R v Callaghan

HIS HONOUR: On 11 June 2021, Wright J heard and determined a release application by Christien Callaghan. His Honour dealt in commendable detail with Mr Callaghan’s application and concluded that Mr Callaghan had failed to satisfy his Honour that he had shown cause why his continued detention was not justified. For the sake of brevity, I gratefully adopt his Honour’s recitation of the factual background and submissions of the parties. A familiarity with his Honour’s analysis and reasons for judgment is therefore assumed for present purposes.

Mr Callaghan has now brought a further application for bail. In the circumstances, he is necessarily confronted with the terms of s 74 of the Bail Act 2013 which provides relevantly as follows:

Mr Callaghan contends that material information relevant to the grant of bail is now to be presented in this application that was not presented to the Court on the previous occasion. Having considered that further information, I am satisfied that it was not presented to Wright J or considered by him and that the s 74 obstruction to a further application is overcome.

Mr Callaghan now wishes to re-address the requirement that he show cause by reference to the fact that he has secured a placement within the Gadibundhu Home of Sober Living, which I am informed administers a rehabilitation program. The only particulars relating to that program and the details of how it is administered are set forth in an affidavit dated 30 June 2021 sworn by Steve Riddal, the director and co-ordinator of Gadibundhu Home of Sober Living. Mr Riddal provided the following information:

The Crown has submitted that this material is insufficiently comprehensive to give any reliable indication of how the program works or what constraints are applied to patients at the program. The Crown is particularly concerned that there appears to be no exclusive residential requirement and that for all that one can determine, Mr Callaghan would be free to leave the premises when not otherwise engaged in organised meetings or activities. The Crown also raises a more general concern that the program is not well known, at least in the experience of those in charge of the current investigation.

For my part, I confess to some concern that the program is not well described or documented. The number of staff employed at the program and their particular qualifications are nowhere described. It also appears from material before me that the only member of staff on site after 4.30pm each day is Mr Riddal. There is no clearly described or enforced condition that patients remain at the premises at all times or that they are only permitted to leave the premises if accompanied.

However, the evidence before me is deficient in another, more fundamental respect. The unstated assumption in Mr Callaghan’s application is that he is suffering from some addiction to alcohol or illicit substances for which problem he requires professional medical or therapeutic intervention and assistance. Unfortunately, there is no evidence to say so, apart from what I assume to be the inference that arises from his criminal history. However, not since 2011 has Mr Callaghan been convicted of any offence that suggests a problem with alcohol or drugs, in which year he was convicted of possessing a prohibited drug. That charge was dismissed pursuant to s 10. Although it is not uncommon for offenders, such as Mr Callaghan in this case, who have been charged with supply offences, to themselves also have some related addiction, the evidence in this case does not suggest it or that it is problematic for him.

It seems to me that before Mr Callaghan could establish that he needed some form of drug or alcohol rehabilitation or assistance, so as to demonstrate that he has shown cause why his continued detention is not justified, it would be necessary for him to lead some evidence about it. My attitude to bail for the purposes of attending appropriate therapeutic courses is well documented, and I am strongly in favour of any steps that might operate to break the cycle of drug and alcohol dependence and related criminality. However, even for someone favourably disposed to this approach, it is not possible to make assumptions about an applicant’s need to be released to attend such a course if there is no material with the benefit of which any decision about it can be made.

It follows in my opinion that Mr Callaghan has not shown cause why his continued detention is not justified. The application for bail is therefore refused.