Barbaro v Director of Public Prosecutions (Qld)

In this case a defendant in a criminal proceeding appealed against a decision to refuse bail. It was argued that the primary judge had erred in reasoning that the effect of a proposed condition requiring the defendant to wear an electronic monitoring device (an “electronic monitoring condition”) could not be taken into account when assessing whether there is an unacceptable risk of an event specified in s 16(1)(a) Bail Act 1980. It was said that, when an electronic monitoring condition was proposed in addition to other conditions rather than “in isolation”, it could be taken into account. Justice Kelly (with whom McMurdo and Dalton JJA agreed) rejected this argument. The clear and unambiguous language of s 16(2A) Bail Act 1980 prohibits a judge or magistrate from taking into account the effect of a proposed electronic monitoring condition when deciding whether to refuse bail which requires an assessment of whether there is an unacceptable risk of an event specified in s 16(1)(a) Bail Act 1980. The appeal was dismissed.

McMurdo and Dalton JJA and Kelly J

12 August 2022

Background

The primary judge refused the appellant’s application for bail. [8]. The appellant was required to show cause why his detention in custody was not justified: see Bail Act 1980 s 16(3)(a). [8]. The appellant appealed on the basis that the primary judge had erred in reasoning that when assessing whether there was an unacceptable risk of an event specified in s 16(1)(a) Bail Act 1980, his Honour could not have regard to a proposed bail condition that would require the appellant wear an electronic monitoring device (an “electronic monitoring condition”). [8].

Whether the approach of the primary judge was an error

A court may impose an electronic monitoring condition if satisfied that it would not be more onerous than necessary having regard to the nature of the offence; the circumstances of the defendant; and the public interest: see Bail Act 1980 ss 11(5), 11(9B). [11]–[12]. Though a court is obliged to refuse an application for bail if satisfied there is an “unacceptable risk” of an event specified in s 16(1)(a) (a “specified event”) e.g. a risk of committing another offence. [13]. When assessing whether there is an “unacceptable risk” of a specified event, a court must have regard to inter alia “all matters appearing to be relevant”: see s 16(2) Bail Act 1980. [13]. However, s 16(2A) Bail Act 1980 provides as follows:

“16 Refusal of bail generally

…

(2A) However, in assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) a court must not have regard to the effect on the risk of imposing a condition under section 11(9B).” [13].

It was argued that when assessing the risk of a specified event, it is open to a court to have regard to the effect that an electronic monitoring condition would have in ameliorating an unacceptable risk of a specified event to an acceptable one. [16]. The submission made was that “in isolation with other conditions” should be read into s 16(2A) to allow the effect of an electronic monitoring condition to be taken into account in circumstances where it is proposed with other conditions. [16]; cf. [4]–[5]. Justice Kelly (with whom McMurdo and Dalton JJA agreed) rejected this submission. [1]–[2], [17]. Such a construction is not open on the basis that it would “significantly cut across the plain and unambiguous statutory directive contained in s 16(2A) …”. [18]. A judge or magistrate cannot take into account the effect that a proposed electronic monitoring condition would have when deciding whether to refuse bail, which requires an assessment of whether there is an unacceptable risk of a specified event. [19].

Justice Kelly noted that the effect of ss 11(5), 11(9B) and 16(2A) Bail Act 1980 when read together, is that it contemplates a situation where a defendant may be assessed as acceptable risk of a specified event (or specified events) without an electronic monitoring condition, but a court may then nonetheless consider an electronic monitoring condition is not more onerous that necessary. [23]. However, as Kelly J went onto observe, it would be “difficult to imagine” where an electronic monitoring condition would be necessary at all after a court has concluded that other conditions would otherwise reduce what was an unacceptable risk of a specified event (or specified events) to an acceptable one. [23]. Justice Dalton, while agreeing with Kelly J, also made some brief observations about the efficacy of the statute as drafted (with whom McMurdo JA also agreed): see [1], [3]–[7].

Disposition

In the result, the appeal was dismissed. [1]–[2]. [24].

D Kerr