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Fisher v Director of Public Prosecutions

 

[2011] QCA 54

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Fisher v Director of Public Prosecutions (Qld) [2011] QCA 54

PARTIES:

JASON IAN FISHER
(appellant)
v
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)
(respondent)

FILE NO/S:

Appeal No 309 of 2011

SC No 13454 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from Bail Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 March 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

7 March 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Ann Lyons J

Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Ann Lyons J concurring as to the orders made, Chesterman JA dissenting

ORDERS:

  1. Appeal allowed
  2. The order of 24 December 2010 dismissing the appellant's application is set aside and instead order as follows:

THE ORDER OF THE COURT IS THAT ON THE FOLLOWING CHARGE:

That on the 9th day of April 2010 at NERUM in the State of Queensland one Jason Ian FISHER did unlawfully supply a dangerous drug namely Buprenorphine to another person namely Brett Christopher Mitchell and the said Jason lan FISHER was an adult and the person to whom the dangerous drug was supplied was within a correctional facility CHARGED CONJOINTLY WITH Brett Christopher MITCHELL, Deidre May FISHER, Jamie RICHARDSON, Michael Thomas ALLCHIN and Nadine Suzanne CITERNE

the Applicant be admitted to bail upon his own undertaking in respect of those charges, such undertaking being on the conditions:-

  1. The Applicant appear and surrender himself into custody before the criminal sittings of the Supreme Court to which he was committed in respect of the offence at the sittings specified by the Court to which he is so committed at the date, time and place, fixed for the trial, notice of which shall be given to him or his solicitor by the Director of Public Prosecutions.
  2. The Applicant is not to depart from Court without leave of the Court and so often as leave is granted, return at the time appointed by the Court and again surrender himself into custody.
  3. The Applicant shall reside at 85 Windsor Place, Deception Bay in the State of Queensland unless he receives the prior written consent of the Director of Public Prosecutions to reside elsewhere.
  4. The Applicant is not to depart the premises at 85 Windsor Place, Deception Bay between the hours of 8 pm and 6 am.
  5. The Applicant is to report to the Officer in Charge of Police at Deception Bay each Monday and Friday between the hours of 8 am and 8 pm unless he receives the prior written consent of the Director of Public Prosecutions to do otherwise.
  6. The Applicant is to have no contact, directly or indirectly with Crown witnesses, unless he receives the prior written consent of the Director of Public Prosecutions to do otherwise.
  7. The Applicant within 3 business days of his release nominate to the Director of Public Prosecutions a medical practitioner upon whom he will attend for the purpose of undergoing random drug testing.
  8. The Applicant is to provide a signed authority to the nominated medical practitioner authorising the doctor to disclose to an officer of the Director of Public Prosecutions the results of any drug testing.
  9. The Applicant is to attend upon the nominated medical practitioner for the purpose of random drug testing as directed by the Director of Public Prosecutions.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL –  REVOCATION, VARIATION, REVIEW AND APPEAL – where the appellant was charged with two counts of burglary and stealing whilst on parole – where the appellant was remanded in custody and later charged with unlawfully supplying a dangerous drug in a correctional facility – where bail was refused on a previous occasion – where the appellant had pleaded guilty and been sentenced on two of the three offences since the first bail application – whether there was a material change in circumstances between the two bail applications justifying the grant of bail – whether bail should be granted pursuant to s 16(1) Bail Act 1980 (Qld) – whether the exercise of discretion by the trial judge to refuse bail miscarried

Bail Act 1980 (Qld), s 8, s 9, s 16(1), s 16(3)

Penalties and Sentences Act 1992 (Qld), s 147

Ex parte Edwards [1989] 1 Qd R 139, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Keys v DPP (Qld) [2009] QCA 220, cited

Sica v DPP (Qld) [2010] QCA 18, cited

COUNSEL:

C Toweel for the appellant

M B Lehane for the respondent

SOLICITORS:

AW Bale & Sons Solicitors for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. MARGARET McMURDO P:  This is an appeal from a decision of a judge of the Trial Division on 24 December 2010 refusing the appellant, Jason Ian Fisher's, application for bail under the Bail Act 1980 (Qld).  He was originally charged with two counts of burglary and stealing, the first committed on 8 September 2009 and the second on 18 September 2009.  These offences were committed whilst he was on parole.  Once charged, he was remanded in custody and his parole was revoked.  Whilst in custody, he was charged with five co-offenders that, on 9 April 2010, he unlawfully supplied the dangerous drug, Buprenorphine, within a correctional facility.  He was refused bail by the Supreme Court on 23 September 2010 and again on 24 December 2010.  This appeal is from the latter order refusing bail.

The refusal of bail on 23 September 2010

  1. The appellant first applied to the Trial Division of this Court for bail on 23 September 2010.  In refusing that application, the judge noted the following matters.  The prosecution case against the appellant on the burglary offences was strong.  The case against him on the drug offence was "not necessarily the strongest of cases".  The judge appreciated that this was not a show cause situation under s 16(3) Bail Act.  It followed that his Honour could only refuse the grant of bail if satisfied there was an unacceptable risk that, if the appellant was released on bail, he would fail to appear or would, while on bail, commit an offence; endanger a person's safety; or interfere with witnesses.[1]  The prosecution opposed bail. 
  1. The judge referred to the factors he was required to consider in determining the application. The offences were serious and would attract a period of imprisonment if the appellant were convicted of them. The appellant had a lengthy and persistent criminal history beginning in 1997 with entries in almost every year until 2010. It included previous drug offences. On occasions, he did not comply with past bail conditions. On other occasions, he breached court orders.
  1. The judge concluded that, if the appellant were to be granted bail, he would pose an unacceptable risk in that he may fail to appear, or may commit further offences.

Events between the refusal of bail in September and the refusal of bail in December

  1. On 4 November 2010 in the Magistrates Court at Caboolture, after cross-examination of some witnesses, the appellant was committed for trial in the Supreme Court at Brisbane for supplying the dangerous drug Buprenorphine in a correctional facility. 
  1. On 14 December 2010, the appellant pleaded guilty in the Brisbane District Court the two counts of burglary and stealing.  He was sentenced to 12 months imprisonment suspended immediately with an operational period of 12 months.
  1. The prosecutor at sentence made the following submissions. As the appellant had been in custody for about five months in respect of both these offences and the drug offence, that period could not be declared as time served under the sentence. A head sentence of 13 rather than 18 months imprisonment should be imposed to reflect this five month period of detention and he should be released on immediate parole. 
  1. Defence counsel at sentence emphasised that the appellant had a drug problem; been drug-free whilst in prison for the past year; had a supportive family; and work available. He submitted that the sentence proposed by the prosecution (12 or 13 months imprisonment with immediate parole) was appropriate.
  1. The judge expressed his concern that the appellant would be in breach of parole by not reporting forthwith if that sentence was imposed. Defence counsel stated that he would be making a Supreme Court bail application in the next few days. The judge noted that instead of granting immediate parole he could overcome the problem by suspending the sentence.
  1. In reply, the prosecutor conceded that this was an appropriate course for the judge to take.
  1. In sentencing the appellant, the judge noted that it was likely his offending was the result of drug problems. His Honour took into account that the appellant had been in custody for 170 days (over five months). This could not be declared as time served under the sentence but the judge would take it into account when fixing the sentence. The judge also took into account the fact that the appellant had served a sentence of imprisonment in Victoria for offences committed subsequent to these and, more recently, a non-custodial penalty had been imposed on him in the Magistrates Court.

The refusal of bail on 24 December 2010

  1. On 24 December 2010, the appellant made an unsuccessful application for bail on the outstanding drug charge to a different Trial Division judge. This appeal is from the order refusing that application.
  1. The primary judge's reasons were brief. His Honour referred to Ex parte Edwards[2] which required the refusal of a subsequent bail application unless it was demonstrated that sufficient additional facts had arisen since the original application to justify the granting of bail.  His Honour considered that the submissions (that the appellant would spend a lot of time in custody if not granted bail and that the case against him was purely circumstantial and not compelling) were the same as were made to the court when bail was refused on 23 September 2010.  The only additional fact was that a committal hearing had taken place. 
  1. The judge was not satisfied that the appellant had demonstrated there had been sufficient changed facts or circumstances so as to justify the grant of bail when it had been refused in September. His Honour dismissed the application.

The grounds of appeal

  1. The appellant appeals from the order refusing bail on 24 December 2010 on the grounds that the judge failed to take into account the following relevant factors:
  • the appellant had been sentenced to a suspended sentence since his bail application in September 2010;
  • the committal hearing had been finalised since bail was refused in September 2010;
  • the evidence put forward by the prosecution at committal demonstrated that the case was not strong;
  • the prosecution conceded that there had been a change of circumstance between the two bail applications.
  1. The appellant also contends that the judge's discretion miscarried in finding that a material change in circumstance had not occurred between the appellant's bail application in September and his bail application in December. 

Relevant legal principles

  1. At least since the Habeas Corpus Act of 1679, common law courts vigilantly guard their important jurisdiction enabling them to protect the liberty of citizens and to order the release of those wrongly detained by others, including the State.  But this appeal is against the exercise of a judge's discretion to grant or refuse bail under the Bail Act.  The appellant's task is far from easy.  To succeed, he must establish a relevant error of law, a misunderstanding of pertinent facts, or that the discretion was exercised in a way that was so unreasonable as to in itself amount to an error of law or misunderstanding of fact: House v The King;[3] Keys v DPP (Qld).[4]  Further, there is 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: Ex parte Edwards;[5] Sica v DPP (Qld).[6] 

The appellant's criminal history

  1. Before returning to apply these principles to the present case, it is necessary to fully comprehend the appellant's criminal history for it provides the primary reason for the refusal of his applications for bail on 23 September and 24 December 2010.
  1. It began in the Brisbane Magistrates Court on 17 July 1997 when he was convicted and fined $250 for possessing a thing used in connection with smoking a dangerous drug on the previous day (16 July 1997).
  1. The next day (18 July 1997), he was convicted and ordered to perform 40 hours community service for breaching his bail. He was also dealt with in the Brisbane Children's Court for some relatively minor drug offences committed in October 1995 and sentenced to community based orders under the Juvenile Justice Act 1992 (Qld). 
  1. On 2 September 1997, he was placed on three years probation and ordered to pay compensation, together with 240 hours community service, for five property offences. These offences were committed in October 1995 when he was still a juvenile.  On 15 April 1998, those probation orders were set aside and he was dealt with for breaching them.  Convictions were recorded and he was re-sentenced to a further three years probation and ordered to pay the remaining unpaid compensation and to perform the outstanding period of community service. 
  1. On 3 June 1998, he was dealt with for breaching the community service order imposed on 18 July 1997 and was convicted. The order was discharged, he was convicted and fined $100, and was released absolutely in respect of the original offence.
  1. On 22 July 1998, in the Brisbane District Court, he was sentenced to a 12 month intensive correction order for robbery with violence, and unlawful use of a motor vehicle. The following month he was dealt with for breaching the probation and community service order imposed on 2 September 1997 and was re-sentenced for the original offences. Convictions were recorded and he was sentenced to four months imprisonment, wholly suspended with an operational period of 18 months. On 8 March 1999 in the Brisbane District Court, he was dealt with for breaching his intensive correction order imposed on 22 July 1998. The order was vacated and he was re-sentenced to a further 12 months imprisonment, again to be served by way of an intensive correction order. He had also breached his suspended sentence imposed on 2 September 1997; a conviction was recorded and the operational period extended for one year.
  1. On 30 January 2002 in the Redcliffe Magistrates Court, he was convicted and fined $600 for an assortment of drug offences. On 6 March 2002, he was convicted and fined $50 for indecent behaviour. On 15 December 2003, he was convicted and fined $300 for using a carriage service to menace or harass. On 6 February 2004, he was convicted and fined $700 for an assortment of drug offences. On 28 April 2005, he was convicted and fined a total of $1,000 for an assortment of drug offences and for contravening a police direction or requirement. On 28 June 2006, he was convicted and fined a total of $1,400 for unlawful possession of a vehicle with intent to deprive and drug offences. On 18 July 2006, he was placed on a $100 good behaviour bond for four months and entered the drug diversion program for an assortment of drug offences. On 28 August 2006, he was convicted and fined $250 for possessing or acquiring restricted items on 19 July 2006, that is, the day after he was placed on the drug diversion program.
  1. On 26 April 2007 in the Caloundra Magistrates Court, he was convicted of dangerous operation of a vehicle and related traffic matters and sentenced to six months imprisonment wholly suspended with an operational period of two years. On 25 January 2008 in the Sandgate Magistrates Court, he was convicted of receiving stolen property and breaching the suspended sentence imposed on 26 April 2007.  He was sentenced to six months imprisonment to be served by way of an intensive correction order.
  1. On 9 September 2008 in the Caloundra Magistrates Court, he was convicted and fined $300 for yet more drug offences.  On 28 July 2008, he was convicted but not further punished for possessing utensils or pipes used in connection with a dangerous drug.  On 30 September 2008, he was convicted of burglary, and failing to stop his motor vehicle (both on 13 November 2007); and wilful damage, and serious assault (both on 27 March 2008).  He was sentenced to six months imprisonment with a parole release date set at 14 December 2008.  He was also dealt with for a second breach of the suspended sentence imposed on 26 April 2007; the operational period was extended for a further 12 months.  It follows that the two burglary and stealing offences for which he was dealt with on 14 December 2010 were committed at the tail end of this operational period.  The offences appear to have been committed in breach of that extended order. 
  1. On 15 December 2008 in the Maroochydore Magistrates Court, he was convicted of burglary and sentenced to 15 months imprisonment with release on parole on 15 May 2009 (that is, after six months).  On 12 February 2009, he was convicted of breaching the intensive correction order imposed on 25 January 2008 and fined $500.  He was re-sentenced for the original offence to six months imprisonment with a parole release date on 15 May 2009.  On 21 August 2009, he was convicted and fined $200 for failing to take reasonable care in respect of a syringe or needle on 28 May 2009.  On 27 April 2010, he was convicted and fined $500 for unlawful possession of suspected stolen property and contravening a police direction or requirement, both on 21 August 2009. 
  1. On 12 November 2009, the appellant was dealt with in the Melbourne Magistrates Court for further offences of dishonesty. He was sentenced to 76 days imprisonment. At the completion of that sentence on 17 December 2009, he was extradited to Queensland to be dealt with on his most recent burglary and stealing offences which were in breach of his parole on the sentence imposed on 15 December 2008.  He completed serving that sentence on 27 June 2010.
  1. His most recent convictions and sentence for the burglary and stealing offences on 14 December 2010 have already been noted in some detail.[7]

Conclusion

  1. The primary judge, in refusing bail on 24 December 2010, did not refer to the information that, since the appellant's unsuccessful bail application in September, he had pleaded guilty and been sentenced for two of the three offences on which he sought bail in September. His sentence of imprisonment was suspended from 14 December 2010 with an operational period of 12 months.  The penalty imposed suggested that the sentencing judge had some confidence in the appellant's prospects of rehabilitation.  In my view, it was a significant change in circumstance since the September bail application that may now justify granting bail.  The fact that the judge did not refer to that information in his reasons for refusing bail suggests his Honour did not give it the careful consideration and weight it deserved.  This oversight requires this Court to now exercise its own discretion and decide whether the appellant should be granted bail.
  1. The following matters are not in dispute. This application for bail does not require the appellant to show cause why he should be granted bail: see s 16(3). It follows that, in accordance with s 8 and s 9 Bail Act, this Court should grant him bail unless, under s 16(1) as the respondent contends in this case, there is an unacceptable risk that, if released on bail, he would fail to appear and surrender into custody[8] or would, while released on bail, commit an offence;[9] or interfere with witnesses or otherwise obstruct the course of justice.[10]  If granted bail, he is able to live with his father and has reasonable employment prospects.  He proposes that his grant of bail would include numerous conditions including residential, curfew, reporting and drug testing conditions.  At best, by the time of his trial, he will have been in continuous custody, although not solely in respect of the outstanding charge, for about two years. 
  1. I do not intend to make findings about the competing contentions as to the strengths and weaknesses of the prosecution case against the appellant on the outstanding drug charge. For present purposes, it is sufficient to observe that it is far from weak, but nor is it without problems for the prosecution. If it proceeds to trial, it may or may not result in his conviction. If convicted, counsel in this appeal agree that he would likely be sentenced to between 12 and 24 months imprisonment.
  1. Counsel for the respondent at the hearing of this appeal indicated an intention to proceed against the appellant for his commission of the most recent burglary and stealing offences during the tail end of the operational period of the suspended sentence originally imposed on 26 April 2007 and extended for 12 months on 30 September 2008.  Nine months of that suspended sentence presently remains unserved.  If so, the appellant may be ordered to serve that nine months imprisonment.  But if the court considers this unjust, he may be ordered to serve only part of that nine months, or the court could extend the operational period for up to one year.  See s 147 Penalties and Sentences Act 1992 (Qld).  This matter was not brought to the attention of either the sentencing judge on 14 December 2010 or the primary judge on 24 December 2010.  It has been brought to this Court's attention, however, and this Court must now take it into account.  The appellant had then been in custody for a lengthy period.  The original offences to which the operational period related were Magistrates Court driving and traffic matters committed in 2006.  It is my preliminary view that had the sentencing judge on 14 December 2010 been informed of this breach, he may well have done no more than extend the operational period of that suspended sentence for 12 months so that it operated concurrently with the remainder of the sentence imposed.  That may be why the prosecutor did not emphasise the matter to the sentencing judge on 14 December 2010.
  1. I turn now to consider the matters under s 16(1) directly relevant to whether bail should be granted or refused. The appellant has some convictions for breaches of bail but his criminal history generally suggests he has met his many grants of bail in the past. He has strong ties to the Brisbane area where his father and his children reside.  If granted bail with the residential, reporting and drug testing conditions he proposes, I do not consider there is an unacceptable risk that he would not answer his bail. 
  1. The appellant's estranged wife is a significant prosecution witness in the case against him, but that in itself is not especially unusual. They are on friendly terms. If he is granted bail, they are likely to have contact, at least in relation to their children, although he proposes as a condition of his bail that he have no contact with prosecution witnesses. There is, admittedly, some risk that he may have more influence over his wife if granted bail than if he remains in custody. It seems probable that she will be an unenthusiastic witness for the prosecution whether or not the appellant is granted bail. It may be that her usefulness to the case against the appellant will turn on whether her already existing statements to police can become evidence at trial under s 17 Evidence Act 1977 (Qld).  I do not consider that these matters raise an unacceptable risk that the appellant would interfere with witnesses or otherwise obstruct the course of justice if released on bail.
  1. The real concern in this finely balanced case is whether the appellant is likely to re-offend whilst on bail. That is why his past applications for bail have been refused. For a 31 year old, the appellant has a lengthy criminal history which provides considerable weight to the respondent's contention that he may re-offend if granted bail. His criminal history seems to be largely related to his drug addiction. It certainly shows that, to date, he has not taken advantage of the many lenient, non-custodial sentences he has been given which were clearly aimed at encouraging his rehabilitation. But, for the first time, he has been subject to a lengthy period of custody commencing in late September or early October 2009 in Victoria.  He has now been in continuous custody, first in Victoria and then in Queensland, for about 18 months.  His counsel contends that this has broken the cycle of his drug addiction.  The District Court judge who most recently sentenced him to a fully suspended term of imprisonment appears to have accepted this submission.  Were the appellant to be granted bail on the conditions he proposes, in addition to his residential, curfew, reporting and drug testing conditions, he now has a suspended sentence hanging over his head until 14 December 2011.  The incentives for him not to re-offend are many.  The consequences for him if he re-offends are dire.  Although no grant of bail is risk-free, after careful consideration, I am not persuaded that there is an unacceptable risk of the appellant re-offending if released on bail. 
  1. It follows that, in accordance with s 8 and s 9 Bail Act, this Court should grant the appellant bail on the outstanding charge of supplying the dangerous drug Buprenorphine to another within a correctional facility.
  1. I would allow the appeal, set aside the order of 24 December 2010 dismissing the appellant's application and instead order as follows:

THE ORDER OF THE COURT IS THAT ON THE FOLLOWING CHARGE:

That on the 9th day of April 2010 at NERUM in the State of Queensland one Jason Ian FISHER did unlawfully supply a dangerous drug namely Buprenorphine to another person namely Brett Christopher Mitchell and the said Jason Ian FISHER was an adult and the person to whom the dangerous drug was supplied was within a correctional facility CHARGED CONJOINTLY WITH Brett Christopher MITCHELL, Deidre May FISHER, Jamie RICHARDSON, Michael Thomas ALLCHIN and Nadine Suzanne CITERNE

the Applicant be admitted to bail upon his own undertaking in respect of those charges, such undertaking being on the conditions:-

(a) The Applicant appear and surrender himself into custody before the criminal sittings of the Supreme Court to which he was committed in respect of the offence at the sittings specified by the Court to which he is so committed at the date, time and place, fixed for the trial, notice of which shall be given to him or his solicitor by the Director of Public Prosecutions.

(b) The Applicant is not to depart from Court without leave of the Court and so often as leave is granted, return at the time appointed by the Court and again surrender himself into custody.

(c) The Applicant shall reside at 85 Windsor Place, Deception Bay in the State of Queensland unless he receives the prior written consent of the Director of Public Prosecutions to reside elsewhere.

(d) The Applicant is not to depart the premises at 85 Windsor Place, Deception Bay between the hours of 8 pm and 6 am.

(e) The Applicant is to report to the Officer in Charge of Police at Deception Bay each Monday and Friday between the hours of
8 am and 8 pm unless he receives the prior written consent of the Director of Public Prosecutions to do otherwise.

(f) The Applicant is to have no contact, directly or indirectly with Crown witnesses, unless he receives the prior written consent of the Director of Public Prosecutions to do otherwise.

(g) The Applicant within 3 business days of his release nominate to the Director of Public Prosecutions a medical practitioner upon whom he will attend for the purpose of undergoing random drug testing.

(h) The Applicant is to provide a signed authority to the nominated medical practitioner authorising the doctor to disclose to an officer of the Director of Public Prosecutions the results of any drug testing.

(i)The Applicant is to attend upon the nominated medical practitioner for the purpose of random drug testing as directed by the Director of Public Prosecutions.

  1. CHESTERMAN JA:  The facts relevant to the appeal are set out in the President’s reasons for judgment and I need not repeat them.
  1. Section 16(1) of the Bail Act 1980 (Qld) provides that a court must refuse bail if it is satisfied that there is an unacceptable risk that the applicant if released on bail would fail to appear and surrender into custody or, while released on bail, commit an offence.
  1. When refusing the appellant’s application for bail on 23 September 2010 Boddice J said:

“Turning to the factors I must take into account, first, the nature and seriousness of the offence.  Clearly they are serious offences, and it is conceded they would attract a penalty of … imprisonment if the applicant were convicted … .  Second, the character antecedents, employment and general background of the applicant.  The matter of primary concern is that the applicant has a lengthy and persistent criminal history stretching from 1997 with entries in relation to just about every year between 1997 and 2010.  Those entries include previous offences involving drugs.  Of greater concern is that there is in that history occasions when the applicant has not complied with bail conditions, although on one of those occasions … that allegation was subsequently withdrawn.  That criminal history also evidences that the applicant has been given, on multiple occasions, the opportunity to comply with Court orders, and has breached those Court orders in a variety of ways.  … Ultimately, in assessing the risk and considering the three major issues, that is, of a failure to appear, of harming witnesses or committing further offences, whilst I am not concerned about harming witnesses, I have a significant concern that the applicant is a person who poses an unacceptable risk that he may fail to appear, or that he may commit further offences whilst on bail.”

  1. When the application for bail was renewed before the primary judge on 24 December 2010 the appellant’s counsel identified as “additional facts (that) (had) arisen since” the previous application:

“… the fact the committal hearing, held on 4 November 2010, showed that the Crown do not have a strong case, as well as the fact that the applicant was sentenced to a suspended sentence on the 14th of December 2010 on two counts of enter dwelling and stealing … .”

In oral submissions before the primary judge counsel for the appellant did not mention the suspended sentence imposed on 14 December at all.  His argument was limited to an attempted demonstration of the weakness of the Crown case against the appellant and expressed concern about the length of time he was likely to remain in jail pending trial. 

  1. The primary judge dismissed the application on the basis, applying Ex parte Edwards [1989] 1 Qd R 139 at 142-3, that where successive applications for bail are made the subsequent application will only succeed where the applicant demonstrates a material change of circumstances between the date of the two applications.  His Honour thought there was no such change. 
  1. Only two circumstances of change were mentioned before the primary judge: only one was emphasised; the alleged weakness in the Crown case. As to that I agree with the President’s assessment that the case is far from weak though not without problems, or potential problems for the prosecution. I would regard it as a circumstantial case of respectable strength.  The occurrence of the committal between the two applications for bail did not have the consequence of materially changing circumstances.  The assessment of the strength of the Crown case remained the same after the committal as before it.  That is to say the thrust of the appellant’s case before the primary judge was not made out. 
  1. The other factor mentioned in the written submissions, though ignored in the oral presentation of argument, had no significance attached to it in those submissions which offered no explanation why the suspended sentence was material.
  1. An appellant who challenges the refusal of an application for bail faces a daunting task. In Keys v DPP (Qld) [2009] QCA 220 I said, with the agreement of Fraser JA:

“[22] The appeal is against the exercise of judicial discretion conferred and circumscribed by the terms of s 16. To succeed the appellant must demonstrate error of the kind described in House v The King (1936) 55 CLR 499 at 505. The appellant must establish some misunderstanding of the law or misapprehension of the facts on the part of the primary judge, or point to a judgment so patently unreasonable as itself to provide evidence of some error of law or misunderstanding of fact. The immediate difficulty for the appellant is that it is not suggested that there is any such error. Clearly the dismissal of the application, for bail in the case of murder, is not on its face unreasonable. It is plain that the learned primary judge correctly described the legal principles and rehearsed the relevant facts, neither omitting anything nor having regard to irrelevancies. The appellant did not contend otherwise.”

  1. The point was also addressed in Sica v DPP (Qld) [2010] QCA 18.  I said, with the agreement of the Chief Justice and Keane JA:

“[15] There is a further constraint. 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 [2001] 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.

[16] The character of the assessment required under s 16, coupled with its discretionary nature, makes the judgment particularly unsusceptible to the appellate process. The scope for demonstrating error of the kind required by House is necessarily limited. The discretion has to be exercised within very broad parameters.”

  1. The grounds of appeal set out three factors which it is said the primary judge failed to take into account. They are:

(i)That the appellant had been sentenced to a suspended sentence since the previous bail application;

(ii)that the committal hearing had been finalised and had shown the Crown case was not strong;

(iii)The Crown had conceded that a material change had occurred between the two bail applications.

  1. Ground 2 was not made out. Ground 3 is wrong. The Crown made no such concession. Rather it accepted:

“… that there has been a change of circumstances, in that the Applicant has now spent a further three months on remand and that two of the three offences which were the subject of the application before Justice Boddice have now been finalised … .”

There was no concession that the changes were material, and a submission that they were not was advanced.

  1. Ground 1 is left. That is relied upon by the majority for concluding that the primary judge’s exercise of discretion miscarried because his Honour did not refer to the sentence proceedings before Judge O’Brien. This is no doubt characterised as a relevant fact which the primary judge failed to take into account, thus enlivening the power of an appellate court to interfere: see House v The King (1936) 55 CLR 499 at 505. 
  1. In my respectful opinion the primary judge cannot be criticised for not mentioning the circumstance, or for not giving it any weight. The point was not relied upon by the appellant’s counsel. It was not, as I have said, even referred to in oral argument. If it was significant no reason for ascribing significance to it was assayed in the written submissions.
  1. Having argued the application before the primary judge on the basis that the circumstance had no significance, or at least was not worthy of discussion, the appellant should not now be permitted to complain that the point was not dealt with. Appeals are not final performances for which the application before a primary judge is the dress rehearsal.
  1. Moreover I can see little significance in the circumstance that the appellant was sentenced to a suspended term of imprisonment for the two offences of burglary. It is, I think, obvious that the sentences were suspended because the appellant had spent five months in prison which could not be taken into account as time served under the burglary sentences, and the time in custody was sufficient punishment for the offences. Judge O’Brien said nothing to indicate he had made any assessment at all of the appellant’s prospects of rehabilitation. The net result of the sentences is that the appellant was given credit for his incarceration up to and including 14 December 2010 and that his detention in custody with respect to the outstanding charge of supplying drugs, dates only from 14 December last.
  1. It is properly conceded that if convicted the appellant will be sentenced to a substantial term of imprisonment.
  1. There is also the point that Judge O’Brien’s attention was not drawn to the fact that the offences with which he dealt constituted a breach of suspended sentence for which the appellant will shortly have to be re-sentenced. Given his appalling criminal history and record of persistent offending it is inconceivable that he will not be required to serve all, of the suspended term of six months.
  1. Counsel for the respondent rightly pointed out that:

“The appellant had previously been convicted of a large number of drug related offences and dishonesty offences, as well as the offences of dangerous driving, serious assault and robbery.  He had twice breached bail, community service orders and intensive correction orders.  He’d breached suspended sentences on three occasions and had also breached probation.  Indeed, the appellant appears to have breached every adult order that has ever been imposed upon him.  Additionally, the drug supply offence … was … committed while he was subject to suspended sentences in Victoria and Queensland.  He was also on parole at the time of the burglary offences.”

  1. It cannot, in my opinion, realistically be said of the appellant that he does not pose an unacceptable risk that, if released on bail, he will re-offend. There is also a substantial risk that he would not appear as required.
  1. Circumstances will probably change materially if it should emerge that a trial cannot be held this year. In that event the appellant may have to spend an unacceptable time in custody, justifying another application. That possibility lies in the future.
  1. The appeal should be dismissed.
  1. ANN LYONS J:  I agree with the reasons of the President and the orders she proposes.  In my view there had been some material changes in the appellant’s circumstances at the time he made his second application for bail in the Supreme Court on 24 December 2010.  I consider that it was a significant fact that since his first application for bail in September 2010, the appellant had in fact pleaded guilty and been sentenced on 14 December 2010 with respect to two of the three offences for which he had sought bail.  He had pleaded guilty to two counts of burglary and stealing.  He received a sentence of 12 months imprisonment suspended immediately which indeed suggests that the sentencing judge had some confidence in the appellant’s prospects of rehabilitation. 
  1. I also consider that the fact that the appellant now has a suspended sentence hanging over his head is a significant disincentive to further offending. The suspended sentence together with the proposed bail conditions goes further towards addressing the risk of re-offending than did the bail conditions alone. In my view the imposition of the suspended sentence after the initial bail application is therefore a material change of circumstance because of the addition of this further component which addressed the question of risk.
  1. The outstanding count, for which he sought bail on 24 December, related solely to the supply of the drug Buprenorphine within a correctional facility.  I also consider that it was significant that a committal hearing had taken place on 4 November 2010 in relation to this count and whilst he had been committed for trial, an indictment had not in fact been presented.  At the committal there was cross examination of witnesses and it would seem that the Crown needs to establish that the appellant was part of a conspiracy along with five other people to bring drugs into the facility.  It is not the clearest of Crown cases.  There is also no doubt that the appellant would serve a long period on remand before the matter would come to trial.  It is in fact likely that he would be in custody for a period in excess of two years before this matter comes to trial. 
  1. I agree with the President that his Honour’s discretion miscarried. I agree that in exercising the discretion afresh this Court should grant bail for the reasons set out by the President. I also agree with the bail conditions proposed which includes conditions that impose a strict curfew, twice a week reporting, random drug testing as well as a requirement that he reside at a stated address which is his father’s residence.

Footnotes

[1] See Bail Act, s 16(1).

[2] [1989] 1 Qd R 139.

[3] (1936) 55 CLR 499, 505; [1936] HCA 40.

[4] [2009] QCA 220, at [22].

[5] [1989] 1 Qd R 139, 142-143.

[6] [2010] QCA 18.

[7] See [6] – [11] of these reasons.

[8] Bail Act, s 16(1)(a)(i).

[9] Above, s 16(1)(a)(ii)(A).

[10] Above, s 16(1)(a)(ii)(C).

Close

Editorial Notes

  • Published Case Name:

    Fisher v Director of Public Prosecutions (Qld)

  • Shortened Case Name:

    Fisher v Director of Public Prosecutions

  • MNC:

    [2011] QCA 54

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Chesterman JA, A Lyons J

  • Date:

    28 Mar 2011

Litigation History

Event Citation or File Date Notes
Primary Judgment - - -
Appeal Determined (QCA) [2011] QCA 54 28 Mar 2011 -

Appeal Status

{solid} Appeal Determined (QCA)