Shelley v Director of Public Prosecutions
[2001] QCA 34
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- Appeal Determined (QCA)
- Shelley v Director of Public Prosecutions[2001] QCA 34
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Shelley v Director of Public Prosecutions[2001] QCA 34
Shelley v Director of Public Prosecutions[2001] QCA 34
COURT OF APPEAL
de JERSEY CJ
WILLIAMS JA
MACKENZIE J
| Appeal No 1062 of 2001 | |
| Appeal No 643 of 2001 | |
| MICHAEL D'ARCY SHELLEY | Appellant (Applicant) |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent (Respondent) |
BRISBANE
DATE 13/02/2001
JUDGMENT
THE CHIEF JUSTICE: The appellant is subject to unresolved charges of menacing a Government department and stalking.
The alleged events appear to have arisen out of conflict over many years between the appellant and his wife on the one part and on the other the Department of Families, Youth and Community Care relating to the care and protection of their four children.
The Honourable Justice Atkinson refused the appellant bail on 10 November 2000, concluding that if he were released on bail, he would pose an unacceptable risk of reoffending or endangering his alleged victim.
The appellant applied again to Mr Justice Douglas. On 13 December 2000 his Honour refused the further application, concluding that no relevant change in circumstances had been demonstrated, referring to Ex Parte Edwards [1989] 1 Queensland Reports 139.
The appellant relied before Mr Justice Douglas on paragraphs 12 to 18 of his affidavit sworn on 6 December 2000 as establishing the changed circumstances. I do not consider that in concluding that the appellant had failed to demonstrate relevant change in circumstance, Mr Justice Douglas erred, neither would I conclude that there was any error in the approach of Justice Atkinson on the earlier occasion on 10 November 2000. Each of their Honours' judgments was plainly open and not vulnerable on appeal. We are today here effectively entertaining an appeal against each of those orders.
The matter of present significance, however, is that the appellant has now been in custody for an additional two months awaiting the resolution of the charges, the additional period commencing with the determination of the further application for bail before Mr Justice Douglas in December.
In the aggregate, he has been in custody for four months. He has a comparatively minor prior criminal record, largely concerning nuisance type offences. The offences have not attracted substantial penalty. These charges, assuming they could be proved - and that is not entirely clear - did not involve actual violence or the use of weapons or repeat offending.
It seems to me highly questionable whether if convicted the appellant would be likely to be subjected to at least eight months' imprisonment. I consider it much more likely, looking at the circumstances as represented to us, that the maximum penalty to which he would be subjected would be a term of suspended imprisonment.
While I do not doubt, as I have said, the correctness of either of the orders which are before us today, the point has in my view been reached where bail should now be granted on the following conditions:
- That the appellant not visit, telephone or write or seek to make any contact with Ms Anna Bligh or any member of her family or staff, or travel within three kilometres of her place of residence at Highgate Hill, Brisbane;
- The appellant not visit the premises of the Department of Families, Youth and Community Care or make or seek to make contact with any of its officers or employees;
- The appellant reside at Pindari Homeless Men's Services, 28 Quarry Street, Spring Hill, Brisbane and adhere to the conditions of such residence as per its manager's letter to the appellant dated 17 November 2000 which is Exhibit A to the appellant's affidavit filed in this Court on 20 November 2000, or at such other place as the Director of Public Prosecutions may agree to in advance in writing;
- That the appellant not be released from custody until the manager of Pindari has confirmed to the Director of Public Prosecutions that a place will be made forthwith available for the appellant at Pindari, or the Director of Public Prosecutions has agreed to the appellant's residing elsewhere;
- The appellant report each weekday to the Officer in Charge of the City police station, Brisbane, between the hours of 9 a.m. and 5 p.m.
That is the order which I would make.
WILLIAMS JA: The appellant is currently facing two charges; one against section 54A of the Criminal Code alleging an offence in December 1988, and the other an offence against section 359 of the Criminal Code, unlawfully stalking, allegedly committed between April and October 2000.
On the charge under section 54A of the Code, the applicant has been committed for trial in the District Court and has been granted bail on that charge. He is only in custody at the present time because bail has been refused with respect to the charge of unlawful stalking.
I agree with all that has been said by the learned Chief Justice in relation to that charge. In my view the fact that he has now been in custody for four months establishes a material change in circumstances since the matter was last before a Judge of the Supreme Court on an application for bail.
I agree with the order proposed.
MACKENZIE J: Yes. I agree with the orders proposed by the learned Chief Justice. As Justice Williams has pointed out, the only matter upon which the applicant is currently held without bail is the stalking offence. He was admitted to bail in the Magistrates Court on the charge arising from the 1988 incident.
I would reserve the question of whether a wholly non-custodial penalty would be appropriate for the offence, but I am satisfied that if the charge were proved, and I make the comment that particularisation in a way which proves the elements of the offence may be problematical on the meagre information in the QP9, it is unlikely that he would be liable to serve more than he has already served in custody.
I agree with the proposition that that constitutes a material change in circumstances, and as I have said, I agree with the orders proposed.
THE CHIEF JUSTICE: Now, Mr Shelley, you wish to say something.
APPELLANT: I have no further comment, except that I was going to ask could we change the order slightly so that if I get permission from the DPP by phone subject to subsequent confirmation, it may well be that I am able to secure more amenable accommodation which the DPP would have no objection to, and I'd then be facing perhaps four or five days lapse while the DPP actually gets around to writing to me.
THE CHIEF JUSTICE: The material before us deals only with Pindari. We take the view that the order should be left as it is, with Pindari the primary preference of the Court in terms of your accommodation on the basis that if that cannot be secured, it should then fall to the Director in the exercise of his discretion to consider agreeing to somewhere else.