Director of Public Prosecutions v Hassan
[2016] VSC 465
•28 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0073
Between:
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Appellant |
| -and- | |
| MOHAMAD HASSAN | Respondent |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2016 | |
DATE OF JUDGMENT: | 28 June 2016 | |
CASE MAY BE CITED AS: | DPP v Hassan | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 465 | |
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APPEAL – Bail – Appeal by the DPP against magistrate’s order granting bail – Respondent, aged 20, charged with two counts of culpable driving causing death – Respondent allegedly drove into intersection against a red light well in excess of speed limit, crashing into another car turning into the intersection, killing both occupants – Whether magistrate manifestly wrong in failing to conclude that, if bailed, there was an unacceptable risk of flight by respondent to Lebanon – Respondent lived in Australia for only 12 months – No extradition treaty between Australia and Lebanon – Magistrate’s decision and order open on material before that court – Whether new evidence relevant to determining whether magistrate’s decision in error – Court entitled to have regard to new evidence only if magistrate’s decision vitiated by error – Appeal dismissed – Bail Act 1977 (Vic), s 18A – Beljajev v DPP (Vic) & DPP (Cth) (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991); Fernandez v DPP (Vic) (2002) 5 VR 374.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A. Grant | Office of Public Prosecutions |
| For the Respondent | Mr H. Rattray | Stephen Andrianakis & Associates |
HIS HONOUR:
Overview
At about 10:00 p.m. on Sunday 5 June 2016, at the intersection of Mickelham Road and Alanbrae Terrace in Attwood, Mohamad Hassan was involved in an horrific traffic accident. It is alleged that Mr Hassan drove a Mercedes into the intersection against a red light, well in excess of the applicable speed limit, and crashed into a Toyota turning on a green light into the intersection, thereby killing both occupants, Bozica Nikolic and Subha Deumic. Tragically, members of the deceased women’s families witnessed this incident and its aftermath, as they were travelling in another car immediately behind the Toyota.
After attending hospital with police to treat what appeared to be only minor injuries, Mr Hassan was arrested and charged with two counts of culpable driving causing death and, in the alternative, two counts of dangerous driving causing death.
On Tuesday 7 June 2016, Mr Hassan made an application for bail in the Magistrates’ Court at Melbourne. The magistrate heard evidence from a police officer and submissions from counsel for each party. The principal issue in dispute was whether there was an unacceptable risk that, if granted bail, Mr Hassan would flee to Lebanon and thereby fail to answer his bail. The magistrate was not satisfied that any such risk was unacceptable. Her Honour granted bail with a surety of $40,000 and on strict conditions, including thrice-weekly reporting to police; prohibitions on leaving Victoria, attending points of international departure and applying for, obtaining or retaining any passport or other travel documents; and a prohibition on driving, or even being in the front seat of, a motor vehicle. Despite being granted bail, Mr Hassan has remained in custody, as his family have been unable to raise the surety.
The Director of Public Prosecutions appealed against the order granting bail. It was submitted that the magistrate was manifestly wrong in failing to be satisfied that there was an unacceptable risk that Mr Hassan would not answer his bail.
On 28 June 2016, I heard the appeal in the morning. Given the importance for the parties and others of giving a prompt decision and at least adequate reasons for it, later the same day, and with the concurrence of the parties, I announced my decision to dismiss the appeal, gave brief ex tempore reasons and deferred giving my settled reasons until a later time. These are those reasons.
The Director’s submissions
While there were two grounds of in the notice of appeal, Mr Grant, who appeared for the Director, made it clear that the only complaint was that, in his submission, the magistrate was manifestly wrong in failing to be satisfied that there was an unacceptable risk that Mr Hassan would not answer his bail.
Mr Grant placed particular emphasis on a combination of matters as compelling such a conclusion. That combination included: the strength of the prosecution case; the significant gaol sentence that would be likely to follow upon conviction; the incentive such a prospect would give Mr Hassan to avoid trial; the fact that he had moved to Australia from Lebanon only 12 months earlier and was not an Australian citizen; the absence of an extradition treaty between Australia and Lebanon; and what were said to be difficulties in placing an alert at points of international departure with Interpol. In those circumstances, in Mr Grant’s submission, the conditions of bail fixed by her Honour, including the amount of the surety, were insufficient to reduce the risk of flight to something less than an unacceptable level, such that it was not open to grant bail.
Analysis and conclusions
I disagree. In my view, on the evidence before the magistrate, it was open to grant bail and on the conditions imposed.
Her Honour acknowledged that, in light of the factors raised by the prosecution, there was a risk of flight and, despite its not being raised by the prosecution, a risk of further offending. However, she also referred to various other matters which, it is plain from her reasons, caused her to come to the view that she was not satisfied that any such risk was unacceptable.
First, for example, it was apparent that Mr Hassan had close ties to the jurisdiction. His father came to Australia eight years ago, in 2008, was granted a protection visa in 2011 and, in 2013, became a citizen of this country. Eventually, he was able to sponsor his wife and seven children to come to Australia, all of whom (including Mr Hassan) live in Melbourne. Mr Hassan in fact lives with his parents and five of his siblings. Further, in the twelve months he had been here, Mr Hassan had been working with his uncle. In the magistrate’s view, those factors demonstrated commitment on the part of Mr Hassan and his family to Australia.
Secondly, Mr Hassan is only aged 20, has no prior convictions and no history of failing to comply with court orders, although he had a recent traffic infringement notice for speeding.
Thirdly, her Honour considered that strict conditions of bail could ameliorate the risk of flight (and of further offending). Mr Hassan had already handed police his international driver’s licence and his recently-expired Lebanese passport. Further, her Honour accepted that there was no evidence that he had applied for another passport. Nevertheless, she imposed conditions of the type I mentioned earlier, including those prohibiting him from driving, or even being in the front seat of, a motor car, and others requiring him to report to police three times a week, to remain in Victoria, and to refrain from attending points of international departure or applying for, obtaining or retaining any passport or other travel documents. Also, her Honour imposed a condition that Mr Hassan live at his parents’ address.
Fourthly, while Mr Grant submitted that the surety was inadequate to deter Mr Hassan from fleeing, it was well open to her Honour to consider that the figure chosen represented a substantial surety and a significant consideration in the circumstances. Mr Rattray, who appeared in the Magistrates’ Court on the original application and in this Court on the appeal, advised her Honour that Mr Hassan’s family might be able to raise a surety of $20,000, “at a push”. As it happened, her Honour fixed the figure $40,000, double that amount. For some, that is not much money; for others, it is a vast amount. While she did not say so, it is reasonable to infer that her Honour considered that to be a substantial amount of money for Mr Hassan’s family.
It should also be noted that the magistrate, who is very experienced judicial officer and criminal lawyer, took time for her decision. Her reasons were clear and addressed the very matters about which complaint is made on appeal.
The principles governing appeals under s 18A are relatively well-settled. Relatively recently, they were set out by J Forrest J in DPP (Cth) v Barbaro[1] and also by the Court of Appeal (Maxwell P, Vincent and Kellam JJA), on a further appeal in same matter, in Barbaro v DPP (Cth).[2] In both judgments, the following passage of the joint judgment of the Full Court in Beljajev v DPP (Vic) & DPP (Cth)[3] was extracted, with approval:
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 is 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.
[1] DPP (Cth) v Barbaro [2009] VSC 27 at [2]-[3] & [15]-[18].
[2] Barbaro v DPP (Cth) [2009] VSCA 26 at [9]-[11].
[3] Beljajev v DPP (Vic) & DPP (Cth) (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) at 29-30.
As I said before, at the outset of the hearing, Mr Grant made it clear that there was no complaint of specific error arising out of her Honour’s reasons. Rather, the complaint is simply that, on the evidence before her, the magistrate ought to have been satisfied that there was an unacceptable risk of flight and therefore should not have granted bail.
Having regard to the principles set out in Beljajev, and for the reasons I have given, it was open to the magistrate, on the material before her and in light of the conditions and surety she proposed, to conclude that she was not satisfied that, if granted bail, there was an unacceptable risk that Mr Hassan would flee to Lebanon and fail to answer his bail or that he would commit further offences.
Accordingly, the appeal must be dismissed.
Evidence not before the magistrate
I should mention three further matters.
First, the affidavit material filed on this appeal referred to various matters that were not before the magistrate. For example, in the informant’s affidavit, there were references to things alleged to have occurred after the determination of the application for bail, including:
a) things said by the respondent to another prisoner in the cells concerning the accident and whether he might be “sent back” to Lebanon;
b) concerns expressed by the family of the deceased women about the respondent’s being granted bail;
c) the results of interrogation of the respondent’s telephone, which included video files depicting the car involved in the collision travelling at very high speeds on other occasions and an image of a Lebanese passport and an Australian passport; and
d) nominations for three traffic infringements, comprising two for speeding and one for disobeying a traffic control signal (as indicated earlier, there was evidence before the magistrate of only one such notice – i.e. a separate one).
Mr Grant and Mr Rattray both conceded that, in light of the reasoning of the Court of Appeal in Fernandez v DPP,[4] I was not to have regard to that evidence for the purposes of determining whether the magistrate’s decision was afflicted with error or otherwise manifestly wrong. Rather, such evidence – or some of it – might have been material to which I was entitled to have regard only if I came to the conclusion, based on the evidence before the magistrate and her Honour’s reasons, that her decision was vitiated by error, and that the discretion had to be re-exercised. Accordingly, I have ignored that new evidence in coming to my decision.
[4] Fernandez v DPP (2002) 5 VR 374 at 378[9], 391[33] & 391-392[35] (per Winneke P, with whom Charles, Batt, Buchanan and Vincent JJA each agreed).
Secondly, however, as discussed in argument, it may be that such evidence – or some of it – would found an application by the Director to revoke Mr Hassan’s bail. I make no comment about that other than to say that that is a matter for the Director to consider.
Application to reduce the amount of the surety
Finally, I note that Mr Rattray submitted that I might consider an application to reduce amount of the surety, since Mr Hassan’s family have been unable to raise sufficient funds. In my view, if such an application is to be made, it should be made to the Magistrates’ Court, and preferably to the magistrate who heard the original bail application.
Order
The order of the Court is that the appeal is dismissed.
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