Re MZU[2024] QSC 154

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant applies for bail in relation to 72 charges, for a range of offences alleged to have been committed between 3 December 2020 and 5 November 2022.  The alleged offences include (in most cases, multiple counts of) burglary, public nuisance, obstruct police, unlawful use of a motor vehicle, three counts of serious assault of a person over 60 (committed on three separate occasions, the last of which also gave rise to charges of attempted robbery and causing grievous bodily harm), committing an indecent act (masturbating) in public, possession of a knife, stealing, assault occasioning bodily harm, fare evasion, contravening police banning notices, wilful damage, trespass and 18 counts of breach of bail.
2. [2]
   He is in a “show cause” position under s 16(3) of the Bail Act 1980 (Qld), since he was on bail at the time he committed most of the alleged offences and because he is charged with 18 offences against the Bail Act itself.  Accordingly, the Court must refuse his application, unless he shows cause why his continued detention in custody is not justified.  An applicant may show cause where they satisfy the Court that there is not an unacceptable risk that, if released on bail, they would fail to appear and surrender into custody; or would, while released, commit an offence, endanger the safety or welfare of a person (a victim of an alleged offence, or anyone else), interfere with witnesses or otherwise obstruct the course of justice (s 16(1)(a)).  In the present case, the respondent contends there is an unacceptable risk that, if released, the applicant would commit offences, including offences that endanger the safety of members of the public.
3. [3]
   The applicant is a young man, only 21 years of age – turning 22 in October.  He has been remanded in custody in relation to the current charges since 5 November 2022, which is about one year and nine months.  He has significant mental health challenges.  He has been the subject of a treatment authority since September 2022.  He is also under the care of the Public Guardian, the Public Trustee and has secured NDIS funding for his support.  About half of the 72 charges were referred to the Mental Health Court in February 2023.  Consequently, the proceedings in respect of those charges are suspended, by operation of the Mental Health Act 2016 (Qld).  The Mental Health Court proceeding is not listed for hearing until 2 December 2024.  By that time, the applicant will have been in custody for more than two years.
4. [4]
   The applicant seeks to invoke s 11A of the Bail Act to secure his release from custody.  That section provides:

“11A Release of a person with an impairment of the mind

1. (1)
   This section applies if a police officer or court authorised by this Act or the Youth Justice Act 1992 to grant bail considers–

2. (a)
   a person held in custody on a charge of or in connection with an offence is, or appears to be, a person with an impairment of the mind; and

2. (b)
   the person does not, or appears not to, understand the nature and effect of entering into an undertaking under section 20; and

2. (c)
   if the person understood the nature and effect of entering into the undertaking, the person would be released on bail.

1. (2)
   The police officer or court may release the person without bail by –

2. (a)
   releasing the person into the care of another person who ordinarily has the care of the person or with whom the person resides; or

2. (b)
   permitting the person to go at large.

3. (3)
   A person’s release is on condition the person will surrender, at the time and place stated in the notice under section 11B, into the custody of the court stated in the notice.

4. (4)
   If the person surrenders into the custody of the court stated in the notice, the court may release the person again under subsection (2).

5. (5)
   A court authorised by this Act or the Youth Justice Act 1992 to grant bail may revoke a release

5. (6)
   A person’s release by a police officer discharges any duty to take the person before a justice to be dealt with according to law.

7. (7)
   In this section –

person with an impairment of the mind means a person who has a disability that –

1. (a)
   is attributable to an intellectual, psychiatric, cognitive or neurological impairment or a combination of these; and

2. (b)
   results in—

1. (i)
   a substantial reduction of the person’s capacity for communication, social interaction or learning; and

2. (ii)
   the person needing support.”

5. [5]
   If a person is released under s 11A, s 11B requires that a “release notice” be given to the person and also to the person into whose care they are released (if that be the case).  The release notice is required to state the time and place at which the person must “surrender into the court’s custody”, and warn them that a warrant will be issued if they fail to do so.
6. [6]
   Having regard to the evidence, which includes the reports of two psychiatrists (referred to in more detail below), as well as the 18 charges of breach of bail and prior convictions for breach of bail, the respondent does not dispute that the Court can be satisfied of the matters in both s 11A(1)(a) and (b) – namely:

   1. the applicant is, or appears to be, a person with an impairment of the mind, within the meaning of s 11A(7); and
   2. the applicant does not, or appears not to, understand the nature and effect of entering into an undertaking under s 20.
7. [7]
   Having regard to the evidence before the Court, I am satisfied of both of those matters.
8. [8]
   The issue to determine is whether s 11A(1)(c) is satisfied – that is, whether, if the applicant did understand the nature and effect of entering into the undertaking, he would be released on bail.
9. [9]
   Sections 11A and 11B were inserted into the Bail Act by the Criminal Law Amendment Act 2000 (Qld).   The amendment is explained in the explanatory notes accompanying the bill, as follows:

“Clause 6 inserts new sections 11A and 11B which provide a mechanism to allow the police or a court to release, without bail, a person who has, or appears to have, an intellectual impairment. The person may be permitted to go at large, or may be released into the care of another person who ordinarily has the care of the person, or with whom the person resides. The release is conditional on the person surrendering into the custody of the court before which the person is required to appear on the charge.

‘Intellectually impaired person’ is defined in the same way as in the Criminal Code, section 229F.

This mechanism would only be considered if the person would otherwise be released on bail, but the person does not, or appears not to, understand the nature and effect of entering into a bail undertaking, so that the making of a bail order is inappropriate. All other considerations required by the Act to be taken into account when determining if a person should be released from custody, for example section 16, which sets out when bail should be refused, will still be taken into account before releasing a person under section 11A.

Instead of signing an undertaking, the person is given a ‘release notice’. Section 11B sets out the information that must be contained in the release notice, including a warning that a warrant will issue if the person fails to surrender into the court’s custody.” [emphasis added]

10. [10]
    The operation of, relevantly, s 11A(1)(c), was considered by Davis J in Re WTD [2018] QSC 196.  In that regard, his Honour observed at [16] that “it is difficult to assess questions of risk without reference to the applicant’s mental capacities”.  I agree with that, and indeed would go further and say one cannot assess questions of risk without reference to the applicant’s mental capacity.  However, as his Honour also said, “[w]hen assessing risk, it must be that regard can be had to arrangements which will be put in place because of [the applicant’s] intellectual limitations”. Those arrangements may serve to ameliorate the risk that is otherwise evident. As to that, in WTD the Court had the benefit of evidence from the applicant’s mother, with whom he was to live if released, and also from a regional manager with the Office of the Public Guardian, outlining the support previously provided and which would be provided to WTD, if he were released.  He was also a young man, with significant challenges.  The relevant risk in WTD’s case was a risk that he would reoffend against a particular complainant in relation to allegations of sexual offending.  The Court was satisfied that risk could be ameliorated to an acceptable level, having regard to the support that would be provided for WTD in the community (at [21]) and so made the order for his release under s 11A. 
11. [11]
    Section 11A was also more recently considered by Williams J in Re DHJ [2023] QSC 213.  In that case, the applicant had been in custody on remand for 16 months.  The nature of the charges is not identified in the decision, but it was accepted that the time she had served would likely exceed the whole of any term of imprisonment she might be sentenced to, if convicted.  The Court was also satisfied of the matters in s 11A(1)(a) and (b).  In relation to s 11A(1)(c), the Court was also satisfied that the “suite of bail conditions which have previously been imposed … would under ordinary circumstances ameliorate the risks to an acceptable level” (at [32]).  The Court went on to say, at [33]:

“Considering the nature of the current offending and the relevant risks, assuming that the applicant could understand the nature and effect of entering into a bail undertaking, then bail would in those circumstances be granted. That would mean that the applicant would have shown cause why her continued detention in custody was not justified. The requirement of section 11A(1)(c) is therefore met.”

12. [12]
    In that regard, Williams J referred to s 11A(1)(c) as requiring “consideration to be given to a counterfactual: that is a hypothetical situation where arrangements [I infer, conditions of bail] could be put in place to manage the risk” (at [30]).
13. [13]
    In terms of the statutory language, what s 11A(1)(c) requires the Court to consider is whether the person would otherwise – that is, apart from the fact that they are not able to  understand the nature and effect of entering into a bail undertaking – be granted bail.  It is clear, from the words used, and from the purpose of the provision, that s 11A is not intended to have a broader application than that.  It is only if the Court is satisfied that the person would otherwise be granted bail that the discretion to release them under s 11A may be exercised. In answering that question, the Court must have regard to the risk posed by the particular applicant, in terms of s 16(1), having regard to the matters set out in s 16(2), which includes “the nature and seriousness of the offence” (s 16(2)(a))) and “the character, antecedents, associations, home environment, employment and background of the defendant” (s 16(2)(b)).  
14. [14]
    I do not propose to address the detail of all of the 72 alleged offences, but will briefly refer to some of them.  Charges of attempted robbery, causing grievous bodily harm and serious assault of a person over 60 arose from an incident on 5 November 2022 in which the applicant is alleged to have attacked a 63 year old nurse on her way to work early in the morning on a tram, using violence to try to steal her handbag. The alleged assault included striking and stomping on the complainant’s head, leaving her unconscious and suffering serious injuries.  This was the last of the range of 72 charges, following which the applicant was remanded in custody.  An earlier incident, in May 2021, is alleged to have involved the applicant and a co-offender going into a shop and stealing some glasses.  When the shop owner followed the applicant to confront him and retrieve the stolen glasses, the applicant is alleged to have punched him a number of times, then used his leg to trip the person causing them to fall to the ground. The applicant is alleged to have then ripped a necklace from the person and run off with it. This resulted in charges of burglary, stealing and assault occasioning bodily harm.  As noted above, the charges currently pending include another two charges of serious assault of a person over 60 (said to have been committed in January and March 2021).  Whilst the QP9s for many of the offences are exhibited to the affidavit of Mr Marini, there does not appear to be any information in relation to these charges.  However, the allegations are set out in the report of the psychiatrist, Dr Roy, which is also an exhibit to Mr Marini’s affidavit (at pp 11-12 of the report).  In relation to the January charge, this involved an alleged assault by punching a man travelling on a tram; and in relation to the March charge, this involved an alleged assault on a 75 year old man, working as a cleaner in a shopping centre, by hitting him with a chair and then continuing to punch him while he was on the ground. Apart from these charges, the overwhelming feature of the charges against the applicant is one of failing to follow police orders or directions, causing public nuisance, evading public transport fares, opportunistic stealing and breaching bail.
15. [15]
    The applicant has an adult criminal history which includes convictions for attempted burglary, burglary, contravening police banning orders, breach of bail (multiple), fare evasion (multiple) and nuisance.  He has, in almost all cases, been fined.  For offences of burglary and breach of bail in September 2022, he was given a probation order, although it seems there was an application made to revoke that order (the outcome of which is not apparent on the material).  From sentencing remarks exhibited to the affidavit of Mr Salm, it is apparent the applicant also has a fairly substantial juvenile criminal history, including convictions for violent offences.  Those sentencing remarks concerned an offence of assault occasioning bodily harm in company, committed when the applicant was 17 and 11 months, but for which he was sentenced when 19.  The applicant has spent time in custody (or detention) prior to the time he has most recently spent on remand. 
16. [16]
    In the context of the referral of a number of the pending charges to the Mental Health Court, an assessment was undertaken and report prepared by Dr Roy, psychiatrist.  The report is dated 24 May 2023 (see exhibit AM-04 to the affidavit of Mr Marini).
17. [17]
    Dr Roy’s report incorporates within it the contents of a letter sent to the Office of the Chief Psychiatrist by a Dr Wasowicz, who was then the applicant’s treating doctor, as part of the Prison Mental Health Service.  That letter records (p 1) that the applicant is managed under a “TA” – treatment authority – which was started in September 2022.  There are no details of that “treatment authority” before the Court.  The letter also notes that the applicant is “managed under the Public Guardian, the Public Trustee, [and] is linked in with the NDIS when in the community and receives a DSP [disability services pension] for a diagnosis of intellectual impairment” (p 2).  The letter also records that the applicant has a “longstanding relationship with mental health services since he was a child”, having initially been diagnosed with reactive attachment disorder and PTSD, and having suffered an “extremely prejudicial childhood including psychological and emotional abuse, neglect and trauma”.  He is described as having difficulties with speech and language impairment and as having an intellectual impairment.  As at 21 April 2024, Dr Wasowicz considered the applicant was “temporarily unfit for trial” (p 2).
18. [18]
    In his report, Dr Roy outlines, in some detail, the applicant’s past psychiatric history, commencing in 2009 when he was aged 6 (pp 4-10 of the report).  Relevantly, this summary includes some references to the applicant’s grandma (or Nan) (with whom it is proposed he would now live, if released under s 11A).  She appears to have been a consistent presence, in one way or another, in the applicant’s life, for quite some time – with notes recording her as “pretty much his only attachment figure” (p 5).  The earliest note in relation to her is from July 2018, when it is said he can no longer stay with her and her mother, due to his “ongoing violent behaviour and stealing” (p 4).  It seems when not living with his grandmother, the applicant was in “care homes” or homeless.  He is sometimes recorded as absconding from his grandmother’s place (for example, p 9, in July 2021).  There are some references to the applicant’s grandmother believing in mediums and the use of crystals, and reinforcing the idea that the applicant is a “medium” due to his reported experiences of visual/auditory hallucinations and paranoia (for example, p 7).  The report notes that, in the lead up to his arrest in November 2022, he had been “homeless by choice”.
19. [19]
    Dr Roy’s analysis of the applicant’s understanding of the referred charges lead to the conclusion that having regard to the applicant’s underlying and enduring impairments, he had been deprived of the capacity to understand what he was doing in relation to each offence, the capacity to control his actions in relation to each offence, and the capacity to know he ought not do the act constituting each offence (pp 20-26).  Dr Roy also expresses the opinion that, whilst the applicant has taken a “variety of substances [ie drugs] for many years of his life”, substance use and intoxication would not have been the primary cause of him being deprived of the relevant capacities.  Rather, the primary cause is said to be his developmental disabilities and his mental disorders (p 26).  Ultimately, Dr Roy concludes that the applicant is not fit for trial and that this unfitness is likely to be permanent due to his underlying intellectual and communication difficulties.  He recommends the making of a forensic order (p 28).
20. [20]
    A further assessment has since been undertaken by another psychiatrist, Dr Reyes, who prepared a report dated 8 March 2024 (exhibit AM-05 to Mr Marini’s affidavit).  Dr Reyes expresses the same opinion as Dr Roy, that the applicant is permanently not fit for trial due to his underlying intellectual disability with associated language and speech disorders and that a forensic order is appropriate (pp 14-15).
21. [21]
    As already noted, the Public Guardian has been appointed as guardian for the applicant for accommodation matters, provision of services including in relation to the NDIS and legal matters not relating to financial or property matters (exhibit AM-07 to Mr Marini’s affidavit).  The Public Trustee has also been appointed administrator for the applicant for financial matters.
22. [22]
    There is also in the material a copy of a letter from the Prison Mental Health Service, dated 29 May 2024, recording that the applicant has been under its care since November 2022 (exhibit AM-08 to Mr Marini’s affidavit).  This letter refers to the applicant having been on a “Treatment Authority (community – Gold Coast)” since 13 February 2022 (in contrast to September 2022, referred to elsewhere in the material), and that his treatment involves various medications.  The letter records that the applicant has “a current diagnosis of unspecified nonorganic psychosis and secondary diagnoses of alcohol – harmful use; stimulants – harmful use; adjustment disorder; intellectual development disorder; and developmental disorder of speech and language”. 
23. [23]
    The letter also records that the applicant has been engaging with the “transition coordination program” to plan for his transition out of custody.  The plan is said to include the following:

    1. that he would live with his grandmother, who continues to be supportive – as to this, it is noted that the applicant’s grandmother attended court at the time of the hearing on 24 July 2024 and had earlier confirmed to the applicant’s solicitor her willingness to have the applicant return to live with her;
    2. that he would have the assistance of the Public Guardian and Public Trustee for making relevant decisions;
    3. that he would have substantial daily support provided, funded by the NDIS; and
    4. that he would be referred to a district community mental health service for case management, psychiatry reviews and medication management.  
24. [24]
    In support of his argument that the Court can be satisfied of the matter in s 11A(1)(c), counsel for the applicant emphasises the substantial period of time the applicant has been in custody on remand, the further delay until the hearing in the Mental Health Court in December 2024 and the fact that, having regard to the psychiatric evidence, it is likely the charges will be discontinued following that hearing, on the basis that the applicant is permanently unfit for trial. He submits that conditions of bail would ordinarily ameliorate the risks associated with the applicant to an acceptable level.  Taking that with the extensive period he has spent in presentence custody, counsel for the applicant submits that if the applicant could understand the nature and effect of a bail undertaking, cause would be shown and bail would be granted.
25. [25]
    In opposing the applicant’s release, the respondent submits that the applicant’s criminal history, together with the allegations underpinning the outstanding charges, reveal a propensity for violent offending, the most serious example of which is the alleged assault of the nurse in November 2022.  The respondent submits that all the measures now proposed, if the applicant is released, were in place prior to his remand in custody – including living with his grandmother.  As to that, the current treatment authority was in place from September 2022 (not long before he was remanded), although I note the reference in the letter referred to in paragraph [22] above, to that treatment authority being in place from an earlier time.  The respondent submits the material shows that the applicant’s grandmother was not able to prevent his “explosive and criminal behaviours” in the past.  The applicant’s lengthy engagement with mental health services, since he was a young child, is also emphasised.  The respondent submits that the applicant is well managed by the Prison Mental Health Service and his compliance with treatment can be more readily supervised in custody.  The respondent submits that the applicant poses a demonstrable and alarming risk of committing further offences which put members of the public at risk, which cannot, even hypothetically, be ameliorated by any conditions.  The respondent submits that the appropriate course of action is to wait for the applicant’s matter to be heard by the Mental Health Court, which is best placed to make an appropriate decision about the applicant’s future, including as to the making of a forensic order which the respondent submits “may be a more appropriate vehicle under which his release from custody can be managed at that time”. 
26. [26]
    This is unquestionably a tragic case, of a young man who is himself the victim of an appallingly prejudicial childhood, which has caused severe impairment. 
27. [27]
    If he could understand the nature and effect of a bail undertaking, the question is, what conditions could be imposed that would “manage”, by reducing to an acceptable level, the risk of the applicant reoffending.  The risk posed by the applicant includes that he would commit violent offences that endanger the safety of members of the public.  Hypothetically, a bail undertaking might include conditions that he live with his grandmother; that he engage with mental health services within the community; and that he is not allowed to use drugs.  On the material before the court, I am not persuaded that conditions of that kind would ameliorate the risk to an acceptable level.  The material shows, quite understandably one might think, that the applicant’s grandmother is not able to “control” his behaviour; he has been connected with various with mental health services, it seems, since he was a child and it is difficult to conclude that he would voluntarily engage in treatment in the community; and the evidence of the psychiatrist, Dr Roy, is that drugs are not the cause of his offending behaviour.
28. [28]
    On the other hand, the consequences to members of the public, were the risk of the applicant reoffending to eventuate, are serious.  Whilst his anti-social offending may be put to one side for present purposes, the risk of offending involves random violence directed at older members of the public, with potentially severe consequences.
29. [29]
    The delay in relation to Mental Health Court process is profoundly regrettable, the consequences of which for an accused person are laid bare by this case.  Given the agreement of the two psychiatrists whose reports are available, it would be far preferable if the matter could proceed as an uncontested hearing sooner than December 2024.  I urge the respondent to take steps to bring this matter to the attention of the Mental Health Court registry, with a view to requesting that it be dealt with as soon as possible.
30. [30]
    But ultimately, I am not satisfied that, but for applicant’s inability to understand the nature and effect of entering in a bail undertaking, his application for bail would be granted.  One cannot ignore his mental health and cognitive impairments in considering that question.   This case is distinguishable from WTD, where the relevant risk was a far more confined one, which the court was satisfied could be ameliorated to an acceptable level having regard to the support proposed to be provided.  Likewise, I am not persuaded, as the judge was in DHJ, that any “suite of conditions” would under ordinary circumstances [that is, but for the circumstance in s 11A(1)(c)] ameliorate the risks to an acceptable level. 
31. [31]
    As I am not satisfied of the requirement in s 11A(1)(c), the discretion to release the applicant without bail under s 11A(2) does not arise. The application for an order for release under s 11A of the Bail Act is, therefore, refused.