Chang v DPP

[2003] VSCA 168

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 302 of 2003

GABRIEL OMAR CHANG
	Appellant
v.
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

---

JUDGES:	WINNEKE, A.C.J., PHILLIPS and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2003
DATE OF JUDGMENT:	28 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 168

---

Criminal law – Bail – Appeal from judge of Trial Division refusing bail pending re-trial for murder – Whether Court of Appeal has jurisdiction – No exceptional circumstances.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.F. Tehan, Q.C. with Ms C. Tsirmbas	Falcone & Adams
For the Respondent	Mr W.H. Morgan-Payler, Q.C.	K. Robertson, Solicitor for Public Prosecutions

WINNEKE, A.C.J. (delivering the judgment of the Court):

1. This is an appeal which has been brought by Gabriel Chang against a decision of a judge of the Trial Division refusing bail to the appellant pending a re-trial for murder. 

1. Although, on behalf of the appellant, it is asserted that this Court has jurisdiction, and reference is made in that regard to Fernandez v. Director of Public Prosecutions, we have been prepared to entertain the merits of this matter without hearing full argument upon the jurisdiction point, and without deciding it.

1. It is said that the judge who refused bail has made appellable error.  Mr Tehan, who has appeared with Ms Tsirmbas on behalf of the appellant, has argued a number of points with his usual eloquence in support of his contention to this effect. 

1. The re-trial in this matter, following the appellant’s successful appeal to this Court, is, so we are told, fixed for 1 December of this year, that is, about a month away. 

1. Bail is to be granted to people charged with murder only if exceptional circumstances have been shown.  Where a person has been convicted of murder and given a re-trial on account of error of law, that heightens the obligation, in our view, of a person standing trial for a second time to show those exceptional circumstances.

1. We are not satisfied that her Honour’s order is infected by appellable error;  but, whether it is or not, this Court is not satisfied that there are exceptional circumstances warranting the grant of bail pending the re-trial due to be held in December. 

1. Mr Tehan has relied upon the length of time that the appellant has now been in gaol.  That is nearly three years, even though he had been granted bail pending his trial.  The Crown did not oppose bail at the outset, Mr Tehan argues, and there is no reason why the court’s attitude towards bail should have changed having regard to the circumstances.  Counsel has relied upon the age and characteristics of the appellant and the reasons why he was granted bail by Vincent, J. in the first place.  We are told that he has strong family support and that there is no chance, or no reasonable chance, of this man breaching any bail that was granted to him. 

1. All of these matters are, of course, relevant but in our view do not amount to exceptional circumstances, particularly, as we have said, where the appellant has already been convicted and remanded for re-trial.  In the result we are not satisfied that there are exceptional circumstances warranting the grant of bail at this time.  The appeal is therefore dismissed.