Dunshea, Re [2021] QSC 163

SUPREME COURT OF QUEENSLAND CITATION: Re Dunshea [2021] QSC 163 PARTIES: IN THE MATTER OF AN APPLICATION FOR BAIL BY JOSEPH DAVID DUNSHEA (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QLD) (respondent) FILE NO/S: No 5881 of 2021 DIVISION: Trial Division PROCEEDING: Bail Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 24 June 2021 DELIVERED AT: Brisbane HEARING DATE: 25 May 2021 JUDGE: Freeburn J ORDER: Subject to the court determining appropriate conditions, the applicant be granted bail. CATCHWORDS: CRIMINAL LAW – PROCEDURE – BAIL – FURTHER APPLICATIONS – where the applicant has been refused bail on four previous occasions – where the applicant has been charged with and seeks bail, once again, in relation to many fraud offences – where the applicant is in a ‘show cause’ situation pursuant to s 16(3) of the Bail Act 1980 (Qld) – where the applicant must satisfy the Court that there are additional facts that have arisen, or additional facts that have been discovered, which are decisive in the sense that those new facts alter the balance in favour of granting bail – whether there has been a material change in circumstances – whether residential rehabilitation had been determined in previous applications for bail – whether delay constitutes a material change – whether delay amounts to a material change - whether the decrease in quantum of the alleged fraud amounts to a material change – whether ongoing family court proceedings amount to a material change – whether difficulties in accessing the brief in prison amounts to a material change – whether the applicant can show why his detention in custody is not justified Bail Act 1980 (Qld) Criminal Code Act 1899 (Qld) Human Rights Act 2019 (Qld) -- 1 of 29 -- 2 Baggaley v Commonwealth DPP [2020] QCA 179 DPP v Williamson [1999] QCA 356 Dunshea v Director of Public Prosecutions (Qld) [2021] QCA 102 Ex parte Edwards [1989] 1 Qd R 139 Fisher v DPP (Qld) [2011] QCA 54 Sica v DPP (Qld) [2011] 2 Qd R 254 Lacey v Director of Public Prosecutions [2007] QCA 413 R v Tesic [2015] QSC 205 SOLICITORS: The applicant appeared on his own behalf S Rigby for the Office of the Director of Public Prosecutions (Qld) [1] The applicant, Joseph David Dunshea, is nothing if not persistent. This is his fifth application for bail. He has been charged with and seeks bail, once again, in relation to a large number of fraud offences. [2] Mr Dunshea was incarcerated on 16 June 2020. He has therefore been in custody for more than 12 months. The trial of the fraud charges against him appears to be still some distance away. The Previous Applications [3] Mr Dunshea’s four previous applications were heard on six separate days. Those applications were: 1. On 21 August 2020 before Boddice J; 2. On 8 October 2020 before Bowskill J; 3. On 27 November 2020 before Callaghan J; and 4. On 4 January 2021 before Bowskill J and then adjourned to 15 February 2021 pending the results of a committal mention (listed for 25 January 2021) and then further adjourned to 24 February 2021 before Rafter AJ pending the results of a further committal mention (listed for 22 February 2021). [4] The first and second applications were not ‘show cause’ situations pursuant to s 16(3) of the Bail Act 1980 (Qld) (‘the Act’). After the second application, the applicant was remanded on a domestic violence offence which placed him in a ‘show cause’ situation pursuant to s 16(3)(g) of the Act. Thus, in the third and fourth applications, the Court was obliged to refuse bail unless the applicant was able to show that his detention in custody was not justified. [5] The applicant is in a show cause situation for the purposes of this, fifth, application for bail. That is not Mr Dunshea’s only hurdle. Because he has previously applied for bail, and has done so on four previous occasions, he is obliged to identify a material change in circumstances. -- 2 of 29 -- 3 The Need for a Material Change [6] The mere fact that the applicant has previously applied for and been refused bail is not of itself sufficient to prevent the applicant making a further application: Ex parte Edwards [1989] 1 Qd R 139 at 142. In that case, McPherson J said: “It is therefore possible, in my opinion, for a second application for bail to be made after an earlier application has been refused. Such an application would ordinarily prove fruitless unless some additional facts have arisen, or have been discovered, so as to bring the application within the terms of O. 45, r.1.1 The question here is whether any such facts have arisen or been discovered which would entitle the applicant to an order in his favour.” (citations added) [7] In Ex parte Edwards, the applicant pointed to the fact that the committal proceedings had taken place since the first application for bail had been heard as being an additional fact that had arisen, or an additional fact that had been discovered, such that the applicant should be entitled to an order of bail. Ultimately, McPherson J identified the real issue as a question of whether the extent of the prosecution case, as it had become better known by the time of the second bail hearing, comprised a material change in the circumstances. His Honour decided that the new material did satisfy the test of being both new and material because: 1. at the first bail hearing, the limits of the prosecution evidence against the applicant were not known; and 2. by the time of the second bail application, on the evidence, it appeared to His Honour that it was not likely that a trial jury, properly directed, would be satisfied beyond reasonable doubt about the guilt of the applicant. [8] His Honour continued (at 144): “That being so, the question is whether, now that the extent of the prosecution case is better known, it can be said that there has been a material change in the circumstances (R. v. Slough Justices, ex parte Duncan); or, to use the formula in O.45 r.1, facts have been discovered which, if discovered in time, “would have entitled the applicant to an order in his favour”. The expression used in O.45 r.1 is, it will be noticed “would” have and not merely “might” have entitled. A persuasive and satisfying case is therefore required, and not one in which the differences disclosed by the additional material go only to matters of mere detail, or to considerations which, although not previously raised, would not have been likely to alter the balance to one favouring the granting of bail.” (emphasis added) [9] The reasoning of McPherson J in Ex parte Edwards has been accepted in a number of subsequent decisions: Sica v DPP (Qld) [2011] 2 Qd R 254 at 264 [17] (Chesterman JA, de Jersey CJ and Keane JA agreeing); Fisher v DPP (Qld) [2011] QCA 54 at [17] 1 Order 45 rule 1 has been modernised and is now reflected in UCPR 668. -- 3 of 29 -- 4 (McMurdo P, Ann Lyons J agreeing) and at [43] (Chesterman JA); Baggaley v Commonwealth DPP [2020] QCA 179 (Fraser, McMurdo and Mullins JJA). [10] Thus, what is required for a second or later application for bail, is that the applicant satisfy the Court that there are additional facts that have arisen, or additional facts that have been discovered, which are decisive in the sense that those new facts alter the balance in favour of granting bail. The Five Alleged Material Changes [11] Mr Dunshea contends that there are five “new” circumstances that qualify as additional material facts that have arisen or have been discovered since the previous four applications, namely: 1. Mr Dunshea says that he now has a place in a three-month residential rehabilitation program, which was not previously available; 2. Delay – the applicant has been in prison for over 12 months2 and the committal is still some time off; 3. The quantum of the fraud charges against the applicant is now significantly less; 4. There are developments in an on-going Family Court proceeding involving the custody of the applicant’s son; 5. Mr Dunshea now has in place a release plan to operate when he completes the residential rehabilitation program and involving the engagement of a psychologist. [12] There is a further aspect that needs to be considered, quite apart from the five individual material facts relied on by Mr Dunshea. Mr Dunshea argued that all five material facts, taken together, constituted a material change. [13] There is some support for his argument. In R v Tesic [2015] QSC 205 at [38], the Court referred to “the convergence of circumstances post-dating the original application for bail”. The circumstances said to “converge” in that case were protracted delay in bringing the matter to trial, excessive periods of detention in pre- trial custody without conviction, and difficulties accessing the brief of evidence. Those circumstances, taken together, were held to constitute a material change. [14] Even apart from that authority, it is logical that a combination of circumstances can comprise a material change. In Ex parte Edwards itself the language of McPherson J 2 Mr Dunshea’s submission was that he had been in custody for 11 months at the time of the application. The period of custody is now more than 12 months. -- 4 of 29 -- 5 was consistent with the idea that a material change might comprise a collection of circumstances.3 [15] There is a further matter that might qualify as a material change in circumstances. The applicant did not expressly raise this as a material change, but he did complain about the impediments he faced in trying to defend himself against a large number of fraud charges whilst in custody. I will come back to that issue. The First Alleged Material Change – Residential Rehabilitation Introduction – The Issue [16] The Crown submits the issue of residential rehabilitation is not a material change because that issue was litigated before Boddice J on 21 August 2020 and was also before the Court on the subsequent three applications for bail. The Crown’s submissions include (at paragraph [45]): “This matter [i.e. rehabilitation] was litigated before His Honour Justice Boddice on 21 August 2020, Her Honour Justice Bowskill on 8 October 2020, His Honour Justice Callaghan on 27 November 2020 and His Honour Acting Justice Rafter on 24 February 2021. It is submitted this is not a material change in circumstances.” [17] Mr Dunshea complained that that submission was wrong. He pointed out that before Boddice J on 21 August 2020 the position was, in fact, the reverse. He said that the evidence before His Honour was that a place in residential rehabilitation was not available to him. Mr Dunshea contended that, at the subsequent three hearings before Bowskill J, Callaghan J and Rafter AJ, the Crown has perpetuated the myth that the issue of residential rehabilitation had been before the Court on the first occasion. [18] As it turns out, neither party’s submissions are entirely accurate. Unfortunately, to properly deal with the competing submissions, it is necessary to descend into some of the detail of the various applications. Boddice J – 21 August 2020 (the First Application) [19] There are a number of possible ways in which the issue of residential rehabilitation might be said to have been agitated at the first application before Boddice J on 21 August 2020 – it may have been in the evidence, or referred to in argument, or referred to in His Honour’s reasons, or a combination of those. [20] First, an analysis of the evidence before Boddice J shows that Mr Dunshea deposed to a willingness to comply with all conditions the Court may impose, including abstaining from drugs and undertaking regular drug testing. Residential rehabilitation was not specifically mentioned by him. However, he relied on an affidavit of Gabriel Mercer Henderson. In her affidavit, Ms Henderson deposed to making several 3 See, for example, His Honour’s reference to the plural expressions “some additional facts” and “a material change in the circumstances” in the passages quoted above. -- 5 of 29 -- 6 attempts to obtain a placement for Mr Dunshea in a residential drug rehabilitation facility. She made enquiries at Teen Challenge Rehabilitation in Toowoomba, The Salvation Army Recovery Services at Moonyah and Lives Lived Well at Chamber Flats but was unable to secure a position for Mr Dunshea at any of those facilities. [21] Thus, the evidence at the first application was that, whilst attempts had been made secure a place, Mr Dunshea had not been accepted into any residential rehabilitation facility. [22] Second, during the oral submissions to His Honour, the only mention of rehabilitation was a submission by the Crown to the effect that the applicant had been offered rehabilitation previously, whilst on parole, but that he did not engage with it. Mr Dunshea’s legal representative did not make any submissions about residential rehabilitation. No doubt that was because Mr Dunshea had not been accepted into any such program and so he was not in a position to offer, as a condition of his bail, participation in a residential rehabilitation program. [23] The Crown’s written submissions at [36] appeared to anticipate that Mr Dunshea would argue for a rehabilitation program as a condition of bail. The Crown sought to meet that possible argument by contending that Mr Dunshea’s alleged fraud offences had no connection with any drug dependence: “The Crown does not accept that the applicant was engaging in the alleged offending due to illicit substance dependence. The offending is extended and sophisticated in nature. There is clearly a commercial purpose. In those circumstances, it is contended that conditions relating to rehabilitation would do little to prevent the applicant re-offending. The applicant has previously been afforded the benefit of intensive drug rehabilitation orders and rehabilitation assistance…which he did not engage with and did not deter further offending” (emphasis added) [24] And so, whilst there was no evidence of availability for Mr Dunshea to participate in a residential rehabilitation at the first application, the Crown submitted that, even if the applicant had been accepted into a rehabilitation program, and was thus able to offer participation in such a program as a bail condition, that factor would not assist in ameliorating the applicant’s risk of re-offending. The Crown submitted that participation is a program had not ameliorated the risk in the past, and the offending the subject of the bail application was not drug-related. [25] Third, in His Honour’s reasons for refusing bail, Boddice J did not mention rehabilitation specifically. His Honour determined Mr Dunshea was an inappropriate candidate for bail due to: 1. Mr Dunshea’s general non-compliance with Court orders; and -- 6 of 29 -- 7 2. His Honour’s finding that there were no conditions that could ameliorate the risk of the applicant committing further offences whilst on bail.4 [26] Therefore, Mr Dunshea was correct in that, at the first application, there was no evidence that he had been accepted into a residential rehabilitation facility. In fact, the evidence was that attempts to secure a place in residential rehabilitation had been unsuccessful. However, the Crown had taken a different tack. The Crown contended that, even if such a residential rehabilitation condition were proposed, it would be of little utility in ameliorating his risk of reoffending because his drug use and his offending were not connected. Bowskill J – 8 October 2020 (the Second Application) [27] At the second application, some further evidence regarding rehabilitation was before the Court in Mr Dunshea’s affidavit filed 30 September 2020. The extent of that evidence was a letter from QuIHN, a rehabilitation facility, explaining the services they provided. The letter did not go as far as to offer a place for Mr Dunshea. Instead, it stated that the facility was unable to confirm Mr Dunshea’s eligibility for the services until their screening process had been completed.5 [28] During oral submissions in the present application, Mr Dunshea complained that the transcript of the proceedings of the first application before Boddice J was not available to Bowskill J. He submitted Her Honour relied on incorrect information from the Crown that the issue of residential rehabilitation had been before the Court at the first application. [29] The Crown’s written submissions repeat the position of the Crown,6 which was the same as it had been before Boddice J: “[33] It was also submitted on behalf of the applicant… before His Honour Justice Boddice that multiple attempts had been made to secure a placement in a residential drug rehabilitation program. It was submitted by the Crown…that it is not accepted that the applicant was engaging in the alleged offending due to illicit substance dependence and…. rehabilitation would do little to prevent the applicant re-offending… [34] …this [QuIHN] letter does not amount to a material change in circumstances.” (emphasis added) [30] Thus, in relation to the issue of rehabilitation, the only difference in the material available at the second application was the rather neutral QuIHN letter. [31] At the hearing of that second application, the Crown repeated what was in its written submission that, even if residential rehabilitation was available and was offered as a 4 The applicant applied to the Queensland Court of Appeal for an extension of time to appeal the decision of Boddice J. The application was refused: Dunshea v Director of Public Prosecutions (Qld) [2021] QCA 102. 5 Exhibit F to the applicant’s affidavit (Court Document number 3 in file number 10505/20). 6 Filed by leave before Bowskill J on 8 October 2020. -- 7 of 29 -- 8 condition, that would not ameliorate the risk of re-offending in this matter, given the offending was not “conducted in terms of someone who’s feeding an addiction to dangerous drugs and the like.”7 [32] On the subject of the prior application, Bowskill J said: “His application was heard in this Court by Justice Boddice on 21 August 2020, and it was refused. Although the reasons of Justice Boddice are not yet available, I have been informed by the Crown that the application was refused on the basis that the applicant posed an unacceptable risk of reoffending if released on bail, and that there were no conditions which could adequately ameliorate the risk to an acceptable level.” [33] Despite Mr Dunshea’s submissions on this point, in that respect that the Crown’s submissions about what had transpired before Boddice J was accurate. As explained above, His Honour did decide that Mr Dunshea was an inappropriate candidate for bail because there were no conditions that could ameliorate the risk of the applicant committing further offences whilst on bail. His Honour also decided the first application based on Mr Dunshea’s general non-compliance with Court orders. [34] Bowskill J decided that the conclusion arrived at by Boddice J was also supported by Mr Dunshea’s extensive criminal history, including his breaches of bail (twice), breaches of community service orders (three times), and his breaches of probation (three times). Her Honour also referred to the fact that the current alleged offences, assuming they were proved, would be in breach of parole under a sentence imposed on Mr Dunshea in February 2020. [35] Bowskill J considered, in some detail, the arguments raised by Mr Dunshea as to why there was a material change. Mr Dunshea’s first argument was that there was an offer of a very substantial surety. Her Honour was not satisfied that offer comprised a material change because the persons who offered the surety themselves had a relevant criminal history, and the risk of failing to appear was not a decisive factor in refusing bail previously. [36] Mr Dunshea’s second argument was that two character references had been obtained. Her Honour took the view that they were not decisive given the principal risk was reoffending. [37] The third argument was that Mr Dunshea suffered from back pain. Again, her Honour’s view was that there was nothing decisive in that. Similarly with the fourth argument, a failure for Mr Dunshea to be provided with proper closed-in shoes whilst in custody – which was alleged to cause or contribute to a chronic medical condition. [38] Mr Dunshea’s fifth argument was that he would, if released on bail, approach a drug rehabilitation service. Her Honour noted that the letter from QuIHN outlined the 7 Affidavit of Allyra Forrester filed 24 November 2020 – which exhibits the transcript of the hearing before Bowskill J on 8 October 2020 – see page 30 at lines 33-35. -- 8 of 29 -- 9 services it provided and recorded that Mr Dunshea had been in touch with that service, but the letter did not go any further than that. Her Honour noted that: “In any event, that issue was before Justice Boddice, the question of drug rehabilitation, and did not persuade His Honour in the exercise of his discretion at that time, that the risks would be ameliorated by such rehabilitation, even if it was available.” [39] There is little doubt that Her Honour was aware that Mr Dunshea had not been offered a place in a residential rehabilitation service. And it is true that the issue of drug rehabilitation was before Boddice J – at least in the evidence.8 However, one cannot say whether the issue of drug rehabilitation did or did not persuade Boddice J that the risks could be ameliorated by rehabilitation assuming it was available. As explained above, His Honour did not expressly consider drug rehabilitation. His Honour determined Mr Dunshea was an inappropriate candidate for bail due to his general non-compliance with Court orders, and His Honour made a more general finding that there were no conditions that could ameliorate the risk of the applicant committing further offences whilst on bail. [40] Mr Dunshea’s sixth argument that there was a material change focussed on a new residential address where Mr Dunshea would live if he was granted bail. Her Honour identified that the Crown material indicated that this was a suitable address. However, Her Honour was not persuaded that the new address amounted to a material change given the central concern was the risk of reoffending. [41] Mr Dunshea’s seventh and final argument was that the circumstances with his son comprised a material change. Bowskill J noted the circumstance but concluded that it did not constitute a material change. [42] Overall, Her Honour decided that none of the seven arguments was a material change, particularly to the risk of Mr Dunshea committing further offences if released on bail. Callaghan J – 27 November 2020 (the Third Application) [43] On the third application, before Callaghan J on 27 November 2020, Mr Dunshea’s evidence was that he had been accepted into a 28-day Total Recovery Program at the Health Retreat Rehabilitation Centre.9 He submitted that his acceptance into that program was a material change in circumstances as that fact was not before the Court on the first application or on the second application. [44] The Crown argued that, whilst acceptance into the 28-day program was a ‘material’ change, presumably in the sense that it was a relevant change, it was not a functional change (or, to use the language used above, a decisive change). The Crown’s reasoning was that Mr Dunshea’s acceptance into that program was not decisive in assessing the risks of re-offending, particularly given the low-intensity nature of the 8 See, in particular, the affidavit of Ms Henderson. 9 Applicant’s affidavit file 17 November 2020, Exhibit B. -- 9 of 29 -- 10 program and, importantly for present purposes, the findings of the previous judges in relation to rehabilitation generally. [45] Despite that Crown submission, there were in fact no findings of previous judges about rehabilitation. As explained above, Boddice J did not make any specific finding about rehabilitation. Bowskill J decided that, in summary: 1. Mr Dunshea was an inappropriate candidate for bail because there were no conditions that could ameliorate the risk of the applicant committing further offences whilst on bail; 2. Mr Dunshea had not been compliant with Court orders, had an extensive criminal history, had breached bail and community service orders and probation and possibly a breach of parole; 3. There was no substance in Mr O’Shea’s seven arguments as to there being a material change. [46] None of that can be characterised as a finding about rehabilitation. [47] The decision of Callaghan J can be summarised in this way: 1. Contrary to the situation before Boddice and Bowskill JJ, before Callaghan J Mr Dunshea was in a ‘show cause’ position under section 16(3) of the Act, and the Court was obliged to refuse to grant bail unless the applicant could show why his or her detention in custody is not justified. 2. His Honour needed to be persuaded that there had been a material change which had an impact on whether the risks were unacceptable; 3. The prosecution had failed to meet a number of deadlines for delivery of the brief of evidence and so there was delay in the advancement of the case – although a brief, with some material still missing, was available on 25 November 2020 – two days before the hearing before Callaghan J. The missing material was expected “within weeks” and so the matter could move forward when it was next mentioned; 4. There was force in the Crown’s submission of an increased risk of reoffending because of the new disclosed material where the applicant is recorded as saying: “I mean, if it wasn’t for you guys, I’d probably still be doing it and you know – but you [unintelligible] doing it now. At least in another three months, I would have been really fucked, you know?”; 5. There were also some alleged deficiencies in the case against Mr Dunshea involving a lack of clarity and some problems with quantification; 6. The problems with Mr Dunshea’s young son had been a matter raised before and dealt with by Bowskill J on 8 October 2020; -- 10 of 29 -- 11 7. Whilst Mr Dunshea had, by the time of this hearing, secured a place in a residential drug rehabilitation, and that was a change in circumstances, His Honour accepted the Crown submission that the change was not a functional change because both Boddice and Bowskill JJ had considered the prospect of such a placement and determined it was not a condition of the kind which would allay the concerns raised by the other matters relied on by the Crown; 8. Relevant was Mr Dunshea’s failure to engage with parole and the fact that he was not considered suitable for community-based supervision; 9. In those circumstances, even though Mr Dunshea had secured a rehabilitation place, in light of the findings made by their Honours, it was not open to regard that as relevant to, or as having an impact on the risk previously regarded by them as unacceptable. 10. Therefore, there was no material change in circumstance and the application was refused. [48] It can be seen that (in sub-paragraph 7 above) there was an assumption by Callaghan J, probably influenced by the Crown submission referred to above, that both Boddice and Bowskill JJ had in fact made findings about rehabilitation. Rafter AJ – 24 February 2021 (the Fourth Application) [49] Mr Dunshea’s fourth application for bail was heard by Rafter AJ on 24 February 2021. On this occasion Mr Dunshea’s evidence was that he had been accepted at the Health Retreat Rehabilitation Centre for three months, instead of the previous offer of a program for 28 days. Mr Dunshea argued that whilst participating in that program his risk of re-offending was low and that the real risk related to when the program concluded, and he was released into the community without supervision. To accommodate that concern, he submitted that he could be brought back before the Court upon completion of the program for further assessment. [50] The Crown submitted that whilst the length of the program had increased, the program did not address the core issue, namely that the dishonesty offences were serious and were not drug-related offending. Consequently, Rafter AJ determined the rehabilitation condition proposed would not adequately ameliorate the risk. [51] The reasons of Rafter AJ include this passage: “It is true, as was submitted by Mr Rigby for the respondent (the Crown), that a residential rehabilitation program was a factor considered by Justice Callaghan when the applicant was refused bail on 27 November 2020. However, the program at that stage was for 28 days, so there has been somewhat of a change, in that the proposed program is somewhat longer.”10 (emphasis added) 10 Transcript, 24 February 2021 at page 2 line 41. -- 11 of 29 -- 12 [52] That is not a complete picture. In fact, Callaghan J had considered residential rehabilitation but His Honour accepted the Crown submission that the change in residential rehabilitation was not a functional change because both Boddice and Bowskill JJ had considered the prospect of such a placement and determined it was not a condition of the kind which would allay the concerns raised by the other matters relied on by the Crown.11 [53] As explained above, Boddice and Bowskill JJ had not in fact made such a determination. Thus, Callaghan J relied on the Crown’s inaccurate submission that both judges had made that determination. Rafter AJ, in turn, relied on the Crown’s submission that Callaghan J had considered the issue by relying on the determinations of Boddice and Bowskill JJ. [54] It is also worth noting that on 4 January 2021, prior to the hearing before Rafter AJ, Mr Dunshea’s fourth application came before Bowskill J. Her Honour adjourned the application to a date to be fixed. In the course of submissions Her Honour said: “So, Mr Dunshea, I think the fairest thing for you is for me to adjourn this application, because it is correct to say that the issue of rehabilitation has been considered by the Court before, and it is also correct to say that the issues you raise about your young son have also been considered by the Court before. I would strongly suggest that you wait until – see what happens on the 25th of January, but also see if you can’t obtain legal advice…” (emphasis added).12 [55] Again, the Crown had submitted that rehabilitation had been considered by the Court previously.13 However, when the application was relisted before Rafter AJ on 24 February 2021, Mr Dunshea argued that, contrary to the Crown submissions, the issue of rehabilitation had not been substantively argued. The result was that the Crown retreated a little: “It’s submitted that the applicant hasn’t established that there has been a material change in circumstances since the last three bail applications. I’ll first address the rehabilitation point and the applicant’s submission that it wasn’t before Justice Boddice. While the discussion – the transcript of bail submissions and the bail order14 do not mention rehabilitation, one of the affidavits tendered under the hand of Gabrielle Mercer-Henderson speaks about the law firm AW Bale, reaching out to rehab centres and then there’s also a discussion in the material from the applicant about his drug use, so while there is no specific order15 in relation to that, that matter was before Justice Boddice.” (citations added) [56] There is, of course, an important distinction. On the one hand, here the Crown appear to retreat to the position of merely contending that there was an affidavit in the 11 That submission, it can be seen, conformed more to the Crown’s own submissions rather than comprising an accurate statement of what had been actually determined by the Court. 12 Transcript 4 January 2021 T1-14 at line 43. 13 Transcript 4 January 2021 T1-13 at line 18. 14 Presumably the reference to the ‘bail order’ is intended as a reference to the reasons. 15 Again, this reference to ‘order’ seems to be a reference to the reasons. -- 12 of 29 -- 13 evidence that was before Boddice J which spoke of rehabilitation. On the other hand, in its written submissions, the Crown submitted to His Honour that Mr Dunshea was relying on the same grounds that had been previously “considered and rejected” by the Court.16 That is a broad submission that the Court had actually considered and had rejected the residential rehabilitation issue as being a material change. [57] Even the narrower submission is not particularly helpful. Whilst it was true that the affidavit did speak of rehabilitation, the evidence was to the effect that Ms Mercer- Henderson had not been able to secure a residential rehabilitation place for Mr Dunshea. The Position Before This Application [58] That rather long-winded explanation of the chronology demonstrates there is force in Mr Dunshea’s complaint that it is a myth that Boddice J made a decision on rehabilitation, or at least that His Honour embarked upon a serious consideration of that issue. There is also force in his submission that there was then a perpetuation of that myth because the subsequent judges all assumed the issue of residential rehabilitation had been considered and determined. [59] That said, it is difficult to determine whether that factor was decisive or not. The issue of residential rehabilitation was virtually irrelevant before Boddice J. No rehabilitation place was available to Mr Dunshea and so His Honour did not consider a possible condition that Mr Dunshea participate in residential rehabilitation. However, at least to some extent, each judge thereafter assumed the issue had been considered by His Honour or by the judges that preceded them. The Present Application [60] The evidence relating to residential rehabilitation before the Court on this application does not differ to that which was tendered before Rafter AJ. Mr Dunshea did have confirmation of acceptance into the Health Retreat Rehabilitation Centre for a three- month period on 24 February 2021.17 [61] Looking at the circumstances only since February 2021, there has been no material change in the applicant’s circumstances in relation to rehabilitation. [62] But the real issue raised by Mr Dunshea is that the issue of residential rehabilitation, whether it be for a 28-day program or a 3-month program, has not been seriously considered or determined in the four previous applications. [63] In the hearing before me, the Crown accepted there was, in fact, no mention of residential rehabilitation in either the submissions made to Boddice J or in His Honour’s reasons. The Crown submitted that the attempts at securing residential 16 See the Crown’s submissions filed 16 February 2021 at [14]. The submission contends that there had been no material change because of the refusals of bail by Boddice, Bowskill and Callaghan JJ. 17 Affidavit of Dunshea filed 24 February 2021, exhibit A (13334/21) is the same letter as exhibited to his Affidavit of 20 May 2021 at exhibit B. -- 13 of 29 -- 14 rehabilitation was in the evidence. The Crown’s argument was that “while there was no comment made by Justice Boddice in his remarks, it must have been considered and it was before the Court.”18 [64] That is a submission I do not accept. First, the context here is that Mr Dunshea argued that the availability of residential rehabilitation was a material fact that was not before Boddice J. That is plainly correct. The evidence before Boddice J was to the effect that attempts to find residential rehabilitation had failed. [65] Second, the Crown’s submission to me, and to the judges who heard the four prior applications, was that the grounds relied on by Mr Dunshea as constituting material changes, including the availability of residential rehabilitation, had been “previously considered and rejected”.19 That is plainly incorrect. Boddice J did not consider or reject the issue of the availability of residential rehabilitation. That is clear from a transcript of the argument and from the reasons. And, as explained, the judges who heard the second, third and fourth applications did not consider and reject residential rehabilitation as a material change, other than on the footing that the issue had been previously considered and rejected. [66] Third, it is a puzzling proposition that the availability of residential rehabilitation must have been considered and rejected even though it was not mentioned in argument, or in the reasons, and even though the filed evidence established that residential rehabilitation was not available. [67] In my view, the potential for Mr Dunshea to attend a three-month residential rehabilitation program is an issue that is relevant and has not previously been considered on its merits. Residential Rehabilitation as a Condition of Bail [68] The Crown’s consistent submission is that a bail condition which required Mr Dunshea to attend a three-month residential program would be ineffective in altering the risk of him re-offending because the nature of Mr Dunshea’s past offending was unrelated to his drug use. That position has not changed throughout all related applications for bail. [69] One difficulty is that there is no evidence, and certainly no medical evidence, that either supports the Crown submission or undermines it. [70] Equally, Mr Dunshea contended there was a connection between his potential to reoffend and his drug use, but his contention was also not supported by evidence. [71] During his oral submissions I put to Mr Dunshea the proposition that his offending may not be drug-related. His response was as follows: 18 Transcript 25 May 2021 T1-19 line 41. 19 Crown Submissions at [17]. -- 14 of 29 -- 15 “I understand what you’re saying, your Honour. For that, I would say, the first thing is the Crown say one of the main risks of me reoffending is that I would commit further drug offences, so I think they acknowledge that. Further to that, there’s multiple offences in there for drugs, drug possession, failing to dispose, as well as – and might I say that the offending is alleged offending, although I do take responsibility for some of it… And what – the things I had done – I’ve relapsed many times over the years, your Honour. So I was addicted to meth from 16 years of age. I’ve become before this Court since 1998 on and off over the years. I have participated in rehabilitation before, which resulted in four years of clean time, which resulted in a job and all these other – other things that follow when you’re doing the right thing. I’ve lost relationships, family breakdowns over drugs. So the issue of whether drugs were an issue, absolutely they were an issue. I relapsed back into drugs and I relapsed back into crime, more importantly. This rehab, at the health retreat rehab not only focuses on the drugs, your Honour, but on those core issues – underlying issues that bring me before the Court over the years. Things that I haven’t necessarily dealt with, things that I can’t deal with in prison. There is no rehabilitation available in prison. But the issue of whether these are drug motivated crimes or – whether these are driven by drugs – every crime that’s brought me before the Court in my whole entire life, your Honour, has been driven by drugs. If I am clean, there’s no offending. It is – it’s – that sounds pretty brutal, but it’s true. I’ve been in prison now for 321 days. So the cycle has been broken, but I do need that stepping stone to get out, and I’m supplying that to the Court. I’m supplying rehabilitation. Not just any rehabilitation, your Honour. I think exhibit B is a letter from the rehabilitation centre. There’s 330 hours of psycho- education. There’s one on one counselling. It’s an intense program, your Honour. It’s normally designed for a 28 day program, but they’ve – they’ve made a three-month program for myself. They’ve also said in there no access to phones or internet. You know, I can’t leave unless I’m chaperoned by staff, and they’ll notify the relevant authorities. But most importantly, it’s going to help me address the things that bring me before the Court, the things that – that I have never had. I’ve been to drug rehabs. Even when you fix a drug problem, if you don’t fix those other problems that cause you to use drugs, inevitably, you’re going to end up falling off the wagon again and, unfortunately, I did this time. I was – I was working – I was working in a pharmacy, took care of my son so I had to leave the pharmacy to satisfy Child Services. I was out of work for a period of time, boredom creeped in, I relapsed and I’m back before the Court.”20 [72] It is true that the Crown do in fact say that there is an unacceptable risk of Mr Dunshea committing further drug offences whilst on bail.21 Mr Dunshea’s criminal record is very extensive. His criminal history, covering the period from 1999 to the present, occupies some 12 pages. Mr Dunshea’s convictions cover drug, property and fraud offences. 20 Transcript 25 May 2021 T1-8 line 46 21 See, for example, the Crown’s outline of submissions at [53]. -- 15 of 29 -- 16 [73] More troubling, though, is that there is one allegation of a domestic violence offence.22 Mr Dunshea disputes the charge. I am unable to determine the strength of the Crown case on this charge. [74] It is also true that the letter from the Health Retreat Total Recovery Program dated 17 February 202123 explains that the program is designed to meet more than drug misuse issues. It is designed to treat underlying mental health issues. The letter also explains that Mr Dunshea will not be permitted to leave unless chaperoned by a staff member, and that the staff will alert authorities if he did leave. [75] Nevertheless, weighing the submissions and the limited evidence, it is hard to be confident that the availability of that program to Mr Dunshea would, by itself, be decisive in the way discussed above. The Second Alleged Material Change – Delay Delay as a Discretionary Factor [76] Mr Dunshea argues that a significant period of time has passed, and the matter is still at pre-committal stage. He argues that the continued delay constitutes a material change in circumstances. [77] He submits that, pursuant to section 29(5) of the Human Rights Act 2019 (Qld) he should be released from custody as there has been unreasonable delay in bringing his matter to trial. However, section 29(5) does not give Mr Dunshea any relevant remedy.24 [78] Section 58 is the only possible remedy provided by the Human Rights Act 2019 (Qld). That section provides that it is unlawful for a ‘public entity’ to act or make a decision in a way that is not compatible with human rights.25 However, Mr Dunshea’s detention is the result of a decision of this Court. This Court is not a ‘public entity’ as defined.26 [79] Nevertheless, delay is plainly a relevant in considering an application for bail. In Lacey v DPP, when considering delay, the Court stated: “The length of delay, the reasons for that delay and the strength of the Crown case will always be matters of degree which must be balanced to arrive at a decision as to whether bail should be granted.”27 [80] Similarly, in Williamson v DPP, Thomas JA said: 22 See Transcript 25 May 2021 T1-39 line 20. 23 Exhibit B to Mr Dunshea’s affidavit filed 20 May 2021. 24 Baggaley v Commonwealth Director of Public Prosecutions [2020] QCA 179 at [29]. 25 Section 59 also enables a breach of a human rights to be ‘piggy-backed’ onto another stand-alone cause of action: see McDougall, ‘Making Rights Real: The Promise and Pitfalls of the Human Rights Act 2019’, Qld Human Rights Commission 6 February 2020 at 11. 26 See section 9(1) and (4) of the Human Rights Act 2019. 27 [2007] QCA 413 at [13]. See also: Re Tesic [2015] QCA 205 at [22]-[24]. -- 16 of 29 -- 17 “The length of incarceration before trial is an important factor when a defendant attempts, as this appellant must, to show that his detention in custody is not justified.”28 [81] But there are limits: “Section 16(3) of the Bail Act cannot be read as if its operation was conditioned by a guarantee of a trial within a given timeframe.”29 [82] And, as explained by Chesterman JA in Keys v DPP: “One last point might be mentioned. That is the length of time that might pass before the appellant is tried. This is always an important factor as is recognised by this Court in Lacey but it is not a factor which outweighs all others as that authority explains.”30 [83] Another factor that is relevant is whether the time in custody is likely to exceed the custodial sentence post-conviction. In a particular case, the relative importance of that factor may be regarded as outweighing other relevant factors.31 The Delay Here [84] Mr Dunshea submitted, without any objection, that the police commenced investigation of these matters 12 months before he was charged – that was some two years ago. The charges were brought in June 2020 and Mr Dunshea was taken into custody then. At the first application before Boddice J on 21 August 2020 Mr Dunshea’s legal representative submitted there would be lengthy pre-committal delay because of the large nature of the operation and the quantum of the brief material.32 [85] There were then significant delays. [86] A partial brief of evidence was made available to Mr Dunshea’s legal representatives on or around 25 November 2020. That came after Callaghan J expressed serious concerns about the Crown’s failure to disclose the brief to Mr Dunshea and the missing of deadlines on numerous previous occasions. [87] Bowskill J raised the issue on 4 January 2021. Her Honour decided to adjourn the fourth application, ultimately heard by Rafter AJ, to a date after a further proposed mention on 25 January 2021.33 That was because of a submission by the Crown that the proceeding was proposed to go to a committal shortly after 25 January 2021. [88] A full brief was then disclosed in late February or early March 2021, some nine months after the applicant was incarcerated. 28 [1999] QCA 356 at [22]. 29 Lacey v Director of Public Prosecutions [2007] QCA 413 at [14]. 30 [2009] QCA 220 at [25]. 31 Lacey v Director of Public Prosecutions [2007] QCA 413 at [13]. 32 Affidavit of McGeachie filed by leave 8 October 2020, exhibit A page 6. 33 Transcript 4 January 2021 at T1-12. -- 17 of 29 -- 18 [89] Whilst the Crown accept there were delays in disclosing the full brief of evidence, they maintain that they have now complied with their disclosure obligations under the Criminal Code Act 1899 (Qld) and are ready to proceed with the matter. [90] That is not the end of the issue. During the course of the hearing I asked counsel representing the Crown to make further submissions to me to, amongst other matters, identify how the case was now expected to proceed.34 The further submissions I received explained the likely course of the proceedings in this way: 1. All matters were adjourned by the applicant on 31 May 2021. The applicant needed further time to review the brief of evidence and to give instructions with respect to the summary matters. The next mention is 7 June 2021. 2. The indictable matters the respondent has carriage of are ready to proceed to committal. The respondent has disclosed the full brief of evidence. The respondent is waiting on instructions and directions from the applicant. 3. Once the applicant is ready to proceed to committal, a likely registry committal will occur. This process will usually take four (4) weeks. Once the committal is complete, the Crown will present an indictment within four (4) months. In this particular matter, the Crown has had carriage pre-committal and therefore the Crown will be ready to present an indictment far sooner. If the matter proceeds this way, an indictment will likely be presented in the District Court prior to August. 4. If the applicant seeks to cross-examine any witness, or intends to make a no case submission, it will likely delay the abovementioned process by approximately three (3) months. 5. In relation to the summary matters, the respondent does not have carriage of same. It has been indicated that some of those matters will proceed to a summary trial. The summary matters will remain with Police Prosecution and proceed separately from the indictable matters. [91] Although not invited to do so, on 7 June 2021, Mr Dunshea filed further submissions addressing the matters so far as he could. On this issue Mr Dunshea submitted that his defence lawyers were waiting on various material from the Crown. He submitted that “we cannot see any sign of a committal date in the near future”.35 [92] It can be seen from this summary that the Crown contends it is ready for a committal and is waiting on Mr Dunshea to be ready. In contrast, Mr Dunshea contends that he is waiting for the Crown to supply various material and to answer a number of queries. It is impossible to resolve which is the most accurate account of the situation. More likely than not there is at least some accuracy in both accounts. 34 Transcript T1-51 at line 29. 35 See Mr Dunshea’s submissions of 7 June 2021 at page 2. -- 18 of 29 -- 19 Related Facts [93] There are some other related facts. The number of fraud charges before each judge was as follows: 1. Boddice J – 209 charges; 2. Bowskill J – 226 charges; 3. Callaghan J – 237 charges; 4. Rafter AJ – 237 charges; 5. Present application – 224 charges but it was conceded that 8 charges were to be amended;36 6. Addendum submissions filed and served subsequent to the present application – “at the time of the application the applicant was seeking bail in respect of 223 offences” but recently he was charged with three further offences and had entered guilty pleas to five further offences and the total was therefore 231 offences.37 [94] Mr Dunshea was critical about the fact that he and his lawyers had been unable to determine even the number of charges he was facing.38 Upon review of the material, as set out below, the amounts of the charges have altered over time. [95] Importantly for present purposes, at the time of the hearing of this application, Mr Dunshea had been in custody for 11 months. His time in custody now exceeds 12 months. And, in my view, there is no realistic prospect of a trial for many months. Even the committal looks to be some time away. Certainly, the Crown’s suggestion that the committal could occur in August looks to be optimistic. [96] It is difficult to assess who is responsible for the delay. The likelihood is that it probably does not matter too much. Certainly, it appears the initial delay in preparing the brief of evidence was the responsibility of the Crown.39 However, viewing the delay as a whole, there is likely to be a combination of contributing factors. [97] The issue of delay loomed large in the hearing before Callaghan J.40 His Honour considered that the delay in delivering the brief of evidence, in the absence of some progress, would have meant Mr Dunshea was well-placed to assert that a material change had occurred. However, at that time, His Honour was informed the brief became available for collection on 25 November 2020 – shortly prior to the hearing before His Honour. Some material remained outstanding but was to be provided within weeks.41 36 Crown Submissions at [20], [47]. 37 Crown’s Addendum Outline of Submissions at [34] – [39]. 38 Transcript 25 May 2021 T1-10 line 16. 39 Reasons of Callaghan J on 27 November 2020 at page 2 line 23. 40 See, for example, His Honour’s comments at Transcript 27 November 2020 page 2 line 23. 41 Reasons of Callaghan J on 27 November 2020 at page 2 line 31. -- 19 of 29 -- 20 [98] The full brief of evidence was not provided until March 2021 – some four months later. [99] Mr Dunshea complains that an up-to-date index is still outstanding despite being promised before Rafter AJ in February 2021.42 Particulars are also said to be outstanding.43 The Crown contests Mr Dunshea’s right to particulars.44 The Crown raises these objections to providing particulars: 1. The Crown has no obligation to provide pre-committal particulars; 2. The Crown did provide Mr Dunshea with an overview of the Crown case with respect to each group of charges on 21 April 2021; 3. The Crown has provided the full brief of evidence, bench charge sheets, QP9 material and the applicant’s record of interview; and 4. The Crown case has been sufficiently particularised. [100] Many of the charges are exceedingly general. Some examples are as follows: “136. That on the 6th day of April 2020 at The Gap or elsewhere in the State of Queensland one Joseph David Dunshea dishonestly gained a sum of money for himself. Charged jointly with Hayley Joy Bucholz. … 139. That on the 10th day of January 2020 at The Gap or elsewhere in the State of Queensland one Joseph David Dunshea dishonestly gained property items for himself. Charged jointly with Hayley Joy Bucholz.”45 [101] Many charges are similar in terms; some identical. For example, charges 167 to 184, some 18 separate charges, are in exactly the same terms, namely: “That on the 26 th day of April 2020 at The Gap or elsewhere in the State of Queensland one Joseph David Dunshea dishonestly gained a sum of money for himself. Charged jointly with Hayley Joy Bucholz.” [102] In the circumstances, it seems perfectly reasonable for particulars to be requested so that the precise nature of the charge can be understood. 42 Mr Dunshea’s submissions of 7 June 2021 at page 2. 43 Ibid. The request is in an email dated 12 February 2021 from Mr Dunshea’s lawyers to the DPP which is exhibit (h) at page 157 of Mr Scott’s affidavit filed on 16 February 2021. 44 Crown submissions at [44]. 45 The details of the charges are taken from the amended application for bail filed on 20 August 2020. That was before Boddice J on 21 August 2020. The subsequent submissions of the Crown do not further identify the charges. For example the Crown submissions before me refer to the charges compendiously, for example: “Various between 17/11/2019 and 27/06/2020 – Fraud [x 119] – Section 408C(1) Criminal Code 1899 (Qld) – 5 years imprisonment.” That is intended only as a summary but there is no suggestion that the charges have been more precisely particularised since the hearing before Boddice J in August 2020. -- 20 of 29 -- 21 Delay Considered [103] The Crown submit the applicant raised the issue of delay before Rafter AJ eight weeks prior to the present application being heard and, as was the case then, there is no fault on the Crown in delaying proceedings. It was also submitted that at the last two committal mentions, the applicant requested adjournments and that the Crown are no longer the source of the delay. That submission is far too narrow. It is not contested that the Crown missed a number of deadlines and the delivery of the brief of evidence was delayed. Even if the evidence was such that I could conclude that some of the recent delay was attributable to Mr Dunshea, or his lawyers (the evidence does not go that far), the important points for present purposes are that the charges are something of a moving target, at least some of the delay is attributable to the Crown, and the delay looks to be open-ended. There is no end in sight. [104] The Crown submit their case against the applicant is a strong one which is supported by the applicant’s record of interview, CCTV footage and other documentary evidence.46 The Crown submit that Mr Dunshea made full and frank admissions to most offences. The Crown do not identify any specific parts of the record of interview where those full and frank admissions are made. [105] Mr Dunshea submits the Crown case is weak due to the length of time police have been investigating the charges (approximately two years) and that matters have not advanced since his arrest. In his affidavit he states: “I have…admitted to crimes I was guilty of with the belief that this was considered a sign of remorse…but instead the police have charged me with an unbelievable amount of charges even though I cooperated and they know I am not responsible for them.”47 [106] The point is that Mr Dunshea has admitted to some offending but not the extent of the offending alleged by the Crown. And, as explained above, the charges are not precisely identified so that it is difficult to tell what is admitted and what is not. Similarly, as explained below, the quantum of the claims is difficult to gauge. [107] All of that makes it difficult to assess whether the time Mr Dunshea has spent in custody is likely to exceed the custodial sentence post-conviction. Nevertheless, as time marches on the danger of that situation increases. [108] Finally, in Re Lacey the Court expressly rejected the notion that delay itself establishes that pre-trial imprisonment is unjustified.48 In this case though, the balancing of the competing factors is an evaluative exercise where the factors that influence me are: the very significant delay, the open-ended nature of the delay, and the fact that the Crown was responsible for at least part of the delay. Those factors all support the view 46 Crown submissions at [54]. 47 Mr Dunshea’s affidavit filed on 20 May 2021 at [48]. 48 Lacey v Director of Public Prosecutions [2007] QCA 413, [12]-[13]. -- 21 of 29 -- 22 that there has been a relevant change.49 Whether that relevant change is decisive is a matter that is considered below. The Third Alleged Material Change – The Quantum of the Fraud Charges [109] The Crown case is that the quantum of the fraud claims is approximately $350,000. I gather that a more precise figure is $347,643 and that of that sum $36,915 represents attempted fraud offences and the total detriment caused is $237,297.50 The balance of $73,431 is not explained. [110] The applicant submits the quantum of the fraud charges against him has reduced by over $150,000.51 [111] The principal claims can be divided into National Australia Bank claims and Macquarie Bank claims. The Crown’s submissions assert that the NAB claims comprise a total fraud and detriment of $49,365.52 In relation to Macquarie, Mr Evan Bouquet, an employee of Macquarie Bank, has given evidence in his affidavit that the Bank lost $86,902 from the alleged fraudulent activity.53 Adding those two figures together result in a total of $136,267. The Crown allege there were some attempts to defraud Macquarie that did not result in detriment. Even adding the attempted fraud figure of $36,915 results in a total loss of $173,182. The discrepancy between that figure and $350,000 is not explained. [112] The Crown maintains the quantum of the fraud remains at approximately $350,000.54 That submission is made without any proper explanation as to how it is calculated. I considered there to be some force in Mr Dunshea’s contention that the likely quantum will be considerably less than $350,000. [113] That said, I am not persuaded that the possible reduction in the quantum would qualify as a material change. [114] First, the sums involved are still significant sums. [115] Second, the evidence pointed to by the applicant regarding reductions was disclosed to the applicant in November 2020.55 It is not a recent change in circumstances. [116] Third, it may be that one possible explanation for the discrepancies is that although the quantum of the amount actually lost by Macquarie Bank, to take that as an example, was approximately $87,000, the Crown may still be able to make out fraud for the full amount. In other words, the criminal responsibility attaching to the conduct 49 Lacey v Director of Public Prosecutions [2007] QCA 413, [12]-[13]. 50 Crown Addendum Outline of Submissions at [18]-[20]. 51 Transcript 25 May 2021 at T1-13 line 8. Note that Mr Dunshea appears to calculate that the claims against him are $160,000 for NAB claims and $197,000 for Macquarie Bank claims. 52 Crown Addendum Outline of Submissions at [22]. 53 Ibid at [35]-[36]. 54 Addendum outline of submissions at [18]-[21]; Crown submissions at [54]. 55 Crown submissions at [46]. -- 22 of 29 -- 23 is not reduced just because the bank was able to prevent the transactions from occurring. [117] However, the lack of an explanation and the prospect of fraud charges being altered to attempted fraud charges, reinforces the impression that, even after all this time, the Crown case against Mr Dunshea is something of a moving feast. Adding to that impression is that, as explained above, there is ambiguity over the total alleged charges. Some 14 charges have been discontinued.56 It was conceded that eight transactions were prevented by NAB ($11,415) and that may result in amendments to the relevant charges.57 The Fourth Alleged Material Change – Family Court Proceedings [118] Mr Dunshea points to the listing of family Court proceedings on 24 and 25 June 2021, relating to custody of his young son, as being a material change. He argues that if he has an opportunity to physically appear before the Court for those proceedings, and to complete residential rehabilitation, there is a better prospect of him being reintegrated with the community and less prospect of him reoffending.58 [119] The Crown submit this matter was raised before Boddice J and before the subsequent judges. But Mr Dunshea is correct that the child custody issues did not feature before Boddice J.59 However, those issues were considered by Bowskill and Callaghan JJ and Rafter AJ.60 [120] Whilst the Court dates for the custody proceeding are a new feature of this submission, it is not a material change. It is properly characterised as a matter of ‘mere detail’ in the sense described in Ex parte Edwards.61 The Fifth Alleged Material Change – Concrete Release Plan and Psychologist [121] Mr Dunshea submits he has been participating in psychology sessions via video-link from prison. He plans to continue with this if he is granted bail. He submits this would be in addition to the three-month residential rehabilitation program and will assist in reducing the risk of him re-offending. [122] A letter from his psychologist states: “Our plan for therapy is to address strategies for managing life stress by strengthening his ability to deal with his emotions constructively, develop understanding of problematic personal characteristics, develop relapse 56 Transcript 25 May 2021 at T1-14 line 25. 57 Crown submissions at [47]. 58 Transcript 25 May 2021 T1-15 lines 10 & 40 and T-16 line 36. 59 Transcript 25 May 2021 T1-14 line 45. 60 See Reasons of Rafter AJ (24 February 2021) at page 3 line 16; Reasons of Callaghan J (27 November 2020) at page 3 line 27; Reasons of Bowskill J (8 October 2020) at page 4 line 1. 61 [1989] 1 Qd R 139 at 144. -- 23 of 29 -- 24 management strategies, and to form realistic and constructive goals and plans for a stable lifestyle in the community.”62 [123] The applicant also provided a new residential address to reside at upon release with his mother. [124] The Crown submit the new address is suitable if Mr Dunshea were otherwise entitled to bail. In relation to ongoing psychological treatment the Crown have not made further submissions but rely on the material and submissions made regarding rehabilitation and the unacceptable risk of re-offending. [125] These two aspects (release plan and psychologist) do assist to ameliorate the risk of the applicant re-offending. Regular psychological treatment may provide a level of supervision, albeit low, and would assist in treating the root of the applicant’s criminal tendencies. The Crown consider the residential address to be suitable. [126] Both features are new to this application and together constitute relevant facts but not a material change in the sense of being decisive. Difficulties Accessing Brief [127] Whilst it was not a particular focus of his submissions, Mr Dunshea submitted that his human rights are being adversely impacted due to having poor access to his lawyer and to the electronic elements of the brief of evidence. He is unable to view USBs or CDs in prison. Further, whilst he has access to some of the brief in prison, he does not have access to relevant evidence comprising CCTV and phone call recordings.63 [128] It appears likely that Mr Dunshea’s continued custody would mean he would be unlikely to have access to the electronic components of the brief of evidence.64 The problem is a fundamental problem that is not cured by simply pointing out that Mr Dunshea’s lawyers have access to the electronic components of the brief. A specific part of the electronic material may be crucial to Mr Dunshea’s defence, but his lawyer may not understand the factual significance of it. Or the electronic component may be able to be explained by Mr Dunshea. And, even if the electronic component were incriminating, the issue would not be able to be discussed by lawyer and client. [129] A similar problem arose in Re Tesic. There Carmody CJ expressed this view: “it is unclear whether any special prejudice will be caused to the applicant if not granted bail. Although the challenges associated with preparing and financing a brief whilst in prison are “notorious”, accused persons not infrequently successfully defend voluminous prosecutions cases from inside corrective 62 Exhibit H to the affidavit of Mr Dunshea filed 20 May 2021. 63 Transcript 25 May 2021 T1-49, lines 9-13. 64 See the submissions of Mr Dunshea’s lawyer at the hearing before Boddice J on 21 August 2020 Transcript 1-5 line 34. -- 24 of 29 -- 25 services facilities. Entitlement to bail does not…depend on the mere size of the prosecution’s brief…”65 [130] In my view that logic is flawed. The mere fact that some accused persons are able to overcome the challenges does not establish an absence of prejudice to the accused. The question in each case is whether the difficulties faced by the accused are such as to endanger a fair trial. [131] In Re Tesic, His Honour also doubted the relevance of the complexity and the dimensions of the brief, and any difficulties that might present to the accused person, in a bail application.66 His Honour’s view was that the accused’s difficulties with the size or volume of the brief was, at best, a “comparatively minor discretionary factor.” It is true that section 16(1) requires that the Court refuse bail if the Court is satisfied that there is an unacceptable risk that the defendant, if released on bail, would fail to appear or commit an offence, or endanger the welfare of others, or interfere with witnesses. Section 16(2) also sets out, in a non-exhaustive way, the matters that the Court is to have regard to in assessing whether there is an unacceptable risk of those matters occurring. That is in the context where the Court has a discretion to grant bail (section 8) and a duty to grant bail in certain cases (section 9) and a duty to refuse bail if there is an unacceptable risk (section 16). [132] That statutory context does not justify the Court in discounting, as a minor discretionary factor, particular prejudice caused to the accused person by his custody. The discretion calls for an evaluative exercise of balancing the competing factors in each case,67 although it is important to appreciate that section 16(1) requires a refusal of bail in the event that there is an unacceptable risk. [133] In any event, in Re Tesic the finding was that the applicant’s access to the brief had been limited and that those limitations did constitute a change in circumstances.68 [134] In this case, in contrast to Re Tesic, the challenges faced by Mr Dunshea are not merely related to the size of the brief. Whilst he is in custody Mr Dunshea is unable to access the significant electronic components of the brief of evidence against him. [135] It is difficult to comprehend how the applicant is to properly defend himself in circumstances where he is unable to access the electronic aspects of the evidence against him. This is especially significant given the Crown point to CCTV footage and intercepted recorded telephone conversations as being probative evidence against the applicant.69 65 Re Tesic [2015] QSC 205 at [26]. 66 Re Tesic [2015] QSC 205 at [27]. 67 See the language of the Court of Appeal in Lacey v Director of Public Prosecutions [2007] QCA 413 at [13]. 68 Re Tesic [2015] QSC 205 at [28]. 69 Crown submissions at [54]. -- 25 of 29 -- 26 [136] The full brief was only made available in late February or early March 2021.70 Since then it has become apparent that Mr Dunshea, whilst he is in custody, is unable to access the significant electronic components of the brief. Does that mean that additional facts that have arisen, or additional facts that have been discovered, which are decisive in the sense that those new facts alter the balance in favour of granting bail? In my view, this lack of access to the brief does constitute a change in circumstances. [137] However, it is important to bear in mind that this lack of access to the electronic components of the brief does not bear upon the important issue raised by section 16(1) of the Act, namely, does Mr Dunshea present an unacceptable risk that, if released on bail, he would fail to appear or commit an offence, or endanger the welfare of others, or interfere with witnesses. Convergence of Factors [138] As explained above, a combination of circumstances can comprise a material change. [139] Therefore, the following are my conclusions with respect to the alleged material changes: 1. The availability of a residential rehabilitation program is not, by itself, decisive but it does contribute to an overall change in circumstances – especially given that the issue has not been considered or determined by the Court until now; 2. The very significant delay, the open-ended nature of the delay, and the fact that the Crown was responsible for at least part of the delay, all support the view that there has been a relevant change in circumstances; 3. The lack of an explanation for the total amount claimed, the refusal to supply particulars, and the prospect of some charges being amended, reinforces the impression that, even after all this time, the Crown case against Mr Dunshea is something of a moving feast; 4. The listing of the family Court proceedings on 24 and 25 June 2021, relating to custody of Mr Dunshea’s young son, does not constitute a material change or contribute to a combination of circumstances that together amount to a material change; 5. The release plan and Mr Dunshea’s treatment by psychologist do assist to ameliorate the risk of the applicant re-offending but are not accepted as decisive in themselves; 6. Mr Dunshea’s lack of access to the electronic parts of the brief does constitute a change in circumstances, albeit one that does not bear upon the issue of whether Mr Dunshea is an unacceptable risk. 70 Transcript 25 May 2021 T1-28 line 8. -- 26 of 29 -- 27 [140] Mr Dunshea has now spent more than 12 months in custody without conviction or even a committal. He was not provided a full brief of evidence until he had spent approximately nine months in prison. And he is unable to access critical electronic evidence aspects of the brief due to prison restrictions. The applicant has also gained a place in residential rehabilitation and has provided a suitable address for him to reside at when he completes the rehabilitation program. He has a plan to continue to receive ongoing psychological treatment. These matters when viewed together are sufficient to constitute a change in circumstances. Show Cause [141] The applicant is a ‘show cause’ situation pursuant to section 16(3) of the Act as he is charged with a relevant domestic violence offence. The Court is obliged refuse bail unless the applicant can show why his detention in custody is not justified. [142] As explained above, the justification for detaining someone in custody pending trial depends on whether there is an unacceptable risk that, if the applicant were released on bail, he would fail to appear, or he would commit an offence, or he would endanger a person’s safety or interfere with witnesses. [143] There is no contention that Mr Dunshea would fail to appear. He has only failed to appear on one occasion, in March 2017. He then surrendered to the Court.71 Mr Dunshea does not have an Australian passport. [144] Mr Dunshea is 39 years of age. He has six children and two step-children. As explained, his son is currently under the care of Child Services. The applicant had a difficult upbringing but has the support of his family and his partner. He has been addicted to drugs for some time. [145] There is no contention by the Crown that Mr Dunshea is likely to endanger a person’s safety or interfere with witnesses. There is, however, the domestic violence charge. [146] In its written submissions, the Crown oppose bail on the basis that the applicant presents an unacceptable risk of committing drug offences whilst on bail and given the serious nature of the offending.72 In oral submissions the Crown submitted the unacceptable risk of committing further offences relates to both dishonesty and drug offending.73 They rely on the severity of the offending, statements made by the applicant in his police interview, his extensive criminal history and the applicant’s non-compliance with previous Court orders. [147] It is relevant that there is no pattern of violence. For the most part, subject to the domestic violence charge which I will come to in a moment, Mr Dunshea’s offending has involved drug and property offences. Can the risk of offending be ameliorated to an acceptable level? 71 Submissions of Mr Dunshea’s lawyers filed 21 August 2020 at [10]. 72 Crown submissions para [53]. 73 Transcript 25 May 2021 T1-45 line 35-45. -- 27 of 29 -- 28 [148] The applicant has offered the following conditions, should he be granted bail: 1. Residential rehabilitation for a period of three months; 2. Ongoing psychological treatment with Dr Morris; 3. To reside with his mother, an address which is accepted by the Crown; 4. Any other conditions the Court sees fit. [149] In my view some further conditions can be imposed which will reduce the risk of offending to an acceptable level. Conditions can be imposed which restrict the possibility of a domestic violence incident.74 Conditions can also be imposed which restrict Mr Dunshea’s ability to use credit or debit cards, or at least provide for oversight of his financial transactions. [150] Pursuant to section 16 of the Act, I must have regard to the strength of the evidence against the applicant as it appears to be relevant.75 The Crown submit they have a strong case against the applicant. On the evidence the Crown case appears to have some prospects of success. However, the real strength or otherwise of the case is difficult to determine when the committal has not yet occurred and where the applicant has had only a short time, comparatively, to assess the material and cannot access the electronic evidence due to his incarceration. [151] There is also a potential problem with the quantum and the particularity of the many charges. It is therefore difficult to draw any firm conclusions. Suffice it to say that I do not accept that the evidence establishes that there is a strong case that Mr Dunshea will be found to have committed approximately 224 frauds or similar offences to a total value of $350,000. The likelihood is that any convictions will be significantly less in number and value. Conclusions [152] The real risk that is the focus of this application is the risk of re-offending. However, more than a year has passed and even a committal looks to be some distance away. Weighing the factors, with the combination of appropriate residential rehabilitation, psychological counselling, and family support and the stringent conditions mentioned above, I am satisfied the risk of reoffending can be ameliorated to an acceptable level,76 and the public can be properly protected. [153] On that point it is worth remembering the words of Thomas J in Williamson v DPP: “No grant of bail is risk-free. The grant of bail however is an important process in civilised societies which reject any general right of the executive to imprison a citizen upon mere allegation or without trial. It is a necessary part of such a 74 One possibility is to impose a geographical limitation on Mr Dunshea. 75 R v Sica [2011] 2 Qd R 254 at [50]. 76 Director of Public Prosecutions v Williamson [1999] QCA 356. -- 28 of 29 -- 29 system that some risks have to be taken in order to protect citizens in those respects. This does not depend on the so-called presumption of innocence which has little relevance in an exercise which includes forming provisional assessments upon very limited material of the strength of the Crown case and of the defendant's character. Recognising that there is always some risk of misconduct when an accused person or for that matter any person, is free in society, one moves to consideration of the concept of unacceptable risk.”77 [154] For the reasons stated, I am satisfied that Mr Dunshea has established that his continued detention in custody is not justified. The applicant has shown cause. [155] I will hear from the parties on the form of the orders. 77 Director of Public Prosecutions v Williamson [1999] QCA 356 at [21]. -- 29 of 29 --