DPP V Radev [1999] VSC 284 (12 August 1999)

Supreme Court of Victoria|1999-08-12|Before: BEACH, J.

I have before me two appeals by the Director of Public Prosecutions pursuant to the provisions of s.18A of the Bail Act 1977 against the orders of the Melbourne Magistrates' Court made on 7 July 1999 whereby the respondents Nicholai Radev and Housam Zayat were released on bail in respect of a number of offences with which they are presently charged and in respect of which they were that day committed to stand trial.

The offences in question are alleged to have been committed by the respondents and Zayat's brother Mohammed Zayat on 31 August 1998. Mohammed Zayat has since died.

At the time, Mr. Papadopoulos senior was aged 71, whilst his wife was aged 68. The other members of the family who were present in the house were the Papadopoulos' son Les, his wife Thea, and their five year old daughter Maryanne.

It is alleged that Radev and Mohammed Zayat forced entry into the house through the rear door. At the time Radev was wearing a blue jacket with a hood and was armed with a pistol. Mohammed Zayat was wearing a black balaclava and was also armed with a pistol.

The first person the two men encountered was Mr. Papadopoulos senior. One of the men struck him on the head with a pistol and knocked him to the floor.

At the time Les Papadopoulos was lying on a couch in the family room in the vicinity of the rear door. It is alleged that Radev put his pistol to Les Papadopoulos' head and told him not to move or he would kill him.

The noise the two men had made woke the other members of the family.

Thea Papadopoulos attempted to run to the front door to activate a burglar alarm located in the vicinity of the door. However, Radev chased her and grabbed her just before she managed to press the alarm. He then put a gun to her face and told her not to move.

The two men then forced the four members of the Papadopoulos' family into Maryanne's bedroom where they were restrained with pieces of rope and stockings. The child Maryanne was tied to the bedhead, the other four members of the family had their hands tied in front of them.

Radev is alleged to have then told the family to do as he said or he would kill Maryanne.

Radev then took Mr. Papadopoulos senior into his bedroom leaving Mohammed Zayat to guard the other members of the family.

Whilst in Mr. Papadopoulos senior's bedroom Radev is said to have pulled Papadopoulos' head back, put his pistol down Papadopoulos' throat, and made threats on his life. Radev then made demands for cash and jewellery from Mr. Papadopoulos senior. Papadopoulos proceeded to hand him certain items of jewellery and cash. Radev returned Mr. Papadopoulos senior to Maryanne's bedroom then forced Thea Papadopoulos to go from Maryanne's bedroom to her own bedroom. Once there, and at gunpoint, Radev demanded that she hand over her jewellery to him. Thea Papadopoulos did as she was told and handed over certain items of jewellery to Radev.

However, Radev demanded more jewellery. He then forced Thea Papadopoulos to go to the garage of the premises where she had hidden certain jewellery and to hand that jewellery to him. He then returned Thea Papadopoulos to Maryanne's bedroom.

At about that time the respondent Housam Zayat was let into the premises through the front door. He proceeded to Maryanne's bedroom where he took Mohammed Radev's pistol from him and threatened the family with it.

Both respondents then proceeded to ransack the house.

In all, the respondents and Mohammed Zayat were in the house for approximately one hour. They then left via the front door taking with them five suitcases of clothing, a mobile phone, a large quantity of jewellery and approximately $23,000 in cash.

It is estimated that the total value of the property stolen is of the order of $50,000.

The respondent Radev was arrested on 15 December 1998. At the time he was arrested two pistols were located at his premises - a .25 calibre pistol and a .32 calibre pistol with a silencer.

He made a no "comment" record of interview and was remanded in custody.

The respondent Housam Zayat was arrested on 1 January 1999 - his brother Mohammed was arrested on 3 January 1999. They both made "no comment" records of interview and were remanded in custody.

In due course each of the respondents was charged with one count of aggravated burglary, one count of armed robbery, five counts of false imprisonment and one count of being a prohibited person in possession of a firearm.

The committal proceedings in respect of the respondents commenced on 28 June 1999 and concluded on 7 July. At the conclusion of the hearing each respondent was committed to stand trial on the various charges.

Application was then made by counsel for the respondents that the respondents be released on bail pending their trial.

Having heard submissions in relation to the matter the Magistrate released the respondents on bail upon their own undertaking with a surety in each case of $50,000.

A number of conditions was imposed on each applicant including conditions that each report to an appropriate police station every Monday, Wednesday and Friday, that each respondent reside at a particular address, that the respondents surrender their passports and not attend any point of international departure, and that they have no contact with Crown witnesses save for the informant and one specified witness.

The nature of the offences with which the respondents are charged is such that there was an onus upon them to show cause why their detention in custody was not justified before the Magistrate was entitled to release them on bail; further that if the Magistrate determined to release the respondents on bail the Magistrate was required to comply with the provisions of s.4(4) of the Bail Act the relevant passage of which reads:

"the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified and in any case where the court grants bail the court -

(i) if constituted by a judge or magistrate, shall include in the order a statement of reasons for making the order."

It is contended by counsel for the Director that the Magistrate's orders do not contain a statement of reasons for making the orders and that the orders therefore are a nullity. In that latter regard see R. v. Stephen Zade Abbott (1997) 97 A.Crim.R. 19 and D.P.P. v. Thomas Scevella, Beach, J., unreported, 12 January 1987.

The Magistrate's order relating to the respondent Zayat reads insofar as is relevant:

"Reasons for granting bail: The defendant has shown cause. Factors include time in custody delay substantial surety and other matters referred to on transcript."

The Magistrate's order relating to the respondent Radev reads insofar as is relevant:

"Reasons for granting bail: The defendant has shown cause. Factors include time in custody delay."

At the time the Magistrate granted each respondent bail the following were the reasons he gave as recorded in the transcript:

"His Worship: Mr. Shirrefs I'm ... there's no need to go into that, I'm of a mind to grant bail in this matter, in these matters, and I will give my reasons in relation to that, but err ... and I believe part of the basis for granting for bail ... You may take a seat if you wish ... Certainly I believe that a show cause situation has been achieved, there are substantial sureties that have been offered. I've taken into account all of the matters that have been put, and particularly the comments that have been made ... have been put to me in relation to the case of Medici. There are other cases which ... and his Honour Mr. Justice Hampel his decision I think it was Alexopoulos was the one that was put to me, and certainly the question of delay is a matter of great concern particularly when one applies the presumption of innocence. The Bail Act quite clearly makes provision for the acceptance of that presumption of innocence and to give some capacity to people who are incarcerated to be granted bail. In both instances I am told and I accept that the applicant have, or the defendants have the capacity to be employed. I do have the capacity to impose stringent conditions and I intend to do that. In all of the circumstances I am satisfied that as I have indicated the show cause standard has been met. The delay is an issue. It has been put, certainly in the case of Mr. Radev, that he is an unacceptable risk. That has also been put in relation to Mr. Zayat. It clearly can be taken into account by me that it would be in either of their interests to do anything that would in any way jeopardize their future trial, there is to some extent supposition and assumption that they may be an unacceptable risk, certainly more so in the case of Mr. Radev. I am not able to be entirely convinced about the evidence of Jordan or Sweeney to the effect that they have been got at or affected in any way by Mr. Radev. It's my view that in each case their evidence was somewhat contradictory and not strong and I think the Crown has some difficulties in relation to that aspect of their case, but in terms of dealing with it on a bail application, I can't put it any higher than the extent to which I've commented. For the purpose of assessing the nature of the conditions that I should impose, I've indicated that they should be stringent. I propose to set a surety of $50,000 and I would be open as to any indication from the Crown as to what conditions they might require in respect to the proposed bail."

It is contended by counsel appearing for the Director that the Magistrate's reasons as appearing in that passage of transcript which was tendered to the Court, cannot be taken to be included in the order.

If a Magistrate gives appropriate reasons for making an order releasing a person on bail I consider it is sufficient if those reasons are incorporated in the order by reference to them, as is the case with the order made in respect of Zayat, or later are attached to or accompanying the actual order.

I do not consider that s.4(4) of the Act should be read as requiring that the reasons be set out verbatim on the face of the order itself. Clearly that could not be done if the reasons were lengthy.

Having looked at the orders and the reasons expressed by the Magistrate as recorded in the transcript, it would seem to me that the following matters were those relied upon by the Magistrate in finding that each respondent had satisfied the onus which rested upon him. I note of course that the Magistrate did not differentiate between the respondents. In my opinion his Worship was in error in failing to do so as I shall endeavour to demonstrate in a moment. The matters were:

1. The delay which had occurred between arrest and committal and which would occur between committal and trial.

2. The fact that each respondent was able to provide a substantial surety.

3. The fact that the imposition of appropriate conditions would lessen the risk of the respondents absconding whilst on bail or interfering with Crown witnesses. I have added these matters because of the Magistrate's reference in his reasons to "Medici" (see R. v. Matteo Rosario Medici, Ashley, J., unreported, 27 September 1993). Those were factors taken into consideration by Ashley, J. in Medici as of course was the question of delay.

4. The fact that the respondents have the capacity to be employed.

5. That it is supposition and assumption that the respondents "may be an unacceptable risk".

The principles which I am required to apply in considering appeals of this nature were considered by the Full Court of this Court (Young, C.J., Crockett and Ashley, JJ.) in Beljajev and Another v. Director of Public Prosecutions unreported, 8 August 1991. At p.29 the Court said:

"It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made. In other words, the Director is not in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made. There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate courts have frequently refused to interfere with a primary judge's decision on a matter of practice and procedure."

With those principles in mind I turn to the reasons for decision of the Magistrate.

In my opinion it is highly debatable that the delay in this case has been such and will be such that it can be said to be inordinate or unacceptable.

In Medici the applicant for bail had been in custody for a period of 14 months at the time he made his application, and the estimate given to Ashley, J. was that he would remain in custody for not less than a total period of two years before his trial was completed if he was not there and then released on bail. Clearly an unacceptable situation.

But in the present case the respondents were only in custody for a period of approximately six months prior to the committal hearing and the estimate given to the Magistrate by counsel for the Director at the end of that hearing was that the respondents' trial will be fixed for hearing in May/June 2000. However, if the respondents are detained in custody their trial will be fixed for hearing some two months earlier.

In my opinion it cannot be said therefore that there has been any unacceptable delay on the part of the Director thus far, nor that there will be in the future.

Having said that, if there was nothing further to be taken into consideration, nevertheless I would have had regard to the admonishment contained in the concluding sentence of the passage I have quoted from Beljajev and not interfered with the Magistrate's orders.

The next matter relied upon by the Magistrate was the fact that the respondents were able to provide substantial sureties. Whilst those matters may be relevant when considering whether there is an unacceptable risk that the respondents may abscond if released on bail, they have little or no relevance to the question whether there is an unacceptable risk that the respondents may commit further offences if released on bail.

Neither is the fact that the respondents have the capacity to be employed.

I turn then to what I consider to be the fundamental aspect to these appeals namely, was the Magistrate in error in concluding that the assertion made by counsel for the Director that there is an unacceptable risk that if released on bail the respondents would commit further offences, nothing more than supposition and assumption.

The respondent Radev is aged 44. He has some 50 prior convictions recorded against him from 17 court appearances between 2 June 1982 and 4 June 1998. The convictions are in the main for serious offences of dishonesty, drug related offences, and firearm offences.

On 23 April 1987 Radev was convicted of armed robbery and a number of associated offences and was sentenced to a total of five years' imprisonment with a minimum of three years. On 25 June 1993 he was convicted of four counts of armed robbery and was sentenced to a total of six years' imprisonment with a minimum of three and a half years. On 19 October 1994 he was convicted of being a felon in possession of a pistol and on 20 January 1998 of possessing a proscribed weapon without an exemption. Finally in this regard on 4 June 1998 he was convicted of three counts of possessing cannabis, three counts of possessing amphetamines, trafficking in cannabis, being a prohibited person in possession of a firearm, shortening the barrel of a longarm, possessing ammunition without a licence and possessing a proscribed weapon without an exemption.

Zayat on the other hand is presently aged 28. He has more than 100 prior convictions recorded against him from some 40 court appearances between 29 March 1985 and 1 August 1994. The convictions are in the main for offences of violence, offences of dishonesty, drug related offences and firearm offences.

Zayat's convictions in respect of firearms included convictions for being a felon in possession of a pistol, and shortening the barrel of a firearm.

On 1 August 1994 Zayat was convicted of attempted murder and sentenced to a term of six years' imprisonment with a minimum of four years. He was released on parole on 21 July 1998.

On 18 December 1998, that is some three and a half months after the present offences are alleged to have been committed by the respondents, the police executed a search warrant at premises occupied by Zayat's de facto wife. Zayat was present at the time. At the premises the police found a .25 calibre automatic pistol and a quantity of heroin. Zayat was arrested and charged with trafficking in heroin, possessing heroin and possessing a firearm. He was later released on bail.

In determining to release the respondents on bail the Magistrate appears to have taken no account of those charges, charges in respect of offences alleged to have been committed by Zayat whilst he was on parole. It is in that respect at least that I consider the Magistrate was in error in failing to differentiate between the two respondents.

In my opinion it is incumbent upon a court before it determines to release two or more persons on bail in respect of much the same series of offences, to consider the situation of each alleged offender or defendant separately. In this case it is significant that Zayat has been charged with further offences alleged to have been committed whilst he was on parole and subsequent to the offences alleged to have been committed by him on 31 August 1998. Yet the Magistrate appears to have paid little attention to that fact. If that is so, as appears to be the case, then I consider the Magistrate erred in the matter.

From the history of the respondents' prior convictions to which I have albeit briefly referred, I consider that one is justified in expressing the view that these respondents are career criminals who have determined to pursue a life of crime. To conclude therefore, as the Magistrate did, that the contention that there is an unacceptable risk that if released on bail the respondents would commit further offences is nothing more than supposition and assumption, is to my mind untenable, and in that respect I consider the Magistrate made a serious error sufficient to vitiate his determinations in the matter.

The offences alleged to have been committed by the respondents are of the most serious character. The evidence against the respondent Radev is substantial. Whilst that against the respondent Zayat is perhaps not as cogent I do not agree with the contentions of his counsel that it is so weak as to of itself justify his release on bail.

If the respondents are convicted of the offences with which they have been charged, or the more serious of them, they face the imposition of substantial terms of imprisonment.

In my opinion those matters together with the unacceptable risk that if the respondents are released on bail they would commit further offences are such that their applications for bail should have been refused.

Each appeal will be allowed. The orders made by the Melbourne Magistrates' Court on 7 July 1999 whereby the respondents were released on bail are quashed. Each respondent's application for bail is dismissed.

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Judgment (69 paragraphs)