This week NSW coroner Michael Barnes handed down the report of his inquest into the Lindt Café siege following an 18 month coronial investigation.
Speaking to Lawyers Weekly, one legal expert has flagged what the recommendations in the coroner’s report will mean for bail in NSW.
According to crime and justice expert, Associate Professor Julia Quilter, the repercussions of the report as they apply to bail and criminal lawyers will be significant. The legal academic from the University of Wollongong said that in future she expected the DPP would be likely oppose most applications for bail and that in turn will extend the average time it currently takes to see a bail application through.
“It’s going to lead to a lot more time being spent on bail applications. While some may say that’s appropriate, some may not,” Professor Quilter said.
“It will also mean that you’re not going to get on for urgent applications for bail because the ODPP will say it needs the proper time to consider matters. And we know there is already a massive backlog [in the courts],” she said.
Professor Quilter acknowledged that granting bail to an accused always involved an element of the unknown and with that also came a degree of risk. However, she also noted that in instances where there was a clear case for bail, the justice system should not be encumbered by a process which demanded “over preparation”.
“There is going to be some other very real consequences for the whole bail process and the Crown is going to have to be checking and cross-checking every bail decision.
“But some would suggest that where there is a fairly straight forward case for bail, we shouldn’t have this over preparation of things,” Professor Quilter said.
“Of course, nobody wants to be the prosecutor who let [a person like Monis] out,” she added.
The coroner’s report said the Lindt Café hostage-taker was a “religious activist”, whose claims of allegiance to Islamic State had caused fear among hostage victims and apprehension among the general Australian public during a 16.5 hour standoff with police over two days in 2014.
The NSW coroner described the events from just over two years ago as “horrendous”, when Man Haron Monis brought a gun into a popular Sydney CBD coffee shop and took 18 people hostage.
Two of the hostage victims, café manager Tori Johnson and barrister Katrina Dawson were killed in the siege. Monis did not survive from a firefight with NSW police in the early hours of 16 December, 2014, the coroner found.
“Tragically, at around 2.13 am the next morning, Monis executed Tori. Police immediately stormed the café,” the report said.
“In the firefight that followed, Monis was killed. So was Katrina Dawson, who was struck by fragments of a deflected police bullet or bullets.”
Monis was known to the police and well-acquainted with the justice system. His criminal history in Australia included convictions for sending abusive letters to the families of ADF personnel who had died in conflict.
At the time of the Lindt Café siege, Monis had been charged in 2013 by NSW Police for organising the murder of his Australian ex-wife and, separately, faced charges for numerous sexual offences against women who had responded to his claims of “spiritual healing” almost one year later in 2014.
A number of the recommendations handed down by the coroner, whose inquiry sought to provide a “constructive critique” to relevant authorities, in addition to an investigation of the circumstances surrounding the deaths of the victims, considered the role of the NSW Office of the Director of Public Prosecutions (ODPP).
The coroner sought to understand why it was that Monis had been granted bail given the alleged crimes on his charge sheet.
Investigating whether more could have been done by police and prosecuting agencies to have Monis’ bail revoked when he was charged in December 2013 as an accessory to the murder of his ex-wife, the coroner concluded that the lawyer representing the DPP had made “inadequate” oral submissions and should have filed written submissions setting out the grounds of his opposition to Monis’ bail application.
Commenting on this aspect of the coroner’s report, Professor Quilter contested the basis for some of Mr Barnes’ conclusions. In particular, she questioned the appropriateness of the coroner’s finding that written submissions should have been filed by the prosecution for a bail application in the local court.
“I can’t see any basis for that conclusion, nor would anybody in practice have expected that to have happened.”
“In the local court it would be very rare to have written submissions. Certainly in the Supreme Court, there is usually a one page submission which addresses the kind of bail concerns under section 17 of the Bail Act posed by the accused,” Professor Quilter said.
The legal academic also pointed out that in the unique circumstances of Monis’ bail application on this occasion, his defence lawyers had filed submissions in the late afternoon the day before the hearing. In light of this information, Professor Quilter said she considered the coroner’s recommendation unrealistic.
“What did the coroner expect the DPP lawyer to do [in these circumstances]? Adjourn the matter that was set down for special fixture and then go off and write submissions? That just doesn’t happen.
“That to me is [what might be expected] in a very ideal world, which most of the time in the pragmatics of the local court is not happening,” she said.
The report added that the advice that first DPP lawyer had given to the court -- that there was no requirement for Monis to show ‘exceptional circumstances’ for the purpose of his bail application -- was advice given “erroneously”.
On this point, Professor Quilter observed that the coroner reached his conclusion with the assistance of an expert bail panel, whose position was formed after what the coroner’s report noted was “some hesitation” and “complex statutory interpretation”. This effort reflected the complexity of the old Bail Act 1978, which has since been updated in an effort to simplify the bail process in NSW.
Professor Quilter also questioned why the magistrate in this instance did not intervene and offer some guidance.
“The idea that the DPP solicitor erroneously advised the court that Monis did not have to show exceptional circumstances seemed to me to be, again, a flawed conclusion, given that his expert panel only arguably thought it did apply,” Professor Quilter said.
NSW ODPP file management also received criticism from the coroner in his report, with Mr Barnes finding that that original documents from Monis’ 2013 bail application hearing had been discarded from the prosecution's file, hampering a comprehensive history of the matter from being made out based on the file records.
“Generally speaking, an inquest would not be concerned with mundane matters like file management and the completion of internal forms,” the report said.
“However, in this case important original documents were discarded instead of being retained on the ODPP file so that the history of the matter could not be divined from it.
“Further, the serious concerns of the investigating police about how Monis came to be granted bail were not recorded.”
The coroner found that Brian Royce, as the first ODPP solicitor with carriage of the matter, had failed to comply with prosecution policies, which required him to keep all relevant documents.
Mr Barnes also found that it was not until the case was transferred to the ODPP’s Sydney city office that these procedures were followed through.
“Some of the remarks [the lawyer] included on the Court Result form after Monis’ bail application on 12 December 2013 were less candid than would be expected. The ODPP did not have in place any system that brought these deficiencies to light,” the coroner’s report said.
NSW Director of Public Prosecutions, Lloyd Babb SC, said he accepted the findings of the coronial inquest and had moved swiftly to change the necessary policies and procedures in his office.
A statement from Mr Babb, provided by the ODPP media unit said:
“I understand the importance to the community, and the victims and their families, of my commitment to act upon any shortcomings identified in the report, and I will do so.
“I accept the coroner’s findings and will ensure that his recommendations are implemented as a matter of priority. My Office has undertaken its own review, and implemented a number of changes.”
Lawyers Weekly asked the ODPP to clarify what of the changes Mr Babb referred to had been followed through. No response had been received at the time of publication.
One recommendation in the coroner’s report was that the director review the file management training given to lawyers in his office, with a view to ensuring that “important original documents are not discarded and that the files accurately reflect relevant events”.
The coroner’s report also reviewed Monis’ brush with the NSW justice system in October 2014, about two months before he made the decision to take the Sydney Lindt Café hostage. He concluded that police and the ODPP had failed to realise Monis had allegedly committed these new crimes while on bail for Commonwealth offences to do with his letter writing campaign to the family of deceased ADF personnel.
The coroner found that the failure to appreciate this fact meant the court was not appraised of a relevant issue when determining Monis’ bail application.
“This omission occurred partly because details about the Commonwealth offences are difficult for state agencies to access,” the report said.
“Barriers to the free exchange of criminal-history information among national and state-based law enforcement and prosecuting agencies have the potential to adversely impact the effectiveness of those agencies, as occurred in this case.”
The coroner later recommended a new mechanism be developed by the Law, Crime and Community Safety Council for relevant details about criminal history (including bail) be “readily available to police and prosecutors across all Australian jurisdictions”.
Mr Barnes’ findings about the experience of the prosecutor and access to criminal histories of Monis at the time of his bail hearing for 40 counts of sexual assault concluded that the ODPP solicitor had sufficient experience to handle the matter. However, the coroner also found that solicitor Andrew Chatterton had “inadequate training and supervision” during the short time he had come to work at the ODPP.
“The prosecutor should have applied for Monis to be remanded in custody in relation to the sex offences and for his bail on the murder-related charges to be reviewed,” Mr Barnes said.
“Although [the ODPP solicitor] had worked in the office for less than two months and had never appeared in a bail application, he was not required to consult or seek advice.”
A recommendation was then made for the DPP to develop a new policy that would oversee a lawyer’s exercise of the discretion not to oppose bail. The coroner said that the new policy should take into account the seriousness of the offences involved; the experience of the prosecutor appearing; and the views of the police officer in charge of the investigation, so far as those views are based on facts relevant to bail.
Yesterday Attorney-General senator George Brandis QC said he would carefully consider the coroner’s recommendations as they related to Commonwealth agencies “as a matter of high priority”. The A-G also extended is heartfelt sympathy to the families of the victims for their loss.