Hildebrandt v DPP [2006] VSC 198

"The circumstances in which the accused man is being held, as I have already indicated are quite unacceptable. This society does not pay lip service to the presumption of innocence, it is a real presumption, and we do not lock up innocent people for 22 and half hours a day. I have heard Mr Horgan say that the authorities are looking at this question and it is to be hoped that something will be done about it because, if it is not, the case for granting bail to Mr Hildebrandt and perhaps his co-accused may become overwhelming. At this point it is not and I am satisfied that he presents an unacceptable risk of offending again or perhaps of absconding. I say nothing as to the quality of the evidence led in respect of the surety put for him, but I am not satisfied that he ought to be bailed at this time.

However, if the conditions do not improve, in particular if he is not given more freedom than 22 and half hours a day, a subsequent application for bail, may well be successful. I do not accept that the length of the delay in this case appears to be going to be inordinate. A committal in March may well result, as Mr Horgan says, in a trial later in the year. But if that does not happen and if his conditions do not improve, a bail application then may well be successful. At this point of time the bail application is refused."

6 In my decision of 23 September 2005 I stated at page 5:

"The conditions of the applicant's detention are also a matter of concern in that he is kept in his cell for all but six hours per day. He is released between 9 a.m. and 3 p.m. he is able to exercise, certainly not in the most wonderful of conditions, but he is at least able to exercise in the company of one other person.

As indicated there are significant concerns for the safety of prisoners who are on remand for offences relating to this so called gang war. All of the persons on remand in respect of these matters are kept in similar conditions, which it is agreed are not the ordinary conditions of remand and are certainly more onerous. Persons giving evidence who are in custody, those on the other side in this so-called war, all have to be kept safely within the prison environment and, unfortunately, these are the conditions that the authorities say are necessary to guarantee the safety of all persons.

The delay in this case means that the trial will probably not commence before March or April of 2006. The applicant has been in custody since 9 June 2004. That will make it between 21 to 22 months in custody. That is a significant time and far longer than any members of our community would consider desirable for a person to be incarcerated without being convicted. It is most unfortunate and it is a factor that I will consider in the application."

7 At that stage there was a degree of certainty about the trial date of the applicant. A co-accused of this applicant was facing trial and this trial was to follow immediately upon the trial of that co-accused and others for a double murder. Due to publicity relating to that co-accused that occurred shortly prior to the trial commencing, that trial had to be delayed and for a variety of reasons could not proceed before July of this year. The trial of the applicant and his alleged co-offenders could not be brought forward to replace the trial as the publicity in respect of that co-accused would have meant problems in all of the co-offenders being dealt with at the same time.

8 The trial of the co-offender and others will now commence in July of 2006, and there is no prospect of the trial of the applicant's matter proceeding before February 2007. That means that as this stage the applicant has been in custody on remand for one year 11 months and three weeks. By the time that the trial is able to commence, on the best estimates, he will have been in custody for a period of two years and eight months.

9 In the matter of Mokbel v DPP (No 2) Kellam J stated at page 4:

"8. If bail is not granted the applicant will not come to committal until he has been incarcerated for a period of at least 18 to 19 months. There appears to me to be a high probability that he will not come to trial in less than three years from his arrest even if the committals take place at the earliest possible time in May 2003.

9. As I said in the course of handing down my decision on the last application for bail on 9 August 2002, our society will not, and should not, tolerate what is effectively the indefinite detention awaiting trial of persons such as the applicant, whilst an investigation such as that currently takes place.

10. The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being 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, 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."

10 Kellam J also referred to a decision of Vincent J (as he then was) in the matter of R v Medici (unreported) 27 September 1993) wherein he said:

"This is not an occasion for the court to act as Pontius Pilate by washing its hands of the matter."

11 The factors that make him an unacceptable risk have to be weighed against the fact that he is a man presumed to be innocent, who has currently spent two years on remand and will spend a minimum of at least two years eight months on remand prior to his case being heard. Not only that, the period of time that he has spent on remand has been in onerous conditions as referred to during the last bail application. The affidavit of Michael Francis Carroll, Exhibit 1 on the application, confirms the conditions under which he is detained. Whilst I accept that the conditions may well be necessary for the safe management of prisoners within that unit, it does not make the conditions less onerous.

12 The issue becomes one really of risk management - can the Court impose conditions sufficient to ensure his attendance at court and ensure that he does not commit further offences, or must he remain incarcerated to ensure those matters?

13 In balancing the risk I have examined the applicant's prior criminal history which demonstrates that he is predominately a thief, with three appearances in 1997 for dishonesty offences, one in 1994 and one in 1993 both again for dishonesty. He has no offences for violence or trafficking in drugs. Although there is the indication contained in the material that he was involved in some small scale trafficking around the time of this offence. He also has one charge of failure to appear in 1997.

14 Equally I have examined his ties to the jurisdiction, which are really his mother and the fact that he has resided with her almost all of his life. He has a son, but he has, as I have expressed previously, limited contact with that child, and virtually no responsibility in respect of him. He has no visitors in prison apart from legal representatives, as his mother will not travel to the prison as she finds it too difficult and distressing. There is a surety available to him in a substantial sum.

15 It is my view that in the case of this applicant who joined the conspiracy in the latter stages of it, who had until that time no association with one of his co-offenders or any other members of that so called group, apart from his friendship with another co-accused who it must be noted is far more involved in this matter on the material currently before me, the Court is now in a position that it must find ways to manage the risk. To do otherwise would, in light of this particular applicant's circumstances, be an abandonment of the principles that underlie the Bail Act and this community's view of what is an unacceptable period of incarceration without trial.

16 Accordingly despite the reservations that I have previously expressed and the serious nature of the charges that the applicant is facing, for the reasons that I have expressed I propose to grant bail subject to strict conditions.

(1) Bail will be fixed in the defendant's own undertaking with a surety in the sum of $400,000.

(2) He is to report twice daily to police.

(3) He is to not change his residential address without obtaining the leave of the informant or the Court.

(4) He is not to contact any witness or co-offender in relation to the matters with which he is charged.

(5) He is not to leave the state of Victoria without the written consent of either the informant or the Court.

(6) He is to surrender any passport he holds, and not to apply for any other passport.

(7) He is not to attend any international points of departure.