R v Ilsley [2003] VSC 332

5. The applicant had been in custody for more than 12 months, since his arrest on 16 July 2002. He was born on 9 April 1966 and was 37 years old.

8. On 6 June 2003 he had been committed for trial at the Melbourne County Court, charged with an offence of aggravated burglary under s 77 of the Crimes Act 1958, involving use of a firearm, and an offence of cultivating a narcotic plant under s 72 of the Drugs, Poisons and Controlled Substances Act 1981. Under each of sub-sections 4(4)(c) and (ca) of the Bail Act 1977 ("the Act") he was required to show cause why his detention in custody would not be not justified. He had been refused bail by the learned Magistrate after the committal and had made a fresh application for bail to this Court.

11. The respondent opposed the application on the bases that the applicant had failed to show cause as required and that there was an unacceptable risk that, if successful, he would fail to appear in answer to his bail.

14. In an affidavit in opposition to the application sworn by Peter John Andrew Atkinson on 27 July 2003 it was said that the Crown opposed the application on the additional bases that there were unacceptable risks both that if released on bail the applicant would commit further offences and would interfere with witnesses and endanger the safety and welfare of members of the public. Counsel for the respondent stated at the hearing that the Crown did not persist in its opposition to the application on either such ground.

17. Counsel for the applicant submitted that, in all the circumstances, the Court should be satisfied that he had shown cause as to why his detention was not justified by reason of a combination of matters including:

(a) the inordinate delay likely to occur before trial;

(b) the exacerbation of his health problems by his continuing detention;

(c) the availability of his parents' home at 7 Tudball Court, Bacchus Marsh as a stable address at which he might reside; and

Had the applicant shown cause why his detention was not justified?

26. It was common ground that testing for the presence of DNA on the firearm, magazine and ammunition allegedly used in the course of the offences on 15 and 16 July 2002 would delay the applicant's trial until in or about July 2004, or approximately two years after his arrest. Counsel for the respondent submitted that forensic testing might be completed earlier, but conceded that there was no certainty that the trial would occur any earlier.

29. In a number of cases to which counsel for the applicant referred, members of this Court have taken the view that comparable periods of delay between arrest and final disposition at trial amounted, in the particular circumstances before them, to "exceptional circumstances" justifying the granting of bail to applicants required to meet such a test under other sub-sections of s 4.

"In the present case the applicant has now been 14 months in custody and he will be in custody for not less than two years before his trial is completed. That is simply unacceptable and it must be regarded as exceptional. It does not answer the unacceptable nature of such delay to say that the applicant is likely to incur a custodial sentence of more than two years for offences to which he has pleaded guilty. Remand and custody are quite different and in my opinion, two years on remand between charge and trial does constitute exceptional circumstances."

36. Hampel J in R v Alexopoulous[2] considered a delay of at least 18 months between arrest and trial to be inordinate and to constitute an exceptional circumstance in the case of an applicant charged with offences relating to importation of a substantial amount of heroin. In R v Kantzidis[3] Smith J held that a period of at least 20 to 21 months before trial was, in the circumstances before him, exceptional.

39. Further Vincent J held that lengthy delay was not excusable on the basis that it represented the norm when he said in R v Mantase[4] that:

" ... if our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of 18 months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represent the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice."

43. Most recently, in R v Cox[5], Redlich J found that an anticipated delay of uncertain duration, possibly exceeding 18 months, combined with other factors, amounted to exceptional circumstances justifying a grant of bail. Mr Cox was a former police officer suffering from depression which was exacerbated by fears associated with his detention in protective custody. He was granted bail in the context of a weak Crown case and the absence of a real risk of him absconding.

46. On the other hand, in the first of three applications for bail before him by the applicant Antonios Mokbel[6], Kellam J stated that in all the circumstances of the proceeding before him, he did not consider a likely delay between arrest and trial of up to two years to constitute exceptional circumstances. Mr Mokbel faced charges under both Commonwealth and State law relating to his alleged role as the head of a syndicate responsible for the importation and trafficking of substantial amounts of numerous illicit drugs.

49. However, in a subsequent application, made after it had become apparent that Mr Mokbel faced an uncertain future period of detention in excess of the original two year period, Kellam J found that the delay of uncertain duration did amount to an exceptional circumstance[7], although he declined to grant bail, being satisfied that there were unacceptable risks that the applicant would interfere with witnesses, further offend or fail to answer bail. Mr Mokbel ultimately made a successful third application to Kellam J[8] who granted bail when it appeared highly probable that he would not come to trial less than three years after his arrest, at the earliest. His Honour took that lengthy delay into account when judging whether the risks were unacceptable in the circumstances and granted bail on strict conditions.

52. Further, in the recent case of YSA v Director of Public Prosecutions[9] Phillips, Chernov and Vincent JJA dismissed an appeal under s 18A of the Bail Act 1977 from the decision of a judge at first instance that it was not open to a Magistrate in the circumstances to find exceptional circumstances within s 4(2)(aa). The judge had found that, in the circumstances of the case, a delay of some 20 months between arrest and trial could not constitute exceptional circumstances alone or in combination with the other factors relied upon.

55. In my view, the authorities referred to establish that a delay of two years between arrest and trial might, in combination with other factors, in the context of a particular case, constitute the requisite exceptional circumstances.

58. The applicant submitted, correctly in my opinion, that the significance accorded to delay in the assessment of circumstances as exceptional, in cases where an applicant faced more serious charges, indicated its significance as a factor in the determination whether cause had been shown justifying a grant of bail to an applicant charged with what might be characterised as lesser offences. This submission was not challenged.

62. The applicant relied upon the state of his health as another factor to be taken into account in determining whether he had shown cause why his detention in jail was not justified.

65. The unchallenged evidence as to his health was in the form of reports from his treating cardiologist, Dr John Williams. Dr Williams' diagnosis was of "a dilated cardiomyopathy with overall moderately severe systolic dysfunction." He had expressed the opinion that the applicant's condition would limit him, preventing strenuous activity, but that he should able to cope with normal routine daily activities. In July 2002 he had expressed the hope that the applicant's condition would remain stable and perhaps even improve slightly. However, he had noted that, if the applicant's situation were to deteriorate, consideration might be given to a cardiac transplant, although the doctor did not then consider that a likely outcome in the near future.

68. On 28 May 2003 Dr Williams had reported that the applicant's severely impaired cardiac function of May 2001 had initially improved with the adjustment of his medications, but that he had not been seen by the doctor for the past year, whilst in custody. Dr Williams had said that he should be tested by regular echocardiograms to determine the state of his left ventricular function and that it was imperative that the applicant should continue his then current therapy of taking five drugs. He had stated that he would need regular Warfarin checks and should have regular cardiologic checks.

71. The applicant had instructed Mr D'Arcy of counsel that he was not continuing with one of the five drugs prescribed by Dr Williams, having been told by prison medical staff that it was unnecessary. He was concerned about the level of care for his medical condition available within the prison system, given what were submitted to be its "over-stretched" resources. He was unable to afford the sum of $1500 required to be paid to the authorities in order for him to be conveyed to Dr Williams, who had declined to visit him in detention.

76. Counsel for the applicant pointed to the availability of his parents' home, described as a "stable address", whilst on bail.

79. Counsel for the respondent submitted that there had been evidence that the applicant's father was elderly and unwell which militated against the significance of the availability of accommodation at the parents' home. It was submitted that the applicant's father would be unable to influence or control his movements.

82. However, in my view, the availability of a permanent place of residence was of some significance in the determination whether the applicant had shown cause why his detention is not justified. His situation compared favourably with that of an applicant not assured of accommodation.

86. It was also submitted on behalf of the applicant that the Crown case lacked strength.

89. The prosecution case was that the alleged offences had occurred on the night of 15 and morning of 16 July 2002. The applicant and a co-accused had gone to the home of their victim, Gregory Hindson, allegedly seeking cannabis. When their request had been refused the applicant and his co-accused had allegedly thrown a rock through the front window of the victim's premises. They had decamped but had returned about half an hour later, the applicant allegedly carrying a .25 calibre pistol. Again he was said to have demanded cannabis of Mr Hindson who had refused. The applicant then had allegedly fired a shot from the pistol into the floor between the victim's feet before he and his co-accused had entered the premises. After a scuffle the applicant had allegedly fired a shot into the wall beside the victim's head. Upon having been told that police were coming, the applicant had allegedly collected spent shells and handed the magazine to the co-accused. They had both left the premises, only to be arrested by police. No admissions had been made by the applicant when interviewed by police or at all.

92. Counsel for the respondent relied upon the evidence foreshadowed in the statements of a number of witnesses who had viewed the activities of the applicant outside the premises at which the incidents occurred. The victim of his alleged crimes had also given detailed description of events inside the house, much of which was corroborated by another witness present in the house at the time.

95. Whilst it is difficult to judge the strength of any case, it would appear that the prosecution case is relatively strong. Further the applicant had been committed for trial.

Was there an unacceptable risk of failure to answer bail?

99. The respondent submitted that, in the context of a strong Crown case, the prior history of the applicant in failing to appear at the Magistrates' Court at Melbourne indicated that there was an unacceptable risk that he would fail to answer his bail.

102. I had regard to the matters set out in s 4(3) of the Act when assessing whether the respondent had established an unacceptable risk under s4(2)(d)(i).

105. At the age of 37, the applicant had a criminal history of "street offences" committed from the age of 15, including several convictions in the last 10 years. He had the support of his family and could live at his parents' home. Indeed his sister had offered to provide a surety in the sum of $20,000 in relation to any grant of bail. She had given evidence in the application as to how significant such a sum was to her. I did not doubt the truth of her evidence and considered that her provision of that surety is likely to provide a significant deterrent to flight, even thought the prosecution case appeared relatively strong.

108. Although it seemed that he had unjustifiably failed to appear on one previous occasion, despite my view of the strength of the Crown case, in all the circumstances, I was not satisfied that there is an unacceptable risk that he would fail to do so in relation to this matter, if granted bail on the strict conditions proposed.

112. I was satisfied that the applicant had shown cause why his detention in custody was not justified as required by s4(4)(c) and (ca) of the Act. Further the respondent had not persuaded me that there was an unacceptable risk that he would fail to appear to answer his bail requiring a refusal of bail under s4(2)(d).

115. Bail was granted on the applicant's own undertaking with one surety on the amount of $20,000 with the following conditions:

(1) The applicant reside at his parents' address at 7 Tudball Court, Bacchus Marsh.

(2) The applicant report daily to the Officer in Charge of the Bacchus Marsh Police Station (or his nominee) between the hours of 6.00 am and 9.00 pm.

(3) The applicant give 24 hours notice to the informant or his nominee of any proposed change of address.

(4) The applicant not contact directly or indirectly any witness for the prosecution except the informant or Ms Yolette Sullivan.

[1] (Unreported, Supreme Court of Victoria), 27 September 1993.

[2] (Unreported, Supreme Court of Victoria), 23 February 1998.

[3] (Unreported, Supreme Court of Victoria), 9 August 1996.

[4] Unreported, Supreme Court of Victoria, 21 September 2000.

[5] [2003] VSC 245.

[6] Mokbel v DPP [2002] VSC 127.

[7] [2002] VSC 312

[8] [2002] VSC 393

[9] [2002] VSCA 149.