Barbaro v Director of Public Prosecutions (Qld) [2022] QCA 145 [2022] 33 QLR; (2022) 11 QR 395

SUPREME COURT OF QUEENSLAND CITATION: Barbaro v Director of Public Prosecutions (Qld) [2022] QCA 145 PARTIES: HARLEY JOE BARBARO (appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO/S: Appeal No 5431 of 2022 SC No 2814 of 2022 DIVISION: Court of Appeal PROCEEDING: Appeal from Bail Application ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 58 (Burns J) DELIVERED ON: 12 August 2022 DELIVERED AT: Brisbane HEARING DATE: 22 July 2022 JUDGES: McMurdo and Dalton JJA and Kelly J ORDER: The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – PROCEDURE – BAIL – REVOCATION, VARIATION, REVIEW AND APPEAL – where the appellant applied for bail pursuant to the Bail Act 1980 (Qld) on conditions including that they wear a monitoring device – where the appellant was required to ‘show cause’ why their detention in custody was not justified under s 16(3) – where the primary judge held that when assessing risk under s 16(1), s 16(2A) precludes the Court from considering the effect on the risk of imposing a monitoring device condition – whether the primary judge erred in construing 16(2A) of the Act Bail Act 1980 (Qld), s 11(2), s 11(5), s 11(9B), s 16(1), s 16(2A), s 16(3) Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, cited Williamson v Director of Public Prosecutions [2001] 1 Qd R 99; [1999] QCA 356, cited COUNSEL: M L Longhurst and R M Kurz for the appellant C W Wallis for the respondent SOLICITORS: Moloney MacCallum Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent -- 1 of 7 -- 2 [1] McMURDO JA: I agree that for the reasons given by Kelly J, the appeal must be dismissed. I agree also with the additional comments of Dalton JA. [2] DALTON JA: I agree with the orders proposed by Kelly J and his reasons. I wish to add some brief comments of my own. [3] First, although the appellant here was in a show cause position, the difficulty created by s 16(2A) of the Bail Act 1980 (Qld) arises not just where an applicant for bail is in a show cause position, but in every application for bail – s 11(2) and s 16(1)(a) of the Bail Act. [4] Secondly, the appellant submitted that s 16(2A) of the Bail Act should be read, in effect, to prohibit the Court having regard to the effect of an applicant for bail wearing a monitoring device, in isolation from other conditions. The appellant relies upon the fact that s 16(2A), “was inserted through the enactment of the Bail (Domestic Violence) and Another Act Amendment Act 2017, as a part of the Government response to the Not Now Not Ever report into domestic violence”. In that context he relies upon a report by Australia’s National Research Organisation for Women’s Safety.1 The appellant submitted that, “The ANROWS report concluded that electronic monitoring can contribute to reducing reoffending and enhancing safety for victims/survivors, however asserted that electronic monitoring would not be effective if used in isolation. Rather, it should be a feature of a holistic response, including being used … alongside overall supervision.” (my underlining). A Queensland Police report to much the same effect was relied upon by the appellant.2 [5] These provisions may or may not have influenced the inclusion of s 16(2A) in the Bail Act. Something quite different was said by the Attorney-General in debate during the second reading speech: “In addition to the amendments related to domestic violence perpetrators, this amendment will ensure that the availability of electronic monitoring as a condition of bail cannot – cannot – influence the decision of the court to release a person on bail in circumstances where they would otherwise have been remanded in custody. That means that the option to impose a condition requiring a person to wear a tracking device will not shift a defendant from an unacceptable risk category to a manageable acceptable risk category, resulting in their release on bail. … … This means that when a magistrate or judge is considering whether to grant bail they do not choose to release the defendant on bail with a tracking device as an alternative to remand. The court must consider whether this person is an unacceptable risk first. If the court finds that that person is an unacceptable risk, they cannot use the GPS tracker as an alternative to remand. It is only when they find that that person is not an unacceptable risk that the GPS tracking can be an option as part 1 Nancarrow, H., & Modini, T. (2018) Electronic monitoring in the context of domestic and family violence: Report for the Queensland Department of Justice and Attorney-General. ANROWS, 65. 2 The Domestic and Family Violence GPS-enabled Electronic Monitoring Technology EVALUATION REPORT, State of Queensland (Queensland Police Service), April 2019. -- 2 of 7 -- 3 of bail conditions. That is a very important element that is not currently covered by the private member’s bill.”3 [6] Section 11(1) of the Bail Act provides that a court must not make the conditions for a grant of bail more onerous than are necessary. It may be that the Legislature needs to revisit s 11(9B) and s 16(2A) of the Bail Act. [7] Thirdly, I note that: (a) the imposition of a condition that a defendant wear a monitoring device on bail is one which will most often arise when a court is considering the risk of flight; it will rarely arise when a court is considering the risk of a defendant re-offending, including by way of committing domestic violence offences, and (b) so far as the risk of flight is concerned, it will only be where an applicant for bail is a high risk of flight that a monitoring device will be considered, and, in my view, it would be unusual that a condition that an applicant wear such a device would ameliorate that risk. [8] KELLY J: This is an appeal from an order dismissing an application for bail. The appellant was in a show cause position under s 16(3) of the Bail Act 1980 (Qld) (“the Act”). The primary judge was not persuaded that the appellant had demonstrated why his continued detention in custody was not justified. The sole ground of appeal is that the primary Judge “erred in his Honour’s consideration of ss 16(2A) and 11(9B) of the [Act]”.4 The error is said to involve the primary judge having reasoned that, when assessing whether there was an unacceptable risk posed by the appellant’s release on bail, the court could not have regard to a proposed condition that the appellant was to be fitted with a monitoring device. The appellant submits that, when the question of risk was being assessed, the court was permitted to have regard to that condition. The relevant provisions of the Act [9] Before considering the merits of the ground of appeal, it is convenient to refer to sections 11 and 16 of the Act. [10] Section 11 is headed “Conditions of release on bail”. Section 11(2) relevantly provides: “Where a court … 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; 3 Queensland, Parliamentary Debates, Legislative Assembly, 22 March 2017, 818. 4 Notice of Appeal filed 10 May 2022, ARB 1. -- 3 of 7 -- 4 Examples of special conditions for paragraph (b)(ii)— • a special condition that prohibits a person from associating with a stated person or a person of a stated class • a special condition that prohibits a person from entering or being in the vicinity of a stated place or a place of a stated class that court … shall impose such conditions as the court … thinks fit for any or all of such purposes.” [11] Section 11(5) relevantly provides: “Conditions imposed pursuant to subsection (2) shall not be more onerous for the person than those that in the opinion of the court … are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.” [12] Section 11(9B) provides: “Without limiting a court’s power to impose a condition on bail under another provision of this section, a court may impose on the bail a condition that the defendant wear a monitoring device while the defendant is released on bail.” [13] Section 16 of the Act is headed “Refusal of bail generally”. Section 16(1)(a) of the Act relevantly provides that bail shall be refused where the court is satisfied that there is an unacceptable risk that a person will fail to appear, commit further offences, endanger the safety or welfare of a person or interfere with witnesses. Section 16(2) relevantly provides that, in assessing whether there is an unacceptable risk with respect to any of those events, the court shall have regard to, inter alia, “all matters appearing to be relevant”. Section 16(2A) then provides: “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).” [14] Section 16(3) is the provision which places an applicant into a show cause position. There is no dispute that the appellant was in a show cause position. Hence, in this case, the primary judge was to refuse to grant bail unless the appellant showed cause why his detention in custody was not justified. Section 16(4) provides that a court that grants bail to an applicant in a show cause position might impose conditions, relevantly, under s 11 of the Act. No error in the reasoning of the primary judge [15] The primary judge’s reasoning which is material to the ground of appeal was relevantly as follows:5 “When assessing whether there is an unacceptable risk with respect to any event specified in s 16(1)(a) of the Act, the court must not have 5 Re Barbaro [2022] QSC 58 [6]-[7]. -- 4 of 7 -- 5 regard to the effect on the risk of imposing a condition that the defendant wear a monitoring device when on bail: s 16(2A). Indeed, it is a curious feature of the Act that while express power is conferred on the court to impose such a condition, regard must not be had to it when assessing risk. … It follows that when the court is assessing whether there is an unacceptable risk that the defendant if released on bail will, for example, commit an offence, regard cannot be had to any proposal to fit the defendant with a monitoring device.” [16] The appellant submitted that, when assessing risk, a court may consider the impact the monitoring device condition would have in supplementing other proposed conditions of bail. That submission was advanced in terms that s 16(2A) should be interpreted as meaning, relevantly, “…a court must not have regard to the effect on the risk of imposing a condition under section 11(9B) [in isolation from other conditions.]” (original emphasis).6 Hence, the appellant’s ultimate submission was that the words in bold type should effectively be read into section 16(2A) of the Act. [17] In Taylor v The Owners – Strata Plan No 11564,7 the joint judgment (French CJ, Crennan and Bell JJ) observed: “Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction ‘reads up’ a provision, giving it an extended operation, or ‘reads down’ a provision, confining its operation, may be moot. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.” [18] In my view, the construction contended for by the appellant seeks to insert words into the Act which are too much at variance with the language in fact used by the legislature. The proposed construction would significantly cut across the plain and unambiguous statutory directive contained in s 16(2A), namely that a court must not have regard to the effect on the risk of imposing a condition that an applicant wear a monitoring device. Indeed, the words sought to be read into the Act would have the effect of countenancing something which the Act plainly prohibits. 6 Outline of submissions on behalf of the appellant [19]. 7 (2014) 253 CLR 531, 548 [37]-[38]. -- 5 of 7 -- 6 [19] Section 16(2) of the Act provides that when assessing whether an applicant poses an unacceptable risk, a Court is entitled to have regard to all matters appearing to be relevant. Ordinarily, a proposed special condition which might be imposed with the grant of bail would be a relevant matter. However, s 16(2A) makes clear that, at the risk assessment stage, a court must not have regard to one type of special condition, namely a condition that an applicant wear a monitoring device. No error has been demonstrated in the approach adopted by the primary judge. Other matters [20] The primary judge observed as follows in relation to a situation where bail is granted: “Where a defendant successfully shows cause why his or her detention in custody is not justified, the court may impose conditions on the grant of bail. The power to do so is conferred by s 11 of the Act and it is wide-ranging. For example … power is expressly conferred on the court to impose a condition requiring a defendant to wear a monitoring device while he or she is released on bail. However there is an important limitation; the court must not make the conditions of bail more onerous for the defendant than those that in the opinion of the court are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.” [21] After having correctly reasoned that, when assessing whether there was an unacceptable risk, the court could not have regard to any proposal to fit a monitoring device, the primary judge further observed: “Furthermore, if the court is persuaded by reference to other conditions which might be imposed that the defendant is not an unacceptable risk, it is difficult to imagine how the imposition of a further condition requiring the fitting of a monitoring device could be at all justified. This is because the court is precluded from making bail conditions more onerous for the defendant than is necessary.” [22] That the risk of a person remaining in the community on bail is found to be acceptable, does not mean that there is no remaining risk attendant upon the grant of bail. It has often been said that no grant of bail is risk-free.8 The persistence of risk is reflective of there being an important limitation upon the power of the court to impose conditions on a grant of bail, namely that the court cannot impose conditions on a grant of bail which are more onerous than those that, in the opinion of the court, are necessary having regard to the nature of the offence, the circumstances of the defendant and the public interest.9 [23] When regard is had to sections 11(5), 11(9B) and 16(2A), the Act contemplates a situation where, although the risk of a person remaining in the community without being fitted with a monitoring device is considered acceptable, a court might still form the opinion that it is necessary for that person to be fitted with a monitoring device. As the primary judge correctly observed, it is difficult to imagine an example of the situation contemplated by the Act because of the limitation imposed by s 11(5) and the court necessarily having already concluded that the risk was acceptable absent 8 Williamson v Director of Public Prosecutions [2001] 1 Qd R 99, 103 [22]. 9 s 11(5) of the Act. -- 6 of 7 -- 7 a monitoring device condition. According to the extrinsic material,10 s 16(2A) was inserted into the Act to ensure that a court could not avail of the fitting of a monitoring device as an alternative to a person being placed on remand. However, the exclusion of the fitting of a monitoring device from the assessment of acceptable risk has also served to significantly curtail the circumstances in which a monitoring device condition might be imposed with a grant of bail. [24] The order is that the appeal should be dismissed. 10 Queensland, Parliamentary Debates, House of Representatives, 22 March 2017, 818. -- 7 of 7 --