Director of Public Prosecutions v Ghazi
[2019] VSC 619
•13 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0159
| IN THE MATTER of s 18A of the Bail Act 1977 (Vic) |
| and |
| IN THE MATTER of an appeal by the Director of Public Prosecutions against an order granting bail to Bassam GHAZI |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 September 2019 |
DATE OF JUDGMENT: | 13 September 2019 |
CASE MAY BE CITED AS: | DPP v Ghazi |
MEDIUM NEUTRAL CITATION: | [2019] VSC 619 |
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CRIMINAL LAW – Bail – Director’s appeal against magistrate’s grant of bail – Respondent charged with serious driving offences, drug offences and bail offences – Whether magistrate’s decision contravened the Bail Act 1977 (Vic) – Whether magistrate should have found exceptional circumstances demonstrated – Whether magistrate should have found the respondent to be an unacceptable risk of endangering safety or welfare or unacceptable risk of committing an offence while on bail – Appeal dismissed – Bail Act 1977 (Vic), ss 4 AA, 4A, 4D, 4E, 18A.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Bourke | John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Ms J Hughes | Papa Hughes Lawyers |
HER HONOUR:
Background to Appeal
This is an appeal by the Director of Public Prosecutions (‘Director’) against an order made in the Melbourne Magistrates’ Court on 9 July 2019 granting bail to the respondent Bassam Ghazi.
On 3 January 2019 the respondent was arrested and charged with 20 offences alleged to have occurred between 14 November 2018 and 3 January 2019. These were:
· Failure to stop vehicle on police direction[1] (charges 1 and 4);
[1]Contrary to the Road Safety Act 1986 (Vic) (‘RSA’), s 64A. Offences alleged to have occurred on 14 November 2018 and 28 December 2018.
· Driving while suspended[2] (charges 2 and 6);
[2]Contrary to the RSA, s 30(1). Offences alleged to have occurred on 14 November 2018 and 28 December 2018.
· Dangerous or negligent driving while pursued by police[3] (charges 3 and 8);
[3]Contrary to the Crimes Act 1958 (Vic) (‘Crimes Act’), s 319AA. Offences alleged to have occurred on 14 November 2018 and 28 December 2018.
· Reckless conduct endangering serious injury[4] (charge 5);
[4]Contrary to the Crimes Act, s 23. Offence alleged to have occurred on 28 December 2018.
· Driving at a speed dangerous[5] (charge 7);
[5]Contrary to the RSA, s 64(1). Offence alleged to have occurred on 28 December 2018.
· Attempt to pervert the course of justice[6] (charge 9);
[6]Offence alleged to have occurred between 28 and 31 December 2018.
· Trafficking in a drug of dependence[7] (charge 10);
[7]Contrary to the Drugs Poisons and Controlled substances Act 1981 (Vic) (‘DPCSA’), s 71AC. Offence alleged to involve ecstasy and to have occurred on 3 January 2019.
· Possession of a drug of dependence[8] (charges 11,12 and 13);
[8]Contrary to DPCSA, s 73. Offences alleged to involve MDMA, panadeine forte and steroids and to have occurred on 3 January 2019.
· Dealing with property suspected to be proceeds of crime[9] (charge 14);
[9]Contrary to the Crimes Act, s 195. Offence alleged to involve $610 cash and to have occurred on 3 January 2019.
· Committing an indictable offence while on bail[10] (charge 15);
· Contravening of a condition of bail[11] (charges 16-19); and
· Failure to comply with a direction to assist[12] (charge 20).
[10]Contrary to the Bail Act 1977 (Vic) (‘Act’), s 30B. Offence referrable to attempt to pervert the course of justice and alleged to have occurred between 28 and 31 December 2018.
[11]Contrary to the Act, 30A(1). Offences alleged to have occurred on 3 January 2019 (not comply with residential condition and not supply passcode of mobile phone to police) and 19 and 21 December 2019 (not comply with reporting condition).
[12]Contrary to the Crimes Act, s 465AAA. Offence referrable to failure to supply passcode and alleged to have occurred on 3 January 2018.
On 9 July 2019 a committal hearing proceeded before a magistrate. Upon its conclusion, the respondent successfully applied for charges 1, 2 and 3 to be heard in the summary jurisdiction; the respondent was committed to stand trial in the County Court on charges 5, 8, 9 and 10-14 inclusive; and summary charges 4, 6, 7 and 15-20 inclusive were transferred to the County Court pursuant to s 145 of the Criminal Procedure Act 2009 (Vic). The respondent entered a plea of guilty to charge 9 (attempt to pervert the course of justice), and a plea of not guilty to all other charges.
The respondent was granted bail on his own undertaking with respect to charges 1, 2 and 3 and with a surety in the sum of $100,000 with respect to the other charges, with the following conditions:
· Report to Broadmeadows Police Station daily between 6 am and 9 pm;
· Reside at 48 Cuthbert Street, Broadmeadows;
· Not leave place of residence between 9pm and 6 am;
· Present at front door of residence during curfew hours upon the request of any member of Victoria Police;
· Surrender all valid passports or any other valid travel documents and not apply for any other;
· Not leave the State of Victoria;
· Comply with requirements of the Court Integrated Services Program (‘CISP’); and
· Not drive a motor vehicle.
In granting bail, the magistrate was satisfied both that exceptional circumstances justified that grant[13] and that any risk that the respondent would, relevantly, endanger the safety or welfare of any person or commit an offence while on bail, was not unacceptable.[14]
[13]The Act, s 4AA(2)(c)(i) and (iv). While none of the offences alleged against the respondent are Schedule 1 offences, the respondent was charged with a Schedule 2 offence whilst on bail and undergoing a CCO with respect to Schedule 2 offences.
[14]The Act, s 4E.
The Director relies upon the following three grounds in support of this appeal:
1. THAT the learned Magistrate’s decision to grant bail contravenes the Bail Act 1977;
2. THAT on the materials before the Court, the learned Magistrate should have found that there were no exceptional circumstances pursuant to s4A of the Bail Act 1977; and
3. THAT on the materials before the Court, the learned magistrate should have found that the Respondent was an unacceptable risk pursuant to s4D and s4E of the Bail Act 1977.
Legal Principles
The test under section 18A
Section 18A(1) of the Act permits the Director 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. The Director must also be satisfied that the appeal is in public interest.
Section 18A(6) of the Act is in the following terms:
On an appeal under this section, if the Supreme Court thinks that a different order should have been made, the Supreme Court must set aside the order that is the subject of the appeal and, without limiting the powers of the Supreme Court with respect to bail, conduct a fresh hearing in relation to the grant of bail to the respondent.
The principles ‘consistently applied’[15] in the determination of appeals under s 18A were explained by the Full Court in Beljajev v DPP (Vic)[16] as follows.
It is not essential that the Director should be able to show an error of law in the narrow sense, although of course if error of law were demonstrated this Court would be obliged to substitute its own view of the order which should have been made. It is also open to the Director to show that in all the circumstances of the case the order was manifestly the wrong order to make even though it is not possible to point to any other identifiable error in the process by which the authority granting bail arrived at the order made.
In other words, the Director is not in our opinion, confined to relying upon an error of law as a ground of appeal but may succeed if he shows that on any ground, whether of fact or law, the discretion of the primary judge has miscarried and can persuade the Supreme Court that a different order should have been made.
There are, however, two ways of the first importance in which an appeal in a matter of bail differs from an appeal against sentence. Both stem from the very nature of bail. The first that an order admitting a person to bail is not a final order: it may be revoked at any time. The second is that the granting of bail is essentially a matter of practice and procedure. These two considerations both independently and in combination operate to impose on any appellate court a severe restraint upon interference with the order appealed from. In civil and in criminal cases alike appellate Courts have frequently refused to interfere with a primary judge’s decision on a matter of practice and procedure.[17]
[15]Barbaro v DPP (Cth) [2009] VSCA 26, [10] (‘Barbaro’).
[16]Unreported, Supreme Court of Victoria Appeal Division, Young CH, Crockett and Ashley JJ, 8 August 1991 (‘Beljajev’).
[17]Beljajev, 29-30.
In Fernandez v Director of Public Prosecutions,[18] Winneke P said:
It is clear from these authorities – as the court noted in Beljajev – that the principles which the court applies in deciding a “director’s appeal” against sentence are broad, in the sense that intervention is not confined to a demonstrated 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. Similar principles, therefore, are applied by the judge who entertains an appeal by the director pursuant to s 18A of the Bail Act. However, as was pointed out by the court in Beljajev, the appeal which is brought to the court by virtue of s 18A is an appeal against orders made “in a matter of practice and procedure”, and is also interlocutory in nature. In accordance with authority, appellate courts should be reluctant to interfere with such orders.[19]
[18](2002) 5 VR 374 (‘Fernandez’).
[19]Fernandez, 390.
In DPP v Molinaro,[20] Weinberg JA expressed doubt that the test on an appeal pursuant to s 18A of the Act should be framed as whether the impugned finding of the magistrate was ‘reasonably open’.[21] That is, that the words of s 18A(6) should be construed almost akin to having to establish ‘Wednesbury unreasonableness’.[22] Nonetheless, the grounds of appeal in Molinaro were drawn and the appeal decided according with the ‘reasonably open’ test.[23]
[20][2017] VSC 624 (‘Molinaro’).
[21]Molinaro, [8].
[22]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[23]Recently, Lasry J adopted the same approach in Re Frank [2019] VSC 91 (‘Re Frank’).
In this matter, the grounds are not drawn on the basis that the impugned findings of the magistrate were not ‘reasonably open’. The parties agreed that the appeal should be determined in accordance with the principles enshrined in House v R[24] and which are referenced in Beljajev and Fernandez.
[24](1936) 55 CLR 499; [1936] HCA 40.
Exceptional Circumstances
The phrase ‘exceptional circumstances’ is not defined by the Act. But, s 4A(3) provides:
In considering whether exceptional circumstances exist, the bail decision maker must take into account the surrounding circumstances.
The phrase ‘surrounding circumstances’ is defined in s 3AAA of the Act.
Recently, after reviewing judicial analysis of the meaning of ‘exceptional circumstances’ Lasry J concluded:
[E]xceptional circumstances can be constituted by one circumstance or by a combination of a number of circumstances which might not, on their own, be exceptional.[25]
[25]Re Frank, [16]
This follows the formulation of Vincent J in Moloney[26] in which His Honour said:
What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.[27]
[26]Unreported judgment, Supreme Court of Victoria, 31 October 1990 (‘Moloney’).
[27]Moloney.
Unacceptable Risk
In applying the unacceptable risk test established in s 4E(1) of the Act, a bail decision maker must consider the surrounding circumstances as defined, as well as whether there are any conditions of bail that may mitigate the risk so that it is not an unacceptable risk.
Background Facts and Circumstances
Personal Background
The respondent is aged 25. He presently lives in his family’s Broadmeadows home with his wife, parents, grandmother, sister and twin brother. Another older brother lives elsewhere. He left school after completing year 11 and commenced, but did not complete, an apprenticeship as an electrician. He works sporadically for a family friend assisting in the installation of split system air-conditioning systems. He has the offer of work with his older brother, who is a roof plumber.
Criminal History
The respondent has a significant and relevant criminal history. Between 2014 and 2018 he has amassed, amongst others, six convictions for drive whilst suspended; two convictions for drive in a manner dangerous; four convictions for failure to answer bail and one offence for committing an indictable offence whilst on bail. He also has convictions for crimes of violence, property and drugs. His record extends to New South Wales as well as Victoria. The respondent has never held a full driver’s licence.
Further, at the time of the alleged offending, the respondent was on bail for a number of offences.[28] The conditions of that bail were similar to those of the present grant of bail, but it was not contingent upon the provision of a surety. The respondent was also subject to a 24 month Community Correction Order (‘CCO’). That order had been varied from a 12 month CCO[29] on 25 June 2018 after the respondent was found to have breached the original 12 month order.
[28]The respondent received a sentence of one month imprisonment for these offences on 8 February 2019.
[29]Originally imposed on 28 February 2017.
Summary of Alleged Offending
14 November 2018
On the evening of 14 November 2018, police officers in an unmarked police car attempted to intercept a white Holden Colorado. The informant then believed the driver to be the respondent or his twin brother, Abdullah Ghazi. As a result of the attempted interception, the driver of the Holden Colorado increased his speed and drove in a dangerous and erratic manner, including over the top of a roundabout while negotiating a right hand turn, such that the police ended their pursuit due to concerns for public safety.
The police then, some seven minutes later, attended at the address to which the respondent was then bailed, being the Broadmeadows family home. They spoke to Abdullah Ghazi, who had different facial hair and was wearing differing clothing from the driver observed in the Holden Colorado. The respondent was not present and his father told police that he did not live at that address.
28 December 2018
During the mid-afternoon police were conducting static laser speed detection duties in Reservoir. They detected a black Hyundai i30 travelling at 100 km per hour in a 70 km per hour zone, immediately after it braked. That car was registered to the respondent’s older brother, Ahmed Ghazi. Police executed a U-turn in an attempt to intercept the Hyundai. Police then, from behind, observed the Hyundai approach an intersection. While at the intersection facing a red light, the Hyundai swerved into the bus lane to overtake stationary vehicles obedient to the red light, and proceeded through the intersection against the red light at a speed of about 70 km per hour. Two vehicles lawfully entering the intersection braked heavily to avoid collision with the Hyundai.
Police then activated the police lights and sirens and followed the Hyundai as it travelled at 139 km per hour in an 80 km per hour zone, in a second attempt to intercept it. When the Hyundai increased its speed, the police disengaged.
Police attended at the address of Ahmed Ghazi, who said that he had sold the Hyundai two years previously.
Less than an hour later, the respondent telephoned his wife. That call was intercepted. The respondent told his wife, in effect, that he had been the driver of the Hyundai, had been chased by police and that he expected the police to attend at his house soon. He stated that he was unsure if it would be Broadmeadows (to where he was bailed) or Glenroy (where he was actually living). He also instructed his wife to clean the car.
31 December 2018
On 31 December 2018, in an intercepted telephone call, the respondent spoke to his brother, Ahmed, about the black Hyundai. He said that he had paid a girl to ‘take the rap’ and say that she was the driver and that he had sent the details to Ahmed’s wife. Following that conversation, Ahmed Ghazi contacted police and said that the driver of that car on 28 November 2018 was Nikita Bullock.[30] A picture of Ms Bullock’s driver’s licence was later recovered from Ahmed Ghazi’s mobile telephone handset. It had been sent to him by his wife on 31 December 2018.
[30]Police allege that Nikita Bullock has been the victim of a series of deceptions by the respondent and his associates.
2 January 2019
On 2 January 2019, the respondent spoke with an unknown male in an intercepted telephone call. That male said that the was ‘fuckin’ mangled’ after consuming the drug supplied by the respondent. The respondent replied ‘ah, if they need, let me know. I will – I’ll top you up.’
3 January 2019
On 3 January 2019, police executed a search warrant at the respondent’s residence in Glenroy. Numerous items were seized including: three mobile phones; three vials of growth hormones; five grams of a substance believed to be MDMA/Ecstasy; prescription medication (Panadeine Forte), $610 cash; letters and infringement notices for a 2017 Mercedes vehicle with Nikita Bullock’s details handwritten in the nomination area; a 2016 Mercedes vehicle, its roadworthy certificate and registration paper in the name of Nikita Bullock; and a remote entry car key belonging to the black Hyundai i30.
The accused was arrested and gave a ‘no comment’ interview to police.
The Magistrate’s Decision
At the conclusion of the committal, the agreed position of the likely delay to a hearing date was 12 to 18 months.
During the bail hearing, the magistrate said:
… because I think it’s not unrealistic to say that the trial wouldn’t get on until July, and that’s a significant delay in relation to these particular charges, where it is probably quite likely that he would have served most if not all of his sentence, so I think in these particular circumstances that delay does amount to exceptional circumstances. My main concern is the unacceptable risk that he poses given his frightful driving history.[31]
[31]Transcript of committal hearing, 131 – Exhibit AEK 1A of Supplementary Affidavit of Amelia Elise Keath , 23 August 2019.
In ultimately concluding that exceptional circumstances had been demonstrated, the magistrate referred to six factors:
(i) the respondent’s age;
(ii) the respondent’s stable residence;
(iii) the respondent’s ties to the jurisdiction;
(iv) manifest delay;
(v) treatment available to the respondent; and
(vi) the respondent’s family support.
The magistrate also found that the risk posed by the respondent could be managed by the imposition of strict conditions and a substantial surety.
Director’s Submissions
The Director submitted that the decision of the magistrate to grant bail was contrary to the Act and in error with respect to the issues of exceptional circumstances and unacceptable risk.
The magistrate had determined that delay was sufficient to found exceptional circumstances on the basis that it was likely that the respondent would have, or nearly have, served any custodial sentence by the time the matters were reached. Counsel for the Director conceded that if that determination was sound, it would be a ‘significant matter’ favouring the grant of bail. But, given the objective gravity of the offending, and in light of the respondent’s criminal history and his demonstrated indifference to court orders, this conclusion was said to be in error. The seriousness of the reckless conduct endangering serious injury charge was highlighted. It was submitted that the respondent was facing a substantial custodial sentence.
The Director submitted that the magistrate should have found that the respondent posed an unacceptable risk that if admitted to bail he would endanger the safety or welfare of the community and commit offences while on bail. The Director pointed to the respondent’s extremely poor history of compliance with bail conditions, CCOs and licence suspensions, as well as to the dangerousness of the respondent as a driver. The Director submitted further that the protective conditions of the bail imposed by the magistrate were already available to the respondent at the time of the instant offences were alleged to have occurred. They were, therefore, inadequate to protect against the risk posed by the respondent.
Respondent’s Submissions
The respondent contended that this appeal should be dismissed. It was submitted that he had demonstrated exceptional circumstances before the magistrate and, further, that he was not an unacceptable risk.
Whilst acknowledging the gravity of the alleged offending and the relevance of his poor compliance with previous grants of bail and other court orders, the respondent submitted that a custodial sentence in excess of the anticipated delay to hearing was not inevitable. In the particular circumstances of his alleged offending and background, a CCO or a combined sentence was said to be realistically open. In those circumstances, the respondent submitted that delay in combination with other factors justified the finding of exceptional circumstances. Those factors included his relative youth, the availability of CISP, family support, prospects of employment and a submission that the prosecution case with respect to charges 1, 2, 3 and 10 is not strong.
With respect to unacceptable risk, the respondent highlighted two major protective factors of the bail that were different from previous grants of bail, including that operative at the time of the instant offences. First, that the respondent’s mother was now aware that the respondent was on bail with conditions including that he reside in the family home and not drive a motor vehicle. She was previously ignorant of the respondent’s circumstances. While she could not control the actions of the respondent, she could supervise him and alert police to any behaviour that would breach the conditions. Second, the respondent had never before been admitted to bail secured in any fashion. The $100,000 surety was funded from the equity of the respondent’s parents in their home.
The respondent further submitted that the assessment of risk must look to long-term risk as well as risk in the immediate future.[32] It was submitted that the long-term risk posed by the respondent, still a young man, was best managed whilst he was in the community on strict bail conditions.
[32]Re Gaylor [2019] VSC 46.
Conclusion
Having considered the evidentiary material and the oral submissions of the parties, I am of the view that the magistrate’s decision to grant bail to the respondent did not contravene the Act.
It is incontrovertible that the allegations against the respondent are very serious. I am of the view that the evidence against him is strong. His record of bail compliance is extremely poor, as is his history of compliance with other orders. But, without expressing any view as to the appropriate sentence to be passed upon the respondent with respect to the instant offending in the event of a finding or admission of guilt, a CCO, a combined sentence, or a custodial sentence are all possible results. So much was conceded by counsel for the Director in his reply. That being so, the magistrate, in my view, did not err in considering that the delay in the likely resolution of these matters (in combination with other matters) was pivotal, or in her finding that the respondent had demonstrated exceptional circumstances.
The magistrate fully appreciated the level of risk posed by the respondent. She gave careful consideration as to whether that risk could be sufficiently ameliorated to render it not unacceptable. It is clear that the fact and amount of the surety offered by the respondent’s mother was determinative in her decision that the risks posed by the respondent could be made not unacceptable. In giving evidence before the magistrate, Mrs Ghazi offered a surety of $10,000. The magistrate set the surety at $100,000. That represents about 20% of the equity in the respondent’s parents’ home. The evidence of the respondent’s mother that she would, as far as she was able, supervise and influence the respondent’s behaviour, in full knowledge of the conditions of his bail, is strengthened by her own financial interest. And, the moral pressure upon the respondent to avoid behaviour that would be significantly detrimental to his family must be seen as a protective factor. That kind of potential consequence had never before been attached to any grant of bail enjoyed by the respondent. In my view, the magistrate was not in error to come to the view that by imposing the surety and conditions she did, that the risk posed by the respondent was not unacceptable.
The Director’s appeal is dismissed.
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