YSA v DPP [2002] VSCA 149

5. The committal proceeding occupied some three days during which witnesses were cross-examined. The charges were that the defendant trafficked in a drug of dependence and conspired to traffick in a drug of dependence. At the conclusion of the proceeding, the defendant was committed for trial and there followed immediately an application for bail by counsel on his behalf. It was common ground that it was necessary for the defendant establish "exceptional circumstances" under s.4(2)(aa) of the Bail Act 1977, defendant's counsel relying upon submissions from the Bar table and two unsworn affidavits, one of the defendant's wife and the other of a long time family friend. The application was opposed by the prosecutor but, in the end, it was granted by the magistrate on conditions of daily reporting and the like.

8. From that decision the Director appealed to a judge in the Trial Division under s.18A of the Bail Act 1977. The appeal was allowed (in June last) on the ground, as I read his Honour's reasons for judgment, that it was not open to the magistrate in the circumstances to find that the factors relied upon by the defendant and identified by the magistrate amounted to "exceptional circumstances" within s.4(2)(aa). The magistrate's order granting bail was therefore set aside and in lieu the defendant's application for bail was dismissed. It is from those orders that the defendant now appeals to the Court of Appeal.

11. The right to appeal from the judge's decision arises under s.17 of the Supreme Court Act 1986 and that was not in dispute before us; nor could it be, in the light of this Court's decision on 8 August last in Fernandez v. D.P.P.[1]. Nor was it in dispute that, on appeal from the magistrate, the proper test for the judge was that spelled out in Beljajev v. D.P.P.[2] where the Full Court said this[3]:-

"It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made. In other words, the Director is not in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made. There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first is that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate courts have frequently refused to interfere with a primary judge's decision on a matter of practice and procedure."

In this instance, the judge quoted the foregoing in his reasons for judgment and, when those reasons are read as a whole, I have no doubt but that the judge adopted as the proper test on the appeal under s.18A, whether the magistrate had erred in the exercise of his discretion.

16. His Honour identified, from the reasons given by the magistrate for granting bail, "the following major factors which he [the magistrate] held, when looked at together, amounted to exceptional circumstances". They were these (as set out in paragraph 22 of his Honour's reasons for judgment):

"(a) The respondent has no prior convictions; (b) The respondent has lived in Australia for a period of 29 years, has a family including three children although at the date of his arrest he and his wife were not living as a husband and wife normally do; (c) The respondent has a residence for him to go in Caulfield although that is subject to a contract of sale and the residence must be vacated on 5 July; (d) The respondent has been in custody for some 10 months and could well be in custody for another 10 months awaiting trial; (e) The respondent's health is not good; (f) The respondent can supply a surety of $300,000; (g) One co-accused has already been released on bail; (h) The respondent conducts a business in the Hallam area and had an offer of other employment. (i) The case against the respondent is not bound to succeed."

As I followed the argument before us, there was no real dispute but that these were indeed the major factors identified by the magistrate as amounting together to exceptional circumstances, sufficient to justify the grant of bail. The defendant did not contend before us that there was error there. His argument was that in so finding and in so concluding the magistrate had been correct.

21. The judge's view, however, was to the contrary; for in paragraphs 30 and 31 of his reasons for judgment he said:-

"Whilst undoubtedly the learned Magistrate was entitled to the view that the factors he identified were factors to be taken into account by him in favour of releasing the respondent on bail can it be said that they constitute exceptional circumstances that is, circumstances which can properly be described as unusual or out of the ordinary. In my opinion they cannot."

Mr. Walters**'** submitted that in so concluding, his Honour was substituting his own opinion about exceptional circumstances for that of the magistrate, but that is not the case. Rather, his Honour was saying that in this instance the major factors to which the magistrate had regard could not, either separately or together, constitute the exceptional circumstances necessary to underpin a grant of bail.

26. In my opinion, the judge was perfectly correct, with respect, in arriving at this conclusion. It follows that it was not open the magistrate to have concluded as he did, thus vitiating the exercise by him of his discretion. As that was error which was capable of being redressed on appeal under s.18A, it was appropriate for his Honour to allow the appeal and set aside the grant of bail. Accordingly, the appeal to this Court should be dismissed.

30. It is appropriate however, because of the care with which they were presented, to say something more about the arguments that were put to us by counsel for the defendant in support of the appeal from the judge's decision. I have rejected already the submission that his Honour mistook the test on appeal under s.18A in that, instead of asking himself whether the magistrate had fallen into error in exercising the discretion conferred upon him - that is, instead of asking whether the exercise of discretion miscarried in the Magistrates' Court - the judge simply addressed the question whether there were or were not, in his own opinion, exceptional circumstances and held that there were not. As I have said, that is not a fair reading of his Honour's reasons for judgment. But it was also contended before us on behalf of the defendant that, in dealing with this appeal against the exercise of discretion below, his Honour had had regard to material that was not before the magistrate and further had failed to have regard to material that was before the magistrate, both of these being steps which were impermissible, it was contended, because of the nature of the task confronting the judge. An example of the former, it was said, was the summary of evidence exhibited to the affidavit of Mr. Atkinson which was put before the judge by the Director despite objection that it went beyond the evidence relied upon by the prosecutor at the committal. An example of the latter was the cross examination of witnesses during the committal, the transcript of which was not put before the judge at all.

33. What, then, was before the judge on the appeal under s.18A? First, I mention Exhibit 1 which was put in evidence by the defendant during the cross-examination of Mr. Atkinson (the deponent of the only affidavit relied upon before the judge). That document, which was referred to shortly as "the s.51 document" purported to be authority to act granted under s.51 of the Drugs, Poisons and Controlled Substances Act 1981. In terms it was authority granted by a detective senior sergeant to a registered informer (identified only by a number) -

"... to carry out all inquiries and obtain all the necessary evidence which indicates the commission of any offence against the said Drugs, Poisons and Controlled Substances Act 1981 in respect of the particular case of an investigation of illicit drug trafficking by X and diverse other associates".

What I have just quoted was typed, save for the words in italics, which were in handwriting. Where I have included the designation "X" a name appeared, but it is unnecessary for present purposes to state what that name was. Suffice it to say for the moment that this authority to act, having been granted under s.51 to a registered informer, was relied upon by the defendant before the magistrate as granting him immunity, and so an answer to the charges brought against him. (It was common ground that the defendant was a registered informer.) As can be seen from paragraph 6 of the affidavit of one Fiona Brice to which I refer later[4]

, the evidence given at committal was that probably the defendant would not have known of the existence of the document itself, and would not have known its terms. None the less it was known to his "handler", one Detective Sergeant Rozenes. I shall come back to this document later.

40. Save for Exhibit 1, the material before the judge consisted solely of the affidavit of Peter John Andrew Atkinson, a solicitor in the Office of Public Prosecutions, which was sworn on 20 May 2002. This affidavit was filed by the Director in support of his appeal from the Magistrates' Court and although counsel for the defendant, as respondent to the appeal, took objection (as already mentioned) to its use, it is now a ground of complaint that the objection was never ruled upon. There were four exhibits to the affidavit, A, B, C and D. Exhibit B was described as "copy hand up brief". Although fortunately (because the exhibit was very large, we were told) this was not included among the papers made available to us, it was none the less before the judge as obviously it was before the magistrate for the purposes of the committal hearing. Exhibit D was a copy of the transcript of the bail application made to the magistrate as soon as the defendant had been committed for trial. Exhibit C, described as "a copy extract of bail conditions" was in truth a certified extract of the order made in the Magistrates' Court granting bail and it included reference, albeit briefly and in short form, to the bail conditions.

43. Exhibit A to Mr Atkinson's affidavit was the document on which Mr. Walters focussed much of his argument before us. It was called "copy summary and report dated 20th May 2001" and this turned out to be two documents: the first, a lengthy document headed "Summary of Evidence" and the second, a letter dated 20 May 2002 from the informant to the Office of Public Prosecutions reporting on the committal hearing, the application for bail, the granting of bail by the magistrate and the continuing concerns of the informant about bail. The second document was obviously not one before the magistrate, but nothing seems to have turned upon it on the appeal under s.18A and so I pass it by. The document headed "Summary of Evidence", we were told, was no part of the hand-up brief although on behalf of the prosecution it was put forward to the magistrate in company with the hand-up brief. It was however promptly put aside by the magistrate as a document having no relevance to the committal hearing (which then proceeded), and hence the objection to the judge, and now to us, that his Honour should have had no regard to it.

46. The objection, however, to Mr. Atkinson's affidavit went beyond the mere use of Exhibit A. It will be apparent from what I have said already that the affidavit dealt with the course of proceedings before the magistrate; but the deponent purported to set out also the nature of the case against the defendant, making reference to, inter alia, the use made by the police of one C, who went about fitted with a tape recording device. The defendant's objection to any reliance being placed by the prosecutor upon this affidavit was taken at the outset, and so Mr. Atkinson was called and cross-examined. It was soon established that the deponent had no personal knowledge whatsoever of the matters to which he had deposed: he deposed simply on information given him through the Office of Public Prosecutions. Importantly, Mr. Walters contended, it was established that Mr. Atkinson did not know whether, at the committal hearing, the prosecution had expressly eschewed all reliance upon the evidence of the witness C - although whether that meant merely that the prosecution no longer relied upon his deposition or whether it no longer relied upon any conversation which he recorded, remained unclear to me. However that may be, Mr. Walters argued before us that the cross-examination of Mr. Atkinson demonstrated, convincingly, that the affidavit was unreliable and hence counsel's emphasis upon the failure of the judge to rule upon its admissibility.

49. By the same token, it is clear enough that objection could not be maintained to the whole of the affidavit. The judge had to be made aware on the appeal of the course of proceedings before the magistrate (including the relevant determination) and the affidavit seems to me to have been sufficient for that purpose at least. It appears probable that in crafting his reasons for judgment, the judge drew upon what Mr. Atkinson set forth in his affidavit about the case against the defendant and further drew upon the summary of evidence: reference to the wording of these two documents indicates that the judge made use of them both in setting out the background facts in paragraphs 6 to 20 of the reasons for judgment.[5] Mr. Walters contended that that was enough to vitiate his Honour's decision, but I am unpersuaded that the point has any real significance. Counsel sought to draw by analogy on an appeal of an administrative kind against a final determination, in which the bringing to account of irrelevant considerations or the failure to take account of relevant considerations might be persuasive; but this was not such. This was an appeal under s.18A of the Bail Act and bail is essentially interlocutory in nature. Nor was his Honour in truth relying upon the facts deposed to by Mr. Atkinson or the facts set forth in the summary which was exhibited to Mr. Atkinson's affidavit for the purpose of determining those facts: he was doing no more than setting out the background facts in order to give context to what followed - namely, a consideration of those "major factors" which the magistrate identified as together amounting to exceptional circumstances.

52. It is important, I think, that in referring to those major factors[6]

, his Honour was accepting the findings of the magistrate to that effect. In large part, the factors under consideration were not germane to the offending: they drew rather upon the personal circumstances of the defendant, and not his alleged criminal conduct. In making his application for bail the defendant's counsel made passing reference to the strength of the case against his client, saying that "it could not be said, in any sense, to be an overwhelming case against him". For the rest, he made submissions about the personal circumstances of the defendant, relying upon the two unsworn affidavits already mentioned. There was no dispute on appeal about the magistrate's findings in this regard; the magistrate's findings were accepted by the judge and it was on the basis of the magistrate's own findings that his Honour concluded that it had not been open to the magistrate to conclude that exceptional circumstances existed, sufficient to justify the granting of bail. On that basis, it did not matter if Mr. Atkinson's affidavit, or indeed the summary of evidence which was exhibited to it, went beyond the material upon which the magistrate acted in committing the defendant for trial. So far as concerned the strength of the prosecution case, the judge described the magistrate as bringing to account, as one of the "major factors" bearing upon bail, that "it [the prosecution case] was not bound to succeed" - and the accuracy of that assessment was not in dispute before us. It is difficult then to see the relevance of the challenge now made to Mr. Atkinson's affidavit or indeed the summary - and that is so even if, as counsel asserted, the summary included the evidence of C, any reliance upon which had been expressly abandoned before the magistrate.

57. Mr. Walters relied, however, upon this statement by the judge in his reasons for judgment (in paragraph 34):-

"In my opinion the Crown case against [the defendant ] is strong".

On the face of it, Mr. Walters' argument would appear to have some force here, that before the judge could assess for himself the strength of the case against the defendant the judge must have had all of the material before the magistrate and should have had only that material. (Again Mr. Walters pointed to the inclusion in Mr. Atkinson's affidavit of evidence not relied upon before the magistrate and the failure to include the cross-examination of witnesses). But the point is, I think, more apparent than real.

62. First, the mere fact that the judge was expressing an opinion of his own about the strength of the Crown case militates against its being relevant to the question of error by the magistrate, given the careful way in which the judge had earlier identified the proper test on an appeal under s.18A of the Bail Act. And it is the fact that his Honour expressed his opinion about the Crown case after (and not before) concluding (in paragraph 31) that the major factors identified by the magistrate could not properly have been found, together, to constitute exceptional circumstances sufficient to justify the granting of bail. It therefore formed no part of the critical steps to his Honour's setting aside the decision under appeal; it was purely incidental and not determinative. Indeed, the strength or weakness of the prosecution case had only limited significance in any event. More significance might have attached if the magistrate had been of opinion that the Crown case was weak, given that this was an application for bail, but that was not his Worship's opinion. Nor would it have been error if on appeal his Honour had considered that the magistrate's somewhat cautious assessment of the case, as "not, by any means, one hundred per cent guaranteed to succeed" (to use his Worship's own words), had little or no bearing on the question of exceptional circumstances.

65. Moreover, by adding that in his opinion the Crown case was strong, the judge was reflecting, I think, the way in which the argument progressed before him. At the outset of the appeal under s.18A, there was the objection taken to Mr. Atkinson's affidavit being read and Mr. Atkinson was cross-examined. At the conclusion of that cross-examination, the objection was repeated. Thereupon Mr. Morgan-Payler offered to give the judge a brief summary of what was alleged in relation to the defendant, an offer accepted by the judge. Mr. Morgan-Payler then set forth, in brief terms, much of what was found in detail in Mr. Atkinson's affidavit and the so-called summary of evidence - and he did so without any objection whatsoever. Obviously the judge had to be informed in some fashion of the background facts - and that seems to be what then occurred. Of more significance to the present point, was a concession made by defendant's counsel after Mr. Morgan-Payler gave his summary. Acknowledging to the judge that -

" ... there were telephone transcripts between [the defendant ] and Rozenes which indicated Rozenes making requests to [the defendant] and [the defendant] making agreements to speak to [one of the co-accused] and arrange for the supply of drugs"

" ... without more that material was capable of satisfying a jury that the defendant was engaged in the supply of drugs."

71. What counsel went on to argue was that during the committal hearing cross-examination of witnesses (no transcript of which was before the judge) had explored the status of the defendant as a registered informer and the so-called indemnity under s.51 of the Drugs, Poisons and Controlled Substances Act, matters which, it was submitted to the judge, the magistrate must have taken into account. In argument before us, Mr. Walters accepted that in context the concession which counsel made simply emphasised what seemed at that stage to be plain enough in any event: namely, that in essence the defence turned, directly or indirectly, upon immunity granted under s.51. As the magistrate had said:-

"The issue of the strength of the case. It is relevant as claimed by [counsel for the defendant], that the whole tenor of the defence, unless I have completely missed the point, will be directed in the main to the issue of indemnity and to the s.51 notice."

75. On analysis, it might turn out, as Mr. Walters pointed out, that the defendant was not relying directly upon the s.51 document at all (although that was not how the matter was represented to the magistrate). Commonly, an informer who is granted immunity under s.51 is not made aware of the document upon which the immunity depends. Counsel told us that, according to evidence elicited in cross-examination before the magistrate, the document, once signed, is retained by the police. When an authorised transaction is to be undertaken, the police "handler" will tell the "informer" (or the like) that the transaction in question is authorised, but whether that is so or not is known only to the police; a person in the position of the defendant is never shown the s.51 document. That that was the evidence before the magistrate is confirmed for us by an affidavit filed on the appeal to this Court, sworn by one Fiona Brice, the defendant's solicitor. Although the need for this affidavit may be questioned, the parties before us proceeded upon the basis that we should have regard to it and in paragraph 6, Ms Brice (albeit on information and belief) says of evidence at the committal hearing:-

"It was further established that [the defendant] would not have received a copy of the immunity nor even, necessarily, have been aware of its existence."

On that basis, said Mr. Walters, the defendant might be more truly relying merely upon his belief that the transactions were authorised by the police, rather than upon any document signed under s.51.

80. If the evidence at the committal hearing was as represented, counsel's analysis of the defence might well follow, but as the judge noted, when arrested and interviewed, the defendant did not assert such a belief: rather he made a "no comment" interview. Given both the concession made by defendant's counsel to the judge and the belated nature of the claim made by the defendant himself to believe in authority given him by the police for the transacting of the deals in question, it is scarcely surprising that his Honour described the Crown case as a strong one. That did not depend upon an assessment of the evidence before the magistrate; it was simply an expression of opinion, denying what might otherwise have been relevant - that is, that the Crown case was a weak one. More importantly, as I have said, that opinion was only incidental to his Honour's conclusion of error by the magistrate and I reject the submission that in itself it represented relevant error by the judge.

83. Moreover, inasmuch as before the magistrate the defendant sought to rely directly upon the s.51 document as according him immunity, consideration is due to its terms. As already mentioned, the s.51 document was Exhibit 1 on the appeal to the judge and its terms are described in paragraph [9]. Of this document the judge said (in paragraph 38 of his reasons):-

"As [far as] the fact that the respondent was given a s.51 indemnity certificate on 3 April 2000 is concerned, there is no evidence whatsoever that at the time the respondent was supplying the ecstasy tablets to Rozenes he was acting pursuant to the certificate. One would have thought that had he been he would have raised the matter at the time of his arrest."

Mr. Walters submitted that this, too, was error on the part of his Honour, arguing that the topic had been explored during cross-examination of the witnesses before the magistrate and that without access to the transcript of that cross-examination the judge was in no position to make the assessment that he did. But I disagree.

88. As with the strength of the Crown case, the opinion expressed by his Honour in paragraph 38 of his reasons for judgment was expressed only after he had concluded that the magistrate had erred in finding exceptional circumstances. On one view the s.51 document went only to strength of the Crown case; on another it could be the crux of the defence. Either way, what the judge said was unexceptionable, given, first, that the immunity afforded by the document turned on "an investigation of illicit drug trafficking by X and divers other associates" and, secondly, that there was not one jot of evidence that X (as named in the document) - or indeed any "associate" of X - was at all concerned in the relevant activity giving rise to the charges against the defendant. The name of X was never mentioned in connection with the defendant's alleged activities and the question was only as to "divers other associates" of X. What was established in this regard during the committal proceeding is described in paragraph 6 of the affidavit of Ms Brice, where she says:-

"6. When questioned about the immunity, the Informant, Detective Senior Sergeant Neville Taylor, was unable to say that the co-accused [of the defendant] were not associates of the named person in the Section 51 document. ..."

That was all (we were told) that was said in evidence about the "divers other associates" of X, and that is far from connecting the defendant's activities, relevant to these charges, to the immunity offered by the document.

93. Thus, there was indeed "no evidence whatsoever" linking the defendant's conduct to the terms of the s.51 document, and the judge made no error in that regard. Moreover, in so far as defendant's counsel submitted to the magistrate that the facts that the defendant was a registered informer and that he was the beneficiary of the immunity afforded by the s.51 document were facts "without parallel in my experience"[7] - and by implication might therefore, and without more, constitute exceptional circumstances - the submission was bound to fail for want of the link just mentioned. Anyway, as the matter was argued on the appeal under s.18A, the s.51 document was relied upon as weakening the prosecution case, rather than as an independent source of "exceptional circumstances". The defendant's argument to his Honour was that the magistrate had been correct in identifying the relevant factors as he did and in concluding that those factors constituted exceptional circumstances. That was error as found by the judge and no other case for bail was propounded.

97. For these reasons, I see no error in his Honour's determination on the appeal from the magistrate under s.18A. It seems to me despite Mr. Walter's elaborate presentation that the arguments on this appeal tended to deflect attention away from the issues and to transfer the focus to what was incidental. I would dismiss the appeal.

100. Before leaving the matter, however, I mention the procedure that was followed. The appeal was brought to this court under s.17 of the Supreme Court Act,

but the defendant's notice of appeal was filed on 26 June 2002 and so before the decision of this Court in Fernandez. There being doubt at the time about the competency of the appeal, the affidavit in support of the appeal, which was sworn by Ms Brice on 26 June 2002, was filed at the request of the Registrar. That affidavit described very briefly the course of the proceeding and had three exhibits. Exhibit FB1 was a copy of the transcript in the Magistrates' Court of the application for bail and the magistrate's reasons for granting bail, thus duplicating Exhibit D to Mr Atkinson's affidavit before the judge. Exhibit FB2 was a copy of Mr. Atkinson's affidavit (with its exhibits, save - most fortunately - for a copy of the hand-up brief which was not relevant on this appeal). Exhibit FB3 was a copy of the order made by the judge on appeal and the judge's reasons for judgment.

104. In the course of the hearing before us, we marked as Exhibit A on this appeal the s.51 document which was Exhibit 1 before the judge. We marked as Exhibit B the transcript of proceedings before the judge, and as Exhibit C, the outline of submissions relied upon by the defendant on the appeal to the judge and to which we were referred without objection.

107. In future an affidavit in support of the appeal to this Court would probably not be justified. It would probably be more convenient if an appeal book were prepared containing the documents relied upon, as is common on the civil side. As was seen in this instance in respect of the hand-up brief, caution must be exercised, however, to ensure that the appeal book includes not simply all of the documents but only those which are in truth relevant to the determination of the appeal.

112. I have had the advantage of reading the draft reasons for judgment of Phillips J.A. I agree that, for the reasons given by his Honour, the appeal should be dismissed.

117. I agree for the reasons advanced by Phillips, J.A. that this appeal should be dismissed.

[1] [2000] VSCA 115.

[2] Full Court, unreported, 8 August 1991.

5] Unless the wording in the paragraph derives from the hand-up brief (Exhibit B to Mr. Atkinson's affidavit), but that was not before us and it seems unlikely.

[6] Already identified in paragraph [[].