Watts v DPP [2007] VSC 275

2 Your retrial has been rendered necessary by a successful appeal against your conviction at an earlier trial which miscarried as a matter of process. Your retrial is likely to occur in the latter part of the first half of next year.

3 At the time you allegedly committed the offences upon which you are to be retried, you were on bail awaiting trial on another series of serious offences of which you were convicted before Judge Morgan-Payler on 15 April 2005. Judge Morgan-Payler sentenced you to two years' imprisonment with a minimum of 18 months. While serving that sentence you were tried for the events of February 2004 and upon conviction on 22 November 2005 you were sentenced to a total effective sentence of eight years' imprisonment with a new non-parole period of five years 11 months. You have been in prison since 2004 and will remain there unless you are successful on the bail application now before this Court.

4 The nature of the charges you are facing and the fact that it is alleged you committed them whilst on bail means that you bear the onus of satisfying this Court that your continued detention is not justified in the circumstances.

5 Your counsel referred to the decision of Maxwell P in Asmar[1] as authority for the proposition that the provisions of s 4(4)(a) and s 4(4)(c) of the Bail Act 1977 mean that the test which must be applied by the Court is simply whether it is satisfied that your continued detention is not justified. It is, according to Maxwell P, a simple one stage test, easy of application and without the necessity for separate consideration of questions as to whether your release presents an unacceptable risk of absconding or re-offending. Although a more complex test has been proposed by some interpretations of the section, I favour that propounded by Maxwell P, although either test would in this case reach the same result.

6 The case put by your counsel relied upon evidence from your mother, Mr Ronald Spilsbury, a prison volunteer, and Mr John Blake, a Salvation Army Officer from Horsham. All of them gave evidence in your favour, perhaps especially your mother as one would expect. They each spoke of your son and the relationship you appear to have developed with him, even though for most of his life you have been in gaol.

7 The community is indeed fortunate that people like Mr Spilsbury and Mr Blake are prepared to undertake the work that they do. Each of them put it that you had turned your life around, that you were not involved with drugs and had finished a relationship with your son's mother who was, perhaps, a cause at least of some of your offending.

8 Your criminal history is appalling. Judge Morgan-Payler recounted 160 convictions in his Sentencing Remarks upon sending you to gaol in April 2005. At least two of those convictions involved failing to appear on bail, even though they were a long time ago. The rest, mostly, are for violence and dishonesty. Your counsel informed the Court that should bail be granted, the Parole Board would immediately consider an application by you for parole, notwithstanding that you have still quite some time to serve under Judge Morgan-Payler's sentence. However that may be and whatever the result of such an application may be, it is not relevant to the test I must undertake.

9 Your counsel submits that the two matters most affecting the question of bail are whether you are likely to interfere with witnesses and whether you are likely to abscond. There is evidence before the Court that the victims of the assaults and robberies of 1 February 2004 are terrified of you because of the violence of the attacks they say you committed. It is to alleviate such fear that the law puts the onus on the applicant to establish the grounds for bail where one of the offences charged is aggravated burglary, which is one of the charges you face. Similarly, common sense requires that where an applicant has a prior conviction for failure to attend court on bail, greater scrutiny of the case he puts must be undertaken. You have not satisfied me on either of these issues raised by your counsel that your continued detention is not justified.

10 The Crown has pointed to a series of matters which it argues militate against bail in your case. They are the nature of the offences, your prior criminal history, your previous bail history, the strength of the Crown case, the attitude of the victims and the nature of the accommodation which it is suggested you would be able to avail yourself of if you were released on bail. The prosecutor also puts it that your offending has occurred since the birth of your son and that the offences with which you are charged are alleged to have occurred whilst you were on bail.

11 In all of the circumstances, the case for your continued detention is quite overwhelming. Your application for bail is refused.

[1] Re Fred Joseph Asmar [2005] VSC 487