R v Ezekiel

[2022] ACTSC 98

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Ezekiel

Citation:

[2022] ACTSC 98

Hearing Date(s):

7 April 2022

DecisionDate:

7 April 2022

Before:

McCallum CJ

Decision:

1. Bail is refused.

Catchwords:

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Bail — Likelihood of reoffending and harm to community — Where the accused has mental health and drug and alcohol issues — Where the accused has engaged in therapeutic treatment

Legislation Cited:

Bail Act 1992 (ACT), ss 20C, 22

Parties:

The Queen (Crown)

L Ezekiel (Accused)

Representation:

Counsel

K Marson (Crown)

E West (Accused)

Solicitors

ACT DPP (Crown)

Legal Aid ACT (Accused)

File Number(s):

SCC 296 of 2021

McCallum CJ:

1. Lucas Ezekiel faces two charges of arson arising out of his alleged starting of a fire in the unit in which he lived and separately in relation to damage caused by the same fire to the adjacent unit, in each case, based on an allegation that he either intended to cause damage to the building or was reckless.

1. He has been in custody since his arrest for those offences and has twice been refused bail in the Magistrates Court. He now applies for bail a third time. The application faces the hurdle stated in s 20C of the Bail Act 1992 (ACT) which provides that the Court may only consider a further application for bail if satisfied that, since the last application, there has been a change in circumstances relevant to the granting of bail, or that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.

1. The applicant, in my assessment, satisfies that requirement in that he has, on the present application, adduced evidence of steps taken by him whilst in custody directed to engaging with therapeutic treatment; both in respect of what might broadly be termed relationship difficulties and attempts to engage with drug and alcohol treatment. The test established by s 20C is one which poses a relatively low bar. The fresh evidence or change in circumstances does not have to be such as to warrant a grant of bail, but only “relevant to the granting of bail” or “of relevance to the granting of bail”. Accordingly, I considered that I had power to entertain the application and, it follows, an obligation to consider it on its merits. The fact that that hurdle is passed, however, is not, of course, determinative. The Court is still required to consider the criteria for granting bail stated in s 22 of the Bail Act.

1. That section requires me to consider the likelihood of the applicant appearing in Court in relation to the offence, as to which I interpolate no issue is raised, but also the likelihood of the person, while released on bail, committing an offence; or harassing or endangering the safety or welfare of anyone; or interfering with evidence, intimidating a witness or otherwise obstructing the course of justice in relation to the person or anyone else. The Crown relies on what is alleged to be a likelihood of reoffending and the likelihood of harm, not only to the complainant but to others in the community.

1. That concern is identified on the basis that the Crown case statement reveals a relatively strong case that, as alleged, the applicant lit a fire in circumstances where, although the woman with whom he was then in a relationship was not in the home at the time, he appears to have been angry with her, or perhaps with the world at large. Those allegations resonate with what is revealed by the applicant’s criminal history, which is one demonstrating a relatively lengthy period of difficulties with both mental health issues and drug and alcohol issues.

1. The applicant is certainly to be commended for the steps that he has taken towards his own rehabilitation since the refusal of his second bail application in September last year in the Magistrates Court. It appears, indeed, that he has exhausted the availability of some therapeutic treatment available to him whilst in custody. I note in that context that he has engaged with a service available in the Alexander Maconochie Centre under the name of the Specialist Communities Team and that the head of that team has certified his completion of the support period offered by that service.

1. The letter states that Mr Ezekiel is welcome to re-refer to the team from three months after his support period has ended, suggesting that, for the intervening three months, support is unavailable unless he feels unsafe and re-engages with the team. It is unfortunate for the applicant and, indeed, all prisoners that therapeutic intervention is limited in that way whilst accused persons and offenders are in custody. The difficulty I face with the present application is that the history suggests the applicant’s experience of engaging with treatment and then, from time to time, reverting to the difficulties caused by his physical addiction to drugs is entrenched and one which will require complex multidisciplinary treatment over a lengthy period.

1. I am not satisfied that the proposal put forward by the applicant adequately addresses the risk of his reoffending or presenting a danger to the complainant and others in the relatively short period of time between now and the trial and, accordingly, bail is refused.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 4 May 2022