DPP (C'th) v Banda [2000] VSC 542

Supreme Court of Victoria|2000-12-21|Before: BEACH, J.

Solicitor for the Commonwealth Director of Public Prosecutions

On 13 November 2000 the respondent Marijan Banda was charged with one count of being knowingly concerned in the importation into Australia of a prohibited import, namely a commercial quantity of cocaine contrary to paragraph 233(1)(d) of the Customs Act 1901. The maximum penalty for such an offence is life imprisonment.

Four co-offenders, namely, Edmond Alton Schmidt, Paletasala Schmidt, Ron Cassar and Paula Ristevski have been charged with a similar offence.

Later that same day the respondent made application to the Magistrates' Court at Melbourne that he be released on bail. The application was refused. As I understand the situation, on that occasion the respondent was unrepresented.

On 28 November the respondent made a further application for bail. On this occasion the respondent was represented by counsel.

Following a lengthy hearing which lasted that day and into the following day an order was made by the Magistrates' Court that the respondent be released on bail to appear at the Melbourne Magistrates' Court on 5 February 2001 for a "committal mention".

In releasing the respondent on bail the Court imposed the following special conditions:

1. That the respondent provide a surety of $1000,000.

2. That the respondent reside at 16E Ida Street, Fitzroy.

3. That the respondent report to the Brunswick Police Station each day between 6.00 a.m. and 9.00 p.m.

4. That the respondent surrender all passports held by him and not apply for any other passports or overseas travel documents.

5. That the respondent not attend any points of international departure.

6. That the respondent not contact any co-accused or employee of United Parcel Services.

On 1 December 2000 the Commonwealth Director of Public Prosecutions filed a Notice of Appeal in this Court pursuant to the provisions of s.18A of the Bail Act 1977 whereby he seeks orders setting aside the orders of the Magistrates' Court made on 29 November.

The following are the grounds upon which the Director seeks to set aside the orders:

"(a) that Her Worship erred in finding, pursuant to section 4(2)(aa)(ii) of the Bail Act 1977, that there were exceptional circumstances justifying the grant of bail to the Respondent; (b) that Her Worship erred in failing to conclude, pursuant to section 4(2)(d) of the Bail Act 1977, that there was an unacceptable risk, that the Respondent if released on bail would fail to surrender himself into custody in answer to his bail and/or commit further offences whilst on bail; and (c) that Her Worship erred in that in assessing pursuant to section 4(3) of the Bail Act 1977, whether there was an unacceptable risk within the meaning of Section 4(2)(d)(i) of the said Act, she failed to give sufficient weight to the nature and seriousness of the alleged offences, the antecedents and background of the Respondent, the real possibility of hidden funds, the risk of flight and the strength of the prosecution case."

I do not propose to set out in these reasons the factual background to the arrest and charging of the respondent. I do say, however, that I agree with the Magistrate's assessment of the prosecution case so far as the respondent is concerned, namely, that it is strong, although not overwhelming.

In determining to release the respondent on bail the Magistrate expressed the view that although there was no one single factor which on its own amounted to an exceptional circumstance thereby justifying the release of the respondent on bail, there was a number of factors which taken together did justify such a finding.

In the opinion of the Magistrate those factors were:

1. The defendant's prior criminal history or more accurately the lack of any significant criminal history. The respondent is now aged 38. In 1980 the respondent had been fined $200 on each of a charge of being armed with an offensive weapon and a charge of unlawful assault, and also fined $100 on a charge of assaulting police.

On 27 March 1991 he had been fined $400 for not holding a shooters' licence and the firearm in question was ordered to be forfeited.

The Magistrate found that there were "no prior matters involving drugs or any other conduct which would indicate a serious and long term offending conduct".

In 1994 the respondent was charged with possession of cannabis. The charge was found proved but no conviction was recorded against him. He was simply ordered to pay $200 into the Court fund.

Having regard to the nature and age of that offence I do not consider it adds very much to the overall picture of the respondent's background. Certainly it does not alter the Magistrate's finding that the respondent has not been a serious and long term offender.

2. The family situation and personal circumstances of the respondent. The Magistrate found that approximately two years ago the respondent sold his own home to enable him to live with his mother to care for her because of the failing condition of her health.

The Magistrate found that the respondent had a primary role in caring for his mother and that her capacity to continue to live alone would be severely compromised by the respondent's continuing incarceration.

She further found that he also played a significant role in caring for "his surrogate father", who also had serious health problems.

Finally, in this connection the Magistrate found that the respondent provided financial support for his former partner who is looking after their intellectually handicapped daughter.

3. The delay which will occur between now and the respondent's trial.

The Magistrate found that although there has been no delay to date and that the hand-up brief will be ready by early January with partial transcription of the extensive telephone intercepts which are an essential part of the prosecution case, the investigation into the offence is still continuing and there may be other persons to be charged. That factor will inevitably lead to some delay.

Three of the respondent's co-accused have been released on bail, namely Edmond Schmidt, Paletasala Schmidt and Paul Ristevski.

At the time of the hearing of this appeal the remaining co-accused Cassar was to make an application to the Magistrates' Court to be released on bail later that same day. I know nothing of the fate of that application.

5. The respondent has a strong attachment and responsibility for his mother, his surrogate father, his sister who has serious health problems, his daughter, the mother of his daughter and his present girlfriend all of whom live in Australia.

6. The respondent has no history of failing to answer his bail and his brother has offered his home as a surety up to $100,000.

7. The respondent's work commitments have a strong connection with this State.

The Magistrate found that by taking all those factors together the respondent had satisfied her that there were exceptional circumstances in this case justifying the respondent's release on bail. The Magistrate further found that if the respondent was released on bail there is not an unacceptable risk that he may abscond and/or commit further offences.

In Director of Public Prosecutions v. John Victor Morgan[1] I referred to the principles which I am required to apply in considering an appeal of this nature. At page 3 of my decision I said:

"In the unreported decision of the Full Court of this Court delivered in the matter of Beljajev & Anor. v. Director of Public Prosecutions on 8 August 1991 the Court had this to say concerning such an appeal: 'It is not essential the Director should be able to show an error of law in the narrow sense although, of course, if an 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 on any ground, whether on 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'."

"It is not a question, therefore, of whether I would or would not have granted bail had the original application been made to me, it is a question of whether I am satisfied that the order of the Magistrate was manifestly the wrong order to make in the matter."

Having considered the Magistrate's findings in this matter and the factors she took into account in determining that there were exceptional circumstances justifying the respondent's release on bail I am not persuaded that it can be said that the Magistrate's decision was manifestly wrong.

The Magistrate had the opportunity of seeing the witnesses called on behalf of the respondent at the hearing before her, of hearing them cross-examined and of forming an assessment of their credibility.

The Magistrate was obviously impressed with the calibre of the evidence those witnesses gave and her finding in that regard, particularly in relation to the respondent's sister, is a finding this Court would not interfere with.

Nor is it to the point, as I noted earlier, that if the respondent's application for bail had been made to me I may not have granted it.

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Judgment (43 paragraphs)

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