Re Metekingi [2012] VSC 366 (23 August 2012)

2 On 16 July 2012, the applicant was arrested and charged with aggravated burglary and other offences arising out of three alleged burglaries in Westmeadows, in particular at 40 Koala Crescent, 49 Koala Crescent and at 10 Hillcrest Drive. On 17 July 2012, the applicant applied for bail before Magistrate Grubissa. His application was refused. The applicant as of right applies to this Court. The application before me is conducted as a fresh hearing.

3 The Crown contends that under the Bail Act 1977 the accused is not entitled to bail unless he shows cause why his detention in custody is not justified in accordance with s 4(4) of the Bail Act 1977. The Crown contends that s 4(4) is enlivened as the accused has been charged with an offence of aggravated burglary under s 77 of the Crimes Act 1958 as referred to in s 4(4)(c).

4 Section 4(4)(c) relevantly provides that where the accused is charged -

(c) with an offence of aggravated burglary under section 77 of the Crimes Act 1958 or any other indictable offence in the course of committing which the accused or any person acting in concert with the accused is alleged to have used or threatened to use a firearm, offensive weapon or explosives within the meaning of the said s.77;

....

the Court shall refuse bail unless the accused shows cause why his detention in custody is not justified...

5 Counsel for the accused says, however, that on a proper construction of subs (c) the offence of aggravated burglary must be one "in the course of committing which the accused ... is alleged to have used or threatened to use a firearm, offensive weapon or explosive with the meaning of the said section 77."

6 Mr Devlin, counselfor the applicant, informs me that he only received the brief in this matter last evening and doing the best he could his researches have shown there is no authority on the proper construction of subparagraph (c).

7 Mr Dwyer, counsel for the Crown, was informed of the point this morning and in those circumstances he was obviously unable to carry out any further investigation or was unable to assist any further. No criticism of Mr Dwyer is meant by that observation.

8 If the Crown is able to satisfy s 4(2)(d), then it would be unnecessary for me to decide this issue. In the absence of full submissions on the matter, it would be unwise to rule on the correct construction if I am able to avoid doing so without any prejudice to the applicant.

9 Accordingly I will consider whether the Crown is able to make out s 4(2)(d). Section 4(2)(d) the Bail Act 1977 relevantly provides that "notwithstanding the generality of the provisions of subs.(1)" (subs (1) upholds the statutory and common law position that an accused person is prima facie entitled to bail), "a court shall refuse bail ... (d) if the court is satisfied - that there is an unacceptable risk that the accused if released on bail would - fail to surrender himself into custody in answer to his bail; commit an offence whilst on bail; ...."

10 The Crown relies on these factors in opposing the application for bail, regardless of whether s 4(4) or s 4(2)(d) is relied on. For the reasons that follow, I am satisfied that there is an unacceptable risk that the accused, if released, would fail to surrender himself into custody in answer to his bail.

11 The Act requires me, in considering whether the relevant circumstances constitute an unacceptable risk, to have regard to all matters appearing to be relevant and, in particular, without in any way limiting the generality of the foregoing, to such of the following considerations as appear to be relevant (and I am reading from subs (3) of s 4):

"(a) the nature and seriousness of the offence;

(b) the character, antecedents, associations, home environment and background of the accused;

(c) the history of any previous grants of bail to the accused;

(d) the strength of the evidence against the accused;

(e) the attitude expressed to the court of the alleged victim of the offence to the grant of bail;

(f) any conditions that may be imposed to address the circumstances which may constitute an unacceptable risk."

12 The argument ably put on behalf of the applicant by Mr Devlin was that the strength of the case against the accused is weak and therefore the accused has every incentive to answer the charges as he has a good chance of being acquitted.

13 Mr Devlin addressed each of the three alleged burglaries. Mr Devlin contends that the Crown case on the alleged burglary at 40 Koala Street is weak. The Crown admits that the case with respect to the burglary at 40 Koala Crescent was not as strong as it could be, but contends that the case with regard to the alleged burglaries of 49 Koala Crescent and 10 Hillcrest Drive are relatively strong. Mr Devlin refers (and I do not mean to do his able argument injustice by not repeating it in full) to the fact that: the stolen goods from 40 Koala Crescent were not found on the accused's possession; the accused admitted selling jewellery in Fitzroy, but no link has been established by the police between the jewellery sold and that stolen.

14 As to 49 Koala Crescent, Mr Wilson (a neighbour who lives across the road from 49 Koala Crescent) gave evidence of seeing a green Mitsubishi Magna parked on the opposite side of the road. The accused's wife owns a green Mitsubishi Magna and the accused has admitted to police that he has the green Magna with him in Victoria. He has admitted to the police that he has been driving it, except that on one or two occasions, he let a friend, Ivan, drive it. The police rely on the Magna being identified near 49 Koala Crescent, at the approximate time of the burglary at 49 Koala crescent, as part of a circumstantial case against the accused.

15 Mr Wilson took down the number plate of the Magna as 658 54Q. I think we can infer that was a mistake as we know that Queensland number plates have three letters of the alphabet at the end. The wife's number plate is 658 SAQ. It is obviously a matter for the trial in due course but for the purpose of the bail application I do not think the evidence is as weak on that aspect as Mr Devlin would have me accept. Mr Wilson was shown a photo board and could not identify the accused.

16 With respect to 10 Hillcrest Drive, in this instance the burglar was seen by the occupant. The occupant is unable to identify the accused. Another neighbour, Mr Poloniato, saw the offender but is unable to identify him as the accused. Mr Wilson and Mr Poloniato both identified a person not dissimilar in some characteristics to the accused in terms of age and complexion.

17 The police recovered four sets of fingerprints from 10 Hillcrest Drive, two of which matched the applicant. The applicant said in his police interview that he had never been to Westmeadows, nor did he know where it was. Mr Devlin says that that answer is not indicative of consciousness of guilt, and that may well be the case.

18 This case is a circumstantial case but in my view I am unable to accept Mr Devlin's submission that the case is so weak that the applicant would have every incentive to turn up in court to make sure that the charges are dismissed.

19 Mr Devlin quite properly took me to the history of two previous occasions on which bail was granted to the applicant and was breached. They were back in 2004 and 2005. I think probably a more important matter which flows from the criminal history of the accused is the shocking record of criminal behaviour in Queensland. There is page after page after page of priors, most of which revolve around burglaries to feed his drug habit.

20 The accused arrived in Melbourne in May, the offences are alleged to have happened in the middle of June. The accused has very few, if any, connections with Melbourne. He has a room which he rents in Frankston under a 12 month lease. There is no suggestion that he paid a year's rent in advance or that he is not otherwise paying his rent on an 'as you use' basis. I do not see any financial incentive for him to stay because he has a taken a lease.

21 He has employment delivering pizzas, some three hours a day. That, again, is not a very strong attachment to the jurisdiction. His wife and family live in Queensland. I can see very little, if any, reason or strong connections with the State of Victoria which would suggest that he is not inclined to leave the State. He has no investment in Victoria in terms of a business, family, friends; nothing to give the Court any confidence at all that he would have a strong incentive to remain in the State.

22 The authorities establish that the primary question relevant to the grant of bail is whether the person will meet the conditions of bail and attend for trial and as required. I refer in particular to what was said by Eames J in DPP v. Ghiller,[1] which was cited with approval by Maxwell P in Re Asmar.[2] Eames J said:[3]

Even when an applicant for bail must show cause - that is, even when the presumption is that bail will not be granted unless the person makes out a case for bail - the primary question relevant to a grant of bail is whether a person will meet the conditions of bail and attend at the trial, and as required. The question of the strength of the case against the person is merely one of the factors to be considered when evaluating whether it is more or less likely that the person would meet the conditions of bail. A bail application is not concerned with determining the issues which the jury must decide, nor is it concerned with punishing a person in advance of that adjudication by a jury. [Including Maxwell P's emphasis.]

23 Justice Gillard in Re Paterson[4] in 2006 said, at paragraph 29:

There is no doubt that in considering the question of whether the applicant has shown cause why his detention in custody is not justified, relevant to that enquiry are the risks which are specified in s 4(2)(d), and this accords with the cases decided prior to the Bail Act 1977. But what the sub-section seeks to do is to raise the question of what is "an unacceptable risk". There is always a risk in considering an application for bail that if it is granted, the accused person may fail to attend court for his committal or trial, as the case may be. It is that risk which is the primary risk to be considered in any application. That has been recognised throughout the history of the law relating to bail for hundreds of years. That is the primary consideration. Is there a risk that the accused will not answer his bail?

24 In this case, on the assumption that the applicant does not bear an onus of showing cause, I would have to be satisfied that there is an unacceptable risk that he will fail to surrender himself into custody in answer to his bail.

25 I am satisfied there is an unacceptable risk that the accused, if released on bail, would fail to surrender himself into custody in answer to his bail. I refer to the matters which have already been discussed. I failed to mention that the accused has already absconded from his intensive drug rehabilitation order that was imposed on him on 17 November last year in Queensland. Mr Devlin says that the accused sought to get away from Queensland, start a new life, and get himself off drugs. He says that the accused has made every effort in Victoria to remain drug-free and he wants to obtain bail so he can continue his efforts to remain drug-free. He wants to get assistance outside gaol.

26 There was not a scintilla of evidence led of any efforts by the accused to obtain assistance before he was arrested to remain drug-free. He was going to receive assistance to remain drug-free under the intensive drug rehabilitation order that was imposed in Queensland, but he fled the jurisdiction. I am not satisfied with that aspect of Mr Devlin's submissions. I do not say that with any criticism of Mr Devlin - he, in my view, made all submissions on behalf of his client that could possibly be made on the evidence that he had to hand.

27 For those reasons, I refuse the application for bail and the application is dismissed.

[1] [2000] VSC 435 (Eames J).

[2] [2005] VSC 487 (Maxwell P).

[3] [2000] VSC 435 at [43].

[4] [2006] VSC 268 (Gillard J).