Melincianu, Application by [2005] VSC 89 (31 March 2005)

2 In March 2001, one Dumitrie Drinovan was charged with various drug offences. Subsequently, he was committed for trial. On 26 March 2003, Harper J admitted Drinovan to bail on his own undertaking, with a surety of $100,000. He was bailed with his co-accused to appear in the Supreme Court on 6 October 2003. The applicant, Mr Melincianu provided the surety in accordance with an undertaking signed by him on 26 March 2003.

3 The trial of Drinovan and his co-accused commenced with legal argument before his Honour Cummins J of this court on 6 October 2003. After some legal argument, the proceedings against the co-accused were discontinued. On 15 October 2003, Drinovan failed to attend his trial and failed to attend on any subsequent date.

4 On 16 October 2003, Cummins J made an order forfeiting the bail of Drinovan and his Honour ordered that the applicant's surety of $100,000 be forfeited and paid to Her Majesty. On 5 November 2003, his Honour amended his previous order by adding that in default of payment of the sum of $100,000 the applicant Mr Melincianu be imprisoned for a period of six months.

5 On 8 December 2003, the applicant made an application under s.6(4) of the Crown Proceedings Act to vary the order of Cummins J.

6 That application came before his Honour Coldrey J in the Practice Court on 27 May 2004. After some legal argument, it appeared that the applicant intended to submit that the order made by Cummins J was invalid. Accordingly, it was seen to be necessary for the application to be adjourned, so that the applicant might apply to the Court of Appeal to seek leave to appeal out of time from the order of Cummins J of 5 November 2003.

7 Ultimately, the applicant made that application to the Court of Appeal. However, on 30 July 2004 his application to the Court of Appeal was dismissed. Nothing further occurred and consequently, on 7 December 2004, the Crown issued a summons seeking to have the application for variation under s.6(4) heard and determined or struck out.

8 That application initially came before Hansen J in the Practice Court on 16 December 2004. It was adjourned to the Practice Court on 14 February 2004. On the application of the applicant, I adjourned it to 21 July 2004 to enable further material to be put forward.

9 On 21 February 2004 I further adjourned the matter before myself to 4 April 2004. The purpose of the adjournment was to enable the applicant to take steps to sell his property. At the consent of both parties, the hearing of the application has been brought forward to today's date.

10 The application is made pursuant to s.6(4) of the Crown Proceedings Act, which provides:

"Where bail is declared to be forfeited under (1) any surety may at any time within 28 days after the making of the order or if the order was made in the absence of the surety within 28 days after the order first comes to his notice, apply to the court that made the order to vary or rescind the order on the ground that it would be unjust to require him to pay the amount undertaken to be paid, having regard to all the circumstances of the case and the court may vary or rescind the order and cancel any warrant issued in the case under the provisions of this section before the warrant so issued is executed."

11 Before me Mr Oldis, who appeared on behalf of Mr Melincianu, stated that the application is not one to rescind the order of Cummins J but rather to vary it by reducing the amount to be paid by the applicant from $100,000 to $70,000.

12 Ordinarily, an application such as this is first brought into the Practice Court and then referred to the Judge, who made the order forfeiting bail. (See Re Condon [1973] VicRp 40; (1973) VR 427 especially at 429.) However in this case, the matter was initially adjourned out of the Practice Court before me, as I was seized with the matter. The matter has been subjected to a number of delays and it is desirable that I hear and determine it without further delay.

13 In addition Mr Robinson, who appears on behalf of the Crown, has told me that when his Honour Cummins J was approached, his Honour did not have sufficient recollection of the matter to consider it necessary for the matter to be heard before him. Accordingly, it is appropriate that I hear and determine the matter, notwithstanding the ordinary practise which prevails in these applications.

14 The principles which govern a application such as this are conveniently set out in the decision of Crockett J in Re Condon above, and also in the decision of Vincent J in the unreported case of Cenzig Arslan (18 March 1986), which is reported at Butterworth Cases 8600380.

15 In essence the following principles are apposite to the application before me.

16 First, on such an application it must be remembered that the grant of bail and the setting of a surety is not a mere formality. Thus an order, either rescinding or varying an order forfeiting bail, should not be lightly made. See Re Condon at 431 and Re Arslan at 9.

17 Second, the role of a surety for the grant of bail is important. In particular, the surety undertakes the responsibility to take all reasonable steps to ensure the attendance of the principal at the trial. Further, the role of the surety is to act as a deterrent to the principal absconding. In other words, the purpose of setting a surety is to dissuade an accused from absconding because of the adverse consequences which might otherwise flow to a surety. See Re Arslan at p.8.

18 Third, the first and primary enquiry to be made by the court on an application such as this is whether the surety has taken all reasonable steps to ensure the attendance of the principal at his trial.

19 Fourth, if the surety has not taken such reasonable steps nevertheless the court may in an appropriate case permit a reduction in the amount to be paid pursuant to the undertaking of suretyship on the grounds of hardship. See Re Condon at p.433.

20 In essence, in Re Condon at p.431 Crockett J summarised the relevant principles in the following passage:

"The surety's obligation was to take all reasonable steps to ensure the attendance of the principal at his trial. The primary question on the present application must therefore remain - Did the applicant take such steps? If she has, then no doubt she will have gone a long way, if not the whole way, to earn the total or partial relief sought. If she has not then before any relief can be granted facts must emerge that establish that notwithstanding such failure it would be unjust in all the circumstances not to vary or rescind the order."

21 I therefore first consider whether the applicant in this case has taken all reasonable steps to ensure the attendance of the principal, Mr Drinovan, at his trial.

22 The applicant has sworn three affidavits, respectively on 8 December 2003, 24 May 2004 and 27 May 2004.

23 In his first affidavit the applicant has sworn that he believed that his obligations under the undertaking of suretyship related only to ensuring that Drinovan appear at the first day of his trial.

24 In his second affidavit the applicant has set out some of the steps which he took to ensure the attendance of Mr Drinovan at his trial.

25 In summary he stated that on 26 September 2002 he provided a surety in the amount of $100,000 to the undertaking of bail of Drinovan, which was set by the Melbourne Magistrates' Court. After Drinovan was admitted to bail on that occasion the applicant employed him in his construction business, and while Drinovan was in his employment he saw Drinovan on most days. During that time the applicant monitored Drinovan's compliance with his bail conditions and had no reason to be concerned as Drinovan appeared to be complying with all of the conditions that had been set by the Magistrates' Court. It seems ultimately Drinovan was returned to custody in about December 2002 and the applicant was then discharged as surety.

26 In March 2003, at the request of Drinovan's family, the applicant again agreed to be surety for the bail set by Harper J on 26 March.

27 The applicant states that as Drinovan had previously demonstrated through his actions that he intended to comply with his bail conditions he agreed to provide that surety.

28 He was unable to provide Drinovan with further employment upon his release from custody in March 2003. However, the applicant continued to monitor Drinovan's compliance with his bail conditions by contacting him via telephone several times per week and seeing him at least once a fortnight. During the telephone calls and face to face meetings the applicant had no reason to be concerned or suspect that Drinovan would not continue to comply with his bail conditions.

29 In September 2003 the applicant received news from Romania that his grandmother was very ill. Some years previously the applicant's mother had passed away in Romania without the applicant seeing her for a period of some 20 years. The applicant did not wish to make the same mistake with his grandmother, and therefore departed from the jurisdiction to see her.

30 Prior to his departure he contacted Drinovan again and confirmed with him that he was complying with his bail conditions. The applicant was assured by Drinovan that he was complying with them and would attend at his trial in October. On 6 October 2003 the applicant contacted his former wife from Romania and was advised that Drinovan had attended his trial on that date. The applicant believed that as Drinovan attended his obligations his surety thus ceased.

31 I accept that the applicant genuinely believed that he had discharged his obligations if and when Drinovan attended at his trial on 6 October 2003. However, as Mr Robinson has pointed out, the undertaking signed by the applicant of surety states that if the hearing is postponed or adjourned, the court may extend the undertaking without the consent of the surety. By a footnote to the bail bond, it is stipulated that the surety remains bound by his undertaking until the hearing is completed. It was, of course, the obligation of the surety to acquaint himself with his obligations, and it appears that he did not do so in this case. In saying that, I do not ignore the fact that the applicant came to Australia as a refugee and does not appear to have extensive education.

32 Further I do accept that the applicant took a number of steps to monitor the attendance of Drinovan to the conditions of his bail. Those steps were of course taken by the applicant in light of the previous adherence by Drinovan to the bail which had been set by the Magistrates' Court in 2002. However the fact is that the applicant did depart the jurisdiction without taking any appropriate steps to ensure that the attendance of Drinovan, both at and during his trial. Further, unlike Vincent J in Aslem's case, I am not in a position to infer that even if the applicant had taken further steps, Drinovan would nevertheless have absconded. Any such conclusion by me would be mere speculation. Thus I am not able to accept in this case that the applicant took all reasonable steps to ensure the compliance by Drinovan with the conditions of his bail.

33 Nevertheless it is, I consider, most relevant that the applicant in this case did not ignore his duties as a surety entirely. As I have stated, the applicant is a relatively unsophisticated man. He did take steps to ensure that Drinovan was aware of and complying with his bail while the applicant was in Australia.

34 The applicant left the jurisdiction, not on frolic of his own, but for strong compassionate reasons. I am able to and do infer that if the applicant had remained in Australia he would have remained in touch with Drinovan and would have reinforced to Drinovan his obligations in respect of his bail. All of these matters are relevant to the exercise of the discretion which I have under s.6(4).

35 As pointed out by Crockett J in Condon's case, questions of financial hardship are relevant in applications such as these. In that respect, the main material put before me is an affidavit sworn by the applicant's solicitor.

36 In essence it appears that at the time that the applicant agreed to be surety, he was then married. He and his wife lived at premises in Hallam. Subsequently the marriage broke down and the applicant and his wife separated. Since June 2004 the applicant has endeavoured to finalise his financial property arrangements with his former wife.

37 Ultimately the wife agreed to transfer her interest in the property to the applicant. After some delays, which were not of the making of the applicant, the property was transferred into his name and registered. On 13 February 2005 the applicant appointed Ray White Real Estate, Hampton Park, to sell the property. The agent has valued the property at between $350,000 and $390,000.

38 The property is encumbered with a number of mortgages totalling $290,000. It is estimated that the costs of selling the property, including commission, will be approximately $20,000. The applicant has few other assets. He has furniture and personal effects of about $7,000 and a motor vehicle which he values at $8,000.

39 The applicant is a building tradesman and is presently unemployed. It seems that he has been unable to obtain regular employment since early 2004. His 15 year old son and his 19 year old step-son live with him and are supported by him. He also helps to support his 92 year old grandmother, who lives on her own in east Romania, and who has no means of financial support other than the applicant.

40 Thus I readily accept that the applicant is in quite straitened financial circumstances. I also accept that he would be unable to pay the whole amount agreed under the suretyship if he were ordered to do so. At the time the applicant entered into the undertaking the property, according to the affidavit of justification, was valued at $317,500, and was encumbered by a mortgage of nearly $210,000. The value of the property has of course risen, but so too has the debt encumbering the property. I have not been given any explanation for the increase in the debt, but what is relevant is that basically the equity position of the applicant remains the same in respect of the property.

41 However, two other circumstances relating to the applicant's financial position have altered to his detriment. Firstly, his marriage has failed. No doubt that has incurred a cost to the applicant, both in financial and also in human terms. Secondly, from early 2004, as I have stated, he has been unable to obtain regular work. Thus his difficult personal circumstances have been compounded by his poor financial position.

42 Finally, if I was to allow the application in this case, nevertheless the applicant would be obliged to pay $70,000, which is equivalent to the sum total of his assets. Thus from the applicant's perspective, the amount ordered to be paid by him would be very large indeed.

43 If I were to allow the application in this case, I do not consider that such a reduction of the amount to be paid by the surety would undermine the integrity of the bail system. Forfeiture by the surety in this case of what effectively remains of his sole assets, would be sufficient to ensure that persons who agree to be surety are aware of the onerous responsibilities undertaken by them and also to ensure that persons who are granted bail with a surety, are aware of the dire consequences which can flow, should they abscond.

44 In my view, it is not necessary to maintain the amount of the suretyship in this case of $100,000 in order to achieve the important purposes served by the setting of a surety.

45 In those circumstances, given the fact that the applicant did make some steps to ensure the attendance of Drinovan at court and given the financial position of the applicant, I consider that it would be unjust to require the applicant to pay the whole of the amount originally fixed by the order of Cummins J on 16 October 2003 (as amended by his Honour's order of 5 November 2003).

46 Thus I consider that the jurisdiction under s.6(4) is enlivened and in the exercise of my discretion, I propose to make an order whereby the order of Cummins J of 16 October 2003 as amended by his Honour's order of 5 November 2003 be varied by reducing the amount to be paid by the applicant from $100,000 to $70,000. I so order.