Director of Public Prosecutions v Foy [2006] QSC 45

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2006] QSC 045 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No S1920 of 2006 THE DIRECTOR OF PUBLIC PROSECUTIONS Applicant and MARK ANTHONY FOY Respondent BRISBANE ..DATE 13/03/2006 JUDGMENT -- 1 of 14 -- 13032006 T01/SJ3 M/T 1/2006 (Mackenzie J) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application by the Director of Public Prosecutions to revoke bail granted to the respondent, Mark Anthony Foy, on 13 February 2006. A preliminary point was taken about standing of the DPP to bring the application for revocation of bail. Fundamental to this submission is the proposition that section 30 of the Bail Act permits such an application to be made by "the Crown or as the case may be the complainant". In this case, the application is made in the Supreme Court. It is submitted that the DPP is neither the Crown nor a complainant for the purposes of section 30. It is further submitted that section 10 of The Director of Public Prosecutions Act 1984, which sets out the functions of the Director, does not extend to appearing in applications to revoke bail. In respect of section 10(1)(a) the Director is directly authorised to "prepare, institute and conduct on behalf of and in the name of Her Majesty," "criminal proceedings". In performing those functions the DPP is plainly performing a function of "the Crown". There is a definition of "criminal proceedings" in section 4 of the Act. The term "criminal proceedings" means proceedings on indictment for an offence defined in the Criminal Code, other proceedings on indictment and proceedings in the Supreme Court commenced by a person charged with an indictable offence in connection with the offence before the presentation of an indictment that charges the commission of the offence. -- 2 of 14 -- 13032006 T01/SJ3 M/T 1/2006 (Mackenzie J) 3 JUDGMENT 1 10 20 30 40 50 60 This definition has some limitations. It clearly comprises proceedings on indictment for offences under the Code and under other statutes. Paragraph (c) seems to be limited to proceedings in the Supreme Court commenced "by a person charged with an indictable offence" before presentation of an indictment. It does not, on its face, include proceedings begun by the Crown or the Director. If section 10(1)(a) is an insufficient source of standing it is necessary to look elsewhere. There is no evidence that any direction under section 10(1)(f) by the Minister has been made. There is nothing to suggest that it is a matter of which I would be obliged to take judicial notice if one had been given. There is also no evidence that the case falls within section 10(1)(c). Section 10(1)(b) and 10(1)(d) do not apply to the case; they are concerned with other issues. That leaves section 10(1)(e) which obliges the Director to "perform such duties as the Director may be charged with" under The Director of Public Prosecutions Act or any other Act. The term "Act" by virtue of section 7 of the Acts Interpretation Act includes a reference to statutory instruments made or in force under a law. Applications for bail and revocation of bail are regulated by Rules 25 and 26 respectively of the Criminal Practice Rules 1999 made under the Supreme Court Act 1991. There are reciprocal obligations under Rules 25 and 26 for the applicant to serve the application for bail on the "prosecutor" and for a -- 3 of 14 -- 13032006 T01/SJ3 M/T 1/2006 (Mackenzie J) 4 JUDGMENT 1 10 20 30 40 50 60 "prosecutor" who applies for an order revoking bail to serve the corresponding documents on the accused person. The term "prosecutor" is defined in schedule 6 to the Criminal Practice Rules for a proceeding in the Supreme Court as The Director of Public Prosecutions and for a proceeding in the Magistrates Court "the Director of Public Prosecutions or a complainant". Rule 26 is said to apply, subject to section 30 of the Bail Act. In my view, the purpose of subjecting the Criminal Practice Rules to the provision of the Bail Act in that way is to ensure consistency with the provisions in section 30(2) of the Bail Act, permitting ex parte applications. It is not intended to cast doubt on the standing of the DPP as "The Crown" for the purpose of bringing the application. A similar statement is contained in rule 27 in relation to section 23 of the Bail Act concerning sureties. It serves a like purpose of ensuring consistency with the timing of the application by a surety. The consequence of giving a status of a respondent to the DPP in the case of application by a prisoner and of the applicant in the case of revocation, is that the DPP is charged with those duties under the Criminal Practice Rules, and, therefore, has those functions. It may also be noted in relation to whether the Director is "The Crown", that by section 1 of Criminal Code she is a Crown law officer. Further, the mode of appointment in section 5 of -- 4 of 14 -- 13032006 T02/AMF15 M/T 1/2006 (Mackenzie J) 5 JUDGMENT 1 10 20 30 40 50 60 the Act suggests that the office is a Crown appointment in the sense understood in section 30. In my view, the Director of Public Prosecutions has standing. If that is incorrect, a general direction by the Attorney General and Minister for Justice to appear in such matters, could, in any event, cure any deficiency. It should be clearly understood that revocation of bail in this case would mean only that the respondent's return to prison would last as long as the offences of selling morphine, and the serious assault consisting of spitting on the police officer, remain to be finally disposed of. If he were to be sentenced to imprisonment for one or both of those offences, he would remain in prison as a result of the conviction for as long as he was obliged to do so under the sentence. But if a non custodial sentence were to be imposed, he would be released back into the community. This revocation of bail would therefore be a stop gap only. According to the police statement, receipt of which was not objected to, information was received from a source considered reliable that Foy was selling morphine tablets. A police officer made a phone call to him about 11.35 a.m. on the day in question, pretending to be a person interested in obtaining drugs. At about 12.25 p.m. there was a further conversation which resulted in the covert police officer meeting Foy in the vicinity of New Farm Park. Both conversations were recorded, -- 5 of 14 -- 13032006 T02/AMF15 M/T 1/2006 (Mackenzie J) 6 JUDGMENT 1 10 20 30 40 50 60 although transcripts have not been exhibited to the police statement. In any event, Foy produced, according to the evidence, a box of tablets from which he took ten orange pills in a foil package. In answer to a request from Foy, the covert police officer produced $200. After they had moved to a more secluded spot, Foy handed the package to a covert police officer, who then identified himself as a police officer. The box showed that the pills had been prescribed for Foy. A search of his premises revealed a small number of similar pills and other prescribed medication. When he was being driven to the Fortitude Valley Police Station, he became agitated. The covert police officer, who was in the back of the vehicle with him, tried to restrain him. During this incident, Foy spat in the police officer's face. Foy claimed that this occurred accidentally. That issue of fact remains to be resolved in another place. According to the affidavit of Ms Murray, who appeared for Foy on 7th of March 2006 in the Magistrates Court, the police prosecutor did not object to bail on the charges being enlarged. That, of course, does not bind the Director in any way. -- 6 of 14 -- 13032006 T02/AMF15 M/T 1/2006 (Mackenzie J) 7 JUDGMENT 1 10 20 30 40 50 60 At the time of these alleged offences, Foy was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The present application is concerned only with revocation of bail. I am not asked to take any action pursuant to the supervision order. In fact, an application, the precise terms of which are not before me in evidentiary form, was made under the Dangerous Prisoners (Sexual Offenders) Act on the 20th of February 2006. I was told from the Bar table that it was for revocation or variation of the supervision order. An order was made that Foy be examined by two psychiatrists pursuant to section 23 of the Act. The matter was adjourned to the 13th and 14th of June 2006 for hearing. In submissions before me it seemed to be assumed that there was no power to immediately return to custody a person who had breached the terms of a supervision order. I need not concern myself with that issue today. The facts that he is subject to that order and to proceedings that might revoke the supervision order and result in a continuing detention order being made, are relevant in only two respects. One is that if there is no means of dealing peremptorily with persons who breach a supervision order, use of the Bail Act in attempt to return a person into custody should be rare unless there are reasons to find independently, as the Bail Act requires in section 30, that "It is necessary or desirable in the interests of justice to do so", for reasons relevant to the objectives of the Bail Act. -- 7 of 14 -- 13032006 T03/SLF12 M/T 1/2006 (Mackenzie J) 8 JUDGMENT 1 10 20 30 40 50 60 Section 16 sets out factors to be taken into account if bail is to be refused. While section 30 states the basis for revocation more broadly, where the basis relied on for revocation, as in this case where it is stated to be that he is a high risk of re-offending as a sexual offender, it is necessary to focus on that. It is fundamental to this argument that the use of drugs is a cause of the increased risk. One of the difficulties in this application is that in the reasons for judgment in the application for a supervision order there is, as I read them, no particular emphasis on the need to abstain from using drugs. Such a prohibition is made in the order. Whether the reports of the psychiatrists or their evidence in the proceedings leading to the making of the supervision order elaborated on that issue is unknown. Their reports are not in evidence before me. Evidence that the psychiatrists in the original proceedings considered it essential that the respondent abstain from using drugs because not doing so would significantly increase the risk of commission of further offences, would have been a relevant consideration in deciding whether it was in the interests of justice to revoke bail. But the evidence before me is devoid of such material. In the evidence before me there is evidence that before the offences in respect of which the orders for bail were made the respondent was using "speed". There are analyst's certificates showing that testing was positive for the drug. There are also admissions by the respondent of such use. I -- 8 of 14 -- 13032006 T03/SLF12 M/T 1/2006 (Mackenzie J) 9 JUDGMENT 1 10 20 30 40 50 60 observe that no charges have been laid in respect of those events of use which, as it appears, must almost inevitably have involved possession of the drug by him either directly or constructively. There is also positive testing for other substances. The significance of those is, it seems to me on the evidence before me at least, obscured to some extent by the issue of whether the drugs found on analysis were consistent with the use of prescription drugs. I note also that there is evidence that he had cannabinoids in his blood. He explained that by the effects of passive smoking, in the sense that people with whom he associated smoked cannabis. Whatever one thinks of the probability of that, on the evidence before me there is nothing that suggests whether or not such a claim can be rebutted. In any event it may be that use of amphetamines is the greater concern, in any event. There is also evidence of positive testing on an occasion which appears to be a few days after his arrest. There was a positive test, as I understand the evidence, on the day of his arrest as well but that may not have been in breach of bail. The issue of whether he continues to use methylamphetamine is somewhat clouded by the evidence that, according to Mr Smith's psychological report, the respondent had not tested positive to methylamphetamine in the two weeks preceding the report which is dated the 3rd of March 2006. In any event, mere possession of drugs is not relied on in so far as it may be -- 9 of 14 -- 13032006 T03/SLF12 M/T 1/2006 (Mackenzie J) 10 JUDGMENT 1 10 20 30 40 50 60 implicit in the use of the drug that there was also possession. It is the increased risk of re-offending due to the use of drugs that is the focus of the application. If at the date of the hearing it is not established clearly that there is continuing use, whatever the reason and whatever the situation may have been earlier, the case for revocation is weakened. If cessation of use proves to be only temporary because future testing proves a resumption of use, the risk of relapsing into its use with consequential adverse effects may be more easily proved on a future occasion. With regard to increased risk there is no psychiatric evidence relied on by the DPP. However, on the 3rd of March a psychologist, Mr Smith, conducted Static 99 and ACUTE risk assessments. The Static 99 assessment takes into account a number of factors in the subject's personal history which are known to be linked to the risk of recidivism on a statistical basis. If the number of points accumulated under that scale is six or more, the risk of recidivism is rated as high. This test relies essentially on statistics for its validity. That being so, the result does not necessarily imply that a particular person who is the subject of the test will re-offend. Appendix 1 to Mr Smith's report illustrates this. For example, 39 percent of offenders who score six or more will re-offend within five years. -- 10 of 14 -- 13032006 T4/AMS29 M/T 1/2006 (Mackenzie J) 11 JUDGMENT 1 10 20 30 40 50 60 The ACUTE assessment involves assessment of a variety of risk factors personal to the subject of the assessment which are matched with descriptions of behaviour listed in the test document. The risk factors are those considered acute ones associated with sexual recidivist behaviour. On the basis of the ACUTE assessment Mr Smith was of the opinion that Foy had the following risk factors that may require further attention. They were emotional collapse, collapse of social supports, substance abuse and rejection of supervision. More importantly and relevantly, factors requiring immediate intervention, in his opinion, were hostility, sexual preoccupation and that there were several police investigations current. With regard to the last of those the proposition seems to be that that attention by the authorities is likely to affect the respondent's restraint in terms of sexual re-offending behaviour or in putting someone else at risk. With regard to sexual preoccupations, the essence of the assessment is that the respondent admitted "a pervasive pattern of frequent casual sexual encounters" with prostitutes, drug users and others prepared to have casual sex. Mr Smith concluded that the respondent's lifestyle was indicative of "extreme sexual preoccupation". He noted Foy's denial of sexual interest in children now, but said he considered that relevant staff should maintain caution over his risk of committing further offences. Mr Smith also said he considered that it was only the high level of scrutiny by -- 11 of 14 -- 13032006 T4/AMS29 M/T 1/2006 (Mackenzie J) 12 JUDGMENT 1 10 20 30 40 50 60 the police and the Department of Corrective Services that was suppressing the offender's ability to act on his sexual impulses. This evidence, standing alone, suggests that, firstly, any sexual preoccupation is presently focused on easily available adults, and secondly, a suitably intense level of supervision of the kind available under the supervision order and the general law has the potential to keep him under a measure of control. Two things may be added. If Foy commits any offence of which sufficient evidence exists, the issues of bail for that offence and revocation of bail for the present offences is enlivened again. The second is that where a supervision order is in place it should be the primary instrument for controlling a released prisoner. The operation of that order should be interrupted only on clear evidence. With regard to hostility, the opinion is based on information that is not in evidence before me. The strength or otherwise of this factor is untestable for that reason. The informant according to Mr Smith's report, gave a statement which is annexed to some of the material in evidence before me but does not cover this aspect of the matter. This was a defect that could have been remedied by evidence substantiating the information being tendered, but it was not. In a similar vein it was conceded that a report by Dr James Wright, consultant psychiatrist, was not admissible without -- 12 of 14 -- 13032006 T05/PAF23 M/T 1/2006 (Mackenzie J) 13 JUDGMENT 1 10 20 30 40 50 60 oral evidence being given to support it. Mr Martin responded in the negative to an inquiry by me during the hearing whether he wished to apply for an adjournment to obtain admissible evidence from him. The case is therefore unfortunately one that suffers from evidentiary deficiencies that might have been alleviated had the application been brought in a timeframe that enabled matters to be proved that, if made out, would potentially have added to its weight. There was, in fact, an objection by the respondent to the matter being heard when two clear days notice had not been given as required by the Criminal Practice Rules. It was submitted that the short notice had deprived the respondent of sufficient time to respond to the Director of Public Prosecution's material. It is said, without contradiction, that the sworn evidence was not served until late on the 9th of March, the day before the hearing. It is conceded that unsigned and unsworn statements had been provided on the 8th of March and that they contained "most of primary information" relied on by the Director of Public Prosecutions. Counsel was briefed only on the afternoon of the 8th of March. That the application is somewhat complex is apparent from what has already been said. Once the option of proceeding on notice rather than ex parte was chosen, as in all probability was the appropriate course -- 13 of 14 -- 13032006 T05/PAF23 M/T 1/2006 (Mackenzie J) 14 JUDGMENT 1 10 20 30 40 50 60 in this case, there is a case to be made for allowing sufficient time to prepare material adequately, except in cases of desperate urgency. I need not say any more than that, in view of my conclusion on the application. That conclusion is that on the evidence relied on by the Director of Public Prosecutions - and I stress those words - it has not been established that it is in the interests of justice that bail be revoked and the application is dismissed. ----- -- 14 of 14 --