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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Re DNV  QSC 276
IN THE MATTER OF AN APPLICATION FOR BAIL BY DNV
DIRECTOR OF PUBLIC PROSECUTIONS
BS No 7582 of 2020
Supreme Court of Queensland at Brisbane
13 August 2020
13 August 2020
Bail granted on conditions.
CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – GENERALLY – where the applicant is charged with a domestic violence offence, as well as offences against the Criminal Code, the Drugs Misuse Act 1986, the Explosives Act 1999 and the Weapons Act 1990 – where a primary risk is the commission of offences against the complainant – where strict conditions can be put in place to prevent the applicant from being in contact with the complainant – whether there is any unacceptable risk of the kinds identified in s 16(1) of the Bail Act 1980 – whether bail should be granted
CRIMINAL LAW – PROCEDURE – BAIL – BEFORE TRIAL – GENERALLY – where the proposed bail order included a condition which would allow the applicant to be excused from compliance with the conditions of the bail undertaking with the prior written consent of the Office of the Director of Public Prosecutions – where it is a matter for the court to exercise jurisdiction to determine what conditions are necessary and desirable to lower the risk such as to justify the grant or continuation of bail – whether the proposed condition should be included in the bail order
Bail Act 1980, s 9, s 10, s 11, s 16, s 30
Commissioner of Police v Broederlow  QCA 161, cited
S Pascoe (solicitor) for the applicant
A Fritz for the respondent
Fuller & White Solicitors for the applicant
Office of the Director of Public Prosecutions for the respondent
- This is an application for bail by DNV. He is charged with a number of offences that allegedly occurred in two blocks.
- The applicant was in a relationship with a lady who I will call the complainant. An incident occurred, the result of which was there was damage to her car, and he threatened to slit her throat. He then assaulted her by grabbing her hair and pulling her towards him. He allegedly slapped her on the face and pinched her, causing pain and discomfort. He then left. About 10 days later, the complainant reported the matter to police. That complaint seems not to have been motivated so much by the alleged assault, but by the fact that the complainant discovered that the applicant had pawned her mobile phone.
- By the time the complaint was made, the applicant had left the Alexandra Hills area where the first incident had occurred. Attempts by police to locate the applicant were futile, and, in due course, an arrest warrant issued.
- The applicant was then intercepted in the company of another man in Capalaba. The interception led to the second block of charges.
- Police became suspicious that the applicant may have consumed illicit substances, and so he and the other man were detained for a search. On the ground near them, police located a small loaded handgun of .22 calibre ammunition. It was loaded.
- There is dispute about the handgun. The applicant denies that he had possession of it. Police say they had a conversation with the applicant, and he admitted to controlling it, at least. That conversation may have been taped by police bodycam, but it is unclear on the material before me whether that is so. There was then a search of the vehicle, which revealed 8.886 grams of a crystalline substance, which was suspected to be drugs, but, on scientific examination, was found not to be. Also found in the car were digital scales and a glass pipe.
- The applicant was arrested in relation to offences said to have been committed by the side of the road, being:
- (a)unlawful possession of the handgun, a category D, H or R weapon with a circumstance of aggravation that the weapon had been used to commit an indictable offence;
- (b)possession of dangerous drugs in excess of two grams, but, obviously, given the scientific tests, that charge will not be prosecuted;
- (c)possession of utensils or pipes;
- (d)possession of property suspected of having been used in connection with the commission of a drug offence; and
- (e)an offence in relation to possession of unauthorised and prohibited explosives, which is the ammunition for the handgun.
- At the same time, the applicant was arrested on the warrant that had issued for the first block of offences. They are:
- (a)wilful damage;
- (b)assault occasioning bodily harm;
- (c)stealing; and
- He has also been charged with contravention of a probation order.
- The applicant is in a show cause situation, because s 16(3) of the Bail Act 1980 is engaged where there is a charge of a domestic violence offence. The alleged assault upon the complainant is a domestic violence offence and place the applicant in a show cause situation.
- The applicant is a mature man who has a lengthy criminal history in New South Wales commencing in 1999 and a Queensland criminal history commencing last year. The criminal history in New South Wales is concerning. It includes drug offences, breaches of the New South Wales bail legislation, offences of violence, and offences of contravening domestic protection orders. He has been sentenced to terms of imprisonment in each of 2006, 2007, 2008, 2014, 2015 and 2016. His criminal history in Queensland is much shorter. It concerns drug offences, a failure to appear, a domestic violence offence and wilful damage.
- The applicant has been in custody in relation to all the current charges since his arrest by the side of the road for the second block of offences on 6 May 2020, which is a period of 99 days. That equates to three months and seven days in custody.
- Ms Pascoe, who appears for the applicant, says that conditions can be imposed which lower relevant risk to an acceptable level. Ms Fritz, who appears for the respondent, approaches the matter somewhat differently. She points out that the offence against the Weapons Act 1990 attracts a term of imprisonment of at least 12 months to be served wholly in a correctional facility. She submits that there is no danger of the applicant serving more than 12 months on remand. That submission requires explaining.
- The applicant was originally charged with unlawful possession of a category D, H or R weapon used to commit an indictable offence. That offence (with the circumstance of aggravation) carries a minimum mandatory sentence of 18 months imprisonment served wholly in a corrective services facility. Ms Fritz concedes that there is no evidence that the weapon was used to commit an indictable offence. She submitted that the applicant should be prosecuted on a charge of unlawful possession of a category D, H or R weapon without the circumstance of aggravation. That attracts a minimum term to be served in a correctional facility of 12 months imprisonment.
- Before this Monday, 10 August 2020, there was debate about the operation of s 50 of the Weapons Act and whether, despite the express terms of that section requiring a mandatory minimum term of imprisonment, it was open to a court to impose probation on a charge against that section. That debate is now at an end, it having been settled by the Court of Appeal in Commissioner of Police v Broederlow. The Court of Appeal there held that s 50 of the Weapons Act operated so as to remove the sentencing option of probation. The result of that decision is that the present applicant, if convicted, will serve at least 12 months in a correctional facility.
- Ms Fritz says there is an unacceptable risk of the applicant reoffending and an unacceptable risk of interfering with witnesses, namely, the complainant, and an unacceptable risk of flight.
- It seems to me, especially in these times of COVID-19 and the restrictions upon travel, that conditions can be imposed to bring the risk of flight to acceptable levels. The risk of reoffending, in my view, really relates to reoffending against the complainant. That, though, is somewhat less of a concern than what it might otherwise be, given that the relationship has been severed for some time, and conditions can be put in place to prevent the applicant from being in contact with the complainant.
- That then leads me to the conditions which have been proposed. The residential condition is that he live at a boarding house in Spring Hill. That is hardly optimal, but given that the complainant lives in the eastern suburbs towards Redland Bay, it seems to me that the residential address which is proposed is acceptable.
- There are reporting conditions, a curfew condition and a non-contact condition in relation to witnesses and the complainant, in particular. In addition to the condition that is proposed, which is that there should be no direct communication or contact with the complainant, a further condition ought to be imposed that the applicant not travel east of the suburb of Capalaba. That will sit with the more standard condition:
“You must not contact or communicate with or attempt to contact or communicate with, either directly or indirectly, [the complainant].”
- There will be a similar condition in relation to other witnesses.
- Those conditions should be subject to this exception: that contact is allowed if it is made through the legal representatives of the applicant. That would apply both to the condition relating to the non-contact with the complainant and the non-contact with other witnesses. There is no reason to prohibit lawyers from making proper contact with witnesses, including the complainant.
- There will be prohibition upon the applicant being in possession of drugs and weapons. There will be a requirement for the applicant to undertake drug and alcohol programs and domestic violence programs. There is a proposed condition concerning a tracking device which, in my view, is not necessary, and I delete that.
- There is this peculiar condition proposed:
“14. Variations to conditions.
The applicant may be excused from compliance with the conditions of the undertaking generally or for a specific period with prior written consent of the Office of the Director of Public Prosecutions.”
- I understand that this is a condition which has recently found favour as a standard condition in bail orders, and it is proposed to include this condition in bail orders as a matter of course. That should not occur.
- Under the Bail Act, jurisdiction to grant bail is given to various courts and, in limited circumstances, to the police. A police officer has power to grant watch-house bail under s 7. Under s 8, there is a power to grant bail by any court in which the person is awaiting a criminal proceeding. By s 10, this court has an overarching power to grant bail in all criminal cases, whether there is a criminal proceeding pending in this court against the applicant or not. By s 9, there is a duty to grant bail, subject to s 16. Section 11 is of some significance. It provides, relevantly, here:
“11 Conditions of release on bail
- (1)A court or police officer authorised by this Act to grant bail shall consider the conditions for the release of a person on bail in the following sequence—
- (a)the release of the person on the person’s own undertaking without sureties and without deposit of money or other security;
- (b)the release of the person on the person’s own undertaking with a deposit of money or other security of stated value;
- (c)the release of the person on the person’s own undertaking with a surety or sureties of stated value;
- (d)the release of the person on the person’s own undertaking with a deposit of money or other security of stated value and a surety or sureties of stated value;
but shall not make the conditions for a grant of bail more onerous for the person than those that in the opinion of the court or police officer are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.
- (2)Where a court or a police officer authorised by this Act to grant bail considers that the imposition of special conditions is necessary to secure that a person—
- (a)appears in accordance with the person’s bail and surrenders into custody; or
- (b)while released on bail does not—
- (i)commit an offence; or
- (ii)endanger the safety or welfare of members of the public; or
- (iii)interfere with witnesses or otherwise obstruct the course of justice whether in relation to the person or another person;
that court or police officer shall impose such conditions as the court or police officer thinks fit for any or all of such purposes. …” (emphasis added)
- By s 13, only this court may grant bail in relation to certain offences, although the current ones are not within s 13.
- The structure of s 11 is this. Firstly, it provides:
“A court or a police officer authorised by this Act to grant bail shall consider the conditions for the release of a person on bail in the following sequence.”
- Then, by s 11(2), bail can be granted on conditions. Section 11(2)(b) identifies those risks that are referred to in s 16. Section 16 provides relevantly as follows:
“16 Refusal of bail generally
- (1)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—
- (a)that there is an unacceptable risk that the defendant if released on bail—
- (i)would fail to appear and surrender into custody; or
- (ii)would while released on bail—
- (A)commit an offence; or
- (B)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
- (C)interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or
- (b)that the defendant should remain in custody for the defendant’s own protection. …
- (2)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—
- (a)the nature and seriousness of the offence;
- (b)the character, antecedents, associations, home environment, employment and background of the defendant;
- (c)the history of any previous grants of bail to the defendant;
- (d)the strength of the evidence against the defendant;
- (e)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—
- (i)the defendant’s relationship to the defendant’s community; or
- (ii)any cultural considerations; or
- (iii)any considerations relating to programs and services in which the community justice group participates;
- (f)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.
- (g)any promotion by the defendant of terrorism;
- (h)any association the defendant has or has had with—
- (i)a terrorist organisation within the meaning of the Criminal Code (Cwlth), section 102.1(1); or
- (ii)a person who has promoted terrorism. …
- (3)Where the defendant is charged—
- (a)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
- (b)with an offence to which section 13(1) applies; or
- (c)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
- (d)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).
- (e)with an offence against the Penalties and Sentences Act 1992, section 161ZI or the Peace and Good Behaviour Act 1982, section 32; or
- (f)with an offence against the Criminal Code, section 359 with a circumstance of aggravation mentioned in section 359(2); or
- (g)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. …”
- The structure of s 16, when looked at with ss 9 and 11, is that there is a presumption that bail should be given. That presumption will be discharged by the Crown when there is an unacceptable risk of one of the matters identified in s 16(1)(a) or (b). Those risks are: commit offence, endanger persons, interfere with witnesses, or fail to surrender. The assessment of risk is made in the context of conditions which may be imposed. Then, under s 16(3), a defendant who is charged with certain offences or is in certain circumstances is in a show cause situation, and bail can only be granted where the applicant shows cause that his or her incarceration pending trial is not warranted. Again, that issue is considered in the context of relevant conditions which may be imposed.
- Therefore, the onus falls on the police officer in the case of watch-house bail or the court to consider the relevant risk under s 16. The imposition of conditions under s 11 is part of the consideration of risk and which results, ultimately, in the exercise of judicial power (if not a watch-house bail) in favour of granting bail.
- Section 30(1) of the Bail Act 1980 provides as follows:
“30 Apprehension on variation or revocation of bail
- (1)Bail granted to a defendant on an undertaking may be varied or revoked, on the application of a complainant, prosecutor or person appearing on behalf of the Crown, by—
- (a)the court that granted the bail; or
- (b)the court before which an indictment has been presented; or
- (c)the Supreme Court;
if the court is of the opinion that it is necessary or desirable in the interests of justice to do so.”
- On any application to vary bail, risk must be assessed and again, part of that assessment is a consideration of what conditions may be imposed to render any risk “acceptable”.
- What proposed condition 14 purports to do is to empower the executive, through the Office of the Director of Public Prosecutions, to effectively vary the conditions of court ordered bail by excusing the applicant from compliance with conditions. Such a condition is fundamentally wrong and is contrary to the structure and intent of the Bail Act. It is for the court to exercise jurisdiction to determine what conditions are necessary and desirable to lower the risk such as to justify the grant or continuation of bail. There is nothing in the Bail Act which, in my view, in any way suggests that any part of that discretion can or ought to be delegated to the executive.
- There obviously is a role for the Director of Public Prosecutions and the police in the management of accused persons on bail. It is common to include provisions where the Director may consent to a change of bail address, or a change in the nominated police station for the purposes of reporting by the accused. Those types of provisions concern the operation of bail conditions imposed by the court to address risk. Such provisions do not operate so as to delete or suspend the operation of conditions which the court has determined are necessary to lower risk to an acceptable level.
- The commission of a criminal offence will not necessarily lead to a prosecution. It is well recognised that there is a discretion vested in the executive to not prosecute an offender even where there is evidence sufficient to achieve a conviction. Nothing I have said should be taken as requiring the Director of Public Prosecutions or the police to act upon every breach of bail conditions. What is objectionable about proposed condition 14 is that it purports to empower the Director of Public Prosecutions to effectively authorise non-compliance with conditions imposed in exercise of judicial power upon judicial assessment of the risks outlined in s 16 of the Bail Act.
- I will not include condition 14 in the bail order. With those amendments that I have explained, I will grant bail on the conditions in the draft order.
An offence against the Weapons Act 1990.
Offences against the Drugs Misuse Act 1986.
An offence against the Explosives Act 1999.
Offences against the Criminal Code.
Weapons Act 1990, s 50(1)(c)(i) and s 50(i)(d).
Weapons Act 1990, s 50(1)(c)(i).
 QCA 161.
Bail Act 1980, s 16(1) and s 16(3).
Legislative examples omitted.
Kisina v Director of Public Prosecutions  QCA 261.
- Published Case Name:
- Shortened Case Name:
 QSC 276
13 Aug 2020
- White Star Case: