Berg v Director of Public Prosecutions (Qld)

[2009] QCA 213

SUPREME COURT OF QUEENSLAND

CITATION:

Berg v DPP (Qld) [2009] QCA 213

PARTIES:

VINCENT VICTOR BERG
(appellant)
v
DIRECTOR OF PUBLIC PROSECUTIONS
(QUEENSLAND)
(respondent)

FILE NO/S:

Appeal No 6059 of 2009
SC No 8226 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2009

JUDGES:

Muir JA, Mullins and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – CONDITIONS – appeal against refusal to remove reporting condition from appellant’s bail orders – where appellant required to report to a police station one day each week – where appellant alleged his mental condition was adversely affected by reporting to the police – where necessary medical evidence not provided to primary judge – whether error of law in approach of primary judge

Bail Act 1980 (Qld), s 11(2A)

Clumpoint v Director of Public Prosecutions (Qld) [2005] QCA 43, cited

COUNSEL:

No appearance for the appellant, the appellant’s submissions were heard on the papers
D C Boyle for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS J:  On 25 May 2009 the learned primary Judge dismissed the appellant's application to remove the reporting conditions from the appellant's bail order made in the Supreme Court on 7 October 2005 (and varied by order of the Supreme Court made on 28 May 2007) and the undertaking as to bail entered into by the appellant at Southport Magistrates Court on 15 May 2009.  The appellant appeals from that order.

The Supreme Court bail order made in 2005 relates to one charge of indecent treatment of a child under 16 alleged to have been committed in 2000.  The reporting condition requires the appellant to report to a specified police station each Monday.

On 20 March 2009 the appellant applied before her Honour, Justice Lyons, to have the reporting condition removed on the grounds that it was not justified under section 11 subsection 2A of the Bail Act 1980 (the Act) and that it was having a negative impact on the appellant's mental and physical health and placing a significant burden on the appellant's son who was his carer. That application was dismissed.

Her Honour observed that there was no medical or psychiatric evidence to indicate that the reporting condition was having the impact on the appellant that was alleged, was not satisfied that the reporting condition was onerous, and did not consider that it was in the public interest to remove the reporting requirement.

On 14 May 2009 the appellant was charged with a further 37 charges that are mainly fraud and assault charges that are based on allegations that he used forged qualifications to obtain employment as a psychiatrist and that he assaulted patients by the medications he prescribed for them. 

These offences are alleged to have been committed between 1999 and 2004.  He was granted bail in the Magistrates Court with a reporting condition. 

The application for the removal of the reporting condition from both bail orders before the primary Judge was based on the claim that the appellant was suffering from chronic mental illness and that regular contact with the police was a source of strong negative stimuli which it was medically advisable to avoid; there had been no breaches of the bail since the Supreme Court order was made on 7 October 2005; the charges were based on weak evidence and the appellant denied all accusations of any wrongdoing; and that the reporting condition was more onerous for the appellant than was necessary having regard to the public interest. 

For the purpose of the application the appellant had subpoenaed his treating psychiatrist, Dr Wright, to produce a written report in respect of the appellant.  Dr Wright informed the appellant that he could not comply with the subpoena as it required him to produce a document that did not exist.

Despite the assertions that were made in the appellant's son's affidavits about the appellant's medical condition and provision of copies of prescriptions for medications for the appellant, the primary Judge concluded that the medical evidence was no different, in effect, to that which was before her Honour, Justice Lyons, and was not satisfied that the reporting condition should be removed. 

The grounds on which the appeal is brought can be summarised as:

(a)the primary Judge erred in failing to scrutinise the material relating to the appellant's illness set out in the appellant son's affidavit filed on 19 May 2009;

(b)the primary Judge had wrongly held the appellant responsible for the lack of medical evidence, when it was due to the refusal of Dr Wright to comply with the subpoena; 

(c)the primary Judge relied on the affidavit of a police officer without deciding the allegations of official misconduct and perjury made by the appellant against that police officer.

The issue that was raised by the application to vary the bail orders by removing the reporting condition was whether under section 11 subsection 2A of the Act the reporting condition was by the time the application was heard more onerous than necessary, having regard to the nature of the offences, the appellant's circumstances and the public interest: Clumpoint v Director of Public Prosecutions (Qld) [2005] QCA 43 at [18].

In view of the appellant's primary argument that his mental condition was adversely affected by reporting to the police, medical evidence was required to support the argument.  The approach of the primary Judge in considering whether the affidavits relied on by the appellant addressed the evidentiary deficit identified in the earlier application before her Honour, Justice Lyons, was an appropriate course. 

The service of the subpoena on Dr Wright did not oblige him to prepare a report about the appellant for the purpose of the application.  The affidavits relied on by the appellant did not otherwise provide the necessary medical evidence.

There was therefore no error of law in the approach of the primary Judge to the application.  To the extent that the grounds of appeal may suggest that the primary Judge's discretion miscarried, the outcome of the application was consistent with a sound exercise of discretion, in light of the lack of any additional medical evidence to support the application.  The appeal must be dismissed.

MUIR JA:  I agree.

PHILIPPIDES J:  I also agree.

MUIR JA:  The order of the Court is that the appeal be dismissed.