Dunshea v Director of Public Prosecutions (Qld) [2021] QCA 102

[2021] QCA 102 COURT OF APPEAL HOLMES CJ WILSON J WILLIAMS J Appeal No 2467 of 2021 SC No 8907 of 2020 JOSEPH DUNSHEA Applicant v DIRECTOR OF PUBLIC PROSECUTIONS (QLD) Respondent BRISBANE MONDAY, 10 MAY 2021 JUDGMENT WILSON J: On 21 August 2020, the applicant applied for bail in the Supreme Court in relation to a number of charges including: one count of money laundering (knowingly); 34 counts of using a restricted computer without consent; three counts of fraud to the value of $30,000.00; 119 counts of fraud; four counts of attempted fraud; five counts of obtaining or dealing with identification information; 12 counts of forgery; 12 counts of utter forged documents; one count of driving and under the influence of a relevant drug; and one count of driving without a licence (disqualified by the Court) as a repeat offender. On this day, the application for bail was dismissed and, on 3 March 2021, the applicant filed an application for an extension of time to appeal this decision. The applicant seeks an order that this Court grant him bail. -- 1 of 7 -- 2 The applicant was charged with in the range of 200 offences, which were committed between 7 November 2019 and 17 July 2020. The alleged offences involve allegations of a sophisticated fraud operation targeting bank account holders. It was alleged that the applicant and his co- accused, who included his partner, engaged in fraud of two financial institutions and another company entity. The quantum of the fraud is in the hundreds of thousands of dollars. The prosecution submitted that the Crown case was strong, with the investigation being extensive and the charges substantiated by digital tracing evidence, CCTV footage and transaction records. The applicant’s solicitor, who appeared on his behalf at the bail application, disputed that the applicant was at the pinnacle of the organisation and submitted that there might be some doubt as to the extent of his involvement in the scheme. The applicant’s affidavit filed for his bail application denied some of the allegations made against him. At the time of the Bail Act application, no brief of evidence had been disclosed. It was submitted on his behalf that it was impossible to assess the strength of the Crown case. The applicant was 39 years of age and had a 13-page criminal history commencing in 1999 with convictions for drug, property, violence and fraud offences. He has been convicted of 21 dishonesty type offences and has also breached Court orders on a number of occasions. There were some breach of Bail Act offences, breaches of community service orders and breaches of probation orders. All of those were quite dated. More recently, in 2017, he failed to appear in accordance with his undertaking. The applicant was sentenced to eight months’ imprisonment with immediate release on parole in the Brisbane Magistrates Court for driving offences on 20 February 2020. The full-time discharge date for this sentence was on 19 October 2020. The majority of the offences that the applicant sought bail for were allegedly committed whilst on this parole order. The applicant did not perform well on parole and it was suspended in July 2020. The applicant was not in a show cause position and, accordingly, was entitled to be granted bail unless the primary judge was satisfied that there was a unacceptable risk of the defendant failing to appear or surrender into custody, -- 2 of 7 -- 3 committing an offence, or of the other adverse possibilities identified in s 16(1) of the Bail Act 1980 (Qld). In assessing where there is unacceptable risks, s 16(2) of the Bail Act identifies relevant considerations as including: (a) the nature and seriousness of the offence; (b) the character, antecedents, associations, home environment, employment, and background of the defendant; (c) the history of any previous grants of bail of the defendant; and (d) the strength of the evidence against the defendant. The prosecution opposed bail on the grounds that the applicant presented an unacceptable risk of committing offences whilst on bail. The applicant’s solicitor acknowledged the applicant’s criminal history, which contained entries for similar offending. And, in relation to the risk of committing further offences, it was submitted on his behalf that the risk of committing similar offences could be ameliorated to an acceptable level of risk with the imposition of conditions restricting his access to technology such as internet or smart phones, as well as conditions that he have no contact with those alleged to be his co-offenders, perhaps with the exception of his partner. It was submitted that the risk of re-offending was manageable with conditions and the question of whether a conviction is inevitable or not is of less relative importance where the applicant is not in a show cause position. In relation to the primary judge’s reasons, in refusing the application, the primary judge made a number of observations and considered the applicant’s circumstances in accordance with the Act. The primary judge noted that the applicant was not in a show cause situation and, consequently, was entitled to bail unless the Court was satisfied the applicant represented an unacceptable risk if released on bail of failing to appear, committing further offences whilst on bail or otherwise interfering with witnesses or endangering the safety of others. The offending the subject of the application was noted to be serious. And, if convicted, the expectation was that a long period of custody, including actual custody, would be imposed. And it was observed that the applicant had a lengthy criminal history that was littered with various offences and various appearances in various Courts. The offending reflected by that -- 3 of 7 -- 4 history including property and fraud related offending, and the applicant had been sentenced to actual imprisonment for an extended period. The history also reflected multiple occasions on which the applicant had been dealt with for breaches of Court orders, such as breach of a probation order or breach of a community service order. Of significance was that the applicant was alleged to have committed these offences in circumstances where he had been subject to supervision by parole until 17 July 2019. And, within months, it was alleged some of this offending commenced. It was further observed that many of the offences were also committed in breach of a parole order imposed on the 20th of February 2020 and his compliance with parole orders was poor. While it was noted that the applicant had past entries in relation to noncompliance with bail, they did not assume significance having regard to his overall criminal conduct. Matters concerning the strength of the Crown case were determined to be difficult to assess. And, having considered the material, the primary judge concluded that the applicant was an unacceptable risk of offending whilst on bail, which was demonstrated predominantly by his history of noncompliance with Court orders. The primary judge stated: “Having regard to the fact that the applicant was on parole at the time that many of these alleged offences are said to have taken place and having regard to his poor performance in relation to compliance with Court orders in the past, I am satisfied there are no conditions that could be imposed which would render the risk of the commission of further offences no longer unacceptable.” The applicant’s application for bail was determined on the 21st of August 2020 and the applicant did not file his application in the Court of Appeal until 3 March 2021. The applicant’s notice of appeal is grossly out of time and requires an extension of time to proceed. The reasons given in his extension of time application are that he is currently in custody, is representing himself and has minimal access to legal resources. He states that he was unaware of the processes and has really struggled with communication from an understaffed, overpopulated prison population. The applicant states that he is appealing the finding that there are no conditions that can ameliorate the risk of reoffending to an acceptable level to be released on bail. The applicant -- 4 of 7 -- 5 feels particularly aggrieved by the finding that there are no conditions that could be imposed which would render the risk of commission of further offences no longer unacceptable. As he states, it makes it impossible to show a material change of circumstances in subsequent bail applications. He states that the primary judge’s ruling is unfair, unjust and absolute. Indeed, since being denied bail on the 21st of August 2020 the applicant has made a number of subsequent bail applications. This material is not before the Court but the applicant has provided a summary in his submissions:  On the 8th of October 2020 his application for bail was denied;  On the 24th of November 2020, an application for bail was adjourned;  On the 27th November 2020, his application for bail was denied;  On the 4th of January 2021, no determination was made and his bail application was adjourned to a date to be fixed;  On the 16th of February 2021, his application for bail was adjourned; and  On the 24th of February 2021, his application was denied. None of these subsequent applications for bail were before the primary judge. The applicant does not seek to appeal any of these subsequent denials of bail. Much of the applicant’s outline of argument focuses on reasons why bail should be granted. He highlights features including the care of his son, the failure by the prosecution to deliver the brief of evidence in an appropriate timeframe, including timeframes fixed by the Court, and consequent delay, and the back injury he suffers. The applicant also submits that the amount of the alleged fraud and the charges he faces has reduced significantly since his application for bail on 21 August 2020. In my view, the application for an extension of time should be refused. The applicant’s application is futile, as he is seeking to appeal a decision which has been superseded by later, unchallenged decisions and he has failed to demonstrate any arguable ground of appeal. The -- 5 of 7 -- 6 decision to grant or refuse bail involves the exercise of judicial discretion. To succeed on this appeal, the applicant must show that the decision was affected by specific error, namely, a misapplication of legal principle, a misunderstanding of the facts pertinent to the determination of the application, or that the way in which the discretion was exercised was so unreasonable or plainly unjust that it may be inferred the decision was affected by such error. The assessment of risk in determining whether or not to grant bail is necessarily imprecise. It is an assessment about which minds may reasonably differ. A contention that error may be inferred and discretionary judgment constituted by refusal to grant bail is therefore a difficult proposition to establish on appeal. The focus of the applicant’s argument is on the idea that, in refusing bail, the primary judge erred when making his final order that there are no conditions that could ameliorate the risk of reoffending. The applicant states that this absolute decision has prejudiced his subsequent applications for bail and is unfair. The primary judge was called to assess the risk based on the material available at the time of the application and an analysis of the reasons shows he did so. In coming to his decision, the primary judge made no identifiable error of fact or law. Much of the applicant’s outline of argument focuses on reasons why bail should be granted, taking into account a number of changed circumstances since bail was denied. These are matters that were either not put before the primary judge or have arisen since the subject order and are, consequently, not relevant to the question to be addressed by this appeal. The applicant is entitled to make subsequent applications for bail. But any such application will only succeed where the applicant demonstrates that a material change in circumstances has occurred between the two applications. Since being denied bail by the primary judge, the applicant has made a number of subsequent applications for bail. All have been denied. This appeal is not concerned with any of the subsequent applications for bail or any changes in circumstances since the primary judge’s decision. The focus of the applicant’s complaint is on the primary judge’s statement that there were no conditions that could ameliorate the identified risk of reoffending while on bail. In my view, -- 6 of 7 -- 7 such a conclusion at that time by the primary judge does not reflect that an error was made. The primary judge was entitled to conclude, on the material before him, that there were no conditions that could be imposed to ameliorate the identified risk. Each subsequent bail application will be addressed on its own merits on whether there has been a material change of circumstances and whether conditions could ameliorate the risks at that time. The matters raised by the applicant in this appeal do not amount to an error in the primary judge’s reasons. No specific error in the primary judge’s reasons can be shown, nor was the decision so unreasonable or plainly unjust that a failure to properly exercise the discretion may be inferred. In my view, the application for an extension of time to appeal should be refused. HOLMES CJ: I agree. WILLIAMS J: I also agree. HOLMES CJ: The application for an extension of time within which to appeal is refused. Thank you. We will take the next matter. -- 7 of 7 --