AF v Director of Public Prosecutions [2001] QCA 259

SUPREME COURT OF QUEENSLAND CITATION: AF v DPP [2001] QCA 259 PARTIES: AF (applicant/appellant) v DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO/S: Appeal No 4940 of 2001 SC No 3554 of 2001 DIVISION: Court of Appeal PROCEEDING: Appeal from bail application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 July 2001 DELIVERED AT: Brisbane HEARING DATE: 27 June 2001 JUDGES: Davies, Thomas and Williams JJA Judgment of the Court ORDER: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – GROUNDS FOR GRANTING OR REFUSING – BEFORE TRIAL – GENERALLY – where the appellant was charged with a number of serious sexual offences involving his de facto partner’s children after he made admissions of assaults to the authorities – where the court has to be satisfied in relation to the unacceptable risk of one of the matters in s16 (1) of the Bail Act occurring – where there was sufficient evidence to show risk of commission of another offence Bail Act 1980 (Qld), ss 16 (1), 16 (2) Criminal Code ss 23, 27, 28 Dietrich v The Queen (1992) 177 CLR 292, considered Williamson v DPP [2001] 1 Qd R 99, applied -- 1 of 4 -- 2 COUNSEL: The appellant appeared on his own behalf P F Rutledge for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent [1] THE COURT: This is an appeal against an order of Douglas J on 4 May 2001 refusing bail. The appellant is in custody on a number of serious sexual charges involving a male child aged 2 and a female child aged 11. They are his de facto partner’s children. There are four counts of stupefying to commit an indictable offence, three of rape, two of attempted rape, and other counts including indecent dealing. The offences are said to have occurred between July and October 1999. [2] The offences came to the notice of the police because on 21 October 1999 the appellant attended the Sunshine Coast Mental Health Clinic in a disturbed state and stated that he was a paedophile. On the following day he was intercepted at the Clinic and interviewed by police and made very detailed admissions of serious assaults upon the children. He was arrested and charged. [3] Since that time he has remained in custody. He was committed for trial four months later (28 February 2000). He has had intermittent legal representation from Legal Aid and other solicitors, and assistance from a layperson, Mr Bell. Various mentions occurred before the District Court after committal, and on 14 November 2000 one of his representatives stated that his solicitors were preparing a referral to the Mental Health Tribunal. The matter was at that stage set down for trial to commence on 15 January 2001. However when that day arrived the defence indicated that a doctor’s report had been received recommending that the matter be referred to the Mental Health Tribunal. His representative indicated that it was alleged that the confession in relation to the two year old complainant had been false. Upon intimation that issues involving s 27 and s 28 of the Criminal Code were in issue the trial was adjourned and the matter was referred to the Mental Health Tribunal. [4] The applicant is 33 years old. He has a criminal history commencing in 1991. It includes various breaches of fine option orders and one offence of serious assault on 13 May 1998. [5] On the face of it, the admissions made by the appellant to the police are very detailed, very damning and very serious. However it is now said that the confessions were made when he was in a psychotic delusional state, and that their content may also have been delusional and untrue. On the other hand there is evidence in the form of a s 93A statement from the 11 year old complainant supporting the truth of the confession in relation to acts committed against her. [6] In the submissions made to this court there were allegations that the appellant was deprived of legal aid and was unable to deal adequately with the Crown material. The appellant submitted that a Dietrich issue was involved1. The validity of that claim could not properly be determined without further investigation which would inter alia have necessitated an adjournment. In the event the court permitted additional material 1 Dietrich v The Queen (1992) 177 CLR 292. -- 2 of 4 -- 3 to be read by the appellant as to matters upon which he said he would have wished to rely. Most though not all of this material is directed to clarifying the nature of the psychiatric defences upon which he wishes to rely in due course under ss 23, 27 and 28 of the Code. The court has now heard his submissions in reliance upon the whole of the material placed before Douglas J and the additional material placed before this court. [7] Whilst such material is relevant to an understanding of the strength of the respective Crown and defence cases, it has limited relevance on the important question of the level of risk that would tend his release on bail. It does however show that in his current structured environment of the prison, with enforced abstinence from drugs, and with his regular intake of lithium treatment, he is, in Dr Kingswell’s words, “entirely well”. [8] In his written outline the appellant drew attention to the structure of the Bail Act, with particular reference to ss 16(1) and 16(2) and Williamson v DPP2. The essential submission is that the power of refusal of bail is conditioned upon “satisfaction” by the court of one of the matters referred to in s 16(1). There is no good reason to think that this appellant would abscond. The relevant areas where the court needs to be satisfied of an “unacceptable risk” are endangering the safety or welfare of the children or of anyone else, the risk of interference with witnesses or other obstruction of justice, or the commission of a further offence. Some of the factors that are relevant in reaching the decision on these questions are mentioned in s 16(2). However the appellant’s submission that in order to defeat the appellant’s reasonable expectation of a grant of bail the court must be satisfied that something mentioned in s 16(1) will occur goes too far. The necessary satisfaction is in relation to the risk of one of those matters occurring. If the court considers that the level of such a risk is unacceptable then it should refuse the application. [9] The main reasons mentioned by the judge at first instance for refusing bail were: 1. The risk of further offences if the applicant failed to keep taking medication. His Honour expressed a concern that the appellant would go back to his old ways of self-medication or failure to medicate properly. 2. The risk of continued contact with the complainant children. This was contributed to by the fact that his de facto wife indicated that she was involved romantically with the appellant and that she intended to continue with the relationship, although she stated that she would prevent contact between him and the children. 3. The seriousness of the charges. His Honour was entitled to discern some risk through the continuation of the relationship, despite the apparent sincerity of the mother’s undertaking to ensure that the children did not see the appellant. There would inevitably be some risk, and by no means a trivial one, that some contact might result. The learned judge’s statement that “I cannot help but think that in some way those children will be influenced either directly or indirectly by the fact that he is in contact with their mother before a trial” is supportable. [10] The appellant placed reliance upon statements in reports prepared by Dr Kingswell to the effect that in prison his usual lithium treatment had been resumed and that his condition (bipolar disorder) is under control. The appellant believes that his confessions 2 [2001] 1 Qd R 99. -- 3 of 4 -- 4 were the product of a psychotic condition resulting from failing to take his lithium, and taking Prozac instead. He referred to some medical research that suggests that such a sequence of events is quite feasible. These are of course matters which will need to be examined in the Mental Health Tribunal. So far as the bail application is concerned, the central question is the degree of risk he presents if released and if he once again failed to take appropriate medication. Some concern arises from the fact that some of the medical reports suggest that the appellant had persistently and recurrently used illicit substances such as alcohol, marijuana and amphetamines. Dr Kingswell, in his report of 31 August 2000 considers that the mental disease at the relevant time was “amphetamine induced psychotic disorder”. Certainly there is evidence of the appellant’s irresponsibility in the past in relation to medication and drug-taking. However there is evidence from other sources, including Mr Sexton, which suggests that the appellant is a sincere and responsible person who has stabilised in the prison regime and has benefited from Christian influences. [11] So far as the strength of the evidence against the appellant is concerned, there exist damning confessions which in a practical sense the appellant has to avoid or eliminate by one means or another. It is also worth noting that if he is does succeed in avoiding criminal liability by reason of a finding of temporary insanity he will still be detained in custody, although custody of a different kind, in respect of which various procedures would need to be satisfied before he could be released. The appellant has shown that there is a basis for challenging the face value of the confessions, and for this reason it would be wrong to regard the Crown case as overwhelming. Conversely it could not be said that the Crown case is weak. It includes not only the confessions but also the s 93A statement of the female complainant. [12] There is some basis for a perception of potential danger by reason of the circumstances of the offences including the applicant’s psychiatric disorder and potential loss of control. The potential legal excuse that his offences were committed under delusional states may turn out to be good ones, but they are not necessarily reassuring so far as the continued safety of the complainants if he is granted bail. The potential risk is exacerbated by the fact that the mother of the children is still romantically involved with the appellant and has stated that she intends to continue the relationship, although she says that she would do so in a manner which would avoid contact between her and her children. [13] A considerable delay has occurred since the appellant was taken into custody. Some of the additional material was directed to the question of possible further delay that may occur before the matter is heard by the Mental Health Tribunal, but we have now been informed that a date has been fixed by that Tribunal for hearing the matter, namely 17 August next. Therefore, although it is unfortunate that a considerable time has elapsed since the appellant was arrested, the time when the necessary determination of the Mental Health Tribunal will occur is not as far off as the appellant had feared. [14] The long period of the pre-trial incarceration is itself a matter for concern, but not sufficient to suggest that his Honour’s discretion miscarried in refusing bail. It may also be noted that if convicted, the sentence is likely to be greater than any period the appellant seems likely to serve in pre-trial custody. [15] The additional material received by this court does not persuade us that bail was wrongly refused, and the material as a whole does not suggest that any different order ought to be made. [16] The appeal should be dismissed. -- 4 of 4 --