THE COURT: Peter Viavattene stands charged with an offence of robbery contrary to s 94 of the Crimes Act 1900 (NSW). The charge is based on an allegation that he pushed his neighbour in the chest and stole her iPhone after she began filming him during the course of a dispute between her husband and Mr Viavattene's wife. The offence is alleged to have been committed on 12 February 2016. The applicant was arrested on 23 February 2016 and has been in custody on remand since that date. The matter is next before the Local Court at Lismore for mention on 21 June 2016.
Having been refused bail in the Local Court, Mr Viavattene made a release application to the Supreme Court (invoking that Court's power under s 66 of the Bail Act 2013 (NSW)). The application was initially listed (in accordance with the Court's usual listing arrangements) to be heard on 25 May 2016. However, by notice of motion filed 10 March 2016, the applicant sought, among other things, to have the hearing of the application expedited.
Other relief sought by the notice of motion included an order "to quash the indictment and acquit Peter Viavattene in relation to the alleged offence under clause 8(1) of the Criminal Procedure Act 1986 and ss 129(4)(c) and 129(5) of the Criminal Procedure Act 1986" (prayer 6 in the motion). The statutory provisions referred to relate to the presentment of indictments in the Supreme Court or the District Court.
The motion came before Schmidt J as duty judge on 16 March 2016. Her Honour granted expedition of the hearing of the release application (bringing it forward to the bail list on 6 April 2016) but otherwise declined to grant the relief sought, for the reasons stated in a judgment published on 18 March 2016: R v Viavattene [2016] NSWSC 299.
The release application was heard by Bellew J on 6 April 2016 and, owing to the length of the applicant's oral submissions, continued into a second day, on 8 April 2016. His Honour dismissed the application, for the reasons stated in an ex tempore judgment given that day.
Mr Viavattene, who represents himself, has sought to bring three applications in this Court in respect of those matters, two purportedly by way of appeal against the decisions of Schmidt J and Bellew J referred to above, the third being a release application made directly to this Court.
The two applications seeking to challenge the decisions of Schmidt J and Bellew J were misconceived. The first was a hand-written application filed on 12 April 2016 seeking to appeal against the refusal to grant an order "quashing the indictment" as sought by order 6 in the notice of motion. On 19 April 2016, a second application was filed, effectively formalising the first. The second application (made on a Form VC, as contemplated by r 2 of the Criminal Appeal Rules) sought to invoke the Court's authority under s 5F of the Criminal Appeal Act 1912 (NSW) to determine an application for leave to appeal against an interlocutory judgment or order.
Those applications were misconceived in at least two respects. First, to the extent that the relief sought was directed to the indictment (specifically, the failure or refusal of Schmidt J and Bellew J to make an order in the terms of prayer 6 in the motion), the applications misconceived the procedure applicable in the criminal proceedings. Mr Viavattene contends that, as he is charged with an indictable offence, "the Local Court does not have jurisdiction"; that the time within which to present an indictment in accordance with s 129 of the Criminal Procedure Act 1986 (NSW) has passed and accordingly that he is entitled to be released immediately. The submission overlooks or else misconceives the provisions relating to indictable procedure and, in particular, the procedure for committal proceedings prescribed in part 2 of chapter 3 of the Criminal Procedure Act.
Secondly, to the extent that the applications were directed to the dismissal of the release application brought in the Supreme Court, they misconceived the scope of s 5F of the Criminal Appeal Act. The Court's authority under that section relevantly extends to interlocutory judgments and orders given or made in "proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court". The section is not concerned with interlocutory judgments or orders in bail proceedings. Prayer 6 in the Notice of Motion entailed the same misconception; any order challenging the indictment had to be sought in the criminal proceedings.
For those reasons, the Court declined to entertain those two applications. If it were necessary to do so, in respect of each application, the Court would have refused leave to appeal under s 5F for the same reasons.
The third application brought by Mr Viavattene is a further release application under the Bail Act consequent upon the refusal of the application brought in the Supreme Court, invoking this Court's power under s 67(1)(e) of the Act. The Court heard that application as a new application, as contemplated by s 75 of the Bail Act.
The Crown opposed the application.
Facts alleged by the Crown
The following is a summary of the facts alleged by the Crown (which, of course, remain to be proved in the proceedings). The alleged victim of the offence is Ms Rebecca Mason, who lives with her partner, Mr McKinnon and their son on a property adjacent to a property owned and occupied by Mr Viavattene and his family.
On the evening of 12 February 2016 Mr McKinnon was in his backyard slashing trees that were overhanging the boundary between the properties. It is alleged that at about this time Mrs Viavattene began to shout at Mr McKinnon, demanding that he stop pruning the trees.
It is alleged that, a short time later, Mr Viavattene approached Mr McKinnon with a wooden baseball bat and then picked up a rock and raised it above his shoulder height, baulking to throw the rock at Mr McKinnon.
Hearing the shouting, Ms Mason, who was on the front balcony of her property, came into the back yard. Mr McKinnon asked her to film the incident. She approached Mr Viavattene and Mr McKinnon, who were facing each other in a stand-off, and began filming with her iPhone.
It is alleged that Mr Viavattene then dropped the rock, lunged forward towards Ms Mason and snatched the phone from her, causing her to fall backwards into a tree, sustaining abrasions to her shin and index finger.
The Crown alleges that Mr Viavattene then ran back into his house, taking the phone. Ms Mason then called the police. Mr Viavattene and his family were seen driving from the scene approximately 10 minutes later.
[2]
Assessment of bail concerns
The offence with which Mr Viavattene is charged does not attract a requirement to "show cause" under s 16A of the Bail Act. Accordingly, the task for the Court is to assess any bail concerns identified by the Crown with a view to determining whether the applicant poses an unacceptable risk if released on bail: ss 17-19 of the Act. The Crown contends that there is a concern that the applicant, if released from custody, will:
1. fail to appear (s 17(2)(a));
2. endanger the safety of victims, individuals or the community (s 17(2)(c)); or
3. interfere with witnesses or evidence (s 17(2)(d)).
The Crown's written submissions did not raise a concern that the applicant will commit a serious offence if released on bail (s 17(2)(b)).
The Crown submitted that there were no conditions which could address the concerns identified and that the Court should be satisfied, on the basis of its assessment of those concerns, that each poses an unacceptable risk. The Crown pointed, in particular, to Mr Viavattene's history of failing to appear when released on bail and the apparent danger he poses, in particular, to his neighbours, with whom he has a history of ongoing disputes.
In assessing the concerns raised by the Crown, the Court must have regard to the matters listed in s 18 of the Bail Act, including the bail conditions that could reasonably be imposed to address any concerns the Court is persuaded do exist. The relevant considerations under s 18 are addressed below.
[3]
Concern that the applicant will fail to appear
The principal considerations in assessing whether there is a concern that the applicant will fail to appear if released on bail are his criminal history, his circumstances and his community ties: s 18(1)(a) of the Bail Act.
The bail report provided in respect of Mr Viavattene reveals that he has failed to appear at court on a number of occasions.
Mr Viavattene questioned the accuracy of the bail report. It is a cumbersome document and does include some curious entries, being references to the "Sydney Supreme Court Murwillumbah" and the "Sydney Supreme Court Kingscliff". In each case, the outcome recorded is "bail order" (apparently a reference to Supreme Court bail granted after the applicant was arrested on a number of bench warrants). The bail report reveals a pattern which was repeated in respect of a number of offences committed on different dates, for which Mr Viavattene was ultimately sentenced on 23 November 2012. In a number of cases, Mr Viavattene was convicted in his absence with an order for a warrant to issue; his application to annul the conviction was refused in the Local Court; his "appeal to annul sentence" was dismissed in the District Court; the entry recording a bail order by the "Sydney Supreme Court" was made and finally, in each case, Mr Viavattene was sentenced back in the Local Court (receiving s 9 bonds).
The entries referring to the "Sydney Supreme Court" do not reveal any basis for doubting the correctness of the recorded convictions. As explained to Mr Viavattene during the hearing, this Court must proceed on the basis that those convictions stand.
As to Mr Viavattene's circumstances, it may be noted in his favour that he owns a house with his wife and has children who attend a local school. Those are matters militating against a risk of permanent flight. Conversely, however, the history of convictions entered in Mr Viavattene's absence and the convictions for failure to appear suggest a persistent unwillingness or inability to appear when required.
Section 18(1)(b) requires the Court also to have regard to the nature and seriousness of the offence. The offence of robbery is undoubtedly a serious offence, being an offence against the person. That said, it may be acknowledged that the allegations against Mr Viavattene, if proved, establish an offence at the lower end of the scale of offences of that kind.
The Court must also consider the strength the prosecution case: s 18(1)(c). It appears that the case will turn primarily on the cogency of the account given by the alleged victim and her partner, which this Court is unable to assess. Noting that limitation, in the absence of any patent anomalies in their account, the Crown case would appear to be reasonably strong.
Section 18(1)(f) requires the Court to consider whether the applicant has a history of non-compliance with bail acknowledgements, bail conditions, apprehended violence orders, parole orders or good behaviour bonds. Mr Viavattene's criminal history includes convictions for contravening a prohibition or restriction in an apprehended violence order as well as many entries for failing to appear in accordance with a bail undertaking.
The criminal history also records two separate occasions (involving six separate charges) where courts have issued warrants for Mr Viavattene's arrest because he was not before the court as required. The history also records that Mr Viavattene has been called up for a number of breaches of bond (apparently reflecting a single event that breached a number of bonds).
The Court is required to have regard to the likelihood of a custodial sentence being imposed if Mr Viavattene is convicted of the offence: s 18(1)(i). That consideration is relevant in different ways. The strong prospect of a custodial sentence can sustain a concern that a person is a flight risk, militating against the grant of bail. It is also a factor properly taken into account when considering the length of time the accused person is likely to spend in custody if bail is refused, which is another mandatory consideration: s 18(1)(h). The prospect of a lengthy delay until trial will weigh more heavily in favour of release in a case where the period of delay is likely to exceed the term of any custodial sentence that would be imposed in the case of a finding of guilt; conversely, a lengthy period on bail might, in some cases, give rise to a higher risk of committing serious offences while on bail (not one of the concerns cited by the Crown in this case).
Mr Viavattene's criminal history suggests a significant prospect that a term of imprisonment would be imposed if he is convicted. His record includes convictions for destroying or damaging property, larceny, common assault, contravening an apprehended violence order, resisting a police officer in the execution of duty, failing to appear in accordance with a bail undertaking, police pursuit (failing to stop and driving at speed) and wilfully obstructing a police officer in the execution of duty. He served terms of imprisonment for the last two offences in that list.
Importantly, however, there is a substantial risk in the present case that the likely delay before trial would exceed the term of any sentence that might be imposed. The offence with which Mr Viavattene has been charged can only be dealt with on indictment and will accordingly have to be committed to the District Court for trial. The Crown submitted that it would be at least six months before Mr Viavattene's committal proceedings can be determined and accepted that, unless the present charge is changed, a trial date in the District Court will be "a different story altogether", from which we infer an acceptance that unless the Crown changes the charge, a trial date for Mr Viavattene in the District Court before mid-2017 is unlikely.
Having regard primarily to the history of failing to appear, the Court is persuaded that there is a concern that the applicant would fail to appear if released on bail. Whether that amounts to an unacceptable risk is addressed below.
[4]
Concerns that the applicant will endanger the safety of victims, individuals or the community or interfere with witnesses or evidence
The foregoing matters are also relevant to the assessment of the concerns identified by the Crown that the applicant will endanger the safety of victims, individuals or the community or interfere with witnesses or evidence if granted bail. The material before the Court reveals that the applicant has found himself in longstanding and serious conflict with a number of his neighbours in the community in which he lives. The Crown tendered the statements of facts relating to some of his earlier convictions; it has plainly become a volatile environment and one in which the degree of conflict between the applicant and various neighbours is escalating.
The Court is required in that context to have regard to the views of the alleged victim: s 18(1)(o). Material on that issue was provided in a letter from the informant dated 4 April 2016. The informant stated that the alleged victim is fearful of the accused; in that context he addressed the obvious risk of further incidents in the event that the applicant returns to that neighbourhood. For his part, the applicant submitted that he is keen to remove himself from that environment but noted that he owns his home and is prima facie entitled to live there. Notwithstanding that fact, the applicant did indicate a willingness to move to another community, perhaps by arranging to rent his house out and lease a house. However, it is difficult for him to make any such arrangement whilst in custody.
The Court is persuaded that the safety of the alleged victim and the risk of further conflict is plainly a concern in the present case. We are not persuaded that there is a real concern that the applicant would interfere with witnesses or evidence if released; there is no history of his doing so.
[5]
Can the concerns identified be addressed by bail conditions?
As to the concern that Mr Viavattene would fail to appear if released, Mr Viavattene informed the Court that he is impecunious and cannot deposit security for any bail undertaking. He could nonetheless be required to enter an acknowledgment that a nominated sum would be forfeited if he fails to answer his bail. That, in combination with regular reporting to police, would in our view sufficiently mitigate the risk of his failing to appear. We regard reporting twice weekly as sufficient and have, in our orders, proposed a condition that Mr Viavattene report the officer in charge of Murwillumbah Police Station each Tuesday and Thursday.
The more difficult issue is the safety of the alleged victim and other neighbours. In that context, it must be accepted that the list of considerations in s 18 of the Act, which is both mandatory and exhaustive, expressly contemplates the consideration of matters militating in favour of a grant of bail as well as matters counting against bail. Parliament clearly intended that the Court, in determining whether there is an unacceptable risk, should undertake an evaluative assessment of any concerns established by the evidence on the premise that some degree of risk is acceptable, depending on the considerations pointing in favour of granting bail (such as vulnerability of the applicant or the prospect of a lengthy delay before trial).
In our view, delay is the critical consideration in the present case. The proceedings against the applicant are still in the Local Court and, as already noted, the charge is one that can be dealt with only on indictment (meaning that the applicant will have to be committed to the District Court and, if committed, tried in that Court).
Although there is a risk of failure to appear and a risk of further conflict endangering the alleged victim and her partner, we are persuaded that, if appropriate conditions were imposed, those risks would not be unacceptable, particularly when weighed against the strong likelihood that, if bail is refused, the applicant will be in custody on remand for longer than any likely custodial sentence upon conviction. In reaching that conclusion, as to the risk of further conflict with the alleged victim and her partner, we have had regard to the fact that Mr McKinnon told police he did not seek an apprehended violence order to protect himself and his partner against Mr Viavattene.
It is obviously desirable that Mr Viavattene should voluntarily move from the area where the long-standing conflicts with his neighbours have emerged. We do not consider, however, that the imposition of bail conditions is an appropriate mechanism to effect that outcome.
We propose to mitigate the bail concerns demonstrated by the evidence by imposing strict conditions having the effect that if Mr Viavattene contacts or attempts to contact in any way (except through a legal representative) Ms Rebecca Mason or Mr David McKinnon he will be in immediate breach of his bail conditions.
We consider that the bail concerns identified can adequately be addressed by the imposition of these strict conditions which are calculated to keep the applicant away from Ms Mason and Mr McKinnon and by a condition requiring regular contact with police.
Bail Determination
Bail is granted on the following conditions:
1. The applicant is to appear at the Local Court at Lismore on 21 June 2016 and on such dates as he may be required to appear thereafter;
2. The applicant is to enter into an agreement under which he agrees to forfeit the sum of $5000 if he fails to appear before a court in accordance with his bail acknowledgment;
3. The applicant is to be of good behaviour;
4. The applicant is not to contact or attempt to contact in any way except through a legal representative Ms Rebecca Mason or Mr David McKinnon or any of their children;
5. The applicant is to report to the officer in charge of Murwillumbah Police Station each Tuesday and Thursday between the hours of 9 am and 8 pm.
[6]
Amendments
22 September 2020 - Publication restriction removed.
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Decision last updated: 22 September 2020