DPP v Bernath [2003] VSC 304

1 This is an appeal by the appellant under s 18Aof the Bail Act 1977 against a grant of bail to the respondent by Deputy Chief Magistrate Muling on 17 July 2003.

2 The appellant relied upon the following four grounds:

"(1) That the learned Magistrate in proceeding to grant bail to the respondent erred in finding, pursuant to s 4(2)(aa)(i) of the Bail Act 1977 that exceptional circumstances had been shown. (2) That the learned Magistrate in proceeding to grant bail to the respondent erred in finding pursuant to s 4(2)(d) of the Bail Act 1977 that the respondent was not an 'unacceptable risk' in all the circumstances. (3) That in granting bail to the respondent the learned Magistrate gave undue weight to: (a) the question of delay (4) That in granting bail to the respondent, the learned Magistrate failed to accord sufficient weight to: (a) the risk that the respondent will commit further offences if granted bail; (b) the risk that the respondent will fail to appear in answer to his bail; (c) the strength of the prosecution case; (d) the combined effect of the above factors."

3 The respondent had been charged with possession and trafficking of a commercial quantity of amphetamine as well as conspiracy to traffick a commercial quantity of the drug. His two co-defendants, his brothers, George and John Bernath, had each made unsuccessful bail applications to Her Worship Ms B Cotterell in May 2003.

4 The respondent was released on bail on his own undertaking with one surety of $100,000 on condition that he report daily to the Keilor Downs Police Station between 6.00 am and 9.00 pm and that he reside at 29 Taylors Road, St Albans, Victoria.

5 He had previously been convicted of drug trafficking at the County Court at Melbourne on 14 December 1995. He had been sentenced to four years' imprisonment with a minimum non-parole period of two years and eight months. He had not breached his parole and had never breached bail.

6 The bail application in the Magistrates' Court had been made after orders extending time for the service of the hand-up brief by four months to 5 September 2003. Despite the extension the hand-up brief was to be delivered incomplete because forensic analysis materials would not be available by that date. The Magistrates' Court had been told that some 130 items required testing at the forensic Science Laboratory where no priority was available. The length of the delay in the provision of forensic material was not established by the evidence at the Magistrates' Court or in this Court. The matter was listed for a committal mention in October 2003. It was common ground that at the time of the application, the length of the anticipated delay before trial was uncertain, but would be at least two years from the respondent's arrest in March 2003.

7 The learned Deputy Chief Magistrate found that the respondent had shown the existence of exceptional circumstances justifying the grant of bail. His Worship acknowledged that each bail application must be considered in relation to its own set of circumstances. He went on:

"It is clear from experience that the FSL delay is at a minimum, six to nine months, and on many occasions longer where there are numerous items requiring analysis as in this case. From committal mention to contested committal is at least five months, where there are a number of defendants, and a committal to trial in the vicinity of at least 12 months. There are a number of cases and authorities dealing with exceptional circumstances in relation to applications for bail. I have considered the cases of Mokbel, Mantezi (sic), Medici, Alexopoulos, Kantzidis and Tang. I am satisfied in this case that the delay is not reasonable and can be classified as inordinate. I am satisfied that the delay constitutes an exceptional circumstance. In relation to the issue of unacceptable risk, I am not satisfied that the Crown has established that the defendant is a flight risk or that he will continue to offend if granted bail."

8 The affidavit in support of the appeal sworn by Kerryn Jannise Mulvenna on 25 July 2003 ("the Mulvenna affidavit") refers to information from the informant to the effect that investigations by the Organised Crime Squad had established that the president of a motor cycle gang had allegedly been supplied and had subsequently trafficked in more than a commercial quantity of amphetamine manufactured and supplied by the respondent and his co-defendant brothers. Video evidence had established that each of the co-defendants had attended a property in Asquith Street, Reservoir allegedly used as a safe house to store and prepare amphetamines and the equipment used in their manufacture. A listening device installed at the Asquith Street premises had allegedly recorded conversations between all of the co-defendants involving the testing and preparation of amphetamine. On 25 March 2003 a search warrant had been executed at the Asquith address and the respondent arrested. Police had located approximately 1.2 kilograms of what were alleged to be amphetamines on a set of scales, sealed one ounce "deals" of amphetamines, 80 kilograms of a product used in the preparation for sale of amphetamines, assorted cutting agent products and electronic scales as well as what was described as "documentation in fraudulent names". Documents in what were described as "false names" were found buried in the backyard at the Asquith Street address. Some of the documents referred to a property at St Andrews, Victoria where police had subsequently found equipment, chemicals and other items required to produce large quantities of amphetamine and containers and boxes of chemical glassware with fingerprints of all three co-defendants. Each of the co-defendants had keys to the Asquith Street and St Andrews properties. Documents relating to the cooking of amphetamines, lists and prices of equipment used in the production of amphetamine and books relating to chemicals had been found at the home of the respondent's co-defendant brother John. In John Bernath's vehicle a quantity of amphetamines and substances believed to be drugs of dependence had been found sealed in plastic. Each of the co-defendants had made "no comment" interviews.

9 When the respondent was arrested, he initially had given the Asquith Street address as his own, only subsequently admitting in the course of his police interview that he lived with his mother elsewhere. His mother's property had not been searched by police at the time of the bail application. Evidence of recorded conversations involving his co-defendants had suggested that the respondent was to be found from time to time in Greenvale, Victoria.

10 Whilst a "spot check" of the 1.2 kilograms of material alleged to be amphetamines had been carried out, the Forensic Science Laboratory's analysis of the material was required to prove that it constituted 1.2 kilograms of the drug. It should also be noted that 1.25 kilograms is the amount designated as a commercial quantity of the drug mixed with another substance for the purposes of the charges faced by the respondent under s 71 of the Drugs Poisons and Controlled Substances Act 1981.

The role of the Appeal Court under s 18A

11 The judgment of President Winneke in Fernandez v DPP[1]sets out the approach of the court to appeals from the exercise of the Magistrate's discretionary power to grant bail. The appellate Court may intervene if satisfied that an error of law has been made or that the discretion miscarried on any ground of law or fact and that a different order should have been made[2]. However if an appeal is against an interlocutory order in a matter of practice and procedure, an appellate court should be "reluctant to interfere with it."[3]

12 The Magistrate based his finding of exceptional circumstances justifying bail upon the anticipated delay of uncertain duration before trial in this case.

13 Beach J in DPP v Tong[4] stated that it was in his view appropriate for the court to determine on the facts of each case whether the requisite exceptional circumstances justifying a grant of bail under s4(2)(a) or (aa).

14 Counsel for the appellant submitted that the Magistrate had erred in finding delay constituted exceptional circumstances when only four months had elapsed since the respondent's arrest. He said that it was too early for such a determination to be made. He went on to concede that if a period of 10 or 12 months had elapsed and the prosecution had still been unable to say when the trial would take place, then the finding might have been appropriate. He relied upon what was said by Deane J in Jago v District Court of NSW[5] to the effect that the limitations upon institutional resources necessitated delays in the process of bringing matters to trial and an inevitable resulting burden on the accused.

15 Mr Maguire conceded that the date of provision of forensic evidence was uncertain. However he said that the Magistrate should have left his decision until the scheduled committal mention date in October 2003 when the length of the likely delay might be more certain.

16 Judges of this Court have taken the view that comparable periods of delay between arrest and final disposition at trial have amounted, in the particular circumstances before them, to "exceptional circumstances" justifying the grant of bail to applicants required to meet such a test under s 4(2).

"In the present case the applicant has now been 14 months in custody and he will be in custody for not less than two years before his trial is completed. That is simply unacceptable and it must be regarded as exceptional. It does not answer the unacceptable nature of such delay to say that the applicant is likely to incur a custodial sentence of more than two years for offences to which he has pleaded guilty. Remand and custody are quite different and in my opinion, two years on remand between charge and trial does constitute exceptional circumstances."

18 Hampel J in R v Alexopoulous[7] considered a delay of at least 18 months between arrest and trial to be inordinate and to constitute an exceptional circumstance in the case of an applicant charged with offences relating to importation of a substantial amount of heroin. In R v Kantzidis[8] Smith J held that a period of at least 20 to 21 months before trial was, in the circumstances before him, exceptional.

19 Further Vincent J held that lengthy delay is not excusable on the basis that it represents the norm when he said in R v Mantase[9] that:

" ... if our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of 18 months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represent the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice."

20 Most recently, in R v Cox[10], Redlich J found that an anticipated delay of uncertain duration, possibly exceeding 18 months, in combination with the applicant former police officer's depressive state which was exacerbated by fears associated with his detention in protective custody amounted to exceptional circumstances justifying a grant of bail, in the context of a weak Crown case and no real risk of the applicant absconding.

21 On the other hand, in Mokbel v DPP[11] Kellam J stated that in all the circumstances of the proceeding before him, he did not consider a likely delay between arrest and trial of up to two years to constitute exceptional circumstances. In Mokbel the applicant faced charges under both Commonwealth and State law relating to his alleged role as the head of a syndicate responsible for the importation and trafficking of substantial amounts of numerous illicit drugs. In a subsequent application, made after it had become apparent that the applicant faced an uncertain future period of detention in excess of the original two year period, Kellam J found the delay of uncertain duration amounted to an exceptional circumstance.

22 Further in the recent case of YSA v Director of Public Prosecutions[12] Phillips, Chernov and Vincent JJA dismissed an appeal under s 18A of the Bail Act 1977 from the decision of a judge at first instance that it was not open to a Magistrate in the circumstances to find exceptional circumstances within s 4(2)(aa). The judge had found that, in the circumstances of the case, a delay of some 20 months between arrest and trial could not constitute exceptional circumstances alone or in combination with the other factors relied upon.

23 Taking into account all the circumstances, including the nature of the charges faced by the respondent, and the relevant authorities, I am satisfied that in this case the learned Magistrate did not err in his finding at an early stage that exceptional circumstances justifying bail existed by reason of the uncertain period of anticipated delay of at least 2 years at the time of the application.

Unacceptable risk under s4(2)(d)

24 The Mulvenna affidavit referred to the Informant's belief that the respondent represented an unacceptable risk of failing to answer bail and further offending and that there were no conditions which could be imposed to obviate the unacceptable risks.

25 Mr Maguire submitted that the Magistrate had erred in concluding that there were no such unacceptable risks. He argued that the prosecution case was strong and that the documents found at the Asquith Street address indicated that the respondent and his brothers were renting properties and hiring cars in false names. He also referred to evidence which he submitted indicated that the respondent had no fixed address.

26 Senior counsel for the respondent argued that the Crown case was not strong and that the appellant had failed to discharge its onus of satisfying the Magistrate that there was an unacceptable risk of his client failing to answer bail. He referred to evidence that the respondent was a 42 year old man who had not previously failed to answer bail or breached his parole, who had never been out of Australia, had no passport and had been born and bred in Melbourne where his family still lived. He referred to the closeness of his relationship with his children whom he supported, was in regular contact with and had custody of on a fortnightly basis at weekends. He also pointed to evidence that police had failed to discover any unexplained wealth which might assist the respondent to flee.

27 I note that the Magistrate also had before him evidence of the respondent's current relationship of some five years duration with a woman present in the Court at the time of the application.

28 It is difficult to assess the strength of the prosecution case against the respondent, but it does not strike me as being properly described as weak.

29 Nevertheless, in all the circumstances, and taking into account all the submissions of counsel, I am not persuaded that the Magistrate erred in his finding that there was no unacceptable risk that the respondent would fail to answer bail. I reach this conclusion taking into account the evidence before him of the respondent's family connections with the jurisdiction and history of never having travelled overseas as well as his age and prior history of answering bail and of compliance with his parole obligations. The evidence of his failure to provide his address initially to police does not persuade me to the contrary view.

30 As far as the alleged unacceptable risk of re-offending was concerned, the informant had given evidence in chief in the application that he based his concern in that regard upon the dangerousness of laboratories for the production of drugs and the respondent's failure to give his true address when interviewed. Nevertheless, as senior counsel for the respondent pointed out, the informant had acknowledged under cross-examination that no search had been made of the respondent's mother's home where he claimed to reside. There was no evidence connecting him to any other clandestine laboratory.

31 I was not persuaded to the contrary view by submissions to the effect that the respondent might be likely to re-offend given the charges of trafficking which might be indicative that he might have to attend to unfinished business in terms of supply or otherwise. The police surveillance or other attention which he might reasonably be expected to attract whilst on bail militates against re-offending of the type suggested being thought very likely to occur.

32 In all the circumstances I am satisfied that the Magistrate did not err in finding that the appellant had failed to satisfy him of any unacceptable risk that the respondent would re-offend if granted bail.

33 I note that the Mulvenna affidavit referred to the informant's opinion that no conditions of bail could address the unacceptable risk of the respondent failing to answer bail or re-offending. In this context senior counsel for the respondent pointed out that the conditions of bail sought to be imposed by the prosecution after the eventual grant by the Magistrate did not include conditions prohibiting the respondent from seeking to obtain a passport or from attending places of international departure. In my view these considerations are irrelevant to my determination because the conditions were sought after bail had been granted.

[1] [2002] VSCA 115; (2002) 132 A Crim R 270

[4] [2000] VSC 451

[5] [1989] HCA 46; (1989) 168 CLR 23 at 55

[6] (Unreported, Supreme Court of Victoria), 27 September 1993.

[7] (Unreported, Supreme Court of Victoria), 23 February 1998.

[8] (Unreported, Supreme Court of Victoria), 9 August 1996.

[9] Unreported, Supreme Court of Victoria, 21 September 2000.

[10] [2003] VSC 245.

[11] [2002] VSC 127.

[12] [2002] VSCA 149.