of his apprehension and the date of his committal for trial or while awaiting trial for another indictable offence (the first set), and
he committed an offence against the Bail Act (the second set).
The police have now elected to proceed by way of summary trial in the Magistrates Court with respect to the first set of charges. The Magistrates Court has issued a number of practice directions concerning the manner in which matters will be dealt with for the time being. It was contended, and was not challenged, that the changes in procedure will mean that the applicant will not be able to have either the first or second set of charges heard and determined in the Magistrates Court for the foreseeable future.
The effect of the election to proceed to a summary trial for the first set of charges does not, though, affect the application of s 16 of the Bail Act. The reversal of onus is imposed upon the charging of an indictable offence alleged to have been committed while the defendant was on bail for another indictable offence. It does not matter that, at a later date, the original charges are dealt with in a summary fashion. It may be taken into account in dealing with the application but it does not remove the effect of s 16.
(c) The offence against the Bail Act cannot now be dealt with in the Magistrates Court
The applicant is charged with an offence against the Bail Act in that he failed to report in accordance with the bail conditions. Even though that is not able to be determined at this stage, the reversal of onus on this application remains in place.
After this matter was heard, the applicant, with the consent of the respondent, provided information to the effect that the summary charges have been adjourned for “committal mention” to 3 July 2020. This provides no more certainty about the hearing of those charges than previously existed. But, it remains the case that it is the third set of charges which is most relevant to the question of delay and its effect.
(d) The delay in a trial being listed for these matters as a result of the effect of the COVID‑19 pandemic
Since the first application, the following has occurred:
- All jury trials which had been set down for hearing in this court up to 30 June 2020 have been delisted.
- The court is proceeding on the basis that ordinary listing procedures for jury trials will not apply for an indeterminate time.
- No estimate can be given of a likely trial date.
- The current circumstances will create a back log, which will further delay hearings for an indeterminate time.
These circumstances have been brought about by the effects of the measures promulgated by the relevant authorities. The applicant says that these create the real issue in determining whether cause has been shown. The uncertainty as to when the applicant might obtain a trial and the prospect that he might spend more time on remand than he would pursuant to any sentence which might be imposed is argued as being a matter of considerable weight in the assessment of whether there has been a material change in circumstances.
When the first application was heard, the parties were entitled to proceed on the basis that the hearing of these charges would be listed in the ordinary course. That is no longer the case. It cannot be said when these matters might be heard but an additional delay of 12 months is not out of the question. This is a material change and I am satisfied that the applicant has satisfied the test on this basis alone.
(e) The declaration of restrictions within prisons since the last application
Since the last application there has been a “declaration of emergency” by the Commissioner of Queensland Corrective Services. It was submitted by Mr Lynch that Stage 3 restrictions had been declared in the prison at which the applicant is an inmate. Those restrictions require a lockdown of the prison, testing of offices and social distancing.
These are matters that do change the circumstances in which the applicant is held on remand. But restrictions on movement within a jail are not uncommon. Prisons can be placed in lockdown for many reasons and at any time. The difference at this time is that the length of the change in circumstances is unknown and the susceptibility of a prison population to infection is generally accepted to be higher than in the ordinary population.
It must also be borne in mind that this is an application which attracts the principles relating to standard of proof considered in Briginshaw v Briginshaw, namely:
“… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
This is particularly important for an applicant to consider when assembling the evidence upon which reliance will be placed. The court is entitled, under s 15(1)(e) of the Bail Act to “receive and take into account evidence of any kind that it considers credible or trustworthy in the circumstances”, but it does not follow that there is no need for anything more than a statement from the bar table about the effects of, for example, Stage 3 restrictions. The court should be provided with a reasonable amount of detail (usually available to an applicant’s representatives from public sources) of the extent and consequences of a change in prison conditions.
There is also an issue which arises – but which was not the subject of argument – about the extent to which the court should take into account conditions in prisons. As I have found that delay constitutes a material change, this need not be pursued.
Has the applicant shown cause?
In the written submissions by the applicant it is contended that the decision by the police to elect summary jurisdiction for the first set of charges has something to do with the requirement to show cause. It does not. So much is recognised in another part of the submissions where it is said: “Whilst it is trite to note he is strictly required to show cause, the above matters should be taken into account.” It is plainly open for the applicant to rely upon the matter which has been found to constitute a material change in circumstances as also being sufficient to show cause.
In determining whether the applicant has shown cause, I bear in mind the principles which were summarised by Button J in Moukhallaletti v DPP (NSW). The Bail Act 2013 (NSW) is broadly similar to the legislation governing this application with respect to certain classes of persons having to show cause and the requirement that bail must be refused if there is an unacceptable risk of certain identified matters. The New South Wales legislation is not identical to the Queensland statute and, therefore, care must be taken when considering decisions based on its provisions, but the principles enunciated by Button J are of assistance in considering these circumstances:
whether an applicant has shown cause is separate from the question of whether there would be unacceptable risks of certain things occurring if the applicant were granted bail,
the statute does not enumerate the types of facts that may show cause but, in contrast, the statute does enumerate the factors relevant to the assessment of unacceptable risks,
there will often be a substantial overlap between the factors that may go to whether cause has been shown and the factors that inform whether an unacceptable risk exists, and
cause may be shown by a single powerful factor, or a powerful combination of factors.
I agree with the view expressed by Tinney J in Re Tong, where his Honour dealt with an application under the Bail Act 1977 (Vic) which required him to consider whether “exceptional circumstances” existed which would justify the grant of bail. One of the aspects of the application concerned the implications of the COVID-19 pandemic as part of the surrounding circumstances. While a “material change” is not the same as an “exceptional circumstance” his observation is relevant and may be adapted for these types of proceedings:
“ It should not be thought that the current health crisis facing our community will in every case be a matter which will lead to satisfaction in the mind of a judge or magistrate of the existence of exceptional circumstances, less still that it will necessarily lead to a grant of bail. These matters, while themselves unheard of in our community in living experience, are simply part of the surrounding circumstances required to be taken into account in a consideration of [the bail process].”
“ … one can find countless examples whereby a single judge of the Supreme Court has found that an applicant has shown cause, or failed to do so. However, as RA Hulme J (Hoeben CJ at CL and Wilson J agreeing) explained recently in Director of Public Prosecutions (NSW) v Zaiter  NSWCCA 247 at  to , unless they contain a discussion of legal principles, those decisions have little or no precedential value. That is because many bail decisions are evaluative judgments about the interplay of a multitude of factors, not determinations of legal questions.”
The decision in Re Broes was decided on its own facts and is not – nor does it purport to be – authority for the proposition that the delay currently being experienced is, by itself, sufficient to justify bail. In that case, both parties agreed that conditions of bail could be imposed which would mitigate the risk so that it was no longer unacceptable.
Similarly, another case which was cited was R v Stott (No 2) in which consideration was given to conditions in prisons. It is only an instance in which the change in prison conditions was held to be a relevant change in circumstances. This is made clear by Elkaim J when he says:
“ The change of circumstances which I have found, enables me to proceed with the bail application. The Crown opposes bail and has raised a number of significant factors in support of its position. Less [sic] there be any doubt the only relevance in this matter of the COVID-19 outbreak is to whether or not there has been a change of circumstances. The balance of the bail application does not take into account the outbreak.”
The reasoning set out above – which accepted that the change in listing procedures constitutes a material change – also satisfies me that the change in those listing procedures with the consequent unquantifiable delay in obtaining a trial should be taken into account when considering whether the defendant’s detention in custody is not justified.
Should bail be granted?
The main plank of the applicant’s case is that the extended delay in these matters being dealt with is of sufficient weight to justify a grant of bail. He also refers to the changes in prison conditions.
There is no doubt that an accused who, after perhaps years in jail, is acquitted will suffer considerable prejudice. But this court has expressly disapproved the notion that substantial delay itself establishes that pre-trial incarceration of an accused is unjustified. Unacceptable risk of flight, witness tampering or further offending do not become acceptable because the case against the accused requires a long time to get to trial. Matters that must be taken into account include the length of any delay, the reasons for that delay and the strength of the Crown case. They must be balanced to arrive at a decision as to whether bail should be granted.
Delay, and any prejudice caused by it, must be considered in the light of the perceived strength of the prosecution case. Section 16 of the Bail Act requires a judge to have regard to the strength of the evidence against an accused as it “appear(s) to be relevant”. The degree of relevance varies with the extent to which it is possible, in any particular application, to determine the strength of the case. Obviously, where the material demonstrates a very strong Crown case, or a weak one, the factor has considerable relevance. Delay will have more importance in circumstances where the prosecution case is weak.
The general question of the effect of delay was considered in Lacey v DPP. Of particular relevance are the following passages:
“ … It may be accepted that lengthy detention without trial is not easily justified, but to say that it cannot be justified by the strength of the Crown case is a proposition not supported by any available reading of s 16(3).5 Further, there may be several reasons for delay. In some cases, the delay may be due to the conduct of the accused. In some cases, it may be due to the conduct of the prosecution. In some cases, it may be due to the shortage of court resources to deal with a case involving many witnesses or a large mass of documentary evidence. In some cases, it may be due to a combination of all of the above. To the extent that the Crown is not intentionally, or by neglect, causing the delay, it becomes more difficult to accept that “delay of itself shows cause”. Unacceptable risks of flight or witness tampering or further offending do not become acceptable because the case against the accused requires a lot of witnesses to be called and, therefore, a long time to get to trial.
 The length of delay, the reasons for that delay and the strength of the Crown case will always be matters of degree which must be balanced to arrive at a decision as to whether bail should be granted. Glossing the statute, in the manner urged by the appellants, substitutes for the balancing of competing factors required by the statute an evaluative exercise in which the length of detention is of overwhelming importance. Moreover, the differences in the character of each of those competing factors render an evaluative exercise of the type for which the appellants contend largely meaningless. The strength of a Crown case and the consequent risks of flight or interference with Crown witnesses do not diminish as the length of time to trial increases. On the other hand, in a case in which it is demonstrated that the time in custody on remand will likely exceed any custodial sentence which might be imposed after conviction, the relative importance of time may very well be regarded by the judge as outweighing the other relevant factors.” (emphasis added)
The consideration of an application for bail requires a balancing of competing considerations and the weighing of the relevant importance which those different factors have in the context of the decision which needs to be made. The matters set out in s 16(1)(a) must be assessed and weighed in the balance.
Further, as was said in Sica:
“ … The judgment, to grant or refuse bail, necessarily “includes forming provisional assessments upon very limited material of the strength of the Crown case and of the (applicant’s) character;” per Thomas JA in Williamson v Director of Public Prosecutions  1 Qd R 99 at 103. Moreover it is an assessment of a risk according to an imprecise standard. The notion of “unacceptable risk”, while not devoid of content, is not “capable of yielding” a precise “degree of definition”: M v M (1988) 166 CLR 69 at 78; Fardon v Attorney General (Qld) (2004) 223 CLR 575 at 593 per Gleeson CJ.”
The applicant has a criminal history in this State and in New South Wales. His first conviction in Queensland was in 2014 at the age of 42. Since that time he has been convicted of a number of offences including:
4 breaches of bail
2 of possess property suspected of having been used in connection with the commission of a drug offence
4 of unlawful possession of weapons
4 of contravention of a domestic violence order
6 of possessing dangerous drugs
4 of possessing utensils or pipes
1 of possessing anything used in the commission of a crime defined in part 2 of the Drugs Misuse Act
1 of a failure to appear in accordance with an undertaking
In New South Wales he has been convicted of:
2 of supplying a prohibited drug
1 of cultivating a prohibited plant
3 of not complying with a suspended sentence good behaviour bond
1 of making a false statement to obtain money
4 of possessing a prohibited drug
2 of a warrant for apprehension for sentence
7 of obtaining money et cetera by deception
It is not easy at this stage to make an accurate assessment as to the sentence which would be imposed if the applicant were to be found guilty of all charges. But, given his history, a sentence of five years imprisonment would not be out of the question.
The applicant proposes that any unacceptable risk can be ameliorated by a number of conditions including: a residential condition, a curfew, reporting, drug testing and attending a live-in drug rehabilitation centre for 29 days.
His history demonstrates that he has failed to comply with conditions of bail on a number of occasions, he has breached a number of domestic violence orders and he has breached suspended sentence good behaviour bonds. He has failed to appear on a number of occasions and warrants have issued.
Notwithstanding that he will spend longer on remand as a result of the delay referred to above and while the bail conditions that have been proposed would go some way in reducing the level of risk, the applicant’s criminal history and repeated failure to comply with the requirements of bail and other similar orders which allowed him into the community lead me to the conclusion that he has not shown cause.
The application is dismissed.
  1 Qd R 139.
 At 142-143. The equivalent rule under the Uniform Civil Procedure Rules is r 668.
  QCA 54.
 At .
 (1982) 75 Cr App Rep 384 at 388.
  QCA 413 at .
 (1938) 60 CLR 336.
 At 362 per Dixon J.
 See Rakielbakhour v DPP (NSW)  NSWSC 323 for an example of the type of material that can be obtained and that is relevant.
  NSWCCA 314 at -.
  VSC 141.
  VSC 128.
  NSWCCA 314.
  ACTSC 62.
 Sica v Director of Public Prosecutions  2 Qd R 254 at 269, .
 Lacey v DPP (Qld)  QCA 413 at .
 Lacey v DPP (Qld)  QCA 413 at .
 Sica v Director of Public Prosecutions  2 Qd R 254 at 270-2, ,  and .
- Published Case Name:
Lynch v Director of Public Prosecutions (No 2)
- Shortened Case Name:
Lynch v Director of Public Prosecutions (No 2)
 QSC 64
09 Apr 2020
- Selected for Reporting:
No Litigation History