Director of Public Prosecutions v Peterson
[2006] VSC 199
•31 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1437 of 2006
IN THE MATTER of the Bail Act 1977 and
And
IN THE MATTER OF an Appeal against grant of Bail of PAUL PETERSON
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| V | |
| PAUL PETERSON | Respondent |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 19 April, 28 April 2006 | |
DATE OF RULING: | 31 May 2006 | |
CASE MAY BE CITED AS: | DPP v Peterson | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 199 | |
BAIL - Appeal by Director of Public Prosecutions against the grant of bail- appeal refused
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Paul Willee Q.C. | Office of Public Prosecutions |
| For the Respondent | Mr. D. Sheales | Galbally Rolfe Solicitors |
HER HONOUR:
This is an appeal by the Director of Public Prosecutions pursuant to s 18A of the Bail Act 1977 against a grant of bail made by Her Honour Judge Hannan, of the Magistrates’ Court, in respect of the Respondent on 2nd March 2006. That bail was granted in respect of nine charges, being:
1.riot;
2.affray;
3.kidnapping;
4.false imprisonment;
5.aggravated burglary;
6.intentionally cause serious injury;
7.recklessly cause serious injury;
8.reckless conduct endangering life; and
9.possessing proceeds of crime;
The bail fixed was in stringent terms, being:
· a surety in the amount of $200,000;
· to reside at 27 Hermitage Crescent, Bundoora;
· report daily to police at Greensborough police station;
· surrender passport;
· not attend international points of departure;
· not leave Australia;
· not contact witnesses for the prosecution;
· not associate with any co‑accused;
· not leave residence between hours of 9.00 pm and 6.00am;
· not to leave the state of Victoria;
· not to associate with any person who is a member or prospect of any chapter of the Hell’s Angel’s Motorcycle Club;
· not to attend any premises occupied or frequented by members of the Hells Angels Motorcycle Club;
· not to enter the area bounded by the Eastern Freeway, Burke Road, Lower Heidelberg Road, Bell and Banksia Streets, Albert and Station Streets, Darebin Road and Grange Road and Chandler Highway.
The grounds for the appeal are that the learned Magistrate:
1. erred in finding that cause had been shown pursuant to s 4(4)(a) of the Bail Act 1977;
2. erred in finding that cause had been shown pursuant to s 4(4)(c) of the Bail Act 1977;
3. erred in finding that the Respondent was not an unacceptable risk pursuant to s 4(2)(d) of the Bail Act 1977;
4. erred by failing to give sufficient weight to:
a. the strength of the prosecution case;
b. the risk that the Respondent will endanger the safety or welfare of members of the public;
c. the risk that the Respondent will commit further offences whilst on bail;
d. the risk that the Respondent would interfere with witnesses;
e. the risk that the Respondent will fail to surrender himself into custody in answer to his bail;
f. the combined effect of the above factors.
The principles applicable to a Director's appeal are regarded as having been established in the decision of the Full Court in Beljajev & Anor v DPP (Victoria) and DPP (Commonwealth)[1]. In that case the Court (Young CJ, Crockett and Ashley JJ) stated:
"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." (my emphasis)
[1]Unreported 8th August 1991.
The allegations relating to this case are that:
At approximately 12.47 am on the 25th of June 2005, the Respondent together with three others, Hammet ( also known as O’Reilly), Hinton and Smith went to the Rue Bar in Ivanhoe. The accused are all members of the Hells Angels Motorcycle Club. The Respondent is the sergeant at arms of the club. Approximately two minutes after entering the club the Respondent, Hammet and Hinton assaulted a man named Schiavella, by punching him to the head. He was bleeding from the nose and face area.
Security then removed Schiavella from the bar area, the others followed and they then grabbed Schiavella, forcing him through an arcade along a walkway next to the hotel. At the top of the ramp, which was approximately eight metres from the ground, the four men continued to assault Schiavella and then lifted him by his feet and hung him over the railing leaving him dangling above the ground.
At about this time the security staff tried to intervene but Hinton reached towards his back in a manner indicating that he was reaching for a gun, and someone said that they would shoot. No firearm was actually produced. The security staff were in fear, they desisted and called the police.
Schiavella was forcibly taken down the ramp and at the base, the Respondent, Hammet and Hinton further assaulted him by repeatedly punching kicking and stomping on his body and head. This went on for several minutes until the Respondent and Hinton forced Schiavella into the rear seat of a vehicle which had just been driven in by Smith.
It is alleged that Schiavella was then driven to the hells angels’ clubhouse in Thomastown and held him there against his will and tortured over the next four to five hours by the men. During this time a part of Schiavella's little toe was severed with some type of instrument.
As a result of a phone call a friend picked Schiavella up from where he was dropped and took him to hospital. He had a partially amputated toe, severe bruising and swelling to his face, torso, head and back. He had a broken nose and remained in hospital for some days.
None of what is alleged to have occurred in the club house is capable of proof in a court of law, as the witness Schiavella has indicated that he has no memory of the incident at all, although there is no medical reason why this should have occurred. It is obvious that he is frightened of the persons who are charged with the offences against him. Despite this, there is ample evidence of the other offences up to and including the taking away of Schiavella in the motor vehicle, as there are security cameras that have captured this incident on film. There are also a number of independent witnesses to the assaults. It is clear that there must be a high level of fear engendered by these accused, as the person who picked up Schiavella as a result of the phone call also refused to co‑operate or recall anything of what happened, and both men had to be examined in a Section 56A hearing.
No reason has been put forward for the assaults and the kidnapping of Schiavella, and without his co‑operation the reason or reasons may never be known. It can be presumed that it had something to do with the Hells Angels Motorcycle Club as all of the accused men came to the hotel wearing their colours, and quite clearly with the intention of finding Schiavella and inflicting some sort of injuries upon him. They were not deterred by the presence of others, or even the possibility of witnesses who could identify them. It was a prolonged and deliberate attack by four men on one individual.
As his Honour Justice Osborne said in refusing bail for the co‑offender O’Reilly/Hammet:
“The offences alleged include the apparently deliberate and continuing assault of one man by four others followed by his deliberate abduction and further injury while detained. The circumstances described in the police summary, if accepted, constitute very serious offences of a high level of vicious criminality.”
There is no doubt, and there have been no real submissions to the contrary, that this is a strong prosecution case.
The Respondent has ties to this jurisdiction, a longstanding partner and family willing to put at risk significant assets to provide a substantial surety. He also has the prospect of employment with his father. The Respondent has not been involved in failing to appear in respect of other matters on which he was placed on bail, and therefore does not have a history of being a flight risk. Equally he has attended his court dates even when it would have been clear that he would be imprisoned. These were all positive matters to be weighed in the determination of whether the Respondent had shown cause.
The Learned Magistrate did not accept that the Respondent was a flight risk due to his involvement in the Hells Angel’s Motorcycle Club, and in my view that was a correct assessment. In argument it appeared that the DPP were submitting the fact that the Respondent was a member of the hells angels motor cycle club ought to be sufficient to satisfy the Court that he was a flight risk, as some years earlier the Melbourne Chapter of the Club had harboured a fellow member from South Australia when he had absconded from bail. That really has no relevance and was rightly dismissed by her Honour.
There are two other matters that are of real concern and the issue is whether her Honour gave sufficient weight in the balancing process to those issues, being:
· the risk that the Respondent will commit further offences whilst on bail;
· the risk that the Respondent would interfere with witnesses.
Of particular note is the fact that the Respondent was on bail at the time of the alleged commission of these offences. Although the offences are not of a similar type, the fact that the Respondent was on bail and reporting to police three times a week when he allegedly committed these offences causes significant concerns. The Respondent had to attend a police station three times a week which one would expect would bring the issue of offending into focus and make a person hesitate and think before committing any further offence, especially one that was not spontaneous.
Equally it is relevant to the issue of whether he is likely to commit further offences whilst on bail. What can be said from his actions in allegedly committing these offences whilst on bail is that bail does not seem to act as a deterrent for him for committing further offences.
As his Honour Justice Osborne said in Raymond O’Reilly v Director of Public Prosecutions[2], at page 6 under the heading:
“The risk of interference with witnesses
In my view the very nature of the charged acts demonstrates violence of a continuing and intimidating nature such as to give rise to a real risk of intimidation of witnesses. This view is corroborated by the position adopted by Schiavella, which is, in my view, as a matter of probability, is a product of fear of further injury. There is certainly no medical or other explanation available for his total loss of memory as to the identity of those involved in extended assaults upon him. Even if Schiavella had not adopted the position he has, however, I have formed the view that the nature of attacks alleged indicates a capacity for continuing violence of an intimidatory nature upon witnesses.”
[2]Unreported delivered on 6 September 2005.
I agree with His Honour in respect of the concerns of, and relating to, witnesses. Whilst the aspect of membership of the Hells Angel’s Motorcycle Club has no relevance to the issue of flight it does have relevance to the ability to engender fear within witnesses. It is a matter of notoriety that members of Hells Angel’s Motorcycle Club are viewed by the media, law enforcement and the public as being engaged in serious criminal activity, particularly matters of violence and revenge. It is legitimate to examine how fearful and how easily intimidated the witnesses would be if there was an effort made to contact them.
An example was given in the material before me about one of the members of the club attending a hotel subsequent to an incident that had occurred, asking to speak to the manager who was not present at that time, the staff were so fearful that they called the police. It was submitted by the Respondent that in the example given that the member had done nothing wrong during that visit, which I accept as correct, but it shows the powerful threat that membership of the club conveys to ordinary members of the public.
The committal proceeding in this case is listed for 9 May 2006. The Respondent has been in custody until the present time serving a sentence, on which he has now been granted parole by the parole board. He remains in custody until this matter is determined although parole has in fact been granted.
The bail situation in respect of the alleged co‑offenders are that O’Reilly/Hammet was refused bail by Justice Osborne, Smith was granted bail by Her Honour Judge Hannan of the Magistrates’ Court and Hinton is undergoing a sentence and has not applied for bail. The involvement of Smith was at a lesser level in terms of the actual infliction of violence, although he was clearly acting in concert with the others on the material that is alleged. Hammet was in a more comparable position to the Respondent in terms of alleged participation in the offence, although his prior convictions were not as extensive.
The prior convictions of the Respondent indicate that he has been involved in a variety of offences, a large number of which are motor traffic offences, but others include offences of violence, although it had been in excess of five years since the last offence relating to violence. That offence was related to his then domestic situation but included assault with a weapon, and unlawful assault with circumstances of aggravation for which he received prison terms. The prior convictions, if one goes back into 1997 when his criminal history commenced, were extensive in relation to crimes of violence against what would appear to be his domestic partner.
As importantly, the prior history of the Respondent is equally littered with breaches – being breaches of suspended sentences, breaches of intervention orders, driving whilst disqualified, breaching community based orders and the like. His history shows a contempt for the orders of a court which has continued to the present time, with the alleged committing of this offence whilst on bail.
Those factors to which I have referred may normally mean that the Respondent would have failed to show cause. As part of the process of showing cause it is necessary for the Court to determine that Respondent is not an unacceptable risk in the terms of section 4(3) of the Bail Act 1977. for the reasons that I have outlined, it has been established that the Respondent is an unacceptable risk in my view and it is the consequences of that finding that I examine.
It is apparent that Her Honour examined all of these issues and came to different determinations of fact to those at which I have arrived, the major difference being that she believed all of those issues could be dealt with by extremely stringent, and to a degree, creative, bail conditions.
Her Honour stated[3]:
[3]At page 96 of the transcript of exhibit LMDP 2.
“In relation to the risk of committing offences whilst on bail your priors speak loudly in that regard. You have numerous prior convictions and again I emphasis that you were on bail at the time. I regard this risk as being a serious risk. This is a matter to which I have already referred and a matter which I indicate that I place significant weight (sic), in the weighing exercise which I must conduct today.”
And again[4]:
“In terms of interfering with witnesses, firstly I accept that the fears of the witnesses in terms of their personal feelings are very real to the witnesses. I am conscious that as a judicial officer I must separate community myth from the reality of the evidence which is placed before me.”
Further[5]:
“In relation to the question of endangering the safety and welfare of members of the public, it’s always a risk when serious offending is alleged. The question is whether the risk is unacceptable or, put another way, can the risk be made acceptable by the imposition of conditions?
The listening device material concerns me. Access to firearms always concerns me. In relation to this matter I note that you are a prohibited person. Indeed, you are undergoing a sentence that involves a court appearance wherein you pleaded guilty in relation to some ammunition. I regard again this matter as being significant to and I have given it substantial weight in terms of the decision I must make today.
As I said a few moments ago, ultimately bail is always a weighing exercise. Ultimately I am persuaded that you have shown cause why your detention in custody is not justified. In my view the risks, while real and understandable from the prosecutions point of view, at this time can be made acceptable via the imposition of conditions.”
[4]At page 97.
[5]At page 99.
The law is quite clear that when a court is hearing an appeal in respect of matters of practice and procedure such as grants of bail, there is a severe restraint placed upon the court interfering with the order.[6]
[6]See Beljajev & Anor v DPP (Victoria) and DPP (Commonwealth) Unreported 8th August 1991.
It is sufficient to overturn the decision if the appeal court, hearing the matter de novo, is persuaded that the discretion of the magistrate miscarried, and if the appellant court is persuaded that a different order should be made.
Her Honour identified and agreed that there were serious matters that fell within the category of unacceptable risk, Her Honour however, believed that the unacceptable risk was capable of being managed by the imposition of very stringent conditions. Those conditions have been identified and are clearly restrictive upon the activities of the Respondent when freed from custody. They address his membership of, and association with, other members of the Hells Angel’s Motorcycle Club, it restricts his ability to visit any of the areas where the clubs premises are located, it restricts his ability to move freely outside his premises during non‑working hours, he is compelled to report to police on a daily basis, plus other restrictions on his movements and associations.
Her Honour, in her Reasons made it clear that she had turned her mind to all of the unacceptable risk issues, and that she well appreciated the risks that the grant of bail to the Respondent may pose to the community. She determined that risk could be managed by imposing the conditions on the Respondent outlined earlier.
Although as indicated, I would have come to a different decision, that is not sufficient to persuade me that Her Honour has, on examination of the reasoning processes in her reasons for the grant of bail, made any error of law in so deciding, nor am I persuaded that her decision demonstrates that her discretion must have miscarried.
The appeal by the Director will be dismissed.
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