Re Paul Noel Dale [2009] VSC 332 (10 August 2009)

2 Mr Dale was arrested for the murder of Hodson on 13 February 2009 and remanded in custody. He has remained in custody in the Acacia Unit at Barwon Prison since that date. He has been placed in the high security provision, as I was told, for his own protection.

3 Mr Dale's application for bail was heard by the Chief Justice and dismissed on 26 March 2009. By notice dated 17 July 2009 he applied again for bail. I was persuaded to entertain this application because of the following new facts and circumstances. The prosecution brief has now been delivered so that a good deal more is known about the Crown case. The committal mention, which was expected then to take place in late 2009, has now been listed for 9 March 2010. And Mr Dale's psychological condition has deteriorated as a consequence of the conditions of his prison environment.

4 This is of course a case where the applicant bears the burden of showing exceptional circumstances. Counsel on his behalf relied upon three matters: the delay to the trial; the lack of strength of the prosecution case; and the circumstances of his detention. In addition they contended that his circumstances were such that bail was appropriate and that he presented no risk of offending or of interfering with witnesses.

5 I accept that the trial of this case will not occur before the end of 2010 and even perhaps early 2011, assuming of course that he is committed for trial. This will mean that Mr Dale will have been in custody for nearly two years.

6 I was referred to decisions in which such a delay has been considered to amount to special circumstances.[1] Whether it is, in a given case, is, of course, a matter of fact but I pay respectful attention to the views of these experienced judges. I am mindful too of the provisions of the Charter of Human Rights and Responsibilities Act 2006[2], although this legislation does not require a departure from the previous attitude of the court to arguments based on delay.[3]

7 The argument based on the strength of the Crown case, or its lack of strength, started from the position that it depended upon the acceptance of the evidence of a witness referred to as Witness R. It was said with some justification that he is a very tainted witness by reason of his character and because he had made an earlier inconsistent statement professing no knowledge of the circumstances of the Hodson murder. The Crown will seek to bolster his evidence by relying upon a covertly recorded conversation in which Mr Dale admitted to another witness, called Witness F, that the statement of the witness R was accurate. I was told that application would be made to exclude this supporting evidence on the basis that it was a privileged conversation and further, on the basis of its unfairness. Further Crown evidence in the form of answers given by Mr Dale in an ACC compulsory interrogation will also be objected to.

8 It is not appropriate for me in this application to attempt to resolve these evidentiary matters or to enter upon a minute examination of the Crown case. I have examined the material offered in opposition to this application, including the police summary, but not including the prosecution brief. I am not persuaded that this is a weak Crown case.

9 A good deal of emphasis was placed upon the severe circumstances of Mr Dale's detention. He is, as I have mentioned, located in the high security Acacia Unit. He was first placed in Unit 4, effectively in solitary confinement, for some five to six weeks. It was said that this was a severe shock for a first time prisoner. In fact, Mr Dale had spent ten days in remand in December 2003 but I accept that the necessary adjustment to this custodial regime would have been traumatic. The psychiatric nurse, Helen Eliza Leeson, who was attending him at this time spoke of his gradual improvement as he adjusted.

10 He was then moved to Unit 2 within Acacia where he shares facilities with three sentences prisoners. These men were described as not providing meaningful social contact because their culture was different from his. They are Muslims serving sentences for terrorist-related crimes whose religious observances and language differences mean that his ability to socialise with them is limited. He is presently located there. The opinion of Ms Leeson is that his psychological state is deteriorating as a consequence of this and the general severity of his incarceration.

11 Dr Danny Sullivan, consultant forensic psychiatrist, who interviewed Mr Dale on 24 June this year, says that he suffers from adjustment disorder with depressed and anxious mood due to his lack of social contact and the prospect of protracted remand. He spoke too of an apparent suicide plan which Mr Dale had developed. Dr Sullivan is of opinion that a continuation of his present incarceration will likely have the consequence that his mood would remain severely lowered.

12 Ms Leeson, who had a longer and more frequent contact with Mr Dale, is more pessimistic. She spoke of continuing degeneration in his psychological condition which might require his hospitalisation. She accepted, however, that his current medication is a relatively low dosage of Valium. Both were of opinion that his condition would improve if he were bailed.

13 Ms Leeson also spoke of the adverse impact upon Mr Dale of his hearing that a page from the prosecution brief had found its way into general circulation among fellow prisoners. The conduct of this, I was told, was very embarrassing for Mr Dale and possibly dangerous for the other prisoner mentioned in the document. This, Ms Leeson said, caused Mr Dale to be distrustful of the security which he was being offered. This became a distrust of prison authorities generally and of his own legal team.

14 I was told that the impact of the circumstances of his incarceration upon his mental state was such that he was unable to prepare his defence. This is of course a matter of serious concern. This concern underlay the response of Bongiorno J to similar applications in the Benbrika trial last year.[4] It may be no coincidence that the prisoners who share the unit where Mr Dale is accommodated are some of the accused in that trial.

15 Let me say immediately that this is a most unsatisfactory state of affairs. It is now over eight years since the highest court in the land has expressed similar concerns in the case of Cabal v. The United Mexican States[5]. It must be expected that, as a former police officer charged with serious offences of a particular kind, the detention of Mr Dale poses particular difficulties for the prison authorities. A primary concern must be his own safety and it is for this reason, I was told, that he has been placed in Acacia. But location in that unit appears for some reason to carry with it a number of features which appear entirely unrelated to the requirements of his protection. These may be appropriate for extremely dangerous, violent convicted persons, but it has not been suggested that Mr Dale is any of those. Why then should he be required to suffer the indignity of strip searches, leg irons when out of the unit, and a requirement of avoiding eye contact with other prisoners and perhaps other persons? If the explanation for this is that they are simply a bureaucratic requirement for all inmates of the unit, this is not very satisfactory.

16 The fact remains that, if it be the case that unconvicted members of our society must be detained, they must be provided with accommodation which suits the requirements of their detention. Unlike a sentenced prisoner, they are not undergoing punishment. It is for this reason not appropriate that they be detained with prisoners undergoing sentence. I respectfully adopt the observations to this effect of Kirby J, expressed eight years ago in the Cabal case.[6] Ms Leeson said that in certain respects detention on remand is more stressful than detention under sentence. I accept that this is so.

17 It is not for the Court to direct Corrections Victoria as to how they should carry out their functions or apply their budget resources. The Court, however, does have a concern that a man awaiting trial for a lengthy period should not be detained in unnecessarily severe circumstances. The Court does have a concern that a man entitled to the presumption of innocence should not be placed in detention in circumstances where his psychological wellbeing is put at risk. This is particularly case if the consequence should be he is unable to instruct his lawyers and thereby put at risk his entitlement to a fair trial.

18 It was contended on behalf of Mr Dale that exceptional circumstances arise from a combination of these three considerations. It was said too that although they were all considered by the Chief Justice when she rejected

Mr Dale's application in March, they take on a new significance in the light of the facts as they are now known.

19 In my opinion the first and third circumstance in this case do amount to exceptional circumstances which might justify the grant of bail. It is exceptional that an accused man should be held for two years in such severe circumstances. The prohibition of bail, however, requires the applicant to satisfy not only that the special circumstances exist but they be special circumstances which do justify the making of a bail order. I am not satisfied that the applicant has discharged this burden.

20 The applicant must demonstrate that there is no unacceptable risk that he would fail to answer his bail. This is of course the primary question which underlies the requirement that prisoners charged must be detained pending trial. In this context there is to be weighed the fact that he has attended when called upon to attend inquiries conducted by the OPI and the ACC; that he has no prior convictions; that he has family and business ties in Victoria; and that he would accept stringent bail conditions. Against this is the strong incentive to flight provided by the very great seriousness of the charge which he faces and the prospect of a heavy term of imprisonment which he might apprehend if he were convicted.

21 The Crown relied upon the unacceptable risk that Mr Dale might, if granted bail, interfere with witnesses or of otherwise obstructing the course of justice. Mention was made of serious threats offered to Witness F. Detective Sergeant Solomon accepted that there was no evidence implicating Mr Dale in these threats but nevertheless maintained that they appeared to be made to warn that witness from giving evidence in Mr Dale's trial.

22 Sergeant Solomon also expressed the belief that the dissemination of the page from the prosecution brief in Barwon Prison was contrived by Mr Dale or his co-accused Rodney Collins. There was no evidence of this or even a hypothesis as to how this might have been achieved. What does appear from the evidence is that only the accused had the relevant document in their possession and it would be very difficulty for anyone to bring it into the prison.

23 Finally, there was some evidence that Mr Dale encouraged Silvio Montesanto and Melenko Jessic not to co-operate with the police investigating the Hodson murder. While it may be correct to say, as counsel contended, that these men did not need this encouragement, the fact remains that Mr Dale did speak to them in these terms.

24 I mention too, although there is a degree of circularity in this, that the offence of which Mr Dale is now charged represents the most serious interference with a witness and with the course of justice.

25 Weighing up these matters I, like the Chief Justice in March of this year, am satisfied that the risk that the applicant would interfere with witnesses or otherwise obstruct the course of justice if he were released is present and that the circumstances of this case are sufficient to render the risk an unacceptable one.

26 The application for bail therefore will be refused.

[1] Mokbel No (2) [2002] VSC 312 (Kellam J); Cox [2003] VSC 245 (Redlich J); Dickson [2008] VSC 516 (Lasry J); Barbaro [2009] VSCA 29;

[2] Sections 21(5) and 25(2).

[3] Barbaro [2009] VSCA 26 at [40] - [41]

[4] Benbrika [2008] VSC 30 at [89] - [93]

[5] [2001] HCA 42

[6] [2001] HCA 42 at [40] - [43].