DHJ, Re [2023] QSC 213 [2023] 39 QLR

SUPREME COURT OF QUEENSLAND CITATION: Re DHJ [2023] QSC 213 PARTIES: DHJ (applicant) FILE NO/S: BS No 9684 of 2023 DIVISION: Trial Division PROCEEDING: Application for bail ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 24 August 2023 DELIVERED AT: Brisbane HEARING DATE: 24 August 2023 JUDGE: Williams J ORDER: Order as per the draft provided. CATCHWORDS: CRIMINAL LAW – BAIL – BEFORE TRIAL – GENERALLY – where there is evidence that the applicant has impaired brain function and a serious mental health issue – where the applicant has breached various bail conditions in the past – where the applicant is unable to comply with a bail undertaking – where the applicant does not have any family resident in Australia with whom they could reside and does not have their own residence – where a friend of the applicant has indicated to the Court that they are willing to have the applicant reside with them and are able to provide the applicant with reasonable support – whether the applicant should be released under s 11A of the Bail Act 1980 (Qld) Bail Act 1980 (Qld) s 11A, s 11B, s 16 Attorney-General for the State of Queensland v WTA [2020] QSC 300 Re WTD [2018] QSC 196 COUNSEL: S McGhie (solicitor) for the applicant E Zambas (legal officer) for the respondent SOLICITORS: Richardson McGhie for the applicant Office of the Director of Public Prosecutions (Qld) for the respondent -- 1 of 6 -- [1] Originally this matter came before the Court as an application for a grant of bail on the basis that there had been a material change in circumstances. The applicant had previously made an application for bail on 20 June 2023, and this was refused by Justice Cooper. The application proceeded before me on the basis that there had been two matters which could constitute a material change in circumstances, being: (a) an alternate residential address; and (b) arrangements being made for a psychiatric assessment with Dr Gary Larder. [2] When the matter first came before me it was apparent that the applicant has difficulties in complying with bail conditions, as evidenced by the various breaches of bail conditions which are set out in the Crown’s written submissions. The difficulty in the current situation is that there is also evidence, which is exhibited to the affidavit of Mr McGhie on behalf of the applicant, that there are serious issues in respect of the applicant’s mental capacity. [3] There is evidence before the Court in respect of a serious mental health issue being currently suffered by the applicant. [4] There are two medical reports exhibited to the affidavit of Mr McGhie, being: (a) Dr Larder providing an opinion in 2019; and (b) the applicant’s general practitioner at the time, Dr Lobo, in February 2023. [5] In summary, Dr Larder provided a report in 2019 that the applicant was not able to understand the nature and possible consequences of Federal Circuit Court proceedings and that she was not capable of adequately conducting or giving instructions for the conduct of those proceedings. [6] More recently, in February 2023, Dr Lobo provided an opinion that the applicant was not able to provide instructions to lawyers in relation to police or criminal charges and that she was not, in his opinion, fit to plead to any such charges. [7] This psychiatric evidence and the GP’s evidence raises two issues. One is in relation to the applicant’s current capacity to comply with bail conditions should she be granted bail. It raises the issue as to whether the previous conviction can stand in light of those mental health issues and also whether she is fit to deal with the charges the subject of this application for bail. [8] Dr Larder expressed the opinion in his 2019 report that the applicant has consumed alcohol on such a regular basis that her brain function has become impaired. Further, he comments that the brain function impairments concern: (a) an inability to concentrate, to focus, to comprehend; and (b) an inability to problem solve, to process information, to answer questions. [9] Further, he concludes that: (a) the need to persist to perform functions (a) and (b) above over time then becomes a very serious functional impairment given the potentially variable, -- 2 of 6 -- 3 complex nature of legal proceedings and the variable, unpredictable duration of such legal proceedings. (b) this impairment of brain function occurs on a background of treated depression over some 18 years and recurrent stress from personal relationship issues. [10] It was also submitted as part of the original submissions to support the application for bail that: (a) the applicant has spent a very long time in custody, being in excess of 16 months; and (b) the length of time that the applicant has spent in custody on remand already exceeds the period of imprisonment to which she would actually be sentenced in the event that she pleaded guilty or was found guilty of all charges. [11] In light of this evidence, the Court raised section 11A of the Bail Act for consideration and submissions as to whether it was an appropriate provision for dealing with the applicant. [12] It is submitted that as the applicant is suffering severe mental health issues, it is also desirable that she be able to receive adequate treatment for her condition and also undertake a psychiatric evaluation, which can occur more readily if she is in the community. [13] It has been agreed between the Crown and the applicant’s lawyer that it is appropriate for the Court to consider the application of section 11A of the Bail Act, rather than proceeding with the application for bail. [14] Subsequent to the original listing date, it has also been identified that there is an existing bail order in respect of other offending. In these circumstances, the Crown has today brought an application for revocation of the grant of bail previously made by the Redcliffe Magistrates Court on 10 April 2023. [15] Section 11A of the Bail Act has been considered by the Court in two cases which have been able to be identified, both of Justice Davis. The first is Re WTD [2018] QSC 196 and also Attorney-General for the State of Queensland v WTA [2020] QSC 300. [16] In the more recent decision of WTA, his Honour dealt with the application of section 11A of the Bail Act in conjunction with the Dangerous Prisoners (Sexual Offenders) Act. Relevantly to the current considerations, in that case it appeared that given the mental health issues of the individual, he should never have pleaded as he was not fit for trial. The circumstance then arose that he was not properly to be dealt with under the Dangerous Prisoners’ legislative scheme. [17] At paragraph 36 of WTA, his Honour noted in respect of the considerations relevant to bail: “The undertaking is effectively an agreement by the accused to do certain things and to refrain from doing other things. Where an accused has an impairment of the mind, such as to render him incapable of understanding the nature and effect of the undertaking, it is inappropriate to grant the person bail. However, it would be -- 3 of 6 -- 4 intolerable if the law was that a person incapable of entering into an undertaking had to remain in custody pending trial.” [18] A very similar circumstance arises in the current situation. Clearly, it is inappropriate for persons such as the applicant to be incarcerated indefinitely while she is suffering from a severe mental health issue and unable to comply with a bail undertaking. [19] It is then necessary to consider the requirements of section 11A of the Bail Act. [20] The approach was considered in more detail in the decision of Re WTD. I will not repeat all of his Honour’s reasoning in that case, but it does provide a useful overview of the approach to the issues to be considered. His Honour did note in that decision, at paragraph 11, that section 11A of the Bail Act is not without difficulty. I agree with his Honour’s characterization and interpretation of the section. [21] Further, for the section to apply, the applicant must fall within the conditions set out in subparagraphs 1(a), (b) and (c). These are cumulative provisions, so the applicant must fall within all of them to be brought within section 11A. If the provisions in subsection (1) are satisfied, then there is a discretion to release the applicant without bail into the custody of another person or at large. The provision also makes a condition that the applicant surrender pursuant to a notice given under section 11B of the Bail Act. [22] Justice Davis recognised that there is some disjunct in the requirement to comply with a section 11B notice, given that the circumstance in which section 11A applies includes that the person does not, or appears not, to understand the nature and effect of entering into an undertaking under section 20 of the Bail Act. [23] However, I accept that the way that the section operates is, in effect, a two-step process and that the conditions can be met. [24] Looking at the requirements of section 11A(1)(a), (b), (c), it is necessary to consider each of these in turn. [25] In respect of subsection (a), the requirement is that the person held in custody on a charge of or in connection with an offence is or appears to be a person with impairment of the mind. Based on the medical evidence, which is before the Court, the applicant clearly falls within subsection (a). In particular, I rely upon: (a) the opinion expressed by Dr Larder in respect of her capacity in respect of understanding the proceedings; and (b) the more recent opinion of Dr Lobo given in February 2023, in respect of her ability to understand and to give instructions and also her fitness to plead to charges. [26] In respect of subparagraph (b), this requires that the person does not or appears not to understand the nature and effect of entering into an undertaking under section 20. Similar to WTD, there is no direct evidence in respect of that condition. However, an inference can be drawn from circumstantial evidence and also from the expert medical opinions. -- 4 of 6 -- 5 [27] Here, the evidence of the lack of capacity and inability to understand the criminal proceedings enables an inference to be drawn that the applicant does not appear to understand the nature and the effect of entering into an undertaking under section 20. [28] This also flows from the evidence of her intellectual capacity and from the evidence of Dr Lobo in respect of her ability to undertake everyday functions and to manage her own affairs. [29] I also consider that her history of breaches of bail also tends to support this conclusion, and an inference can be drawn that the conditions that have previously been imposed were not readily understood by the applicant, in the sense that it was a requirement for her to comply with them. [30] Subsection (c) requires consideration of whether if the person understood the nature and effect of entering into the undertaking, the person would be released on bail. This must require consideration to be given to a counterfactual: that is, a hypothetical situation where arrangements could be put in place to manage the risk. [31] The applicant is in a show cause situation pursuant to section 16(3) as the applicant is charged with an offence against the Bail Act and also a relevant domestic violence offence. [32] The suite of bail conditions which have previously been imposed, –and which were originally proposed in respect of the application for bail, would under ordinary circumstances ameliorate the risks to an acceptable level. [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. [34] It then requires consideration of section 11A(2). This provides a discretion for the Court to release the person without bail by: (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 (b) permitting the person to go at large. [35] Permitting the person to go at large would require a consideration of the relevant risks. [36] Given the applicant does not have a residential address currently for her to go to other than that proposed with [redacted – a named person], being released at large does not appear to be a viable option. Also, given her need for support, to also facilitate a mental health assessment, it is preferable that she be released to someone’s care. [37] The case of WTD concerned the release of the applicant to the care of his mother, and in the circumstances of that case, that was considered appropriate. -- 5 of 6 -- 6 [38] Subsection (2)(a) refers to the person who ordinarily has the care of the person, which could be such as a mother or a full-time carer, but also includes “with whom the person resides”. [39] We are faced with a situation where the applicant currently does not have any family resident in Australia with whom she could reside. She also does not have her own residence which she could return to, and there are no other individuals who could offer any ongoing support. [40] The Court has been provided with a statement from a [redacted – a named person], who is a friend of the applicant and has been so for approximately five years. She is a single mother with a child who resides at an address in [redacted – a named suburb]. She has a spare room and has indicated to the Court that she is willing to have the applicant reside with her and is able to provide reasonable emotional support to the applicant and can remind the applicant to go to Court and to attend appointments. She recognises the importance of the applicant having a safe and secure place to live and that she is happy to provide that. [41] It is agreed between the Crown and the applicant’s lawyer that the construction of “… with whom the person resides” is broad enough to enable the applicant to be released to [redacted – a named person]’s residence and for her to reside there pursuant to an order made under section 11A. [42] In the circumstances of this case, I am satisfied that the conditions in section 11A(1) have been met. Accordingly, the discretion arises for the Court to release the applicant without bail. [43] It is appropriate in these circumstances to grant the order revoking the previous grant of bail so that the applicant is currently not subject to any bail conditions. [44] I then consider it is appropriate to make an order that the applicant be released into the care of [redacted – a named person] to reside at the address in [redacted – a named suburb], pursuant to section 11A(2)(a) of the Bail Act. [45] It is also appropriate, then, for a release notice in the form of exhibit 2 be issued so that her release can be effected pursuant to section 11A. [46] In the circumstances, I will make the order as per the draft which is provided to me which revokes the previous grants of bail and releases the applicant into the care of [redacted – a named person]. So that order has been made. -- 6 of 6 --