Re SBD[2023] QSC 293

SUPREME COURT OF QUEENSLAND

1. [1]
   In this matter, the applicant is charged with the offences of murder, attempted murder and arson, all of which are alleged to have been committed on 20 June 2022.  He has been on remand since 23 June 2022, which is a period of one year and five months. 
2. [2]
   He first applied for bail in November 2022.  That application was dealt with by Justice Brown and was refused on the basis that the applicant had not shown cause why his detention in custody was not justified, in circumstances where her Honour was persuaded there was an unacceptable risk of further offending in particular.  Her Honour described the decision in that case as a difficult one, and as “finely balanced”.  However, it weighed heavily on her Honour’s decision that the applicant was on bail at the time of the current alleged offending.  Her Honour also made reference to some evidence that the applicant had considered fleeing to Melbourne after the offences, although her Honour went on to say:

It must be said he did not, and indicated that he thought if he did so, he would look like a murderer.

3. [3]
   The applicant brought another application for bail in March this year.  That application was determined by Justice Davis.  Because his original application had been refused, the applicant was required to show a material change of circumstances in order to persuade the Court to consider his application again.  What was relied on at that time was the provision – or the offer of provision – of a surety of $10,000 from the applicant’s grandparents.  In dealing with that application, Justice Davis considered that it was important to show that the change in circumstance relied upon was material in relation to the reason for the exercise of the discretion by the judge who considered the first application.  As his Honour said:

In a circumstance like this, where the judge has clearly relied as a substantial reason for not granting bail upon risk of reoffending, the offer of a $10,000 surety on a charge of murder is not, in my view, a material change in circumstance.

4. [4]
   The applicant now applies again for bail.  He is in the same position of needing to demonstrate that there has been a material change in circumstances.  What the applicant relies on is the substantial delay that is being caused to criminal trials in Queensland following, first, the so-called “Sofronoff inquiry” into forensic scientific services, and then the more recent inquiry, which the Court accepts has resulted already in delays to the testing and analysis and provision of evidence in relation to DNA samples and will continue to cause such delays.
5. [5]
   When the matter was before Justice Davis, this matter was generally alluded to, and it was said then that Queensland Health and Forensic Scientific Services would not provide an estimated time when the results and statement would be provided. 
6. [6]
   I pause to note that at the time the original application was before Justice Brown, although the Sofronoff inquiry had commenced, it had not concluded, so this issue was not on the radar at all then.
7. [7]
   It seems that at some stage there was an indication of the relevant DNA evidence being made available in September this year.  The most recent information that the respondent has is that it will not be until April 2024.  It would not be difficult to foresee even further delays beyond that point in time, given the public release this week of the recommendations of the most recent inquiry.  But even if it were April 2024, that represents a significant delay in this matter progressing. 
8. [8]
   Among other things, on the evidence before the Court, there will not be a committal hearing until that DNA statement is made available, because the Crown seeks to proceed against all seven defendants in the matter together, and some have indicated that they wish to await the DNA statement before they can proceed to a committal with cross-examination.  The Crown does not disagree with the applicant’s counsel’s estimate that a trial will not be reached in this matter until 2025.
9. [9]
   In terms of whether that fact constitutes a material change in circumstances, I have had regard to the decision in Ex parte Edwards [1989] 1 Qd R 139, which is the decision cited for the proposition that a second or subsequent application for bail will not be considered unless some additional facts have arisen or have been discovered, such as to make it appropriate for the Court to reconsider the application.
10. [10]
    Relevantly, in Ex parte Edwards, the Court referred to an example from another case, in which the fact of a committal proceeding having taken place was relied on as a material change in circumstances.  The point was made in that case that in many cases there could, in fact, be a material change or changes in the circumstances, after a committal has taken place, for reasons including that the strength of the prosecution case may be better known, or it may be possible to re-evaluate the seriousness of the offence, or the time likely to elapse before the case comes to trial.  Those observations came from the decision in R v Slough Justices; Ex parte Duncan (1982) 75 Cr App Rep 384 at 388.
11. [11]
    Justice McPherson in Ex parte Edwards made the point that the question to be determined is whether there are any new considerations which were not before the Court on the occasion of the previous application when bail was refused.
12. [12]
    In the decision of Lynch v Director of Public Prosecutions (No 2) [2020] QSC 64, Justice Martin considered this question, and after referring to Ex parte Edwards at paragraph 11 of Lynch, Justice Martin said, at paragraph 12:

A change that is material is one that is material to any circumstance relevant to the grant or refusal of bail.  It need not be confined to a circumstance considered or relied upon by the Judge who heard the first application.

13. [13]
    In that particular case, one of the circumstances relied upon was delay in a trial being listed as a result of the effect of the COVID-19 pandemic.  His Honour held, at paragraph 27, that this was a material change that, even apart from the other factors, would have enabled the applicant to satisfy the test.
14. [14]
    The application of the test was also considered in some detail by Justice Freeburn in Re Dunshea [2021] QSC 163.  His Honour summarised the test, by reference to Ex parte Edwards, at paragraph 10 by saying:

Thus, what is required for a second or a later application for bail, is that the applicant satisfy the Court that there are additional facts that have arisen, or additional facts that have been discovered, which are decisive in the sense that those new facts alter the balance in favour of granting bail.

15. [15]
    What is important to keep in mind is that in any subsequent application for bail, the Court is not sitting in the sense of an appeal or a review of the earlier decision.  That is the point of being required to show that something has changed, some additional facts have arisen or been discovered, which may be decisive in the sense of altering the balance in favour of the application being granted.  In that respect, I agree with the observation by Justice Martin at paragraph 12 of Lynch, the change does not have to be confined to a circumstance considered or relied upon by the Judge who heard the first application.
16. [16]
    In terms of the narrower approach arguably suggested by the reasons given by Justice Davis in this matter in March, the reality remains that an applicant still has to overcome the hurdle of the risks that are thought to be posed in dealing with the application.  But it seems to me that it is too narrow to say that a circumstance that could be material can only be a circumstance directly relating to the factor that led to the application being refused in the first place.
17. [17]
    Here, I am satisfied that the lengthy delays as a result of the unavailability of the DNA evidence are an additional fact that has arisen and/or been discovered since this application was heard and determined by Justice Brown in November 2022.  I am satisfied that it is a material change of circumstances – that is, the lengthy time that this applicant will spend on remand before any prospect of a trial being held.  On the current estimate, he will have been on remand for two and a-half years at least, if not three years, more likely, before there is any prospect of a trial.  Bearing in mind that he was 18 years of age at the time the alleged offences were committed, that is a significant factor and one warranting reconsideration of the application for bail.
18. [18]
    So, being satisfied that a material change of circumstances has been shown, the next exercise is to consider the matter afresh.  The applicant remains in a show cause situation because of the nature of the alleged offence.  Therefore he is required to show cause why his continued detention in custody is not justified.  He will not be able to do so if the Court considers there is an unacceptable risk that, if released on bail, he would fail to appear and surrender into custody, or would, whilst released on bail, commit an offence or endanger the safety or welfare of any person, or otherwise interfere with witnesses. 
19. [19]
    The relevant risks that the Crown identifies are a risk of failing to appear and a risk of committing further offences.
20. [20]
    Insofar as the risk of failing to appear is concerned, that is based only on the throwaway remark made by the applicant to an undercover police officer whilst in a cell about how he thought he might “skip to Melbourne”.  In my view, to the extent that there is a risk of this person failing to appear, that risk is able to be ameliorated by strict conditions of reporting every day to a police officer, being subject of a curfew every night, as a result of which police can randomly check up on him to make sure he is there and ensuring enforcement of those conditions with a GPS  tracking device.  The material is not such as to suggest to me that that risk is so unacceptable that it cannot be ameliorated by conditions.
21. [21]
    In terms of the risk of committing further offences, it is relevant to note that the applicant is, as I have said, a young person.  He has only one entry on his criminal history – a conviction in July 2022 for possessing tainted property, for which he received no punishment.  That was the offence for which he was on bail at the time these offences were alleged to have been committed in June 2022.  It was that factor, that he was on bail for that offence when the present offences are alleged to have been committed, that weighed heavily in Justice Brown’s consideration when she dealt with the matter a year ago.  Beyond that, there is not evidence before the Court of a particular risk of this applicant committing further offences.
22. [22]
    He has, as outlined in the material, had a difficult childhood and adolescence, but he is now well supported by his grandparents, with whom he would live if released on bail.  It is his grandparents who have made the offer of a surety, which, on the basis of the evidence before the Court, is a significant sum of money for them to have been willing to put up to show their faith in the applicant.  One would expect the applicant would repay their faith, but, of course, that is really relevant to the risk of not appearing, which I have found is not a substantial one.  He has the offer of employment through his brother, which was the subject of evidence before Justice Brown, and which has been confirmed as still standing now.  So he will have some structure around him. 
23. [23]
    He has now also spent a year and a-half in custody as a very young person, not having done so before, which one might expect would have had an impact on him.
24. [24]
    I have not said too much about the circumstances of the offending, but I should say he is charged with these very serious offences as a party.  Most likely, the Crown says it will rely on section 8 of the Criminal Code.  He is one of, I think, seven people alleged to have been involved in the offending, but not one of those alleged to have been directly involved in inflicting the violence through stabbing that led to the death of the deceased.
25. [25]
    In matters such as this, it is always difficult for the Court to form a clear view of the strength or otherwise of the Crown case, but the factors that are important to note include that, in part, the evidence against him is of admissions he made when interviewed by the undercover police officer, in circumstances where he was put in a cell half an hour after saying he wanted to speak to a lawyer before being questioned.   His counsel has flagged an application to exclude those admissions.  And the admissions, in any event, are really only putting him at the location of the offence.  Otherwise, there is some evidence from phone data that would put him at the location, and although there are statements from some of the other alleged co-offenders, there are no section 13A statements yet.
26. [26]
    Counsel for the respondent, perhaps aptly, says it is “not entirely a weak Crown case”, but that certainly is not going as far as saying it is a strong Crown case.  So there are some question marks in relation to the strength of the Crown case.  They are serious alleged offences, but this is an applicant charged on the basis that he is a party to those serious offences, as opposed to a principal offender.  He is a young person, who was 18 at the time of the alleged offences.  He has only a minor entry on his criminal history.  And the conditions of bail would be stringent.
27. [27]
    In those circumstances, I am not persuaded that the risk of him committing further offences is unacceptable.  Given the length of time before this matter will go to a trial, I am persuaded that, in all of the circumstances, he has shown cause why his continued detention in custody is not justified.