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[2009] VSCA 212
Court of Appeal (Vic)
2009-09-21
MAXWELL P, NETTLE JA and LASRY AJA
Original judgment source is linked above.
Re Paul Noel Dale [2009] VSC 332 (Byrne J)
CRIMINAL LAW - Bail - Appeal - Refusal of bail by Supreme Court judge - Whether appeal lies to Court of Appeal - Fernandez v DPP [2002] VSCA 115; (2002) 5 VR 374 applied - (Vic) , (4)(b) - (Vic)
CRIMINAL LAW - Bail - Murder - Whether exceptional circumstances shown - Long delay before trial - Mental illness caused by harsh prison conditions - Threat to family business - Whether unacceptable risk if released on bail - Burden of proof - Onus on Director to show unacceptable risk - Whether unacceptable risk of interference with witness - Whether risk rendered acceptable by imposition of strict conditions - Bail granted - Bail Act 1977 (Vic) ss 4(2)(a), 4(2)(d), 13.
1 This is an appeal by Paul Noel Dale from a judgment given in the Practice Court on 10 August 2009, refusing his application for bail.[1] On 11 September 2009, having read the written material and heard oral submissions, we determined that the appeal should succeed and that, having considered the matter afresh, there should be a grant of bail.
The Appellant be admitted to bail on his own undertaking with two sureties in the total sum of $500,000.00 (Five hundred thousand dollars) conditioned in the proper form for his appearance as required by law at the hearing of his committal proceeding at the Magistrates' Court of Victoria on 9 March 2010 or as otherwise required and upon the following special conditions:
3 We indicated that full and detailed reasons for our conclusion would be published as soon as practicable. These are those reasons.
4 On 13 February 2009 the appellant was arrested by Victoria Police at Wangaratta. He was interviewed and later charged with the murder of Terence Hodson. He was remanded in custody and has remained in custody since.
5 On 13 March 2009 the appellant applied for bail in the Trial Division of this Court. On 26 March 2009 Warren CJ refused the application.[2] Her Honour was not persuaded that exceptional circumstances had been established, as required by ss 4(2)(a) and 13 of the Bail Act 1977 (Vic).[3] Her Honour also said that, even if she had been persuaded that exceptional circumstances had been established, she would have been favourably disposed to the argument put by the Director that the appellant would pose an unacceptable risk in the terms of s 4(2)(d) of the Bail Act 1977 (Vic).
6 On 6 August 2009 a fresh application was made before Byrne J. As a preliminary issue, senior counsel for the Director questioned whether there were new facts and circumstances sufficient to justify a fresh application. Senior counsel then appearing for the appellant identified a number of matters constituting new facts and circumstances. They included the service of the brief for the committal proceedings, the fixing of a committal date for March 2010, the dissemination in the prison of a part of the brief against the co-accused Collins, and the mental condition of the appellant. Further, it was put that the appellant's circumstances in the Acacia unit of Barwon prison severely inhibited his capacity to instruct his lawyers. After hearing submissions from senior counsel for the Director, his Honour ruled that there were new facts and circumstances sufficient to justify the application and the matter proceeded.
7 On 10 August 2009 Byrne J refused the application. Dealing with the requirement to establish exceptional circumstances, his Honour concluded that two of the matters relied upon for that purpose - the delay before the trial would be held and the circumstances of the appellant's detention - were exceptional circumstances 'which might justify the grant of bail.'[4] His Honour then said:
The prohibition of bail, however, requires the applicant to satisfy not only that special circumstances exist but they be special circumstances which do justify the making of a bail order. I am not satisfied that the applicant has discharged this burden.
The applicant must demonstrate that there is no unacceptable risk he would fail to answer his bail.[5]
His Honour went on to conclude that the risk associated with the release of the appellant on bail was an unacceptable one.[6]
1. The learned primary judge erred in determining that the onus was imposed upon the Appellant to demonstrate that he was not an unacceptable risk of interfering with witnesses or otherwise obstructing the course of justice if he were released on bail.
2. The learned primary judge erred in reversing the onus of establishing "unacceptable risk".
3. The learned primary judge erred in determining that there was an unacceptable risk that the Appellant would interfere with witnesses or otherwise obstruct the course of justice if he were released on bail.
i. The appellant refers to and repeats Grounds 1 and 2 herein.
ii. It was not reasonably open to the learned primary judge on the evidence before him to make such a determination.
4. The learned primary judge erred in refusing to grant the application for bail.
i. The appellant refers to and repeats Grounds 1 and 2 herein.
ii. The appellant refers to and repeats Ground 3 herein.
iii. It was not reasonably open to the learned primary judge on the evidence before him to refuse to grant the application for bail.
9 In the course of his reasons for decision, Byrne J said in relation to the question of unacceptable risk:
The applicant must demonstrate that there is no unacceptable risk that he would fail to answer his bail. This is of course the primary question which underlies the requirement that prisoners charged must be detained pending trial.[7]
10 Because he is charged with murder, the appellant's bail application initially falls to be resolved pursuant to s 4(2)(a) of the Bail Act 1977 (Vic). That section requires that a court shall refuse bail in the case of a person charged with murder except in accordance with s 13. Section 13(3) provides that:
Bail shall not be granted to a person charged with treason or murder unless -
(b) In the case of a person charged with murder -
(i) the Supreme Court;
(ii) a judge of the Supreme Court; or
(iii) the magistrate who commits the person for trial for murder
is satisfied that exceptional circumstances exist which justify the making of such an order.
11 Section 4(2)(d) then provides that:
(i) 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;
...
12 It is necessary to summarise briefly the circumstances of this case, to provide context for the application made to Byrne J and for the appeal in this Court.
13 The appellant was a serving member of the Victoria Police Force and had been since 1988. In August 2001 Terence Hodson was charged with drug offences by a police officer named Miechel. At some time thereafter Hodson became a police informer. In 2002 the appellant was attached to the Major Drug Investigation Division.
14 At premises at 23 Dublin Street, Oakleigh, a pill press was being used to manufacture the drug 'ecstasy' (MDMA). There had been a burglary at those premises and, in September 2003, both Hodson and Miechel were arrested in connection with that burglary and later charged with offences. Hodson was interviewed and at that stage did not implicate the appellant. In December 2003, the appellant was also charged with similar offences relating to that burglary.
15 Both the appellant and Miechel were alleged to have been involved in the planning and execution of this burglary. The appellant was suspended from duty. Each of the three accused was granted bail, although the appellant spent a short time in custody before his release. In January 2004, Hodson made a statement to police which incriminated the appellant and Miechel. In February 2004, the appellant was served with the brief in these matters and came to realise that the case against him depended on the evidence of Hodson.
16 In the early part of 2004, via Witness F, the appellant sought to make contact with Witness R. As appears hereunder, Witness R has now made a statement and will give evidence at the appellant's trial. Witness R is expected to say in summary that, following an approach to him, he was asked by the appellant - in return for a payment ultimately agreed at $150,000 - to arrange for an appropriate person to murder Hodson. That was arranged accordingly. The co-accused, Collins, is alleged to be the person who killed Mr and Mrs Hodson in May 2004. The killings occurred on or about 15 May 2004. Both deceased were shot twice to the back of the head. The day after their bodies were discovered, the appellant was arrested and interviewed by police about the matter. He was effectively accused of the murders, though not charged. In the ensuing record of interview he denied any involvement. The committal against the appellant, Miechel and Hodson in connection with the events at Dublin Street Oakleigh had been due to commence in October 2004.
17 In April 2007, Witness R made a statement to police, outlining the involvement in the matter and the relationship with the appellant. In June 2008, the Office of Police Integrity conducted hearings at which the appellant, among others, was questioned under the OPI's coercive powers. On 7 December 2008, a meeting occurred between the appellant and Witness F which, at the instigation of investigating police, was covertly tape recorded by Witness F. In that conversation, the appellant referred to: his having been to the Australian Crime Commission; the statement of Witness R; his lack of knowledge of Collins; and the likely public interest were he to be charged with a double murder. In December 2008, Witness R provided police with further information about the cost of the murders and the engagement of Collins. On 13 February 2009, a search was carried out at the appellant's home and he was arrested and charged with murder.
18 In written submissions, senior counsel for the Director of Public Prosecutions raised the question of whether or not this appeal was competent. Although the Director 'inclined to the view' that the appeal was competent, he contended that there was no authority on point and 'a decision of this Court is now required in order to finally settle the point.'
19 As the Director points out, no guidance is to be found in the Bail Act 1977 (Vic).[8] The Director submitted that, if the Court was disposed to uphold any ground of the appeal, we would need to be positively satisfied that there was jurisdiction to hear the appeal.
20 We were so satisfied. In our opinion, this matter was resolved by the decision in Fernandez v Director of Public Prosecutions,[9] ('Fernandez') when the Court was constituted by a bench of five. In that case, a judge of the Trial Division had upheld an appeal by the Director of Public Prosecutions, pursuant to s 18A of the Bail Act 1977 (Vic), and revoked bail. When an appeal from that decision was sought to be pursued, the Court was required to consider, as we are, the effect of s 17(2) of the Supreme Court Act 1986 (Vic), which provides:
(2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court.
21 In 1991, in an unreported judgment, the Court of Criminal Appeal had held in Beljajev v DPP (Vic) and DPP (Cth)[10] that no appeal lay in such circumstances. Subsequently, in Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria,[11] the High Court had to consider whether the Court of Appeal could entertain an appeal against a primary judge's refusal of leave to institute proceedings under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). That section provided for a right of appeal from a decision of a 'non-presidential' division of VCAT, by leave, to the Trial Division of the Supreme Court but made no provision for an appeal to the Court of Appeal against a refusal of leave by a judge of that division.
22 In that context, the High Court said of s 17(2) that it was
a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal to hear an appeal from any determination of the Trial Division when constituted by a judge_._[12]
Applying that reasoning, this Court in Fernandez concluded that the provisions of s 18A of the Bail Act 1977 (Vic) did not attract the exclusionary words in s 17(2). That is, the Bail Act 1977 (Vic) did not 'otherwise expressly provide'. In the concluding words of Winneke P:[13]
[i]t seems to me to be a discretely different proposition to assert that s 18A of the Bail Act "expressly excludes" or even "necessarily implies exclusion" of the right of appeal to this court against a single judge's determination made in the exercise of the jurisdiction conferred by s 18A to review an inferior tribunal's decision. To exclude that type of appeal, which is by no means uncommon, one would need to find in the Bail Act words more express than those which now appear, to engage the exclusionary words of s 17(2) of the Supreme Court Act - as they have been interpreted by the High Court in the Roy Morgan case.
The same reasoning leads to the conclusion that nothing in the Bail Act 1977 (Vic) precludes an appeal to this court from a refusal of bail by a Judge in the Trial Division.
23 The Director next invited us to consider whether this appeal might nevertheless be precluded by operation of s 17A(3) of the Supreme Court Act 1986 (Vic), which provides:
(3) Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.
24 As counsel for the Director properly identified, this issue was also considered by the Court in Fernandez.[14] Winneke P said:
There is nothing in the Supreme Court Act itself which "otherwise expressly provides". The restriction on appeals in s 17A(3) does not apply to exclude an appeal from a Trial Division judge's determination on a "director's appeal" because, as I have already noted, an order denying pre-trial bail to a person charged is not, relevantly, a determination "made on or in relation to the trial or proposed trial of a person on ... presentment". Nor indeed, do the other provisions of s 17A of the Supreme Court Act apply to preclude or to restrict (by a requirement for leave) an appeal from the single judge's determination under s 18A of the Bail Act. The determination is clearly made in a matter of criminal practice and procedure, and is interlocutory in nature, but is a determination which, within the meaning of s 17A(4)(b)(i), affects the liberty of the subject. To that extent, the right of appeal, if it exists, is unrestricted.
25 For these reasons, in our opinion, the decision in Fernandez establishes the right of the appellant in this case to appeal against Byrne J's refusal of bail.
26 In this case the appellant contends that Byrne J erred by imposing on him the onus of demonstrating that he would not be an unacceptable risk if released on bail. In our view, that contention - which was but formally opposed by the Director - should be upheld.
27 The Director's written submission suggested that, by analogy with decisions on the 'show cause' provisions of s 4(4) of the Bail Act 1977 (Vic),[15] the questions of 'exceptional circumstances' and 'unacceptable risk' should be approached in a one-step, rather than a two-step, process. At the commencement of the hearing, we ruled that this contention could not be entertained by a three-member bench. As recently as March this year, this court affirmed the long-accepted view that the process has two stages, with the prosecutor carrying the onus on the second stage concerning unacceptable risk. As this Court said in Barbaro v Commonwealth Director of Public Prosecutions:[16]
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.[17]
28 If it is to be contended that there is an unacceptable risk of the kind identified in s 4(2)(d) of the Bail Act 1977 (Vic), the Crown bears the burden of establishing the existence of such risk. Thus, if an applicant adduces evidence of exceptional circumstances and the Crown does not adduce evidence of, or otherwise demonstrate that there is, a significant risk, the application may be granted if the Court judges that the exceptional circumstances justify the grant of bail. Conversely, where (as here) the Crown does adduce evidence of, or otherwise demonstrate that there is, a significant risk, the Court must decide whether the risk is unacceptable. Put another way, the Court must decide whether, having regard to that risk, the circumstances are sufficiently exceptional to warrant the grant of bail.
29 In this case, the judge erred by proceeding on the basis that the applicant bore the persuasive burden of establishing that there was not an unacceptable risk. Error having been established, it became necessary for us to consider afresh the application for bail. This course was supported by both parties.
30 Counsel for the appellant submitted that, in considering the matter, we should accept the conclusion reached by Byrne J - that exceptional circumstances had been established - and restrict our consideration to the issue of whether there would be unacceptable risk if bail were granted. We rejected that submission. If bail were to be granted, it was necessary for this Court to be affirmatively satisfied - on the material before this Court - that exceptional circumstances existed which justified the making of the order. Plainly enough, a view formed by another judge on another occasion could not satisfy the jurisdictional pre-condition (in s 13) of the Bail Act 1977 (Vic) for the exercise by this Court of the power to grant bail.
31 Accordingly, it was necessary for us to consider each aspect raised in support of, and opposition to, the application for bail.
32 Counsel for the appellant argued that the likely delay before his trial was such as to constitute, without more, exceptional circumstances justifying the grant of bail. On best estimates, counsel said, the committal hearing will not occur until March 2010 and, if the appellant is committed to stand trial, he is unlikely to be tried before 2011. Consequently, unless the appellant is granted bail, he will have been in gaol for more than two years before the matter comes to trial. Counsel referred to a number of cases in which it has been said that, although a delay of two years is no longer a rarity, it is nevertheless inordinate and unacceptable and in that sense may be viewed as exceptional.[18] Alternatively, counsel contended, if the delay were not enough in itself to warrant bail, the delay coupled with the appellant's medical condition and the emotional and financial hardship inflicted on him and his family, were sufficient in total to warrant bail.
33 Clearly, the delay involved in this case is very substantial, even if not unprecedented in a case of this complexity. What makes it much more significant, however, is that the conditions in which the appellant was imprisoned following his arrest in February have severely affected his mental health.
34 Following his arrest on 27 February 2009, the appellant was kept in solitary confinement in the Acacia Unit of Barwon Prison until 2 September 2009. According to the affidavit material relied on by the Director, this was a 'protective placement in a high security unit':
The major factors taken into account in determining the defendant's classification and warranting his protective placement in a high security unit were:
(a) his former status as a Police Officer with a considerable public profile,
(b) the serious charge he is facing and the possible implication of the charge with connection to corruption and major criminal activity,
(c) his possible adverse links with high profile prisoners; and
(d) his personal safety.[19]
35 In other words, the heavily onerous conditions imposed on him were for his own protection, not because he represented a risk to prison officials or other inmates. As this case starkly illustrates, such conditions can cause significant psychological harm, and can do so quite quickly. Once the risk of such harm is identified, great care should be taken to prevent it eventuating, unless there is a compelling need for such repressive conditions to be maintained.
36 Not surprisingly, the conditions in which the appellant has been kept in gaol have caused him great suffering. So far as can be told, he was not afflicted by any ailments when he was arrested. Now he is suffering from a 'moderate to severe' mental illness. His bail application is supported by expert reports of 26 June 2009 and 28 August 2009 from Dr Danny Sullivan, a consultant psychiatrist and the assistant clinical director of Forensicare. (Only the first of these was before Byrne J). In Dr Sullivan's opinion, over the time in which the appellant was held in isolation in Acacia, the conditions to which he was subjected caused his mental condition to deteriorate. As at 28 August 2009, Dr Sullivan assessed him as
experiencing moderate-severe depression with anxiety symptoms.
...
His isolation from others has led him to ruminate upon his situation and his grasp on reality is diminished, as evident in his increasing paranoid attitudes to correctional staff.
Dr Sullivan said he remained 'very concerned' that the appellant might need to be transferred to the Acute Assessment Unit or the Thomas Embling Hospital if his mental state deteriorated further.
37 In his reasons of 10 August 2009, Byrne J rightly castigated the conditions as 'entirely unrelated to the appellant's protection.' As his Honour said, such conditions might perhaps be necessary or desirable to contain an 'extremely dangerous, violent, convicted' prisoner.[20] But the appellant is not a convicted prisoner. He is presumed to be innocent of the offences with which he is charged, and it has not been suggested that he is either dangerous or violent.
38 Why then, Byrne J asked rhetorically, should the appellant be required 'to suffer the indignity of strip searches, leg irons when out of the unit, and a requirement of avoiding eye contact with other prisoners and perhaps other persons?'[21] As suggested in argument, a question might arise as to whether such treatment can be reconciled with the requirement under s 22(1) of the Charter of Human Rights Act and Responsibilities Act 2006 (Vic), that 'all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person'.[22] That question does not, however, fall for consideration in this appeal, and hence we express no view about it.
The fact remains that, if it be the case that unconvicted members of our society must be detained, they must be provided with accommodation which suits the requirements of their detention. Unlike a sentenced prisoner, they are not undergoing punishment. It is for this reason not appropriate that they be detained with prisoners undergoing sentence.[23]
40 Following Byrne J's criticisms, the prison authorities reviewed the appellant's case and, on 2 September 2009, moved him to a less oppressive prison environment. That change is to be applauded, despite the undue time which it took to come about. It is foreseeable - and we were told without objection that Dr Sullivan considers it might be expected - that the change in accommodation could result in some amelioration of the appellant's mental suffering over time. Nevertheless, we proceeded on the basis that, for the present and for the foreseeable future, his prison-induced condition was and would be likely to remain moderately to severely debilitating if he were not released on bail.
41 Reliance was also placed on the effect of the appellant's detention on his family and on the business which he and his wife conduct and which she has attempted to maintain in his absence. Personal and family hardship are rarely enough in themselves to constitute exceptional circumstances warranting the grant of bail, but it is appropriate that they be considered in conjunction with the appellant's prison conditions and consequent mental illness.
42 Prior to his arrest, the appellant was operating a very successful APCO service station franchise in Wangaratta. That involved him being on site at the station six days a week, for a total of more than 60 hours per week, closely managing what appears from the evidence to be a large scale 24/7 service station operation. Since his arrest, his wife (who is a nurse and mother of young children) has done her best to keep the business going; but with great difficulty and only limited success and at considerable emotional cost. According to a report of Mr Jeffrey Cummins, consultant psychologist, of 10 March 2009, Mrs Dale is suffering from a chronic Dysthymic Disorder (DSM-IV-TR). In his opinion, if the appellant remained in gaol, Mrs Dale's psychological state would inevitably deteriorate further, to the point where her ability to act as a competent parent to her two children could become seriously jeopardised.
43 According to affidavits provided by directors of APCO Service Station Pty Ltd ('APCO'), APCO and APCO staff have gone to great lengths to assist where they can. APCO resources are limited, however, and the situation continues to decline. The evidence discloses that, unless the appellant is permitted to return to full-time management of the station within the near future, it is likely that APCO will need to terminate the franchise, resulting in a loss to the appellant and his family of a business in which they have bank borrowings of more than $500,000 invested. And, since those borrowings are secured over the Dale family home, they are at risk of the bank realising its security and selling their home. Although not determinative, we consider this is a matter of substantial significance in coming to a conclusion as to whether exceptional circumstances have been established.
44 All things considered, we were persuaded that the appellant had established exceptional circumstances. That conclusion was based on the combined effect of:
It is unnecessary to express a concluded view on whether any of those matters on its own would amount to exceptional circumstances, as we were satisfied that in combination they did.
45 We then considered whether the Director had established that the appellant would be an unacceptable risk if released on bail. Under s 4(2)(d) of the Bail Act 1977 (Vic), 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 -
46 Pursuant to s 4(3) of the Bail Act 1977 (Vic), the risk assessment is to be undertaken as follows:
In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant, that is to say -
(a) the nature and seriousness of the offence;
(b) the character, antecedents, associations, home environment and background of the accused person;
(c) the history of any previous grants of bail to the accused person;
(d) the strength of the evidence against the accused person;
(e) the attitude, if expressed to the court, of the alleged victim of the offence to the grant of bail.
47 The appellant is a man without prior convictions. He has had a previous grant of bail.[24] In the circumstances of this case, that may be a matter of neutral significance. The appellant has known since May 2004 that he was, and remains, a suspect for the murder of the Hodsons. During that period he has travelled overseas and returned. There is no suggestion of any attempt at flight. On the other hand, it is only relatively recently that the appellant has become aware that there are two witnesses around whom the Director of Public Prosecutions proposes to build his case.
48 Senior counsel for the Director fairly conceded that the Crown case against the appellant was not particularly strong. The case is critically dependent on the two witnesses referred to earlier - Witness F and Witness R. To some extent, each of them is compromised. Witness R is an imprisoned convicted criminal who is to give evidence for the Crown in return for inducements. On past occasions, Witness R's evidence on other matters has been regarded as highly unreliable. Witness F has no prior convictions but is also to give evidence for the Crown in return for inducements. The Crown seeks to rely on the tape recording of the conversation between Witness F and the appellant as corroborative of evidence to be given by Witness R. There is an issue about the admissibility of the tape recording which is yet to be determined.
49 The Director's principal concern, however, was that, if released on bail, the appellant would attempt to prevent or dissuade Witness F from giving evidence against him. In justification of that concern, senior counsel for the Director referred to the nature and seriousness of the offences with which the appellant is charged;[25] the fact that he is a former policeman, with what were said to be extensive contacts within the police force and in the criminal underworld; and tape-recorded intercepts of telephone conversations in which, it was suggested, the appellant gave directions to an associate to take steps calculated to persuade potential witnesses not to cooperate with police investigations into this and other offences.
50 Reference was also made to evidence that, on 26 May 2009, Witness F received a SMS text message, threatening reprisals unless the witness stopped telling 'lies about my friends' and 'stop talking with cop'. As Witness F is not a witness or proposed witness in any other case, the Director urged the Court to draw the inference that the SMS message had come - directly or indirectly - from the appellant.
51 The Director suggested, too, that there was some significance in the fact that, on 30 June 2009, a document was circulating around the prison system which could only have come from the hand-up brief of evidence against the appellant and his co-accused. That document identified a prisoner, who is a person of interest in relation to the offences with which the appellant is charged, and disclosed that the person was a previously registered police informer. Although not so stated, the implication was that the appellant had circulated the document in order to induce other prisoners to harm the person because he was an informer.
52 Self-evidently, the offences with which the appellant is charged are extremely serious. We accept that, logically, the more serious an offence the greater the incentive for an accused to attempt to interfere with witnesses. As against that, however, it is necessary to bear steadily in mind that the appellant starts with the benefit of the presumption of innocence. It is significant, moreover, that although he has known since 2004 that he was suspected of the offences with which he now stands charged, he has not before attempted to interfere with potential witnesses.
53 It is true that the appellant may have had less to fear from the evidence of Witness R, and it was not until very recently that Witness F became relevant. Nor do we overlook that the appellant is said to have suggested to potential witnesses that they should not co-operate with police investigations. That counts against him. But, in point of fact, the persons he is said to have sought to influence were unlikely to have co-operated with the police in any circumstances. Importantly, too, there is no suggestion of the appellant having sought to have those persons physically harmed.
54 The text message to Witness F is obviously of concern, as it appears to have been intended as a direct threat to a witness. But the appellant was being held in isolation in the Acacia unit when the text message was sent and received, and it seems most unlikely, therefore, that he sent it. There is always the possibility that he arranged for someone else to send it, but there is no explanation as to how, in the high security environment in which he was being held, he could have done so.
55 As to the incentive to interfere, there is the additional consideration, mentioned by counsel for the appellant, that Witness F adds very little to what is contained in the tape recording of the conversation with the appellant, which would be admissible whether or not Witness F gave evidence. That means, in turn, that little would be gained by interfering with Witness F, and a great deal lost.
56 The circulation of the document on 30 June 2009 is even less persuasive. There is unchallenged evidence that the appellant was deeply distressed when he learned of the circulation of the document; even to the point of questioning whether his legal team had begun to work against him. It is theoretically possible that the appellant could have simulated that reaction. But to have done so would have demanded a degree of cerebral sophistication at odds with the depleted mental condition observed by Dr Sullivan. Neither the psychiatric nurse who observed the distress nor Dr Sullivan was cross-examined on this point.
57 Axiomatically, whether risk is unacceptable depends on all the circumstances of the case. Risks which would otherwise be unacceptable may be reduced, by the imposition of appropriate bail conditions, to a level which would be regarded as acceptable in all the circumstances.[26]
58 Since no release on bail is without risk, however stringent the conditions, the question in the end is whether such risk as remains should be tolerated. In this case, given the long delay and severe consequences of incarceration for the appellant, that depended in part on whether there would be a greater risk if the appellant were released on bail than there was while he remained in gaol.
59 Senior counsel for the Director accepted that keeping the appellant in prison would not eliminate the risk of his attempting to interfere with witnesses or arranging for others to do it on his behalf. But he submitted that, if the appellant were released on bail, he would have a far greater ability to contact associates in the police force and in the criminal underworld to do his bidding for him. It was conceded that appropriate conditions could go some way to ameliorating that risk but, in counsel's submission, the Court should be satisfied that it would remain an unacceptable risk.
60 We did not find that submission persuasive. We concluded that, if the appellant were released subject to the stringent bail conditions earlier set out, the chances of him attempting to interfere with Crown witnesses, if he were so disposed, would be little greater than if he remained in gaol. We made the assumption that those responsible for the supervision of the appellant's bail would be assiduous to observe any breach of condition or other circumstance which might warrant a revocation of his bail.
61 Balancing such risk as remains against the very serious effects of further incarceration upon the mental and physical well-being of the appellant and his family, and considering the presumption of innocence to which the appellant is entitled, we concluded that the appellant should be admitted to bail.
62 As Maxwell P observed in Asmar,[27] where (as here) a period of pre-trial detention is going to be very substantial '[o]ne would surely require compelling evidence before deciding to deny a person his freedom for such a period purely on the basis of what he might do if released on bail.' Whatever be the logic of the forecasting submission made on behalf of the Director, it could not be said to be in any way based on any evidence, let alone compelling evidence. Although senior counsel for the Director was not willing to accept the proposition, we considered that the conditions imposed on the appellant were sufficient to make the risk acceptable in all the circumstances.
[1] Re Paul Noel Dale [2009] VSC 332.
[2] DPP v Dale [2009] VSC 107.
[4] Re Paul Noel Dale [2009] VSC 332, [19].
[10] (Unreported, Supreme Court of Victoria Appeal Division, Young CJ, Crockett and Ashley JJ, 8 August 1991).
[13] Fernandez [2002] VSCA 115; (2002) 5 VR 374, 389-90 (references omitted).
[15] See Re Fred Joseph Asmar [2005] VSC 487 (Maxwell P, sitting in the Trial Division), since followed in R v Johnson [2006] VSC 157; Watts v DPP [2007] VSC 275; R v El-Azar [2007] VSC 487; Re Hadarra [2008] VSC 298; Re Odlum [2008] VSC 319 and Re Dickson [2008] VSC 516 but cf DPP v Harika [2001] VSC 237 and Re Paterson [2006] VSC 268 (Gillard J).
[16] [2009] VSCA 26 (Maxwell P, Vincent and Kellam JJA).
[17] Ibid [6] (emphasis added), referring to Beljajev v DPP (1998) 101 A Crim R 362 which followed what the Appeal Division had said in Beljajev v DPP (unreported, Supreme Court of Victoria Appeal Division, Young CJ, Crockett and Ashley JJ, 8 August 1991).
[18] R v Kantzides (unreported, Supreme Court of Victoria, Smith J, 9 August 1996), R v Alexopoulos, (unreported, Supreme Court of Victoria, ,Hampel J, 23 February 1988); R v Medici (unreported Supreme Court of Victoria, 29 September 1998), DPP v Radev [1999] VSC 284; (1999) 108 A Crim R 121.
[19] Affidavit of Brendan Money sworn 27 February 2009.
[20] Re Paul Noel Dale [2009] VSC 332, [15].
[22] Cf R (Limbuela) v Secretary for the Home Department [2005] UKHL 66; [2006] 1 AC 396, 402 [6]-[10] (Lord Bingham of Cornhill).
[23] Re Paul Noel Dale [2009] VSC 332, [16].
[25] Namely, procuring the murder of two people to prevent one of them giving evidence concerning other alleged offences.
[26] MacBain v DPP (2002) VSC 321, [17] (Nettle J).
[27] [2005] VSC 487, [27].
Dale
DPP [2009] VSCA 212
(2002) 5 VR 374
(2001) 207 CLR 72