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  • Unreported Judgment

Baggaley v Commonwealth Director of Public Prosecutions

 

[2020] QCA 179

SUPREME COURT OF QUEENSLAND

CITATION:

Baggaley v Commonwealth Director of Public Prosecutions [2020] QCA 179

PARTIES:

DRU ANTHONY BAGGALEY
(appellant)
v
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)

FILE NO/S:

Appeal No 4665 of 2020
SC No 3127 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from Bail Application

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 15 April 2020 (Flanagan J)

DELIVERED ON:

28 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2020; 25 June 2020

JUDGES:

Fraser, McMurdo and Mullins JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL – where the appellant is charged with attempting to import a commercial quantity of a border controlled drug – where the appellant has been in custody since 1 August 2018 – where the appellant’s first application for bail was refused on 21 November 2018 – where the appellant made a second application for bail on the basis of a material change in circumstances – where Flanagan J accepted that delay in proceeding to trial due to the impact upon jury trials of COVID-19 was a material change in circumstances – where Flanagan J found that if bail were granted there would be an unacceptable risk of the appellant failing to appear and surrender into custody – whether Flanagan J made an error in exercising the discretionary decision to refuse bail

Bail Act 1980 (Qld), s 8(5), s 9, s 16(1)(a)(i), s 16(2)
Criminal Code (Cth), s 11.1(1), s 11.2A(1), s 307.1
Human Rights Act 2019 (Qld), s 29(5)(b), s 29(5)(c), s 29(7)

Ex parte Edwards [1989] 1 Qd R 139; [1988] QSC 195, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, applied
Kisina v Director of Public Prosecutions [2019] QCA 261, considered
Lacey v Director of Public Prosecutions (Qld) [2007] QCA 413, applied
Lynch v Director of Public Prosecutions (No 2) [2020] QSC 64, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
Scrivener v Director of Public Prosecutions (2001) 125 A Crim R 279; [2001] QCA 454, cited

COUNSEL:

The applicant appeared on his own behalf
D A Holliday for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Commonwealth Director of Public Prosecutions for the respondent

  1. [1]
    FRASER JA:  The appellant has been in custody since 1 August 2018 upon a charge of attempting to import a commercial quantity of a border controlled drug contrary to ss 307.1, 11.1(1) and 11.2A(1) of the Criminal Code (Cth).  On 21 November 2018 Applegarth J refused the appellant’s application for bail.  On 15 April 2020 Flanagan J refused a second application for bail by the appellant.  The appellant has appealed against the decision of Flanagan J.
  2. [2]
    The appellant acknowledged at the hearing before Flanagan J that once bail has been refused by the Supreme Court the Court will consider the merits of a subsequent application for bail only if it is satisfied that there has been a material change in circumstances justifying the grant of bail.[1]  The appellant contended that five matters were material changes in circumstances and relevant to the assessment of risks associated with a grant of bail.  Flanagan J accepted that one matter, delay in proceeding to trial, was a material change from the circumstances that had existed when Applegarth J refused bail.  The trial was to be a joint trial with an alleged co-offender, the appellant’s brother Nathan Baggaley.  It had been scheduled to commence on 29 June this year and to run for four weeks.  Section 80 of the Commonwealth Constitution requires trial by jury of the Commonwealth indictable offence charged against the appellant.  Flanagan J referred to observations about the impact upon jury trials of COVID-19 made by Martin J in Lynch v Director of Public Prosecutions (No 2):[2]

. 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.

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.”

  1. [3]
    Flanagan J therefore considered the merits of the appellant’s second application for bail.  Section 9 of the Bail Act 1980 (Qld) required the Court to grant bail to the appellant unless a different provision of that Act justified refusal of bail.  The respondent relied upon provisions in s 16(1) that oblige the Court to refuse to grant bail if the Court is satisfied of specified matters.  For the purposes of this appeal the relevant provision is s 16(1)(a)(i).  It obliges the Court to refuse to grant bail to a defendant if the Court is satisfied “that there is an unacceptable risk that the defendant if released on bail … would fail to appear and surrender into custody”.  It was common ground that the respondent bore the onus of proving that there was such a risk as justified refusal of bail.
  2. [4]
    After discussing the evidence and the parties’ arguments, Flanagan J found that if bail were granted there would be an unacceptable risk of the appellant failing to appear and surrender into custody, notwithstanding suggested conditions of bail including a surety from the appellant’s father in the amount of $250,000, a residential condition, a curfew, a daily reporting condition, surrender of the appellant’s passport, and a condition requiring the appellant to wear a GPS tracking device.  Upon that ground Flanagan J refused to grant bail.
  3. [5]
    The appellant did not apply afresh to the Court of Appeal for bail.[3]  The appellant filed a notice of appeal against the order refusing bail made by Flanagan J.  That order resulted from the discretionary decision required by s 16(1)(a)(i) of the Bail Act whether the risk that the appellant would  not appear and surrender into custody was “unacceptable”. It follows that the appellant can succeed in his appeal only if he shows that Flanagan J acted upon a wrong principle, took irrelevant matters into account, failed to take into account material considerations, mistook the facts, or made an unreasonable or plainly unjust decision such as to justify the inference that, although no error is apparent, it should be inferred that in some way the discretion has not been properly exercised.[4]
  4. [6]
    The notice of appeal does not contain any grounds but the appellant argues that the decision refusing bail should be reversed upon four grounds set out in his outline of submissions, which the appellant describes as one error of law and three discretionary errors.  The first ground is that Flanagan J erred “by placing too much weight on the potential for significant imprisonment which overwhelmed the proper considerations of my presumption of innocence, the presumption of bail, my personal circumstances and the effect of the proposed conditions on reducing the risk of failing to appear to an acceptable level”.
  5. [7]
    Nothing in Flanagan J’s reasons supplies support for that ground.  I will refer first to Flanagan J’s assessment of the strength of the Crown case and the appellant’s challenges to that assessment under this ground.  Flanagan J referred to the summary of the Crown case in the respondent’s written submissions:

“In summary, on 30 and 31 July 2018, Draper and the applicant travelled for many hours on a rigid-hulled inflatable boat (RHIB) to meet a larger foreign vessel off the coast of New South Wales.  They were subsequently observed by Australian authorities with a number of black packages on board the RHIB.  Authorities attempted to intercept the RHIB, and the applicant was seen discarding the packages into the ocean.  Thirty packages were retrieved from the water by authorities.  A further nine packages washed ashore in subsequent months, which bear strong similarities to the packages retrieved from the water.

The total gross weight of all packages was over 650 kilograms, 512 kilograms of pure cocaine.  The estimated total value of the cocaine retrieved is in the vicinity of 117 to 176 million dollars.  Draper and the applicant were later intercepted on board the RHIB and were arrested.  Prior to their intercept and arrest, they, at the instruction of the applicant, evaded the authorities.

Relevant evidence against the applicant includes the surveillance of him at sea and discarding the cocaine packages into the ocean.  The meeting point for the cocaine handover was at a location close to coordinates that had been saved in a phone used by the applicant on 28 July 2018 (the Rachel Sibliant phone).  Waypoints with coordinates in close proximity to the ultimate meeting point (and therefore those on the Rachel Sibliant phone) were loaded onto the RHIB chart plotter on 28 July 2018 and 30 July 2018.

On 29 July 2018, the applicant recruited Draper to participate in the collection of cocaine at sea.  He booked and paid for Draper’s plane ticket to come to Queensland.  He told Draper it was a couple hundred pounds or kilos of pot/smoko they were to collect.  Draper took this to mean cannabis.  He told Draper he would pay him $10,000 for his role.  The applicant had a further mobile phone (the Emma Cottee phone), with encrypted messaging applications Threema and Wickr on it.  There were relevant but inaccessible messages between the applicant and another user on these applications while the applicant was at sea.

The two relevant encrypted communication programs were both present on Nathan Baggaley’s mobile phone.  There were attempted communications between Nathan Baggaley and the applicant while he was at sea.  Nathan Baggaley was physically present in the Brunswick Heads area (the intended point of arrival for the RHIB) on 31 July to 1 August 2018.  The RHIB vessel used by the applicant was arranged, purchased and fitted out by the applicant’s brother, Nathan Baggaley.  The timing of the purchase was urgent and proximate to the applicant’s trip.

The vessel was equipped with satellite phone, chart plotter, internet capabilities, etc, which were installed on the instruction of Nathan Baggaley.  Nathan Baggaley covered the registration number with tape.  His fingerprint was found on the inside of the tape.  Two mobile phones linked to the applicant had settings that allowed them to “auto-reconnect” to the boat’s wireless router.  The applicant has used encrypted messaging applications on multiple phones.  He also had an encrypted Samsung mobile phone at his house.  When asked by police to provide passcodes to access his phone, he declined to do so.”

  1. [8]
    Flanagan J concluded that it was evident from this recitation of facts “that the applicant was caught red-handed by authorities in the importation of a substance which, upon analysis, proved to be cocaine”.  The appellant challenges that conclusion.  It is amply supported by apparently uncontroversial surveillance evidence described in the summary of the Crown case.  Of most significance is the evidence that the appellant completed a very long journey out to sea (including many hours during the night) in the well-equipped RHIB to meet the ship near a pre-arranged point in the ocean, he was observed retrieving and placing in the RHIB packages thrown from the ship that were subsequently found to contain an enormous and immensely valuable quantity of cocaine, he was subsequently observed throwing the packages into the sea when he apparently became aware that he was under observation, and he was then observed in the RHIB fleeing from the authorities.  As Applegarth J concluded in a passage quoted by Flanagan J, it was really beyond dispute that the appellant intended to possess the items picked up at sea and he had effectively admitted as much by saying to police that he intended to pick them up but thought that they were tobacco.
  2. [9]
    Contrary to arguments by the appellant, Flanagan J’s conclusion does not depend upon statements in the summary of the Crown case about Draper’s role or upon acceptance of the prosecution’s allegation that the appellant declined to provide passcodes to access his phone when asked by police to do so.  It is therefore unnecessary to discuss the appellant’s arguments challenging the accuracy of those allegations.
  3. [10]
    As Applegarth J and Flanagan J both considered, the real issue about the strength of the Crown case is whether the appellant had knowledge of or a reckless indifference to the fact that the packages on board the RHIB contained a border controlled drug.  After referring to the appellant’s submission that there was no evidence that he knew of or intended to possess any border-controlled drug and the appellant’s reliance upon his statements to police that he believed the substance was tobacco, Flanagan J observed that this would be a central issue for the jury at the trial.  Flanagan J quoted Applegarth J’s conclusions that there is “a strong case that someone who was going out to sea would not simply be collecting tobacco, even if there is money to be made in an illicit trade in tobacco”, there is “at least a substantial possibility, that the items were drugs, it being somewhat notorious that large quantities of cocaine enter this country through navigation and items being picked up on yachts or boats well out to sea”, and the appellant therefore “has a strong prospect of being convicted” although the case against him is not “overwhelming”.  In a different context Flanagan J also referred to the impossibility of assessing the Crown case as less than strong because of part of the evidence of a Crown witness to which the appellant referred.  It is evident, as the appellant submits, that Flanagan J, like Applegarth J, considered that the Crown case was strong but not overwhelming.
  4. [11]
    Contrary to a submission by the appellant, Flanagan J did not treat as irrelevant the evidence of the covert recording of a conversation between the appellant and his brother in which the appellant stated he believed that he was collecting tobacco.  Rather, Flanagan J appropriately took into account the relevant considerations that those self-serving statements were made after the relevant events, after the appellant had been arrested and taken into custody, and during a conversation with the appellant’s brother at the prison where the appellant was detained.  As Flanagan J observed, this was one piece of evidence to be considered in the context of a largely circumstantial case.
  5. [12]
    The issue about the mental element of the offence is of course for the jury to decide.  Upon the preliminary assessment capable of being made in the bail application, Flanagan J’s view that the Crown case is strong was soundly based upon the inferences that could be drawn from the evidence adverted to in the summary of the Crown case excluding evidence about Draper’s role or the allegation that the appellant declined to provide passcodes to access his phone.
  6. [13]
    The appellant submits that Flanagan J undervalued the appellant’s presumptive entitlement to bail and the significance of the lengthy delay before a trial as a result of attributing undue weight to the seriousness of the offence charged against the appellant.  No such error is apparent upon the face of Flanagan J’s reasons.  Certainly Flanagan J took into account the seriousness of the charged offence and his view of the strength of the evidence in support of that charge.  That is a conventional mode of reasoning based upon evidence.[5]  Indeed, s 16(2) of the Bail Act obliges the Court, when assessing whether there is an unacceptable risk in terms of s 16(1)(a), to have regard “to all matters appearing to be relevant” and in particular to a list of matters that include the nature and seriousness of the offence and the strength of the evidence against the defendant.
  7. [14]
    Lengthy delay before trial is a material consideration favouring a grant of bail, but it is not necessarily a decisive consideration.  In Lacey v Director of Public Prosecutions (Qld)[6] Williams and Keane JJA and Daubney J observed:

“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. … 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.  . . .  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.”

  1. [15]
    Those general observations are applicable here, although it is important to bear in mind that, unlike this case, in Lacey the decision to be made was whether the defendant had displaced the statutory presumption against bail in relation to a charge of murder.  The circumstance that upon a preliminary assessment there appeared to be a strong Crown case upon the very serious charge, acceptance by a jury of which would expose the appellant to a long term of imprisonment, was a material consideration for Flanagan J’s discretionary decision whether the risk that the appellant would not appear if granted bail was unacceptable.
  2. [16]
    The appellant argues that the respondent is responsible for the delay in bringing the proceedings to trial.  There was a delay of six months between the date when the appellant was committed to the Supreme Court for trial (18 March 2019) and the date when the indictment was presented (18 September 2019).  Part of the delay may have been attributable to the circumstance that Nathan Baggaley was arrested and charged as a co-accused only on 20 June 2019, but there is no evidence to support the appellant’s argument that the prosecution engaged in misconduct by deliberately delaying progress towards a joint trial.  Some delay was caused by the matter being adjourned on 18 October 2019 for the purpose of committal proceedings against Nathan Baggaley.  On 28 February 2020 the appellant’s matter was listed for trial commencing on 29 June 2020 for four weeks.  When the bail application was heard before Flanagan J, the prosecution had communicated an intention that the trial proceed as a joint trial against the appellant and Nathan Baggaley once the latter was committed for trial, as was then anticipated to occur on 28 May 2020.[7]  Those and other details of the progress of the proceedings towards trial were drawn to Flanagan J’s attention.  There is no reason to consider that he overlooked them.
  3. [17]
    Flanagan J observed that, “given the serious nature of the charge and the outcome for the applicant if he is in fact found guilty of this charge … matters have not yet reached the stage where it could be said that the applicant is likely to spend more time on remand than under any sentence imposed”.  In Flanagan J’s view that was so, even if the appellant was considered to be a courier only, given that any sentence for a shipment of this magnitude would be lengthy.
  4. [18]
    The appellant argues that the evidence does not establish that he was a “principal” in the offence.  The point is potentially significant for the severity of the sentence that might be imposed if the appellant is convicted but it does not suggest error in the decision made by Flanagan J, who assessed the likely sentence also upon the footing that the appellant might be found to have acted as a courier only.  I would make the following additional observations:
    1. (a)
      Firstly, if the appellant were found guilty, the fact that he has a relevant criminal history would be relevant for his sentence.  As Flanagan J noted, in 2009 the appellant was sentenced to nine years’ imprisonment with a non-parole period of six years for offences including manufacturing and supplying a large commercial quantity of dangerous drugs and, before the expiration of that sentence, in December 2015 he was convicted of conspiracy to manufacture marketable quantities of controlled drugs and another offence.  The appellant’s argument that he committed the latter offences under duress does not render irrelevant his conviction of those offences or affect the significance of the 2009 convictions.
    2. (b)
      Secondly, in Kisina v Director of Public Prosecutions,[8] upon which the appellant relied, Mullins AJA’s observation that it was “premature … to be definitive about the length of any custodial component of the potential sentence” does not suggest that in this very different case there is any error in Flanagan J’s conclusion that it could not be said the appellant was likely to spend more time on remand than under any sentence imposed if he is convicted.  That there was no such error finds strong support in the apparent seriousness of the appellant’s offending conduct and the sentence imposed upon Draper (see [19] of these reasons).
    3. (c)
      Thirdly, the appellant argues that Flanagan J did not address what the appellant described as factors that could mitigate a sentence, including elements of duress, assistance, and the true facts.  For this proposition the appellant referred to his written submissions (extending for 72 pages containing 617 paragraphs) without identifying a paragraph number.  The reference to duress appears to be based upon self-serving statements made by the appellant in the covertly recorded conversation the appellant had with his brother.[9]  The statements are expressed in vague and general terms.  The fact that the appellant made those statements does not support the appellant’s submission that, if he is convicted, there is likely to be substantial mitigation of his sentence on account of duress.
  5. [19]
    The appellant also relies upon the sentence imposed upon Draper.  Draper pleaded guilty and was sentenced to imprisonment for 13 years, with a non-parole period operating for four years and three months of that term.  The appellant submits that Draper was sentenced on the basis of certain facts that were, in the appellant’s submission, overly favourable to him, including that he was to be paid only $10,000, he was merely a “gofer” who was misled into participating in the offence, he had no involvement with others in the criminal enterprise (apart from the appellant), and he had no involvement in the planning of the offence.
  6. [20]
    Any sentence imposed upon the appellant if he is convicted will turn upon the circumstances as they appear to the sentencing judge at the time, but on its face Draper’s sentence supports the view that any sentence imposed upon the appellant is likely to include a non-parole period which is more than double the period during which the appellant has to date been held on remand pending trial.  That is so even without taking into account either the allegations in the summary of the Crown case suggesting that the appellant’s criminality was more serious than Draper’s criminality or the fact that Draper’s guilty plea was presumably taken into account in his favour.
  7. [21]
    The appellant contends that a sentence of the length contemplated by Flanagan J would be out of parity with the sentence imposed upon Draper.  The “parity principle” which this contention invokes requires that there be “due proportion between [the sentences imposed upon co-offenders], that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality”.[10]  The necessary effect of the appellant’s contention is that the parity principle would be infringed unless he is given a less severe sentence than was given to Draper because, inconsistently with the factual basis upon which Draper was sentenced (see [19] of these reasons), the appellant contends that Draper’s criminality was in truth greater than his own criminality.  That argument should be rejected.  It wrongly assumes a sentencing judge is authorised to reduce the otherwise just and appropriate sentence for an offender by applying the parity principle in disregard of the factual basis upon which a past sentence was imposed upon another co-offender.
  8. [22]
    Flanagan J took into account that the appellant has strong ties to the jurisdiction, as were detailed in his affidavit, together with the reduction in the risk of his failing to appear that would result from the proposed bail conditions, including the conditions requiring a substantial surety by the appellant’s father and requiring the appellant to wear a GPS tracking device.  Contrary to a submission by the appellant, Flanagan J also took into account the restrictions on the appellant’s movements, if granted bail, resulting from the COVID-19 pandemic, observing that it was presently unknown how long those restrictions would endure.
  9. [23]
    Flanagan J quoted Applegarth J’s conclusions that “someone who is facing such a strong Crown case in relation to such a serious offence would have a powerful incentive to dislodge and destroy that GPS tracking device and take his chances” and that it “is speculative to say whether the applicant would be assisted in that regard by the criminal syndicate with which he had previous contact and with whom he dealt with through encrypted devices.”  There was no error in that reasoning, notwithstanding the appellant’s arguments that he is neither motivated to flee the jurisdiction nor capable of doing so.
  10. [24]
    Amongst the circumstances favouring a grant of bail, the fact that despite the presumption of innocence the appellant had already been detained on remand for a very long period and the trial could not commence for some further unknown but potentially substantial period of time, and the effect of the proposed conditions of bail of reducing the risk of the appellant failing to appear, were important considerations in favour of a decision that the respondent had not displaced the presumption favouring bail.  Even so, having regard in particular to the apparent strength of the Crown case and the seriousness of the offence charged against the appellant (which carries a maximum penalty of life imprisonment), it cannot be inferred that Flanagan J failed properly to consider the matters favouring a grant of bail.
  11. [25]
    Ground 2 contends that Flanagan J failed to consider various matters which, in combination, led to his Honour becoming overwhelmed by the potential for a lengthy sentence if the appellant were convicted and thereby being led into forming the erroneous belief that the appellant would likely flee on bail.  Some of the preceding reasons address aspects of this ground.  I will discuss additional arguments.
  12. [26]
    The appellant submits that Flanagan J failed properly to consider the burden on the prosecution to prove the mental element of the offence charged beyond reasonable doubt.  A failure to take into account such an elementary aspect of the criminal proceeding could not be inferred merely from the absence of express reference to it in the reasons.
  13. [27]
    The second deficiency in the reasons for which the appellant contends is the absence of an assessment of the evidence of one of the Crown witnesses.  The effect of the appellant’s argument is that so much of that evidence as implicates the appellant in the charged offence will be rejected by the jury as unreliable.  But Applegarth J’s assessment of the strength of the Crown case, which Flanagan J endorsed, was made without reference to that evidence.  Acceptance of the appellant’s extensive arguments challenging the credibility of the witness would be apt also to undermine the reliability of what the appellant contends is exculpatory evidence, whilst leaving intact the inculpatory evidence in the Crown case summarised in [8] of these reasons.  Accepting the possibility that a jury nevertheless might take into account exculpatory parts of the evidence, the prospect of that occurring is merely speculation.  Flanagan J did not make any error susceptible of appellate correction by concluding that the Crown case could not be assessed as less than strong because of that evidence.
  14. [28]
    Ground 3 contends that Flanagan J erred in law by failing to recognise that the appellant’s ongoing detention was arbitrary and unlawful.  The appellant’s detention is a consequence of his lawful arrest and the refusal of bail by a judicial decision made in accordance with the provisions of the Bail Act.  It could not be regarded as arbitrary or unlawful.  The appellant cites provisions of the Human Rights Act 2019 (Qld).  Section 29(5)(b) provides that a person who is arrested or detained on a criminal charge has the right to be brought to trial without unreasonable delay.  A consequence of non-compliance with that provision is that the person must be released: s 29(5)(c).  Upon the basis of those and some other provisions of that Act and the suggested strength of his application for bail, the appellant contends that Flanagan J failed to recognise that his ongoing detention is unlawful.
  15. [29]
    In support of this contention the appellant submits that the State is not providing the mechanism for him to answer the charge and be acquitted and that the current period of detention should be deemed as a “temporary stay of prosecution until the State provides jury trials.”  (The first of those two submissions refers to the temporary suspension of jury trials as a result of the impact of the COVID-19 pandemic.  I note that jury trials in the Supreme Court are now being set down for hearing.)  The appellant did not make those submissions in the Trial Division and he did not bring an application under s 29(7) of the Human Rights Act for a declaration or order regarding the lawfulness of his detention.  As the respondent submits, an appeal against the refusal of bail is not the mechanism for advancing claims of that kind.  For these reasons it is not necessary to describe the appellant’s arguments in more detail or to adjudicate upon them.
  16. [30]
    Ground 4 contends that the primary judge did not properly assess the circumstances of the appellant’s “crippling limitation of access to the brief of evidence and resources required for conducting a defence and the particular prejudice that will accrue if I am not granted bail.”  The appellant argues that the facilities provided in prison do not enable him to view the brief of evidence supplied by the prosecution.  That would be a substantial argument if the evidence revealed that the appellant will not be supplied with the facilities necessary to permit him to examine the brief of evidence and properly prepare for a trial but the evidence does not support any such conclusion.
  17. [31]
    The appellant contends that the shared computer in prison was unable to store his brief of evidence; that computer malfunctioned and repeatedly wiped the appellant’s disc, in consequence of which he asked for – but was refused – permission for a laptop to be placed in his cell.  The evidence adduced for the respondent supports the contention that, consistently with a general practice in the prison, the appellant was refused permission for a laptop to be placed in his cell.  Some prison records referred to in an affidavit by the appellant also support his contention that the shared computer malfunctioned.
  18. [32]
    However, the most recent entry in the relevant prison records, a note made on 12 March 2020, records that the appellant was provided with a replacement disc after the shared computer had wiped the disc to which the appellant attempted to save documents.  Furthermore, in response to the appellant’s evidence upon this issue, the respondent relies upon subsequent affidavits by a manager at the correctional centre, Mr Bradshaw.  Mr Bradshaw deposes that staff at the relevant prison unit report any unserviceability of the shared computer to IT specialists who resolve such issues; all prisoners at the centre have access to a legal library and can have legal documents printed and photocopied at their own expense; the appellant can access and store a reasonable amount of legal material as required for legal matters in his cell (including paper versions of briefs of evidence); the appellant regularly made legal calls to his legal representative which were unable to be monitored or reviewed (to ensure legal confidentiality); and the appellant had regularly been visited by legal representatives since being remanded into custody.
  19. [33]
    Flanagan J accepted that if the appellant were not granted bail he would have difficulties preparing his defence; but as against this Flanagan J noted that the appellant was able to produce a 72 page submission, together with a supplementary submission, and file affidavit material in relation to the second bail application, the 72 page submission contains extensive references to the relevant authorities, and the appellant is clearly an intelligent person who is very capable of turning his mind to his defence.  There was no error in those observations.
  20. [34]
    Ground 4 is not supported by the evidence.

Proposed order

  1. [35]
    I would dismiss the appeal.
  2. [36]
    McMURDO JA:  I agree with Fraser JA.
  3. [37]
    MULLINS JA:  I agree with Fraser JA.

Footnotes

[1]See Ex parte Edwards [1989] 1 Qd R 139 at 142 – 143 (McPherson J); Sica v Director of Public Prosecutions (Qld) [2011] 2 Qd R 254 at 264 [17] (Chesterman JA, de Jersey CJ and Keane JA agreeing); Fisher v Director of Public Prosecutions (Qld) [2011] QCA 54 at [17] (McMurdo P, Ann Lyons J agreeing) and at [43] (Chesterman JA).

[2][2020] QSC 64 at [25], [27].

[3]See Bail Act, s 8(5).

[4]House v The King (1936) 55 CLR 499 at 504 – 505 (Dixon, Evatt and McTieman JJ), which has been held to apply in an  appeal against the refusal of bail in numerous cases, including Scrivener v Director of Public Prosecutions (2001) 125 A Crim R 279; [2001] QCA 454 (McPherson JA, Davies JA and Cullinane J agreeing), Keys v Director of Public Prosecutions (Qld) [2009] QCA 220 at [22] (Chesterman JA, myself agreeing), Fisher v Director of Public Prosecutions (Qld) [2011] QCA 54 at [17] (McMurdo P, Ann Lyons J agreeing) and [46] – [47] (Chesterman JA) and Kisina v Director of Public Prosecutions [2019] QCA 261 at 3 (Mullins AJA, Morrison and Philippides JJA agreeing).

[5]See, for example, R v Hughes [1983] 1 Qd R 92 at 96 (Connolly J, Kelly and Macrossan JJ agreeing) and Keys v Director of Public Prosecutions (Qld) [2009] QCA 220 at [8] – [9] (Chesterman J, myself agreeing).

[6][2007] QCA 413 at [13].

[7]At the hearing of the appeal the respondent’s counsel informed the Court that Nathan Baggaley was committed for trial on 28 May 2020.

[8][2019] QCA 261 at 4.

[9]The relevant evidence appears to be that which is quoted at paragraph 383 of the appellant’s outline of submissions in his bail application.

[10]Postiglione v The Queen (1997) 189 CLR 295 at 301 – 302 (Dawson and Gaudron JJ).  See also Lowe v The Queen (1984) 154 CLR 606 and Green v The Queen (2011) 244 CLR 462.

Close

Editorial Notes

  • Published Case Name:

    Baggaley v Commonwealth Director of Public Prosecutions

  • Shortened Case Name:

    Baggaley v Commonwealth Director of Public Prosecutions

  • MNC:

    [2020] QCA 179

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Mullins JA

  • Date:

    28 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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