Barrett v Attorney-General of Queensland [1998] QCA 211

1 COURT OF APPEAL [1998] QCA 211 de JERSEY CJ McPHERSON JA CHESTERMAN J CA No 187 of 1998 THE QUEEN v. PETER ROBERT BARRETT Respondent ATTORNEY-GENERAL OF QUEENSLAND Appellant BRISBANE ..DATE 12/06/98 JUDGMENT -- 1 of 7 -- 120698 T5/JB M/T COA138/98 2 JUDGMENT THE CHIEF JUSTICE: On 21 May 1998 the respondent was arrested for the attempted murder of the complainant. He applied for bail. Bail was granted by a Judge in Chambers on 2 June 1998. Because the respondent was charged with "an indictable offence in the course of committing which he is alleged to have used a firearm" the learned Judge was required to refuse bail unless the respondent showed cause why his detention in custody was not justified. In the event of granting bail, the Judge was required to include a statement of his reasons because of the provisions of section 16 subsection 3 of the Bail Act. In the formal order he expressed as his reason that the applicant's continued detention was not justified and that cause had been shown. In addition, the Judge gave substantial oral reasons which have been transcribed. Although when this appeal was launched the appellant relied upon a suggested absence of a sufficient statement of reasons, it is my view that the reasons given by the Judge were adequate to ensure compliance with the statutory requirement. The appeal now is brought by the Attorney-General under section 254 of the Supreme Court Act 1995 which provides that an appeal lies to the Court of Appeal from every order made by a Judge in Court or Chambers with certain presently irrelevant exceptions. As confirmed in Maher, 1985, 19 Australian Criminal Reports, 177, especially at 179, that is apt to confirm the existence of a right of appeal such as is now -- 2 of 7 -- 120698 T5/JB M/T COA138/98 3 JUDGMENT being exercised before us. It is convenient now to mention something of the facts of the alleged offence. The allegations are that the complainant and the respondent ran businesses from adjoining commercial premises at Lawnton. On 21 May 1998, at about 11.15 a.m., the complainant was working on a car in the rear yard of his business premises when he felt a blow to the cheek. He realised that he had been shot and fell to the ground. As he crawled away he heard a second shot. He looked up to see the respondent standing about five metres away holding a rifle. The complainant got back into the building and called the police. The first shot had penetrated his cheek and jaw and lodged in his chest. He was taken to hospital and underwent surgery for the removal of the bullet. The investigating police officers found both the respondent and a weapon, with an expended shell in the breech, at the respondent's premises. Another expended shell was located in the floor of the respondent's premises. A bullet was located in the wall of the complainant's premises. The police spoke to an alleged witness who said that he had seen the respondent point the rifle at the complainant and fire. The respondent declined to be interviewed. It is said that the relationship between the respondent and the complainant had been strained for about six months prior to the shooting. There had been verbal confrontations. The police had attended on four occasions. The basis for the confrontations was the respondent's persistent accusations -- 3 of 7 -- 120698 T5/JB M/T COA138/98 4 JUDGMENT that the complainant was a multiple murderer and leader of a paedophile organisation. The police had investigated those allegations and, for their part, had dismissed them. The applicant had been previously convicted, but many years ago, in 1978 for assault occasioning bodily harm. He was, at the time of this alleged offence, the subject of a consent domestic violence order. As to the respondent's own material, and I have noted that he bore the onus of showing cause in this particular case, his affidavit indicated that he had been living and working at the Lawnton premises. He claimed that he had a need for liberty to be able to prepare properly his defence. There was, however, no expansion on that fairly obvious point. He claimed, in addition, that he would suffer great financial loss if he could not continue to work at the warehouse. In her affidavit, one Elaine Gardner undertook to accompany the respondent on all known visits to his factory and to discourage him from contacting the complainant. The question was whether through this, in the overall context, and with the offer also of a $10,000 surety, the respondent had shown cause. The Crown opposed bail at the original hearing and, of course, does now. In allowing bail, subject to that surety, the learned Judge imposed particular conditions; that the respondent refrain from contact or communication with the complainant; that he live at a place other than the warehouse; -- 4 of 7 -- 120698 T5/JB M/T COA138/98 5 JUDGMENT that he live, indeed, with his brother or at any address approved by the Director of Public Prosecutions; that he report three days a week to the police; that he attend at his business only when accompanied by Ms Gardner; that he limit his contact with witnesses to contact by his legal advisers; and finally that he not have any offensive weapon. The learned Judge expressed the relevant considerations in his comprehensive oral statement of reasons and their form of expression discloses no factual error. The question, in the end, which has concerned me is whether, in terms of section 16 of the Bail Act, the view was reasonably open; that there was no unacceptable risk that the respondent, if released on bail, would, while released on bail, commit an offence or endanger the safety of the complainant. In my respectful view, notwithstanding the Judge's, at least, implicit contrary view, that finding was not reasonably open. To my mind the aggregation of the following circumstances leads to that result. 1.The alleged commission of a grave offence involving a firearm, more specifically a shooting in the head in broad daylight, with no provocation, in the presence of other people. 2.One adds the circumstance that the offence was allegedly inspired by an apparently irrational passion borne by the respondent towards the complainant. -- 5 of 7 -- 120698 T5/JB M/T COA138/98 6 JUDGMENT 3.The respondent intends to continue to visit premises next door to the complainant's. 4.The offer of security, that is his being accompanied by Ms Gardner, is of doubtful sufficiency to exclude the risk otherwise arising. 5.The Crown case is apparently strong and, on the material before the learned Judge and us, really unchallenged. 6.If convicted of this alleged offence the respondent could well face a term of imprisonment. In the aggregate those circumstances, to my mind, combine to amount to a powerful case to the effect that there is a risk of re-offending or, at least, of endangering the safety in the future of the complainant if the respondent is on bail. For those reasons I consider that the conclusion reached, as I say at least implicitly by the learned Judge, was not one which was open on the evidence put before him. I would therefore allow the appeal; revoke the order for bail which was made by the learned Chamber Judge; and order the issue of a bench warrant for the apprehension of the respondent. McPHERSON JA: I agree. CHESTERMAN J: I agree. -- 6 of 7 -- 120698 T5/JB M/T COA138/98 7 JUDGMENT THE CHIEF JUSTICE: The orders will therefore be as I have indicated. ----- -- 7 of 7 --