Haidy v DPP [2004] VSC 247

5. The circumstances which bring the Applicant before the court are set out in an Affidavit filed by Zargy Kozarov dated 16 April 2004. The Applicant who resides in Echuca with his partner and two sons was charged in February 2004 with the offences of trafficking in a drug of dependence, namely cannabis; possessing a drug of dependence, namely cannabis; using a drug of dependence, namely cannabis; possession of a prohibited weapon without exemption, that being a Samurai sword, and dealing in property being the suspected proceeds of crime under the Confiscation Act 1997. The Applicant has prior convictions for cultivating and using cannabis in 1994 and 1996.

8. At the time of these alleged offences, the Applicant was on bail for similar offences. The Applicant was then facing charges of trafficking in cannabis, possessing cannabis, using cannabis, possessing money being the proceeds of crime and possessing prohibited fireworks. The trafficking charge related to the period between 1 December 2002 and 17 October 2003.

11. On 20 February 2004, police executed a search warrant at the premises of the Applicant in Echuca. Upon a search of the premises, a blue chilli bag was located in the garage which contained nine snap-lock bags each containing one ounce of green vegetable matter which it was subsequently established was cannabis. The samurai sword and a home-made baton were located inside a cardboard box in the garage where the cannabis was located. Cash was found in the Applicant's home. There is a dispute as to the source of that cash. I do not rest my conclusions upon any view as to the source of that cash.

14. The raid on the Applicant's house was a similar one to the one which gave rise to the first set of offences upon which the Applicant had been charged and upon which he was on bail. Needless to say, in considering the Applicant's present Application for bail, the court must have regard to the fact that if these offences were committed, they were committed during a period when he was on bail.

17. Under the Bail Act 1997 an accused is prima facie entitled to bail[1] unless the right is abrogated or qualified by other relevant provisions.

(a) with an indictable offence that is alleged to have been committed whilst he was at large awaiting trial for another indictable offence

the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified and in any such case where the court grants bail the court shall prescribe and transmit a statement of reasons for making the order."

29. In circumstances such as the present, Parliament has prescribed that where an indictable offence has allegedly been committed whilst on bail for an indictable offence, the onus rests upon the Applicant to show cause why he should not be detained in custody. See for example: DPP v Parker;[2] R v Buckle;[3] DPP v Tilki.[4] In the DPP v Harika[5] Justice Gillard explored the circumstances which might give rise to establishing sufficient cause.

32. Affidavits were filed on behalf of the Applicant, two by the Applicant's partner, Ms Pickens, and one by the Applicant himself. In substance, the Affidavits refer to the difficulty which Ms Pickens and her children are encountering as a consequence of the Applicant being in custody.

35. As I indicated during the course of argument, it would be quite common to find that the family of an alleged offender suffers hardship and distress as a consequence of the offender being detained in custody. To constitute sufficient cause to grant bail, something more is required than the financial and emotional hardship experienced by the Applicant's family as a consequence of his absence.

39. By s.4(2)(d) Bail Act 1997 which reflects the common law position, it is provided that:

"A court shall refuse bail if the court is satisfied - (1) That there is an unacceptable risk that the accused person if released on bail would commit an offence whilst on bail."

Onus where a similar offence committed whilst on bail

44. The prosecution bears the legal onus to establish an unacceptable risk under s.4(2)(d)(i) of the Act. Where the Applicant has allegedly committed a similar offence within a short time after being granted bail, the prominent hypothesis arises that the Applicant will offend again if released. The Applicant thus has an evidentiary onus of persuading the court that he is not an unacceptable risk.

48. Mr Rochford, who appears on behalf of the Director, submitted that there is an unacceptable risk that the Applicant will further offend if released on bail. He contended that the circumstances of this offence, namely the finding of cannabis in separately packaged one ounce parcels, his prior charges and his prior criminal history demonstrate that it is more likely than not that the Applicant if released on bail will commit further similar offences.

51. Bail when granted is not risk free. Williamson v DPP (O'ld).[6]

54. As the offender's liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient. Dunstan v DPP;[7] Williamson v DPP (Q'ld).[8]

57. It is not necessary that the prosecution establish that the occurrence of the event constituting the risk is more probable than not. There are recognised conceptual difficulties associated with applying the civil standard of proof to future events. Davies v Taylor;[9] Patterson v BTR Engineering (Aust) Ltd.[10] To require that the risk be proved to a particular standard would deprive the test of its necessary flexibility. What must be established is that there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable. Hence the possibility an offender may commit like offences has been viewed as sufficient to satisfy a court that there is an unacceptable risk. R v Phung;[11] MacBain v Director of Public Prosecutions.[12]

60. Such an approach is consistent with the view adopted by the Full Court of the Federal Court in Dunstan v DPP.[13] The Federal Court was concerned with s.22(1)(c) Bail Act (ACT) 1992 which required the court to have regard to "the likelihood of the person committing an offence while released on bail". The assessment of the risk though expressed in different terms to the Bail Act 1997 is to the same effect. Gyles J with whom Whitlam and Madgwick JJ agreed said:

"In my view, it is wrong to approach the issue under s.8(2) and s.22(1)(c) on the basis of the elimination of risk. The correct question to ask is whether the prosecution has satisfied the Court that on the evidence before it there is a real likelihood of the applicant committing an offence while released on bail, although in this connection, likelihood does not mean more likely than not (see the explanation by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 346-8, 27 ALR 367 at 380-382."[14]

66. To assess whether the risk is unacceptable the court is required to have regard to the matters set out in s.4(3) of the Act and all other relevant matters. Some of those matters may not bear upon the degree of risk. The degree of likelihood of the occurrence of the event may be only one factor which bears upon whether the risk is unacceptable. Thus the time which will elapse before the offender's trial has been held to be a factor which may bear upon whether the risk is unacceptable. Mokbel v DPP (No. 2;[15] Skura; Appplicaton for Bail; Mokbel v DPP (No. 3).[16] As Kellam J was to say in Mokbel (No. 3):

"The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood the allegations against an accused man then brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay."[17]

70. His Honour's view accords with the common law position explained in R v Martin[18] and with the broad principle that public interest considerations may lead to bail being granted though the risk is relatively high or refused though the risk be minimal. R v Wakefield.[19]

73. Having regard to the nature of the alleged offence and the strength of the prosecution case and the Applicant's antecedents I am satisfied that there is a sufficient likelihood of the risk of the Applicant re-offending to make the risk unacceptable. In reaching the conclusion that the risk is unacceptable I have placed considerable weight upon the fact that both sets of charges are to be heard within the next two months. At that time the Applicant will either be released or if convicted, is likely to be sentenced to a term of imprisonment which, as counsel for the Director submitted, would require him to remain in custody for a further not insignificant period.

76. For these less than perfect reasons I refuse the Application.

[2] [1994] MC 166 per Mandie J.

[3] [2003] VSC 352.

[4] [2003] VSC 483.

[5] [2001] VSC 237 at [60-66].

[6] [1999] QCA 356.

[7] (1999) 107 A Crim R 358; [1999] FCA 921 per Gyles J at [56].

[9] [1974] AC 207 at 212.

[10] (1989) 18 NSWLR 319 at 325 per Gleeson CJ.

[11] [2001] VSCA 81.

[12] [2002] VSC 321 per Nettle J.

[13] Supra [1999] FCA 921 per Gyles J.

[15] [2002] VSC 312 per Kellam J. at [41].

[16] [2002] VSC 393.

[18] [1973] VicRp 86; 1973 VR 854.