Director of Public Prosecutions v Didulica
[2019] VSC 432
•27 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0043
IN THE MATTER of s 18 of the Bail Act 1977 (Vic)
and
IN THE MATTER of an appeal by the Director of Public Prosecution against an order granting Bail to Mario Simon DIDULICA
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 March 2019 |
DATE OF ORDERS: | 15 March 2019 |
DATE OF REASONS: | 27 June 2019 |
CASE MAY BE CITED AS: | DPP v Didulica |
MEDIUM NEUTRAL CITATION: | [2019] VSC 432 |
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CRIMINAL LAW – Bail – Director’s appeal against magistrate’s grant of bail – Respondent charged with – Whether grant of bail ‘reasonably open’ to magistrate – Error to have granted bail – Bail Act 1977 s 18A
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Saunders | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Allen SC with Mr J Marquis | Tony Hargreaves & Partners |
HIS HONOUR:
By notice of Application to Appeal dated 20 February 2019 the Director of Public Prosecutions (‘the Director’) challenges the grant of bail to Mario Simon Didulica. The sole ground of appeal is:
That the learned Magistrate erred in granting bail to the Respondent in that it was not reasonably open to the learned Magistrate to conclude that the Respondent did not represent an unacceptable risk of failing to surrender into custody in accordance with the conditions of bail pursuant to s 4E of the Bail Act 1977.
On 25 January 2019 the respondent was granted bail in relation to events said to have taken place between 7 November 2009 and 15 July 2010. He was charged on 21 December 2017, on Charge and Warrant, with six charges of committing an indecent act on a child under 16, five charges of sexual penetration of a child under 16; two charges of using a carriage service to groom a child under 16, attempting to pervert the course of justice, using a carriage service to solicit child pornography material and persistence sexual abuse of a child under the age of 16.
The charges relate to a single alleged victim who had been a near neighbour of the respondent . The respondent had been a serving member of Victoria Police.
On 22 November 2010, the respondent was interviewed by police and subjected to a forensic examination on 10 May 2011.
During 2011 the respondent applied for Croatian citizenship and was issued with a Croatian passport on 18 December 2012. On 10 January 2013, the respondent went to live in Croatia on his Australian passport although the appellant argues that he had a one way ticket. That matter is subject to dispute. There is no extradition treaty between Croatia and Australia.
An Interpol Red Notice was issued. The respondent was arrested in Bosnia-Herzegovina on 13 October 2018 pursuant to that notice and was being held pending an application for extradition. After initial resistance to extradition, the respondent agreed to be extradited to Australia. He arrived here on 20 January 2019. On 21 January 2019 he was served with the charges set out above,
The respondent made application for bail on 22 January 2019 at the filing hearing. The application was adjourned to 24 January 2019.
It was accepted that the respondent had an entitlement to bail. The offences with which he has been charged do not fall into either the relevant schedules, and the fact of extradition is not made of any specific relevance in any other provisions of the Bail Ac t 1977 (‘the Act’).
It followed that the opposition to the grant of bail was based upon s 4E of the Act — unacceptable risk and in particular that s 4E(1)(a)(iv) and (b) ie that there was a risk that the respondent would fail to surrender himself into custody in accordance with the conditions of bail.
On that issue the central matter of contention was the question of the respondent’s Croatian passport. The passport was eventually handed over. There had also been some contention relating to the circumstances in which a new Croatian passport might be obtained set out in par [76] of the affidavit of Jacqueline Harris in support of the appeal.
Exhibited to the affidavit in reply on behalf of the respondent as Exhibit PAB4 was a copy of the relevant Croatian guidelines which set out the relevant processes for a replacement passport. There is nothing which would prevent the informant from providing the Croatian Embassy with a copy of the bail conditions.
The ground set out alleges error on the basis that the conclusion reached by the magistrate as to unacceptable risk ‘was not reasonably open’.
Expressed in that way it is an allegation of an error of law. It was the informant who had to show that the respondent was such a risk.
It was not at any stage suggested to the learned magistrate that if he did reject the informant’s contention as to risk that he would fall into error. The application for bail proceeded on the basis that it was open for him to so decide. It was submitted that on the evidence he would not do so.
As I have pointed out, much rests on the surrender of the Croatian passport. On 23 January 2011 the following exchange between the magistrate and counsel for the respondent took place:
HISHONOUR: For my part, I remain concerned, so long as it's not in the hands of authorities.
MRMARQUIS: It’s not in the hands of authorities.
HISHONOUR: Yeah. So I’m concerned. So it's got to be put in the hands of authorities - - -
MRMARQUIS: Yeah.
HISHONOUR: - - - to alleviate my concerns.
MRMARQUIS: Well, that's what we’re proposing to do.
HISHONOUR: But it's got to be done before my - - -
MRMARQUIS: Understood. That's (indistinct) ideally we’d like to have the passport here to hand over. Given the geographical distance and the time frame -
HISHONOUR: Well, don’t worry about what you’ve got to face. How do you overcome it?
MRMARQUIS: Well, we can contact his son - - -
HISHONOUR: Yeah.
MRMARQUIS: - to - with the police or the Australian Embassy somebody in authority they will then verify the receipt of it and then that may alleviate a concern Your Honour -
HISHONOUR: But I won’t be making any bail order until it's in the hands of police.
MRMARQUIS: We're hopeful of doing that within 12 hours.
It seemed reasonably clear at that stage that his Honour was minded to grant bail if the passport was produced.
Counsel for the applicant then said:
MR ROPER: So I can’t advance it any higher than that. I think we’ve — I think the informant’s covered that ground. There's been quite a bit of exploration and certainly agree with the notion that the (indistinct) the passport would be a good step along the way to reducing the risk.
HIS HONOUR: Yes. Well, I'll determine it on Thursday. The application will be adjourned for further hearing to 24 January.
MR ROPER:I only also add - - -
HIS HONOUR: Yeah.
MRROPER: Also add, Your Honour said this, I mean the Crown submission, the evidence in this case is strong. And it's a serious matter that’s likely to attract a custodial sentence.
At that point it was not suggested that the magistrate would fall into error if he found that the applicant was not an unacceptable risk.
When the matter resumed on 24 January 2019 it was adjourned to 25 January 2019 pending the arrival of the respondent’s passport.
On 25 January the Croatian passport was produced to the Court. His Honour said:
HIS HONOUR: The accused or the applicant is not in a show compelling reasons or higher standard of circumstance to establish why he should be bailed. The question is whether he’s an unacceptable risk of, I think the failing to appear is the big plank that the prosecution rely on, but without access to any travel documents, his ability to leave the country, I think must be pretty slight. That’s not to say people cannot be resourceful but although initially reluctant to submit to extradition, he didn't perhaps have much choice but in any event he agreed to it and was able to be put in place for his residence here and other arrangements make the risk acceptable in my view. What conditions would be appropriate? What did counsel say about reporting?
No further submissions were made by counsel for the informant and it is clear they were not invited.
If the ground of appeal was to be treated other than strictly within its terms but be treated as meaning that the magistrate fell into error by finding that unacceptable risk had been made out.
When the whole of the material is considered in this case I am satisfied that it was open for the magistrate to find that the informant had not satisfied him that the respondent was an unacceptable risk. The paragraph set out above reasonably deals with the point raised.
The provision of the passport was not the only matter going to the acceptability of risk. There was a surety of $100,000 to be provided by the respondent’s wife’s parents.
Even if the matter is to be considered in the broadest sense, in my view, it was open to the magistrate to come to the conclusion which he reached, for what is it worth, I would have granted bail.
I make the following observation. In the case of DPP v Molinaro[1] Weinberg JA made the following observation:
[1][2017] VSC 624.
Director’s Right of Appeal under s 18A
Section 18A(1) of the Bail Act 1977 confers upon the Director a right of appeal to this Court against an order granting bail if the Director is satisfied that, relevantly, the decision to grant bail contravenes the Act and the Director is satisfied that it is in the public interest to bring such an appeal. Subsection (2) requires the Director to cause notice of appeal setting forth the grounds upon which he relies to be given to the person granted bail, and to each of the sureties, if any.
There is a time limit of one month within which any notice of appeal must be filed. The Director’s notice was filed on 25 August 2017, and it has taken from that date until now for this matter to be listed for hearing. I understand that this delay was brought about by the respondent’s inability to obtain legal representation.
Subsection (6) provides that on appeal under subsection (1), if this Court thinks that a different order should have been made, it must set aside the order that is the subject of the appeal. The principles that govern an appeal of this kind are discussed in a number of authorities, including in particular, Beljajev v Director of Public Prosecutions (Vic ) and Director of Public Prosecutions (Cth), and Director of Public Prosecutions v Johnstone, but most usefully, I think, in Director of Public Prosecutions (Cth) v Barbaro. It is clear that a ‘Director’s appeal’ against the grant of bail need not establish error of law. Rather, the Director may succeed if he can show that, on any ground, whether of law or fact, the discretion of the primary judge has miscarried, and can persuade the Court that a different order should have been made. Nonetheless, appellate courts, including this Court, on a s 18A appeal, should be reluctant to interfere with orders made below.
It was submitted on behalf of the respondent, and not challenged by the Director, that the test on an appeal of this kind, is whether the particular finding of the magistrate that is impugned was ‘reasonably open’. Frankly, I doubt that the words of s 18A(6) should be so construed, almost akin to having to establish ‘Wednesbury unreasonableness’. However, as both parties have proceeded upon that basis, and the grounds of the appeal are specifically drawn in those terms, I shall myself decide this appeal in accordance with the test so propounded.[2]
[2]Ibid [5]–[8] (citations omitted).
The ground of appeal in this case appears to be the standard way in which appeals of this kind are pleaded. In view, particularly having regard to what was said by Weinberg JA set out above, that form of pleading should continue is a matter for the Director.
For the reasons set out above, I dismiss the appeal.
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