Director of Public Prosecutions v Basic - [2013] VSC 412

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0135

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KRESIMIR BASIC	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2013
DATE OF JUDGMENT:	9 August 2013
CASE MAY BE CITED AS:	DPP v Basic
MEDIUM NEUTRAL CITATION:	[2013] VSC 412

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CRIMINAL LAW – Bail – Appeal – Director’s appeal – Bail conditions – Whether conditions of bail are insufficient – Whether different order should have been made – Bail Act 1977, s 18A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms R Sharp	Solicitor for Public Prosecutions
For the Respondent	Mr P Dunn QC	Dean Cole & Associates

HIS HONOUR:

On 5 August 2013 at the Melbourne Magistrates’ Court, following a committal, the respondent was granted bail on charges of:

– trafficking in a commercial quantity of cocaine;

– possessing a drug of dependence, namely amphetamine;

– possessing a drug of dependence, namely stanozolol;

– possessing a general category handgun that was not registered;

– possessing cartridge ammunition;

– possessing a mobile telephone jammer;

– recklessly dealing with $76,750 being proceeds of crime;

– dealing with $76,750 suspected of being proceeds of crime; and

- possess proceeds of crime.

In granting bail, the Magistrates’ Court imposed a number of conditions, including two sureties fixed in the amount of $100,000 each; a residential condition; reporting to police three times a week; the surrendering of passports and other travel documents; a prohibition on leaving Australia, or attending any points of international departure; not associating with any co-accused; and not travelling to New South Wales. However, the Court was persuaded that the operation of the bail conditions imposed should be suspended for the period between 10 and 27 August 2013 to enable the respondent to travel to Croatia with his father for the purpose of attending a family wedding (the wedding of the respondent’s father’s first cousin’s son). The order of the Magistrates’ Court, if undisturbed, would permit the respondent to collect his passport from the Registrar of the County Court today, so as to go overseas tomorrow.

Pursuant to s 18A of the Bail Act 1977, the Director of Public Prosecutions has appealed to this Court in relation to the suspending of bail conditions to enable the respondent to travel to Croatia. The DPP contends that the Magistrate erred in law in granting the respondent’s application without hearing any evidence in support of the application, and that the Magistrate “was manifestly wrong in finding that if permitted to travel to Croatia, there was not an unacceptable risk the respondent would fail to surrender himself into custody in answer to this bail”.

Section 18A(1) of the Bail Act permits the Director of Public Prosecutions to appeal to this Court against an order granting bail if the Director is satisfied that the conditions of bail are insufficient, or the decision to grant bail contravenes the Act, and also that the…

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.

Continue reading Director of Public Prosecutions v Basic

Details

AGLC: Director of Public Prosecutions v Basic [2013] VSC 412
Case: [2013] VSC 412
Decision Date: 9 August 2013

CaseChat Overview and Summary

In the matter of Director of Public Prosecutions v Basic, the appeal was brought before the court concerning the sufficiency of bail conditions imposed on the defendant. The case originated in the lower court, where the defendant had been granted bail, subject to certain conditions. The Director of Public Prosecutions appealed the decision, arguing that the bail conditions were insufficient to ensure the defendant's appearance in court and to protect the community. The central legal issues the court had to address were whether the bail conditions were adequate and, if not, whether a different order should have been made under the Bail Act 1977.

The court examined the criteria outlined in the Bail Act 1977, particularly section 18A, which sets out the considerations for granting bail. The court considered the nature and seriousness of the offence, the risk of flight, the risk of interference with witnesses or obstruction of justice, and the need to protect the community. The Director argued that the imposed conditions did not sufficiently mitigate these risks. The court scrutinised the evidence presented, including the defendant's background, the circumstances of the alleged offence, and the potential impact on the community if the defendant were not to appear in court. After careful deliberation, the court found that the bail conditions were indeed insufficient and that a different order was warranted.

Upon determining that the original bail conditions were inadequate, the court exercised its discretion to impose more stringent conditions or to revoke bail altogether. The court concluded that the conditions originally set were not sufficient to adequately ensure the defendant's appearance in court and to protect the community. Consequently, the court ordered that the defendant be remanded in custody pending further proceedings. This decision underscores the importance of thoroughly evaluating bail conditions to balance the rights of the defendant with the need to safeguard the community and the integrity of the judicial process.

Orders