CRIMINAL LAW – Bail – Appeal – Refusal of bail by Supreme Court judge – Whether appeal lies to Court of Appeal – Fernandez v DPP (2002) 5 VR 374 applied – Supreme Court Act 1986 (Vic) ss 17(2), 17A(4)(b) – Bail Act 1977 (Vic) s 18A.
CRIMINAL LAW – Bail – Murder – Whether exceptional circumstances shown – Long delay before trial – Mental illness caused by harsh prison conditions – Threat to family business – Whether unacceptable risk if released on bail – Burden of proof – Onus on Director to show unacceptable risk – Whether unacceptable risk of interference with witness – Whether risk rendered acceptable by imposition of strict conditions – Bail granted – Bail Act 1977 (Vic) ss 4(2)(a), 4(2)(d), 13.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr G J C Silbert SC with Mr B L Sonnet
Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant
Mr O P Holdenson QC
Tony Hargreaves & Partners
MAXWELL P NETTLE JA LASRY AJA:
This is an appeal by Paul Noel Dale from a judgment given in the Practice Court on 10 August 2009, refusing his application for bail.[1] On 11 September 2009, having read the written material and heard oral submissions, we determined that the appeal should succeed and that, having considered the matter afresh, there should be a grant of bail.
The Appellant be admitted to bail on his own undertaking with two sureties in the total sum of $500,000.00 (Five hundred thousand dollars) conditioned in the proper form for his appearance as required by law at the hearing of his committal proceeding at the Magistrates’ Court of Victoria on 9 March 2010 or as otherwise required and upon the following special conditions:
1.The Appellant reside at 109A Edward Street, Wangaratta in the State of Victoria;
2.The Appellant give 7 days’ notice to the Informant or his nominee of any proposed change of address;
3.The Appellant report daily to the Officer‑in‑Charge of the Police Station at Wangaratta or his/her nominee between the hours of 6.00 a.m. and 9.00 p.m.;
4.The Appellant is to surrender his passport to the Informant upon being admitted to bail and is not to apply for or possess any other passport or travel document nor attend any point of international departure;
5.Other than the Informant, Detective Senior Constable Cameron Davey, the Appellant is not to approach any witness for the prosecution nor Silvio Montesano, nor Milenko “Mick” Jesic;
6.Except for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dale v DPP [2009] VSCA 212
Case
[2009] VSCA 212
Decision Date
CaseChat Overview and Summary
The case of Dale v DPP involved the appellant, who was applying for bail pending appeal against a refusal of bail by a Supreme Court judge. The dispute centred on the refusal of bail to the appellant, who was facing charges of murder. The appellant sought to appeal the Supreme Court's decision to the Court of Appeal, raising issues concerning the statutory framework governing the appeal process and the criteria for granting bail in such grave circumstances.
The primary legal issues addressed by the court were whether the appeal process under the Supreme Court Act 1986 (Vic) was applicable in this instance, and if so, whether the appellant had demonstrated exceptional circumstances warranting bail. The court examined whether the appellant had shown that the delay in trial, coupled with mental health issues arising from prison conditions, constituted exceptional circumstances. Additionally, the court considered whether the appellant's release posed an unacceptable risk to the safety of the community, particularly regarding potential interference with witnesses and the appellant's family business.
The court found that the appeal process under the Supreme Court Act 1986 (Vic) was applicable, following the principles established in Fernandez v DPP. The court held that the burden of proof lay with the Director to demonstrate that releasing the appellant on bail would pose an unacceptable risk. The court concluded that the appellant had shown exceptional circumstances, including the significant delay in the trial and the impact of harsh prison conditions on the appellant's mental health. Furthermore, the court determined that the risk to the community could be mitigated by imposing strict bail conditions, thereby rendering the risk of release acceptable.
The court granted the appeal and ordered the appellant's release on bail, subject to strict conditions designed to mitigate the identified risks. The decision underscored the importance of considering the totality of circumstances and the availability of conditions to manage potential risks when determining bail in serious criminal cases.