Barbaro v DPP

Mathew Sinnett, Director of Public Prosecutions (Cth)

1 The appellant, Pasquale Barbaro, was charged in August 2008 with very serious offences relating to drug importation and trafficking.[1] He was remanded in custody. On 19 September 2008, a magistrate refused Mr Barbaro's application for bail. On 19 December 2008, following a further application for bail relying on what were accepted to be new facts and circumstances, the same magistrate granted bail subject to very restrictive conditions.

2 The Commonwealth Director of Public Prosecutions, who opposed both applications for bail before the magistrate, appealed to the Trial Division of this Court pursuant to s 18A of the Bail Act 1977 (Vic) ('Bail Act') against the decision to grant bail. On 6 February 2009, Forrest J upheld the Director's appeal. Pursuant to s 18A(6), his Honour quashed the order granting bail and ordered that bail be revoked. Mr Barbaro now appeals against that decision pursuant to s 17(2) of the Supreme Court Act 1986 (Vic).

3 It was common ground before us that the issue raised by the Director's appeal from the magistrate was the following:

Was it reasonably open to the magistrate on the evidence before him to conclude that Mr Barbaro did not represent an unacceptable risk of flight were he to be granted bail?

His Honour concluded that it was not reasonably open. We respectfully agree with that conclusion. The appeal must therefore be dismissed. Our reasons are as follows.

4 Under s 4(2)(aa) of the Bail Act, the Court must refuse an application for bail by a person charged with one of the serious offences there specified, unless it is satisfied that exceptional circumstances exist which justify the grant of bail. One of the charges against Mr Barbaro is of the kind specified in s 4(2)(aa)(iii). Accordingly, the magistrate was obliged to refuse his application for bail unless exceptional circumstances were demonstrated.

5 In the event, the Director effectively conceded that this threshold requirement was satisfied. This concession was made on the basis that Mr Barbaro's trial would not begin before the last quarter of 2010, more than two years after he was charged. The delay is attributed to the complexity of the circumstances out of which the charges against Mr Barbaro arise and to the scale of the evidence - in particular, transcripts of telephone intercepts - on which the Crown will need to rely.

6 As the magistrate recognised, however, the establishment of exceptional circumstances does not create an entitlement to bail. Even if the applicant for bail satisfies the court that exceptional circumstances exist which justify bail, bail must nevertheless be refused if the prosecution establishes unacceptable risk.[2] Under s 4(2)(d), bail must be refused if the Court is satisfied (relevantly) that there is an unacceptable risk that the accused person if released on bail would -

• fail to surrender himself into custody in answer to his bail;
• commit an offence whilst on bail;
• endanger the safety or welfare of members of the public; or
• interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

7 The Director has argued consistently that there is an unacceptable risk that, if Mr Barbaro were released on bail, he would fail to surrender himself into custody in answer to his bail, would obstruct the course of justice and/or would commit an offence whilst on bail. The Director contends that no other conclusion was reasonably open to the magistrate.

8 The basis of the magistrate's refusal of the first application for bail was that there was unacceptable risk. On the second occasion, however, his Honour decided that in view of the new matters relied on, such risks as existed were acceptable.

9 Under s 18A(1) of the Bail Act, the Director may appeal against a grant of bail (on various grounds) if satisfied that an appeal should be brought in the public interest. In this appeal, the Director contends that the grant of bail was made 'in circumstances appearing ... to contravene or fail to comply with ... provisions of this Act.' When such an appeal is brought by the Director, the court

shall if it thinks that a different order should have been made quash the order and ... make any order in substitution therefor as it thinks ought to have been made.[3]

Subsections (7) and (8) expressly contemplate that the court may make orders revoking or varying a grant of bail.

10 As Forrest J noted, the nature of the appeal was explained by the Full Court in Beljajev v DPP (Vic) and DPP(Cth):[4]

It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.

In other words, the Director is not in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.

There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate Courts have frequently refused to interfere with a primary judge's decision on a matter of practice and procedure.

These principles have been consistently applied in the determination of appeals under s 18A.[5]

11 In Fernandez v Director of Public Prosecutions,[6] Winneke P said:

It is clear from these authorities - as the court noted in Beljajev - that the principles which the court applies in deciding a "director's appeal" against sentence are broad, in the sense that intervention is not confined to demonstrated error of law. Rather, the director may succeed if he can show that on any ground, whether of law or fact, the discretion of the primary judge has miscarried and can persuade the court that a different order should have been made. Similar principles, therefore, are applied by the judge who entertains an appeal by the director pursuant to s 18A of the Bail Act. However, as was pointed out by the court in Beljajev, the appeal which is brought to the court by virtue of s 18A is an appeal against orders made "in a matter of practice and procedure", and is also interlocutory in nature. In accordance with authority, appellate courts should be reluctant to interfere with such orders.[7]

12 As noted earlier, the Crown's opposition to bail identified three areas of unacceptable risk: that Mr Barbaro would fail to answer his bail; would obstruct the course of justice; and would commit offences whilst on bail. At all stages of the proceeding, however, most attention has been directed to the first of these, the risk of flight.

13 Put simply, the Director's contention was that Mr Barbaro had the incentive, the capacity and the disposition to take flight. The incentive lay in the strength of the case against him and the maximum penalty of 25 years' imprisonment which he would face if convicted. The capacity was constituted by his having access - as his counsel conceded before us - to virtually unlimited financial resources and to overseas contacts. His disposition to take flight was said to be demonstrated by remarks he made concerning the overseas arrest of Mr Tony Mokbel following his escape on bail, and by his (Barbaro's) having actively assisted another bail fugitive, one Visser.

14 Before the magistrate, senior counsel for Mr Barbaro conceded that the case against him was a strong one. That concession, noted by the magistrate in his reasons, has not been withdrawn. On the other hand, it is argued, Mr Barbaro has a 'unique history' of compliance with previous grants of bail. Mr Barbaro spent lengthy periods on bail pending appeals in the New South Wales Supreme Court and at all times answered his bail. It was argued before the magistrate, and again in this Court, that neither his comments about Mr Mokbel nor the assistance he provided to Mr Visser justified the adverse inferences which the Director sought to draw.

15 The magistrate gave detailed reasons for refusing the first application. His Honour indicated that he relied on:

[T]he evidence which suggests he is the head of the syndicate in Australia which is multi-national in nature and he has strong connections overseas, demonstrated by his frequent trips and his ability to organise the recovery, rebuilding and repayment following the seizure of the 4.4 tonne shipment of ecstasy in 2007. Importantly, I also rely on a state of mind by him existing prior to his arrest as to abscond, if caught, as evidence[d] by his reported references to others in Belgium and Holland who have absconded and who are managing and still supporting their families. His reported discussion of where Mr Mokbel went wrong, his reported statements of Mokbel being stupid and a goose and that he could have been living like a king, drinking champagne and eating fish all day and him saying that it is better being poor and free than be a millionaire in jail, made prior to his arrest.

The Crown also rely on the allegation that Mr Barbaro's close involvement with Mr Visser who obtained and travelled on a false passport [and] on the allegation that false documentation relating to Mr Visser was found in a hotel room where Mr Barbaro and Mr Visser were in company together and the false documentation relating to Mr Visser found in Mr Barbaros' unit in Melbourne. I also rely on the allegation that Mr Barbaro took Mr Visser's passport and birth certificate overseas and Mr Barbaro's possession of false driver's licences which indicated ... an improper and criminal purpose and the use of a false licence and name when travelling interstate on 19 May 2008.

16 His Honour upheld the Director's submission and concluded that there was an unacceptable risk of flight. He said:

I am of the view that the Crown's concerns are not mere speculation or suspicion but have the [sic] foundation. Being satisfied that these risks exist, the question now turns to whether the imposition of stringent bail conditions, including the provision of a surety of $1 million as offered can make these risks acceptable to the court. Mr Barbaro is, in my view, the principal organiser of the syndicate, with strong international connections. The case against him is strong. If convicted he will face a long custodial sentence. His alleged direct involvement with large sums of money and his strong connections with overseas members of the international syndicate, his past close involvement with Mr Visser and his connection to false documentation and his stated views as to what needs to be done to successfully abscond satisfies me, notwithstanding his previous bail history, family ties that are lay involved that he is an unacceptable risk and a risk that cannot be made acceptable by the provision of a $1 million surety as offered or the usual reporting and other conditions, including a suggested curfew. On that basis I refuse his application.

17 Forrest J noted the magistrate's conclusion that Mr Barbaro was 'the principal organiser of the syndicate, with strong international connections', and said that this finding 'was well founded on the evidence'.[8] There was no challenge to that conclusion on this appeal.

18 As appears from the magistrate's remarks, a surety of $1 million had been offered on the first occasion. In the renewed application for bail, the amount of the surety had been doubled to $2 million. The other new circumstance on which the fresh application relied concerned a mechanism for electronic monitoring. His counsel told the magistrate that, since the refusal of the first application, Mr Barbaro's representatives had

tracked down a system of bracelets, a bracelet that this man can wear that can be monitored on a 24 hour base and report, if you like, faults, systems can be developed with the assistance of the courts so that you could say, if he tries to take the bracelet off, that's a fault, if he moves outside a perimeter, that's a fault, if he doesn't report - if he's not in the reporting area, that's a fault. So that all these faults that can be agreed upon and set, any breaches of those can then be immediately sent to either the Australian Federal Police or the local police or both by the immediate facility.

19 The magistrate accepted that the substantial increase in the proposed surety, and the availability of a monitoring bracelet, were new facts and circumstances relevant to bail, such as to justify the renewed application. That conclusion was challenged by the Director before the trial judge, but Forrest J was satisfied that there was no error in the magistrate proceeding to hear the renewed application. That aspect of the decision was not challenged on this appeal.

20 As to the increased surety, counsel for Mr Barbaro told the magistrate that the sureties were

prepared now to put up property worth $2 million. They are well and truly aware and one supposes that given the Mokbel case and what happened to the surety in that, they would have had to have their heads in the ground not to be aware of what happens in situations where you go surety. That surety has never been imposed, as we recall it, in Victoria. The highest surety I think that we impose is $1 million and so that you have a significant deterrent, if you like.

21 Evidence was then given by a representative of the company responsible for the electronic bracelet technology. The magistrate was told that the technology was already operational in Victoria for home detention. The witness continued (in a passage to which Mr Barbaro's counsel drew attention on this appeal):

So the basic technology is that people wear a receiver, I brought one along with me so that you can see it's a very light piece of product but it's a very robust piece of product and it's a radio frequency transmitter with a whole lot of inbuilt tamper requirements. The purpose of this is whether it's attached, it's usually attached to somebody's ankle but if it is removed in any way or interfered with in any way it produces a tamper and without going into the exact technology, when that tamper is generated it is then transmitted through the system and notifies a central computer. It cannot be reset without having a device, a specific device that allows it to reset, which is remote to the system, it never is held by the - usually by the Corrective Services or it is held in our office so it's an electronic feed to make it work. In the formal circumstance this would send off a very low power frequency signal, it is received by a receiving unit, so in a home detention environment if the unit was placed in the applicant's home it would give him a range of 60 to 100 metres in which he could roam without it telling us that he has left the curfew area, in other words ... curfew area.

22 Counsel for Mr Barbaro proposed a series of bail conditions which, they submitted, would 'virtually make him a prisoner on the farm'. The conditions are set out in full in the judgment of Forrest J. It is sufficient for present purposes to note that the conditions required that Mr Barbaro (in addition to wearing the electronic bracelet) -

• report twice daily to the local police station;
• not leave his home between 9:00 pm and 6:00 am;
• surrender his passports and other travel documents;
• permit 'reasonable and random visits' by police to his property; and
• not travel outside a 25 kilometre radius from his home.

23 The Director submitted to the magistrate that the introduction of the electronic bracelet made no difference to the assessment of risk:

Your Honour previously made a ruling, effectively, that reflected a lack of sufficient trust in the applicant. Insofar as you do that, you say that you don't trust him sufficiently, that he will not take flight. That's the bottom line of the finding of an unacceptable risk.

So our submission, Your Honour, that if you didn't trust him sufficiently in respect of the application previously made, there is nothing that is added to your level of trust by reason of wearing a bracelet or carrying a transmitter or a receiver when if there is that ... lack of trust in an individual that implicit within that must be the ready capacity, the ... one or other or both. It's not a situation, Your Honour, that's a particularly difficult task. A person with the resources and with the resolve to abscond will not be [deterred] one iota by what is now proposed. It does, as a matter of logistics, effectively put police on 24 hour notice and hopefully being able to awaken to an sms if it's sent at 3 am, it is useless of course that they then receive that report and they're probably in Melbourne, rather than in Griffith, if there's been a deviation at that stage.

24 The Director relied on what was said by Goldberg J in Cabal v United Mexican States[9] about proposed monitoring by way of laser beams set along the boundaries of the property where the applicant for bail was to live. His Honour said:

True it is that the alarm will be activated but the employees of the private security firm have no powers of arrest or detention. It is submitted that the police can be alerted immediately to the attempted flight but the system itself cannot restrain the flight. If there be a real risk of flight, as in my opinion there is, it can only be effectively restrained by incarceration in an institution under the control or supervision of the State.[10]

25 The magistrate concluded that bail should be granted. He explained his decision in these terms:

The real issue to decide is whether the additional bail conditions as suggested by Mr Barbaro now makes his risk of flight and obstructing the course of justice acceptable to the court. These additional conditions include: static residential address, twice daily reporting, a curfew between 9 pm and 6 am, being in possession at all times of a mobile phone with a video camera facility, permitting reasonable and random visits to his residence by the Australian Federal Police, remaining within a set radius of his home wearing a Elmotech electronic monitoring device at all times and the provision of a surety in the amount of $2 million.

The monitoring device suggested is not without its limitations. What it is is an additional condition that can be imposed as part of his bail to reduce the risk of flight that I found to exist on the last occasion. Evidence was given by Mr Keen, director of Abacus Elmotech Pty Ltd, as to how the device works and its monitoring capabilities. The wearing of the device does not and cannot prevent Mr Barbaro from absconding if he chooses to do so, only being in custody will do that. It does however allow for a more effective monitoring of him by notification to the relevant receivers of violations of its use which monitor his movements. The additional surety of $1 million also provides additional incentive for Mr Barbaro and the Sergi brothers who are providing the surety to comply with all bail conditions and particularly appear in court.

I am satisfied that with these additional conditions the risks that I have found to be unacceptable risks on 19 September 2008 are now acceptable to the court.

26 Forrest J set out at length all of the matters relied on respectively by the Director and by Mr Barbaro, before concluding as follows:

Although it is not necessary for me to determine a particular aspect of the magistrate's finding that may have led to the manifest error, it seems to me that the focus in the December hearing on the efficacy of the bracelet and the provision of the surety deflected the magistrate from taking into proper account the seriousness of the charges alleged against Mr Barbaro and the true extent to which hew as a flight risk.

Notwithstanding the important matters of delay, Mr Barbaro's bail history and his links to the jurisdiction, when all the considerations are taken into account, I have concluded that there was obvious error on the part of the magistrate. The additional matters of the provision of the electronic bracelet and the surety for $2 million do not, in my mind, lead me to doubt that, overall, the granting of bail on conditions was manifestly wrong.[11]

27 In substance, therefore, Forrest J concluded that the risk of flight was unacceptable, as the magistrate had found on the first occasion, and that nothing advanced on behalf of Mr Barbaro on the second occasion could reasonably have justified any different conclusion. We are of exactly the same view.

28 It would be rare, in our view, to have such a powerful constellation of factors - incentive, capacity and disposition - all pointing to a substantial risk of flight. The Crown case is conceded to be strong. The offences are extremely serious. Mr Barbaro faces penalties of up to 25 years' imprisonment. The net weight of the ecstasy tablets the subject of the first importation count is more than 4 400 kilograms, with an estimated street value of approximately $455 million. According to the evidence before the magistrate, this is the largest quantity of ecstasy ever seized by law enforcement authorities anywhere in the world. The trafficking count alleges that at least 720 000 ecstasy pills were trafficked in the period January 2008-August 2008 - that is, well after the seizure of the imported ecstasy tablets. The money laundering count alleges that Mr Barbaro and an associate (acting at his direction) handed more than $7.4 million to others for laundering via Europe. The cocaine importation charge concerns the seizure of a container in which were concealed approximately 150 kilograms of cocaine.

29 As to disposition, we think the magistrate was right to view very seriously Mr Barbaro's involvement with the flight of Mr Visser.[12] As to Mr Barbaro's statements about the failed attempt by Mr Mokbel to flee abroad, it is important to set out the full transcript:

BARBARO: He's f.... stupid ... inaudible ... He wasn't concentrating ... inaudible ...

BRAN: Its not easy ...... great deal of money ....... much easier much etter (sic ) .... I'm not sure ....inaudible.....

BARBARO: ....inaudible.... his son ... If had of known, right I swear to God ... you know uncle ... and them, they're all on the run now mate, they all got a lot of years ... they've got family there, they've got a couple of kids, 18 years old, they have been condemned, 28 years mate, they run, but they run,... in these ... countries ... feed them the f.... best food, they sit there think about....inaudible... no c.... would ever find him... every chance ....inaudible... he could have had children, live like a king, mate they drink champagne and eat f.... fish all day. They've got things under ground, five star houses over there, under ground, beautiful. F... coming back here. He was living on the beach, on the Greek Islands. What a f.... goose mate. Go to the f... mountains of Lebanon.....

Where the blokes are, where the boys are John and ...inaudible... are, they're in Belgium, Holland right. In Belgium, I've got a friend there; he's from my town, that's how I met these fellas here. He's got 37 years jail, he's been in Belgium for 5 years, he's got a different passport, a bit different, ...inaudible... he goes back to Italy. He lives there. He's opened a little pizza, but not himself, his friends opened a pizza. He works in the kitchen at the back, know one sees him, he's changed his face, lost a bit of weight, hair shaved a bit. But he works. The people see him making pizzas.

And he still does all this shit, he's still supporting his family. His family, twice a year they go there for two months, they go all around Italy first for two weeks then go there.

... Yeah, buts (sic) what's money? What's money? What's money? I'd rather be poor and be free, then (sic) be a millionaire and be in jail, f... that.

30 Counsel for Mr Barbaro sought to characterise these remarks as light-hearted coffee shop conversation, arguing that many others in the community would have responded in similar terms to the news of Mr Mokbel's recapture and extradition. We do not agree. In the context, we think counsel for the Director was right to submit that this conversation showed Mr Barbaro as a person with a disposition to flight, with clear views about how it could be successfully achieved and with knowledge of persons abroad whose flight had evidently been successful.

31 And it is relevant that the risk under consideration is a risk of flight overseas. Objectively, that is a graver risk than in the typical case where the applicant for bail would have no capacity for flight beyond (say) country Victoria. First, the prospects of recapture are greatly reduced in the case of a person who might be anywhere in the world. Secondly, the cost and complexity of a worldwide search is far greater. These matters are properly brought to account in the assessment of (un)acceptable risk.

32 In our view, the submission made by the Director to the magistrate on the second occasion should have been upheld. All of the matters which satisfied the magistrate on the first occasion that there was an unacceptable risk of flight still applied with overwhelming force. Neither the increase in the amount of the surety, nor the proposed monitoring by electronic bracelet, could reasonably have been viewed as removing what was clearly an unacceptable risk.

The relevance of delay, and the application of the Charter

33 At the first hearing before the magistrate, senior counsel for Mr Barbaro argued that the question of unacceptable risk had to be decided taking into account the anticipated delay before trial. Counsel referred to the following passage from the judgment of Kellam J in Mokbel v DPP (No 3):

If bail is not granted the applicant will not come to committal until he has been incarcerated for a period of at least 18 to 19 months. There appears to me to be a high probability that he will not come to trial in less than three years from his arrest even if the committals take place at the earliest possible time in May 2003.

As I said in the course of handing down my decision on the last application for bail on 9 August 2002, our society will not, and should not, tolerate what is effectively the indefinite detention awaiting trial of persons such as the applicant whilst an investigation such as that currently underway takes place.

The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay.

This view, as I said previously, appears to me to be supported by the decision of Crockett J in Petrebon (unreported, Supreme Court, Vic, 13 January 1988).

There is a significant issue of principle before the Court in relation to this application.

As Vincent J said in Medici (unreported, Supreme Court, Vic, 27 September 1993), this is not an occasion "for the court to act as Pontius Pilate by washing its hands of the matter". As I have said previously, it is not sufficient to say "we will wait and see". The community will not tolerate the indefinite detention of its citizens with no prospect of charges being tried within a reasonable period. Accordingly, despite the nature of the offences with which the applicant is charged, and despite the serious reservations that I have expressed about the granting of bail, the situation facing the applicant cannot be allowed to exist indefinitely.

For those reasons I propose to grant bail subject to strict conditions.[13]

34 As noted by Kellam J elsewhere in his reasons, the applicant for bail in that case had already been in custody for more than 11 months. On the occasion of an earlier application for bail, some six months earlier, it had been anticipated that the committals would commence very soon after. But, as his Honour noted, they did not proceed on the dates fixed and it was clear that they would not proceed in that calendar year. His Honour had been told that the first of the committals could not proceed for at least another eight months, a date which his Honour described as 'entirely speculative'.

35 Counsel for Mr Barbaro argued before the magistrate that it was relevant in relation to delay to consider the impact of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter'). When asked by the magistrate whether the Charter 'really take[s] matters any further than what existed before it came into effect ...', counsel answered:

No, it just underlines it, I suppose. But it underlines it in a fairly decisive sort of way so that it's not really a matter of just paying lip service for delay in accordance with the charter, it has to be given meaning because it superseded the provisions of the Bail Act and it does apply to Federal offences just as much.

36 The magistrate expressly stated in his reasons for refusing bail that he had taken into account the provisions of ss 21 and 25 of the Charter. It was common ground that the relevance of the Charter was not agitated before Forrest J but it was argued on this appeal that, in reviewing his Honour's decision, and that of the magistrate to grant bail, attention must be paid to s 21(5)(c) and s 25(2)(c) of the Charter. Counsel for the Director conceded that the Charter was applicable to an application for bail in respect of Commonwealth offences. We were told that this was the first time such a concession had been made.

37 The relevant provisions of the Charter are in these terms:

21 Right to liberty and security of person

...

(5) A person who is arrested or detained on a criminal charge -

(a) must be promptly brought before a court; and

(b) has the right to be brought to trial without unreasonable delay; and

(c) must be released if paragraph (a) or (b) is not complied with.

...

...

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees -

...

(c) to be tried without unreasonable delay; and

....

38 Counsel for Mr Barbaro relied on the following statement by Bongiorno J in Gray v DPP:[14]

This situation is the more unsatisfactory in light of the requirement of those sections of the Charter of Human Rights and Responsibilities which require persons accused of crime to be tried without unreasonable delay and released if that does not occur. Although neither counsel mentioned the Charter in his or her submissions and no argument based on its provisions was put, either by the applicant or by the Crown, the provisions referred to would appear to be highly relevant to the question of bail - not only because of the specific reference in s 21(5)(c) to the consequence of unreasonable delay, namely, release of the prisoner, but also because of the guarantee of trial without unreasonable delay conferred by s 25(2)(c). Counsel for the Crown dismissed the Charter as being irrelevant to the question of bail. She referred to the prohibition against arbitrary arrest and detention but did not advert to the provisions referred to above nor to their possible interaction with s 21(3) - the provision which prohibits deprivation of liberty other than according to law.[15]

39 The submission for Mr Barbaro on the appeal was that the court should view the provisions of the Charter as 'informing' the application of the provisions of the Bail Act. It was not suggested that any question of interpretation arose to which s 32 of the Charter might be applicable. When specifically asked by the court, senior counsel for Mr Barbaro did not contend that the provisions of the Charter would require any modification of the approach set out by Kellam J in Mokbel v DPP (No 3).[16]

40 Counsel for the Attorney-General, who intervened in the proceeding pursuant to s 34 of the Charter, drew attention to overseas authorities dealing with cognate human rights guarantees. In substance, however, her submission was that the Charter did not require any departure from the existing approach to the treatment of delay as an issue in bail applications.

41 In our view, the Attorney-General's submission is correct. Indeed, as we have noted, the submission for Mr Barbaro was in substance no different. Of course, as Kellam J pointed out in Mokbel v DPP (No 3),[17] there will be circumstances where the actual or anticipated delay is of such a magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable. As Kellam J said, the community will not tolerate the indefinite detention of persons awaiting trial. Whether, and when, the delays in a particular case can be so characterised will depend on the circumstances. Suffice it to say that, as things stand at present, this is not such a case.

[1] The charges are: conspiracy to import a commercial quantity of MDMA; trafficking in a commercial quantity of MDMA; importing a commercial quantity of cocaine; conspiracy to import a commercial quantity of a precursor drug; and dealing with the proceeds of crime, being cash in excess of $7.4 million.

[2] See Beljajev v DPP (1998) 101 A Crim R 362; Re Waters [2005] VSC 443 (unreported, Hollingworth J, 26 October 2005) [5].

[3] Section 18A(6).

[4] Unreported, Supreme Court of Victoria Appeal Division, Young CJ, Crockett and Ashley JJ, 8 August 1991, 29-30.

[5] DPP (Vic) v Cozzi [2005] VSC 195 (unreported, Coldrey J, 8 June 2005); DPP (Vic) and DPP (Cth) v Mokbel (No 1) [2001] VSC 403 (unreported, Cummins J, 1 October 2001 (judgment); 19 October 2001 (reasons)); DPP (Vic) v Tong [2000] VSC 451 (unreported, McDonald J, 1 November 2000); DPP (Cth) v Thomas [2005] VSC 85 (unreported, Teague J, 15 March 2005 (judgment); 31 March 2005 (reasons)); Fernandez v Director of Public Prosecutions [2002] VSCA 115; (2002) 5 VR 374.

[6] [2002] VSCA 115; (2002) 5 VR 374, 390.

[8] DPP v Barbaro [2009] VSC 27 R (unreported, Forrest J, 6 February 2009) [49].

[9] [2000] FCA 7 (unreported, Goldberg J, 4 January 2000) [110].

[11] DPP v Barbaro [2009] VSC 27 R (unreported, Forrest J, 6 February 2009) [81]-[82].

[12] See [15] above.

[13] [2002] VSC 393; (2002) 133 A Crim R 141, 142-3 (emphasis added).

[14] [2008] VSC 4 [10].

[15] Footnotes omitted. Reference was also made to Re Dickson [2008] VSC 516 and R v Benbrika [2009] VSC 21 (unreported, Bongiorno J, 3 February 2009).

[16] See [33].