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Editors --- "Clumpoint v Director of Public Prosecutions - Case Summary" [2005] AUIndigLawRpr 24; (2005) 9(2) Australian Indigenous Law Reporter 47

Court and Tribunal Decisions - Australia

Clumpoint v Director of Public Prosecutions (queensland)

Supreme Court of Queensland, Court of Appeal (McMurdo P, Jerrard JA and Douglas J)

2 March 2005

[2005] QCA 43

Criminal law — jurisdiction, practice and procedure — bail — revocation, variation, review and appeal — where applicant charged under s 65 Criminal Code 1899 (Qld) with unlawful destruction of a building while being riotously assembled — where maximum penalty of life imprisonment

Applicant granted bail by Magistrates Court under special conditions — where Indigenous applicant — where under conditions of bail unable to reside with his wife and children in the family home — where unable to visit his community — where unable to continue employment — whether bail conditions more onerous than necessary

Facts:

On 19 November 2004, an Indigenous man was arrested by police on Palm Island. He died a few hours later in police custody. On 26 November 2004, the first autopsy report was released by the Coroner and read by a member of the Palm Island Aboriginal Council to a crowd of people assembled outside the Council building. The situation deteriorated rapidly and the police station, court house and senior sergeants residence were destroyed by the crowd.

The young man whose death triggered the events on 26 November 2004 was Mr Clumpoint’s cousin and they were very close. Mr Clumpoint was arrested in relation to the events on Palm Island and taken to Townsville police station on 28 November 2004. He was later charged for participation in a riot. On 6 December 2004, a charge that Mr Clumpoint had been riotously assembled and destroyed the Palm Island police station (an offence punishable by a maximum sentence of life imprisonment) was substituted for the lesser offence.

The Chief Magistrate granted Mr Clumpoint bail on a number of conditions. Of particular concern were the conditions banishing Mr Clumpoint from Palm Island where his family reside and where he is employed and confining him to the Townsville area.

On 21 December 2004, Mr Clumpoint applied to the Townsville magistrate to have the banishment condition from his bail varied so that he could return to Palm Island. Mr Clumpoint was born in Townsville and has lived on Palm Island most of his life. He has a significant criminal history, but has not been convicted of any offences since 10 April 2002. Mr Clumpoint swore that compliance with the special bail conditions has caused him and his family extreme personal and financial hardship.

The application was refused because of the risk to police officers and property if there was a return to riotous behaviour on Palm Island. Furthermore, evidence from Palm Island police suggested that Mr Clumpoint incited the destruction of government property during the riot and the magistrate expressed concern that Mr Clumpoint’s return could trigger unlawful behaviour and place police and police property at risk. Mr Clumpoint then made an unsuccessfully application to the Supreme Court to vary the bail conditions.

The chair of the Palm Island Aboriginal Council, also an elder of the Palm Island community, stated that the return of Clumpoint to his family and job on Palm Island would not create or increase any risk to the community or police. Rather, his return would be viewed by the community as an appropriate recognition of the relaxing tensions between the police and the community.

In the Supreme Court the judge noted that he was required under s 16(1) of the Bail Act to consider ‘whether there is an unacceptable risk that [Mr Clumpoint] if released on bail would, amongst other things, commit an offence or interfere with witnesses or otherwise obstruct the course of justice’. On the material before him, his Honour considered that ‘the risk of reoffending ... is, to an extent, related to the volatility of the situation on Palm Island and the risk of the reoccurrence of group violence or disorder’. His Honour accepted that steps had been taken which were likely to reduce the risk of group violence, but accepted the respondent’s submissions that it was too early to conclude that there was no unacceptable risk under s 16(1) of the Bail Act.

Held, granting the application to vary bail:

1. The learned primary judge’s approach to the application to vary bail was erroneous. Since Clumpoint had already been granted bail, the question was not whether bail ought to be refused under s 16, but whether the conditions of bail initially imposed on Clumpoint were still necessary to secure Clumpoint’s compliance with the matters set out on ss 11(2)(a)–(b), and whether those conditions at the time of the application to vary bail were by that time more onerous than necessary having regard to the nature of the offence, Clumpoint’s circumstances and the public interest (s 11(2A)): [18].

2. Clumpoint’s personal circumstances demonstrate that the condition of banishment from Palm Island is exceedingly onerous. It deprives him of the companionship and support of his wife, his ability to be a father to his children, his employment and financial independence and the right to live in his own home which he has built in his chosen community: [31]. While the condition banishing Clumpoint from Palm Island was entirely appropriate when initially imposed, with the passage of time evidence before the Court does not suggest that it would endanger the safety or welfare of members of the public to allow Clumpoint to return to Palm Island: [29].

3. It is also in the Palm Island community’s interest that Clumpoint be permitted to return to his home, family and job and to rejoin their society, because this will be seen as a demonstration of the easing tensions between the police and the community. This will also assist the welfare of his children and family unit. Further, his return to Palm Island is now likely to be in the interests not only of the Palm Island community but also the wider Queensland community: [31].

Case extract:

27. Under s 11(2) of the Bail Act the conditions of bail imposed must ensure that Mr Clumpoint appears in accordance with his bail and surrenders into custody [s 11(2)(a)] and whilst on bail does not commit an offence [s 11(2)(b)(i)], endanger the safety or welfare of members of the public [s 11(2)(b)(ii)] or interfere with witnesses or otherwise obstruct the course of justice [s 11(2)(b)(iii)]. Under s 11(2A) those conditions must not be more onerous than necessary having regard to the nature of the offence, Mr Clumpoint's circumstances and the public interest.

28. We will consider first the relevant matters under s 11(2). Mr Clumpoint has not absconded whilst on bail in the past and has strong ties in the Palm Island community where he lives with his wife and children in their home which he built. He does not have a history of habitually committing offences whilst on bail and prior to his arrest on these offences had no convictions for some years. He has met his bail and its extensive conditions to date. The evidence does not suggest that Mr Clumpoint will not appear in accordance with his bail.

29. The learned primary judge rightly identified that any risk of reoffending would be related to the volatility of the situation on Palm Island if there was a return to group violence or disorder and that the likelihood of this would be increased with events the community would find stressful, like the impending coronial inquiry. This Court cannot predict the likelihood of whether or not there will be a repetition of group violence on Palm Island whilst Mr Clumpoint is on bail and, if so, whether Mr Clumpoint is likely to be part of it. Of course, these are possibilities about which the police are understandably concerned. On the other hand, the chair of the Palm Island Council, Ms Kyle, believes Mr Clumpoint's return to Palm Island will be viewed by the community as a recognition of improved relations between the police and the community. The Queensland Premier and some of his Ministers and their staff have visited Palm Island without any violent incidents. The Coroner has had positive and successful meetings on the island. Mr Clumpoint’s previous criminal history does not suggest that he is predisposed to inciting violence against the police. The extraordinary events preceding 26 November 2004 and in particular the catalyst for them, namely, the death in custody at Palm Island of an Indigenous man, are, it is hoped, unlikely to be repeated whilst Mr Clumpoint is on bail. Although there can be expected to be some tension during the inquest into that death and perhaps during the anticipated committal proceedings for Mr Clumpoint and his co-accused, the Coroner's decision to hold part of the inquiry on Palm Island has assisted in further easing that tension. Police officer Miles' affidavit sets out seven incidents of violence towards police and police property. It does not also set out the prevalence of such offences on Palm Island before November 2004. In any case, the disorderly criminal conduct listed in that affidavit, while destructive of public property and utterly unacceptable, concerns relatively isolated incidents perpetrated by individuals, couples or small groups. It does not seem indicative of a repetition of the events of 26 November 2004. Whilst meeting his bail conditions in Townsville he does not seem to have shown any predisposition to incite others to offend. The condition banishing Mr Clumpoint from Palm Island was entirely appropriate when originally imposed only days after the events of 26 November 2004. Over three months have now passed and the evidence before this Court does not suggest that to allow Mr Clumpoint to return to his home and family on Palm Island is likely, in itself, to endanger the safety or welfare of members of the public.

30. The material before the Court suggests that Mr Clumpoint, although living in Townsville, has maintained links with the Palm Island community so that had he wished to interfere with witnesses he could have done so. There is no suggestion he has breached his bail conditions in this way. We are not persuaded that his return to his home and family on Palm Island will mean that he will be likely to interfere with witnesses or otherwise obstruct the course of justice, especially in the light of the relevant conditions of bail proposed by him. Were he determined to interfere with witnesses or otherwise obstruct the course of justice in this investigation and prosecution, he could do so from Townsville almost as effectively as from Palm Island.

31. We turn now to consider under s 11(2A) whether the present conditions imposed under s 11(2) are more onerous than necessary having regard to the nature of the offence, the circumstances of Mr Clumpoint, and the public interest. The charged offence is extremely serious. The condition imposing banishment from Palm Island was a condition directly related to the nature of the offence. As noted, whilst it was entirely appropriate when imposed a few days after the events of 26 November 2004, with the passage of time and in the light of the information now before this Court, the justification for such a condition has greatly lessened. Mr Clumpoint's personal circumstances demonstrate that the condition of banishment from Palm Island is exceedingly onerous; it deprives him of the companionship and support of his wife, his ability to be a father to his children, his employment and financial independence and the right to live in his own home which he has built in his chosen community. Apart from actual imprisonment, it is difficult to imagine a more onerous bail condition. It is unquestionably in the public interest that there be no repetition of the events of 26 November 2004 on Palm Island. It is also in the Palm Island community's interest that Mr Clumpoint be permitted to return to his home, family and job and to rejoin their society. Because this will be seen as a demonstration of the easing of tensions between the police and the community and will assist his children's welfare and that of the family unit, his return to Palm Island now is likely to be in the interests not only of the Palm Island community but also the wider Queensland community. While it is impossible to be certain that if Mr Clumpoint returns to Palm Island he will not breach his bail, the balancing exercise that on the evidence before it this Court must undertake under the Bail Act (including the presumption of innocence and the principle that no person should be punished without conviction which underlies s 9) favours the conclusion that the bail condition preventing Mr Clumpoint from living on Palm Island is now more onerous than necessary. It should be removed.

32. Of course, if the respondent becomes aware of materially changed circumstances, it can apply to a court for a variation of the conditions of Mr Clumpoint's bail or even revocation of that bail under s 30 of the Bail Act.

...

References omitted.

The full text of this case is available via the Queensland Courts website at <http://www.courts.qld.gov.au/qjudgment/ca.htm> .