DPP v Ghiller [2000] VSC 435

Supreme Court of Victoria|2000-09-28|Before: Eames J

BAIL - appeal by DPP against grant of bail - multiple serious offences alleged - youth of alleged offender - whether unacceptable risk if granted bail. Bail Act 1977, s 18A

This is an appeal against a grant of bail and is brought by the Director of Public Prosecutions pursuant to of the .

The respondent to the application is Jason Emanuelle Ghiller, who was granted bail by Deputy Chief Magistrate Ms Popovic on 28 August 2000.

The respondent is facing trial on 67 counts of armed robbery relating to robberies on 33 separate occasions but involving in some instances multiple victims of robbery. He is also charged on one count of attempted murder, three counts of intentionally cause serious injury (those with alternate counts of recklessly causing injury) and one count of obtaining property by deception.

The offences are alleged to have taken place between December 1991 and October 1994. The first alleged offence occurred about a week after his 16th birthday, the last when he was aged 18 years and ten months. He is now aged 24 years.

The Crown alleges that the offences were committed with his uncle, Bendali Michael Debs, who is now aged 47 years.

The armed robberies, on the Crown case, were committed in strikingly similar ways, involving two persons, one very youthful, robbing restaurants and other small retail businesses, armed with hand guns. The armed robberies were of a particularly serious character and were accompanied by violent, dangerous and threatening conduct designed to intimidate occupants of the premises. In the course of the robberies a gun was discharged more than once, with bullets or bullet fragments striking people. Other victims were punched and pushed, and victims were bound by tape whilst the offenders escaped.

On 28 November 1992, during a robbery at a newsagency, the male proprietor was shot in the back, causing subsequent paralysis, as he attempted to shield his wife. The Director of Public Prosecutions alleges that Debs fired that shot intending to kill the store owner and that the respondent is equally guilty of the crime of attempted murder, by his complicity in the armed robbery.

In addition, the Crown alleges that the respondent was present and is equally complicit with Debs, when, the Crown alleges, Debs, on 19 September 1994, fired three shots at two police officers when he and the respondent were fleeing from the scene of an armed robbery. The Crown alleges that the respondent as well as Debs is guilty of attempted murder in that instance also. However, it must be stressed that no charge has been laid against either the respondent or Debs for those events. In her affidavit, the solicitor for the respondent deposes that the respondent is willing to be interviewed by the police as to that matter, it being implicit that the allegation is denied.

Debs has not been charged with any of the offences with which the respondent is charged. From what I have heard, it seems likely that the Crown has little evidence, at the moment at least, to implicate Debs in those offences.

The Director of Public Prosecutions alleges that in company with another man, one Jason Roberts, Debs committed a further series of armed robberies in the period between about March 1998 and July 1998. The Director of Public Prosecutions also alleges that Debs and Roberts committed the murders of Sergeant Gary Silk and Senior Constable Rodney Miller on 16 August 1998. Debs and Roberts, on the Crown case, had been planning to commit another armed robbery when those murders occurred. Debs and Roberts have been charged with those murders.

The offences alleged against Debs and Roberts have been dealt with in considerable detail in the affidavits placed before me by the Director of Public Prosecutions in support of the appeal against bail in the case of Mr Ghiller. In my view, there is a real danger that that material could distract attention from the allegations which are made against this respondent and from the issues and considerations relevant to the question of bail in his case.

In giving reasons for her decision to grant bail, the learned magistrate noted that it was important that the attention and notoriety and, indeed, the understandable emotion which accompanies the deaths of the two police officers should not be allowed to inappropriately intrude on the discrete issues or the evidence relevant to the questions of bail for this respondent who, as I said, is not charged with those offences nor alleged by the Crown to have been involved in the commission of those crimes with which Debs and Roberts stand charged.

Mr Rapke, for the Director of Public Prosecutions, said that the relevance of the material arises because, he alleges, this respondent has made statements to undercover police officers which portray his willingness to assist Debs, notwithstanding the seriousness of the offences with which Debs is charged, and portray a willingness to lay a false trail in order to assist Debs to defend his own charges by having persons who the respondent believed to be criminals but who, in fact, were undercover police officers commit armed robberies.

The Crown submits that on the material presented from an undercover operation which was directed at the respondent, the intention was that armed robberies would be committed by other persons in a manner which mimicked the modus operandii of the armed robberies which Debs is alleged to have committed with Roberts. The intended purpose for that activity was to cast doubt on the case against Debs by suggesting that the real perpetrators of the armed robberies which he was said to have committed were at large at a time when he was in fact in custody.

The respondent was arrested, charged with the present offences and remanded in custody on 31 July 2000. On 20 August of this year after hearing submissions by counsel for the respondent and for the Director of Public Prosecutions, the learned magistrate granted bail with one surety of $100,000 and imposed a series of special conditions as follows.

The conditions were (apart from the surety which I have just discussed) that the defendant report to Dandenong Police Station daily between the hours of 6.00 a.m. and 9.00 p.m; that the defendant reside at 12 Pinnacle Way, Hampton Park; that the defendant not attend any points of international departure; that he not contact witnesses for the prosecution, other than the informant; that he surrender a passport if he has one and not apply for any other or for any travel documents; that he remain within his home between the hours of 10.00 p.m. in the evening and 6.00 a.m. the following day; that he not have any contact, either directly or indirectly with Jason Joseph Roberts and Bendali Michael Debs.

The Director of Public Prosecutions, through counsel, submits that the decision was wrong in law and that Her Worship failed to give adequate weight to relevant matters and gave undue weight to other factors. On appeal under s.18A the Director is not obliged to show that the magistrate made an error in law in any strict sense. Were that in fact demonstrated then, of course, the court would be required to intervene and to exercise its own discretion but as Young, C.J, Crockett and Ashley J.J. held on appeal in the case of Beljajev and Anor v. Director of Public Prosecutions of Victoria and Anor, (unreported, 8 August 1991) at pp.29-30 it is sufficient for 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 identifiable error in the process by which the magistrate arrived at the decision.

In other words, it is sufficient to overturn the decision if the appeal court, hearing the matter de novo, is persuaded that - whether by reference to any question of law or fact - the discretion of the magistrate miscarried, and if the appellant court is persuaded that a different order should be made.

The respondent is charged with indictable offences alleged to have been committed in concert with others whilst armed and threatening to use, or using, a firearm. By s.4(4) of the Bail Act, the learned magistrate was obliged to refuse bail unless the respondent showed cause why his detention in custody was not justified. Mr Rapke submitted that the exercise of the magistrate's discretion plainly miscarried in reaching the conclusion which she did that the respondent had shown cause.

The Director of Public Prosecutions also opposed bail on the grounds that the respondent represented an unacceptable risk under s.4(2)(d), arguing that those unacceptable risks were that if released on bail he would fail to answer his bail, that he would commit offences whilst on bail, that he would endanger the safety of members of the public and that he would interfere with witnesses. Those factors individually or together, the Director submitted, were established before the magistrate and Her Worship was therefore obliged to refuse bail if she exercised her discretion on proper principles.

Her Worship identified a series of factors which in combination led her to grant bail. Mr Rapke submitted that undue weight was given to those factors both individually and also collectively. It is convenient to deal with them in turn, as Mr Rapke did also in his submissions.

Firstly, Her Worship identified the issue of the youth of the respondent at the time of the alleged offences. Mr Rapke submitted that that was an irrelevant factor: the respondent is now aged 24 and the issue, he submitted, is whether he would present an unacceptable risk if granted bail. His youth at the time may be relevant to sentence, Mr Rapke submitted, but was not relevant as to the present dangers inherent in granting bail. The offences of the respondent if proved, he submitted, demonstrated a propensity to use violence and a willing participation in crimes notwithstanding his youth.

Next, Her Worship identified the youth of the respondent now, he now being 24. Mr Rapke submitted that that too could not be a factor. The respondent, he submitted, is an adult and is not entitled to any special treatment as to bail because of his age.

Her Worship referred to the absence of prior convictions and therefore the absence of any indicators that he presented as a risk that he would not answer bail if bail was granted. Mr Rapke conceded that the respondent has no convictions and, thus, no history of not answering bail. That mattered little, he submitted; the predicament now facing the respondent meant that there was now a powerful incentive for him to abscond.

Next, Her Worship pointed to delay. Mr Rapke conceded that there would be significant delay. The hand-up brief would not be delivered until 13 December 2000. The committal is fixed for hearing in May 2001, over two weeks. Mr Rapke did not challenge the contention that if the respondent is committed for trial his trial may not be conducted until 2002.

Whilst that is significant delay Mr Rapke submitted that the delay is caused by the complexity of the task of the preparation of the brief, given the multiplicity of charges. That multiplicity of charges, it is submitted on the Crown case, is due to the conduct of the respondent and he should get no credit for that with respect to bail. The delay has to be weighed against the seriousness of the charges, Mr Rapke submitted.

Her worship identified strong family ties, the availability of a permanent residence, and the availability of employment (and I note that the respondent is living with his parents and sister). None of those factors, Mr Rapke submitted, should have been accorded weight, in light of the Crown evidence that he had made admissions to involvement in the series of armed robberies and of continuing willingness to engage in criminal conduct.

Her Worship identified, also, the lack of any allegations of criminal conduct since October 1994. Mr Rapke conceded that the Crown had no evidence of criminal conduct by the respondent since October 1994, save for events which occurred from February of this year as part of an undercover police operation.

It is a very important factor, relied upon by the Director, that the respondent is said to have made admissions, not only as to the offences with which he is charged, but also as to his willingness, expressed this year, to engage in serious crimes. The evidence relevant to these contentions was compiled during an under-cover police operation which targeted the respondent between February and July of this year.

I have suppressed the publication of any reports relating to the methodology employed by the police in that operation. What may be said is that the respondent was approached by undercover police officers posing as criminals who set out to develop a relationship of trust and confidentiality between themselves and the respondent so as to lead to a point where he was sufficiently off guard as to make admissions about his involvement in crimes.

The operation involved elaborate and sophisticated role playing, including the conducting of what the respondent was led to believe, were serious crimes whilst he was present with the undercover police officers. Those activities involved him taking some minor role therein and sharing, to a small extent, what he thought were the proceeds of crime.

In the course of the operation the respondent was said to have made admissions which were secretly tape recorded, concerning his participation with Debs in 11 of the armed robberies with which he is now charged. The Director of Public Prosecutions submits that a jury would be entitled to couple those admissions with the similar fact evidence of the modus operandi of all of the offences and thus to conclude that the respondent and Debs together committed all of the offences with which the respondent stands charged.

As stated in one of the affidavits relied upon by the Director of Public Prosecutions, it was the aim of the police to lead Ghiller to a point where he might express a desire to become involved in criminal activities and to make admissions about past criminal activity. The officer in charge of this exercise deposes in his affidavit that the police were very careful to ensure that the respondent was not pressured to involve himself in criminal activity, but simply volunteered, without coercion, to engage in criminal conduct.

The evidence of tape-recorded conversations has not yet been fully transcribed. I was provided with summaries of the topics, some said to have been discussed and verbatim extracts, or excerpts, as they were described, of some of the conversations which had been recorded. It is not possible for the defence or for myself to fully evaluate the strength of this evidence, but it may be summarised as demonstrating an intimate knowledge of the details of the events surrounding some of the armed robberies, and an assertion by the respondent that he was one of the two persons involved, the other being described in a manner consistent with Debs.

On behalf of the respondent, Mr Morrissey, who appeared with Ms Gobbo, submitted that although the defence are yet to obtain copies of the tapes and of transcripts of all of the conversations, sufficient information has already been disclosed to suggest that a successful application could be made to the trial Judge to exclude this evidence from the trial in the exercise of a public policy discretion, or another discretion.

Counsel submitted that the undercover operation amounted to a sophisticated and improper process designed to cause the involvement of a person in criminal conduct when that person, even if the present charges were later proved, had not been involved in any criminal conduct for some six years.

The question of the admissibility of this evidence is not for me to resolve on this application. Whether this evidence will be ruled inadmissible - as being improperly obtained, or as unreliable, or on some other grounds - or whether it will be accepted as being the relevant and admissible product of an imaginative and appropriate method of investigating serious crimes, are matters to be determined at the committal or at the trial, if the respondent is committed for trial.

There is no doubt, however, that on its face this material significantly strengthens the Crown case against the accused. As I have said, however, the material has neither been fully disclosed as yet, nor has it been tested in any way. The context of the conversations and the weight or meaning that should be attached to them is yet to be investigated.

Notwithstanding the significance of the material I do not regard the case against the accused, as demonstrated by the matters placed before me, as being so strong that an acquittal on all or some of the charges is a fanciful possibility.

The Crown case depends on the acceptance by a jury of the taped admissions as proof of the involvement of the respondent in the offences. Such other evidence as may exist does not appear, at this stage at least, to be significant, in my assessment.

The learned Magistrate did not have before her all of the information which has been provided to me as to the covert operation. She was, however, given some general information that such an operation had taken place and that the respondent was said to have admitted to participation in 11 of the armed robberies.

Whilst I accept that Her Worship did not have access to that detailed information that fact does not mean that her decision was wrong, or that it is likely that she would have refused bail had she seen that material.

Even when an applicant for bail must show cause - that is, even when the presumption is that bail will not be granted unless the person makes out a case for bail - the primary question relevant to a grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail. A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by a jury.

Mr Rapke submitted that the respondent has powerful motivations to abscond. He pointed to the tape-recorded comments where the respondent said that he could not survive in gaol, that he would kill himself in gaol, that if he went overseas he would not return, that he had thought of fleeing overseas when he was nearly apprehended in 1994.

The respondent faces a lengthy prison sentence if convicted, Mr Rapke submitted. He knew the police were also wanting to question him about the other attempted murder allegation involving the shooting by Debs, as alleged, at police in the patrol car.

Since being released on bail the respondent has been in full-time employment. His employer knows of the charges and will continue to employ him if bail is continued. He has permanent accommodation with his parents. The bail conditions imposed require daily reporting and a curfew after 10.00 p.m. The surety of $100,000 is being provided by his uncle and aunt, with their house as security.

In addition to the matters that I have already discussed, Mr Rapke submitted that there was an unacceptable risk that the respondent, if free on bail, would commit further offences and would endanger the safety of witnesses. In support of the former proposition Mr Rapke referred to passages in the excerpts from the tape recordings. These passages disclose, it is submitted, that the respondent was willing to participate in crimes with people he thought were criminals. He spoke freely of having participated in violent crimes with his uncle. In March 2000 he said that he was suffering stress due to financial problems; he said he wanted to kill his wife. As late as July 2000 he accompanied the persons he thought were criminals as they conducted what he thought was surveillance of appropriate locations for conducting armed robberies.

If those statements are all taken at face value they do, indeed, demonstrate that this year the respondent showed a propensity to engage in criminal conduct, including crimes of violence. The relevant question is whether there is an unacceptable risk that if released on bail he will now so engage.

The tape recorded material was gained in an operation which has now been fully exposed to the respondent, as indeed it was largely exposed at the time of the hearing before the Magistrate. The bail conditions are very strict. The respondent knows that he has been the subject of the most intense surveillance, and might reasonably assume that it is continuing.

He is in full-time work, he is living at home with his parents, having separated from his wife. His close relatives have provided surety for bail by offering their house as security. He knows that his compliance with bail conditions will be closely scrutinised. The smallest departure from the terms of the bail conditions would be likely to lead to revocation of the bail.

Those are all powerful factors which suggest that - as the Crown cannot dispute was the case in the six years since 1994 - it would be unlikely that he would commit crimes whilst on bail if this appeal was refused.

Similar considerations apply with respect to concerns expressed that the respondent might threaten witnesses. I well understand how witnesses in a case concerning violent crimes would be fearful that their safety might be in danger by the release on bail of an alleged offender.

In my opinion, however, there is no substantial foundation for the assertion that this respondent might threaten or harm witnesses concerned with his own charges or those of anyone else. I have very carefully considered this question, and reconsidered it overnight, and I do not consider that the respondent does present as an unacceptable risk of engaging in such conduct, even if it was established that during the course of the undercover operation he then demonstrated a willingness to engage in, or encourage criminal conduct by others.

I should add that none of the excerpts of the tape recordings presented to me make, or refer to, or identify, any statements by the respondent suggesting that witnesses might be harmed or threatened, at all. At the highest there was a suggestion that others might commit crimes so as to lay a false trail in support of Debs' defence to his own charges.

A person facing 67 counts of armed robbery and a count of attempted murder, among other matters, might well be thought to face difficulty in showing cause for a grant of bail, especially where there exists evidence which could support a conviction on those counts.

The learned Deputy-Chief Magistrate, in her reasons, made it clear that she well appreciated the force of those very facts, and yet in having regard to the circumstances of this case, on close analysis, concluded that the Director of Public Prosecutions had not proved that the respondent represented an unacceptable risk if granted bail. She concluded, too, that he had shown cause.

I am not persuaded that she made any error in law in so deciding, nor am I persuaded that the decision manifests that the discretion must have miscarried.

The factors which Her Worship identified of age at the time of the alleged offences and age now, bear on the question of the probable sentence which might be imposed if the respondent is convicted at trial, which would take place probably in 2002, if he is committed for trial.

That, in turn, bears on the question of the likelihood that the respondent would choose to abscond on bail. The lack of prior convictions and the absence of any convictions in the period since 1994 are also relevant for those same reasons. Delay cannot be a decisive factor when other factors point to the need for bail to be refused. But it was an appropriate factor, and a significant one in this case, for Her Worship to consider.

Employment, family ties and a substantial surety all point in favour of the conclusion that the terms of bail would be met. I have had access to more detailed information than was before Her Worship, and it is material more damaging to the respondent's cause in seeking bail, but I am nonetheless drawn to the same conclusion as Her Worship. When one has regard to those considerations which are relevant to the questions of the granting or refusal of bail and puts to one side irrelevant considerations I, too, am not persuaded that the Director of Public Prosecutions has demonstrated that the respondent is an unacceptable risk of breaching his bail conditions if bail was continued.

I am satisfied that, having regard to proper considerations, he has shown cause why bail should be granted. The conditions imposed for bail were appropriately strict ones and they should be maintained. The appeal by the Director will be dismissed.

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Judgment (63 paragraphs)

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