AP v Director of Public Prosecutions (Queensland) [2008] QSC 236

SUPREME COURT OF QUEENSLAND CITATION: AP v DPP [2008] QSC 236 PARTIES: AP (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) (respondent) FILE NO/S: BS No 7916 of 2008 DIVISION: Trial Division PROCEEDING: Application for bail DELIVERED ON: 5 September 2008 DELIVERED AT: Brisbane HEARING DATE: 5 September 2008 JUDGE: Applegarth J ORDER: The application for bail is dismissed CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – SECOND APPLICATION – where applicant previously refused bail while awaiting trial – where applicant submits material change in circumstances: that further details have emerged about the applicant’s involvement in an offence of violence; that applicant’s ability to instruct lawyers is hindered by difficulties experienced by lawyers communicating with clients held on remand at the Arthur Gorrie Correctional Centre; that this compounds the likelihood of applicant spending a significant time on remand in custody – whether these factors constitute a material change in circumstance – whether bail should be granted Bail Act 1980, s 16 DPP v Bakir [2006] QCA 562, applied DPP v Lacey [2007] QCA 413, applied COUNSEL: J R Hunter for the applicant S Gadsden (sol) for the respondent SOLICITORS: Bell Miller Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent -- 1 of 9 -- 2 [1] APPLEGARTH J: The applicant has been charged with a number of drug related offences. They are one count of trafficking in dangerous drugs and eight counts of supplying dangerous drugs. [2] The applicant has been in custody since 21 February 2007. There was a previous application for bail made on 7 March 2007 to Philippides J. The principles governing a renewed application for bail are well-established. They were restated in DPP v Bakir [2006] QCA 562 at [5] by Jerrard JA with whom Keane and Holmes JJA agreed: “In Schrivener v DPP (2001) 125 A Crim R 279 McPherson JA, giving the judgment of the Court, restated the principle that while an applicant for bail has a right to renew an unsuccessful application before another judge, successive applications will ordinarily prove fruitless unless there has been a material change of circumstances by the time of the second application. McPherson JA likewise wrote that an application for bail may be renewed in this Court but it is unlikely to succeed unless the applicant is in a position to show such a material change.” [3] On behalf of the applicant there were three bases for what are said to be material changes of circumstances. Before I come to those it is appropriate to refer in summary to the reasons given by Philippides J, in order to ascertain whether it can be said there is a material change of circumstances in the respects contended for by the applicant. I will not attempt to deal in detail with her Honour’s reasons but it is important for me to identify their substance. [4] Her Honour identified that the applicant was charged as a result of an extensive covert surveillance operation involving four crime investigation bodies and extending over some eight months. [5] The applicant was apparently the key target of the investigation and is alleged to have been the head of a drug distribution network which sourced drugs from New South Wales for distribution in Queensland, allegedly amongst members and associates of a bikies group. It appears that there was quite extensive surveillance evidence involving covert camera footage relating to the alleged offences. [6] Her Honour observed: “The trafficking and other drug offences are of a very serious nature and if proved would most likely result in a substantial period of imprisonment being imposed.” [7] Her Honour noted the applicant’s circumstances and antecedents: that he was a man in his early 30s, that he had no criminal history and that at the time of his arrest he was residing with his de facto partner. I will refer later to those personal circumstances and what, if anything, has changed in relation to them. [8] Her Honour noted that the applicant had significant personal ties to the jurisdiction and noted that the condition of his daughter, who required considerable medical attention, made the family’s circumstances grave. -- 2 of 9 -- 3 [9] Her Honour noted that the applicant faces a strong Crown case, that so much had been conceded on his behalf by counsel in submissions, and that he faces a potentially lengthy period of imprisonment if found guilty. [10] Before her Honour a substantial surety in the amount of $150,000 was offered. Whilst her Honour regarded that as a significant surety, concern was expressed about the risk of the applicant failing to appear. I will quote Her Honour further: “However, the main concern in my view is the risk that the applicant may seek to endanger the safety of witnesses and interfere with witnesses, or otherwise obstruct the course of justice. I have given this matter careful consideration. I am concerned that the material suggests that the applicant has sought to resort to violence to deal with disputes. The material that has been placed before the Court in respect of the covert surveillance of the applicant reveals that the applicant himself has referred to pursuing two individuals with whom he appears to have had a dispute and to assaulting them, and there is other evidence to suggest that the conduct occurred. That is a grave matter in my view which is not adequately addressed by the provision of a surety.” [11] Her Honour decided in the circumstances that she was satisfied that the granting of bail would involve unacceptable risks for the purposes of s 16 of the Bail Act and in the circumstances the application was refused. [12] Upon today’s hearing the applicant submitted what were said to be three material changes in circumstances. The first was said to be the relatively minor nature of the applicant’s involvement in a prior offence of violence and that details of the nature of that offence had since emerged. [13] Secondly, it was submitted that prison authorities refused to allow the applicant appropriate access to computer facilities to enable him to prepare his defence. Thirdly, and associated with the second point, it seems certain that the applicant will spend a long period in custody before his matters are finalised in the Supreme Court. [14] Dealing with the first matter, the prior offence of violence relates to an incident that occurred on 10 February 2007 at a hotel. It is not said on behalf of the Director of Public Prosecutions that the incident related to the subject matter of the charges or involved intimidation of witnesses. [15] I was told by the applicant’s counsel that it arose essentially out of a traffic incident. Some details of it appear in an affidavit of the applicant’s solicitor, who has explained that in October 2007 the applicant was issued with a notice to appear in relation to assault occasioning bodily harm in company on two individuals. Those two individuals were also charged with unlawful wounding of another named person in relation to the same incident and they have been committed for trial at Ipswich. [16] Importantly, on 10 July 2008 the applicant pleaded guilty in the Ipswich Magistrates Court to a charge of assault occasioning bodily harm arising out of the incident. He was fined $1,000 and no conviction was recorded. -- 3 of 9 -- 4 [17] On behalf of the applicant it was therefore submitted that in the light of subsequent events the incident of 10 February 2007 involving the applicant was relatively minor, as reflected in the relatively small penalty imposed, and the fact that no conviction was recorded. [18] From my reference to the submissions made before Philippides J on 7 March 2007 her Honour was not in a position to predict that outcome but in my opinion not much turns on that. The reason that her Honour was not in a position to be terribly well informed about the matter, let alone make a prediction as to its disposition, is that the matter was before her Honour on 7 March 2007. The incident had occurred on 10 February 2007. Charges had yet to be laid. [19] I accept that the information provided to the Court on 7 March 2007 may have given the impression that the incident may have led to a more significant penalty than ultimately was imposed. However, having regard to her Honour’s reasons, I do not consider that it can be said that whatever difference exists between the tentative assumptions her Honour may have made as to the likely disposition of that matter and its actual disposition constitute a material circumstance for present purposes. [20] When regard is had to her Honour reasons and the submissions and material upon which they were founded, it can be seen that her Honour’s reasons did not relate simply to the incident on 10 February 2007. In fact in the passage that I have quoted from her Honour’s reasons there was no specific reference to that incident. I accept that her Honour must have taken some account of it. Her Honour’s observations seem to me to relate to other material as well, and that other material remains unchanged. [21] It consists of evidence of surveillance, which apparently records the applicant making a variety of statements which suggest a propensity to violence. It may be that the relevant extracts upon which her Honour relied, and the extracts from the police surveillance that are quoted at paragraph 32 of the submissions presented on behalf of the Crown today, simply reflect someone who was prone to making boastful remarks about what he had done, or what he would do. I readily accept that people can make these sort of remarks without it necessarily establishing that they have done what they claimed to have done, or will do what they say they intend to do. Nonetheless, it is that evidence that, in my opinion, was central to her Honour’s concerns about the applicant. [22] The respondent submits in relation to this first ground of claimed change of material circumstances that the conviction to which I have referred, in fact, strengthens the respondent’s assertion that the applicant does represent a real risk of endangering the safety or welfare of Crown witnesses if he is released on bail. The respondent also refers to the passages that I have earlier referred to, concerning statements that the applicant made, and which were recorded. I do not accept that the conviction arising out of the 10 February 2007 event necessarily demonstrates that the applicant represents a risk of endangering the safety or welfare of Crown witnesses. It was acknowledged that this is not a case that largely depends upon Crown witnesses. However, the danger of someone with this propensity to be involved in violent incidents cannot be discounted. Therefore I accept that there is some risk of endangering potential witnesses. -- 4 of 9 -- 5 [23] It is unnecessary to pursue that in the present circumstances, because the present context is whether there has been a material change of circumstances. On the first ground submitted by the applicant I conclude that, although the penalty imposed for the incident was relatively minor, that does not detract from the force of her Honour’s observations or constitute a material change of circumstances. [24] The second and third bases upon which there is said to be a material change of circumstances were not specifically addressed by her Honour because, necessarily, the matter was at an early stage and her Honour was able to dispose of the matter without giving consideration to what might be the future progress of the proceedings. The second basis, namely the refusal of prison authorities to allow the applicant appropriate access to computer facilities to enable him to prepare his defence, was described by Mr Hunter of Counsel on behalf of the applicant this morning as the principal issue on today’s application. [25] The brief of evidence in this matter is huge. It is said to occupy 70 gigabytes of data on a portable hard drive disk. I need not detail all of the information and evidence that appears in the affidavit material or in the written submissions concerning the issues about access to it and the useful facility that access to computer technology permits lawyers and their clients to use when analysing this huge volume of material. Suffice to say that electronic access to it is highly convenient, so much so that on an earlier mention of the matter on 22 January 2008, the solicitor for the applicant said that he did not require a paper copy of the brief of evidence as he felt it would be difficult to manage. One can understand why he said that. [26] But the position has been reached that the applicant’s solicitors have a difficulty in obtaining instructions from the applicant for a variety of purposes because of systems which prevent the applicant from being given a laptop or a hard drive version of the brief of evidence. The matters relating to this are set out in some detail in the affidavit of the applicant’s solicitor which was filed on 3 September 2008. He exhibits correspondence which states the position of the Queensland Corrective Services in relation to access to computers and the use of external hard drives. There are certain policies that the prison authorities, including the GEO Group Australia Pty Ltd, which is in charge of the Arthur Gorrie Correctional Centre, have in relation to access by prisoners on remand to a laptop or an external hard drive. There is no suggestion to this Court today that there is any prospect that this policy will be relaxed. [27] In those circumstances, it is said on behalf of the applicant that there is great difficulty in conveniently obtaining instructions. The paper brief would extend to 40 volumes. That is not to say that the applicant would need access to all of those 40 volumes. But even if he required access to a relatively small number of them, there would be issues about their provision. In that regard, there are some issues concerning legal aid funding for the provision of that material to the applicant. The Court has been informed over the luncheon break that the Office of the Director of Public Prosecutions will not provide paper copies of particularised parts of the brief of evidence for this matter to the parties and that, subject to further advice from the Crime and Misconduct Commission, it would be necessary for a Court order to be made in order for paper copies of particularised parts of the brief of evidence to be provided. -- 5 of 9 -- 6 [28] It might be said that these problems could be avoided by the lawyers doing their best to take whatever material they can take to a confidential interview room and showing the applicant relevant material, either on a laptop or by providing hard copies. I was told in Court this morning by Counsel on behalf of the applicant that there are two contact interview rooms at the Arthur Gorrie Correctional Centre. That is apparently far fewer than there used to be. There are non-contact booths which do not permit confidential communications to be easily made between lawyers and their clients. I emphasise that is in a remand facility. So the situation has been reached whereby a system of policies and a system of inadequate facilities for client interviews means that this matter cannot proceed expeditiously. [29] It must be said that, even with the best will in the world and with different facilities, a matter of this apparent complexity would involve long delays. It is pointed out by the respondent, who accepts that the brief of evidence is very large, that even in circumstances in which the applicant is not able to have a hard drive in his possession, the applicant’s solicitors are in possession of that hard drive, have been for some period of time, and are able to print material and take it to the prison. I am not sure whether Legal Aid extends to them doing so, but that perhaps is somewhat beside the point. It was said on the applicant’s behalf that the printing out may still involve the printing out of 2,202 transcripts. [30] That, by way of background, allows me to dispose of the second basis upon which there is said to be a material change of circumstances. It is important not to confuse what are really two separate issues, that is, whether this course of events in relation to preparation for hearing and the obtaining of proper instructions is a material change of circumstances; and, secondly, if it is, what is to be made of it. I am not persuaded that this chain of events really qualifies as a material change of circumstances, at least, in the sense that these developments have falsified some assumption that was made at the time when bail was first refused. It may have been that no one adverted to this, but if they did, they must have appreciated that the conduct of the matter would involve dealing with these practices, policies and inadequate interview facilities. I conclude that the unfortunate length of time which it will take in the light of an established policy whereby prison authorities do not allow people in remand to access laptops and external hard drives is an unfortunate matter, but not a material change of circumstance. [31] The third matter is the proposition that it seems certain that the applicant will spend a long time in custody before his matters are finalised in the Supreme Court. I consider that that is not, upon reflection, truly a material change of circumstance. It is likely that that was always going to be the case in a matter of this complexity. In that regard, I should note that the matter, in which there are 20 co-defendants, has been set down for only three days committal in the Brisbane Magistrates Court on 6 to 8 October 2008, which seems an inadequate amount of time. Obviously, the Magistrate will list the matter for future hearing and, hopefully, the matter can be assigned to a Magistrate who can expeditiously deal with the committal proceedings. But the point is well made on behalf of the applicant that, by the time the committal hearing and this matter are concluded, he will have spent over two years in custody. Whether that was or was not a matter in contemplation when the first application for bail was made is a matter for debate. In my opinion, it seems likely that had the matter been reflected upon at the time, there would have been an anticipation of a similar period of delay, given the size of the matter and the aspects that I have already dealt with. -- 6 of 9 -- 7 [32] So far as such a substantial delay is concerned, reliance is placed by the respondent upon the Court of Appeal authority of DPP v Lacey [2007] QCA 413. The respondent submits that the risk of interfering with Crown witnesses, flight, and committing further offences are not made acceptable merely because this matter will take a long time to get to trial. Particular reliance is placed upon the following passage in which the Court of Appeal said: “The strength of a Crown case and the consequent risks of flight or interference with Crown witnesses do not diminish as the length of time to trial increases. On the other hand, in a case in which it is demonstrated that the time in custody on remand will likely exceed any custodial sentence which might be imposed after conviction, the relative importance of time may well be regarded by the judge as outweighing the other relevant factors.” In my view, the submission made in relation to Lacey is correct. [33] Therefore, in summary, I am not persuaded that there have been material changes in circumstance. [34] In case a different view was to be taken of that, I should say some things about the substantial merits of the application. I have had regard to the material that has been filed on behalf of the parties. The applicant’s material provides relevant details of his family circumstances and what his proposed residence would be. He refers to an offer of employment and, by leave, an affidavit was provided today by a businessman who is prepared to offer the applicant a position as a truck driver should he be granted bail. That gentleman also is prepared to offer a surety in the amount of $150,000 to ensure the applicant’s appearance in Court. The applicant, in support of his application and, no doubt, to allay concerns about committing offences and the like, refers to certain matters to which I will briefly refer. He says at the time of his arrest he was addicted to methylamphetamines; that he has now been in custody for over 18 months and has been completely drug-free with no problems in gaol. He says that, if released on bail, he is prepared to abide by an order requiring him to be randomly drug tested. Similarly, he indicates a preparedness to report to police. [35] Another matter which is relevant to the factors that would need to be taken into account, had I reached the conclusion that there was a material change in circumstances, are the applicant’s personal circumstances. In that regard, Philippides J referred to the grave circumstances in which the applicant’s young child is placed and an affidavit was sworn by the applicant’s de facto partner, detailing her very unfortunate circumstances and the extreme difficulties that she has in attending to her young child who needs to be treated for a heart condition. The obvious relevance of this material is that these family connections would provide a tie to the applicant to remain in close contact with his family. [36] I can briefly deal with factors that would have been necessary to take into account if I considered that a change of material circumstances had been established. The first is the nature and seriousness of the offences. This is clearly a serious case which, is acknowledged, could attract a penalty of imprisonment of between eight and ten years. I have dealt with the applicant’s antecedents. He has no criminal record. In terms of his employment, I have detailed the offer of employment and the circumstances in which he has a de facto partner and two young children. There is -- 7 of 9 -- 8 evidence of at least a preparedness to resort to violence and, although the incident on 10 February 2007 resulted in what was described by the applicant’s counsel as a relatively minor penalty, nonetheless it hardly paints the applicant in a good light, nor do his own words, as recorded on surveillance. [37] The most important factor is the strength of the evidence against the defendant, which was acknowledged before Philippides J as being strong, and there is no suggestion that the strength of the Crown case has altered. Had it been necessary for me to embark upon a fresh application, I would have been required to consider issues such as the risk of a failure to appear, harm to witnesses, and the risk of committing further offences. In my opinion, given the strength of the case against the defendant and the matters which were of concern to Philippides J, there is an unacceptable risk in the circumstances. I do not find that necessarily there is a strong or unacceptable risk that the applicant would harm witnesses. There is a risk, but I do not put it at a high order, contrary to some of the submissions made by the respondent. There is a risk, which I do not put at a high level, that the applicant might, whilst on bail, commit further offences. One might say that risk is reduced by the fact that he would expect to be under surveillance and there may be other reasons why he might wish to be careful, but there is nonetheless, given the strength of the case against him, some risk of committing further offences, if not drug offences, then offences of violence. [38] Had it been necessary for me to embark afresh upon an application, I would have refused the application because I am satisfied that similar grounds exist to those that existed before Philippides J that made the grant of bail an unacceptable risk. There is the risk that the applicant may fail to appear at the hearing of serious offences, which are acknowledged to result, if convicted, in a sentence of at least eight to ten years in a case which is acknowledged by the applicant to be a strong Crown case. Accordingly, I dismiss the application. [39] I should say in conclusion that the evidence, some of which I have canvassed in my reasons concerning the difficulty which is experienced by the applicant’s lawyers obtaining instructions and providing relevant material, is disturbing. In a case in which the applicant, through his lawyers, frankly acknowledges the strength of the Crown case, it seems unfortunate that processes and facilities do not enable the matter to be progressed much more speedily. Hearing the matter today does not place me in any position to propose solutions. That is not my role. I acknowledge, and I make no criticism of, the position taken in some of the material concerning the obvious need for security in the provision of computer and other facilities to persons in custody, including persons on remand. I also acknowledge that, by their very nature, large proceedings of this kind involving 20 co-defendants and a large volume of surveillance material are inherently unwieldy and attended with considerable delay. That said, the matters that I have already alluded to, namely the difficulty of providing the applicant with paper copies of documents, and what can only be described as completely inadequate interview facilities for lawyers to speak confidentially to their clients at the Arthur Gorrie Correctional Centre, are something of a blight upon the system. It is in the community’s interest that criminal matters be resolved expeditiously. I do not wish to say anything about this case, but everyone’s interests are served by early pleas of guilty in cases where a guilty plea is appropriate. However people simply cannot be expected to plead guilty without being provided with proper advice about that course and proper advice about the prospects of defending charges and to what charges they may be -- 8 of 9 -- 9 properly advised to plead guilty. The system has imposed a significant impasse on that happening, and it is to be regretted that the applicant, perhaps like many others, is caught in a system which does not permit an early resolution of the matter, either by way of early conclusion of a committal proceeding and the matter going to a contested trial, or some other course. [40] The submissions on behalf of the applicant invited me to rely upon these matters as explaining why bail should be granted because of these difficulties of access and the inordinate length of time that the applicant will remain in custody. For the reasons I have given, I have not acceded to the application. By dismissing the application I do not wish it to be inferred that I do not accept the force of the applicant’s contentions concerning the highly unsatisfactory way in which this matter is proceeding, or, more precisely, not proceeding very fast. -- 9 of 9 --