Director of Public Prosecutions v Semaan
[2014] VSC 658
•19 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0202
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Appellant |
| v | |
| BAKHUS SEMAAN | Respondent |
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JUDGE: | CROUCHER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 December 2014 | |
DATE OF JUDGMENT: | 19 December 2014 | |
CASE MAY BE CITED AS: | DPP v Semaan | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 658 | First revision: 18 February 2015 |
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APPEAL – Bail – Appeal by the DPP purportedly pursuant to s 18A of the Bail Act 1977 (Vic) – Judge of County Court granted respondent’s application to vary bail by suspending existing conditions to allow him to travel overseas – Whether s 18A gives the DPP a right of appeal against an order varying bail, as distinct from an order granting bail – Whether the judge made an order granting bail – Whether DPP’s notice of appeal is deficient – Whether leave should be given to amend the notice of appeal – Comment on whether amendment to Bail Act might be considered – Whether manifest error in varying bail – No error demonstrated – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P. D’Arcy | Office of Public Prosecutions |
| For the Respondent | Ms A. Ellis | David Barrese & Associates |
HIS HONOUR:
Introduction
On 10 and 11 December 2014, Bakhus Semaan (“the respondent”) applied[1] to a judge of the County Court to vary his bail by suspending the existing conditions so that he could travel to Lebanon between 19 December 2014 and 9 January 2015. The judge granted the application but also ordered that there be two sureties (one in the amount of $15,000; and the other, $207,000) when none had been required hitherto.
[1] Pursuant to ss 18AC and 18AD of the Bail Act1977 (Vic).
By notice dated 15 December 2014, the Director of Public Prosecutions appeals to this Court, purportedly pursuant to s 18A of the Bail Act 1977 (Vic), against the order varying bail. The Director submits that the judge was manifestly wrong to find that, if the variation sought were made, there would not be an unacceptable risk that the respondent would fail to answer his bail.
The appeal raises two main issues: The first is whether the appeal is incompetent. That question in turn raises several related questions: Does s 18A allow the Director to appeal against an order varying bail, as distinct from an order granting bail? If s 18A is confined to appeals against orders granting bail, did the judge in this case make an order granting bail? If so, is the Director’s notice of appeal deficient, in that it purports to appeal against the order varying bail? If so, should leave be given to amend the notice?
The second main issue on the appeal is whether the judge’s decision to vary bail as he did was manifestly wrong.
Since I am not persuaded that the judge’s decision was manifestly wrong, and since the appeal therefore must be dismissed in any event, it becomes unnecessary to decide whether the appeal is incompetent. That issue, and the related questions, while important, will have to await another day for their resolution.
My reasons for those conclusions follow.
Background
The respondent is aged 31. He was born in Lebanon but became an Australian citizen when aged one. Apart from living in Australia briefly when he was aged seven, he lived in Lebanon until he was 21. For the last ten years, he has lived in Australia. He has dual Lebanese and Australian citizenship.
In March 2010, the respondent commenced a relationship with Emma Lavell.
On 2 July 2010, the respondent was the driver of a seven-seater vehicle between Dinner Plain and Mount Hotham. He was, as part of his work, driving his six passengers to their work as cleaners. It is alleged that the respondent drove dangerously, albeit not in excess of the speed limit. The vehicle left the road and rolled three or four times. One passenger was killed. Another five suffered serious injuries.
The next day, the respondent spoke to police. He voluntarily surrendered his passport.
On 28 March 2011, the respondent was charged with culpable driving causing death and five instances of negligently causing serious injury. He was also charged with reckless conduct endangering life arising out of an incident of driving said to have occurred on 29-30 June 2010. The charges were laid on summons.
On 11 August 2011, a magistrate committed the respondent for trial in the County Court. He was granted trial bail, unopposed.
On 3 September 2012, following a trial in the County Court before a judge and jury, the respondent was found not guilty of culpable driving causing death and negligently causing serious injury but guilty of the alternatives of dangerous driving causing death and dangerous driving causing serious injury. The judge had earlier directed acquittals on the charges of conduct endangering life. The respondent’s bail was continued pending plea and sentence.
On 7 September 2012, the respondent was sentenced to a total effective sentence of five years and three months’ imprisonment with a non-parole period of two years and eight months. He had no prior convictions other than an instance of driving whilst disqualified in 2009.
On 2 June 2013, the respondent’s appeal to the Court of Appeal against conviction was allowed and a retrial was ordered. The Court held inter alia that the trial judge had erred in admitting evidence of prior incidents of allegedly bad driving.[2]
[2] Semaan v The Queen [2013] VSCA 134.
On 3 June 2013, the respondent was granted bail, unopposed, by a judge of the County Court pending his retrial.
On 23 November 2013, the respondent and Ms Lavell became engaged to be married.
On 11 April 2014, they established a fund for the purposes of their proposed wedding.
On 10 June 2014, the respondent’s retrial commenced in the County Court before Judge McInerney (who did not preside at the first trial). After two days, as a result of grave illness of the father of the respondent’s counsel, the retrial was aborted. Ultimately, the matter was adjourned to commence again on 13 April 2015.
On 25 July 2014, the respondent and his fiancée booked, and paid a deposit in respect of, the church for their wedding. The wedding is to be conducted on 11 April 2015.
On 9 September 2014, a new trial date of 9 June 2015 was fixed because of the unavailability of a witness in April.
Application for variation of bail
Application
On 10 and 11 December 2014, Judge McInerney heard the respondent’s application to vary bail to allow him to travel to Lebanon between 19 December 2014 and 9 January 2015.
Evidence
His Honour received in evidence affidavits from the respondent’s fiancée Ms Lavell, his solicitor David Barrese and the informant Sgt Robert Cunningham, and an agreed chronology of events. He also heard sworn viva voce evidence from the respondent.
The application was opposed by the Director. It was submitted that there was an unacceptable risk that, were he allowed to travel to Lebanon, the respondent would fail to answer his bail. The Director relied on a combination of factors, including the strength of the prosecution case and the consequent risk of being convicted and returned to prison for a substantial period; the fact that the respondent had family in Lebanon (namely, his parents, paternal grandparents and two siblings); and the fact that there was no extradition treaty between Lebanon and Australia.
The respondent’s reason for wanting to travel to Lebanon was so that his fiancée could meet his father and paternal grandfather before the wedding and so that, according to his family’s tradition, he could seek their approval of the marriage. There was some doubt about whether the respondent’s father would be able to obtain a visa to come to Australia for the wedding. There was also doubt about whether his grandparents would be well enough to make the trip. In support of his application, the respondent relied on the strength of his long-term relationship with his fiancée, his ties to the jurisdiction, his long history of compliance with his bail conditions, the absence of any suggestion of flight during the four-and-a-half years since the accident, the absence of any criminal history (apart from driving whilst disqualified in 2009), the support he had from his fiancée and her parents, and the fact that he was able to raise two sureties – one from his fiancée for $15,000 and the other from her parents for $207,000. All of these matters, it was submitted, ameliorated the risk of flight to a level that was not unacceptable.
Judge’s reasons
In detailed reasons, Judge McInerney explained that he accepted the respondent’s viva voce evidence and the affidavit evidence of Ms Lavell and Mr Barrese. His Honour accepted that there was a risk that the respondent may fail to return from Lebanon but concluded that that risk, in all the circumstances, was not unacceptable. The provision of the two sureties, said his Honour, also “assuage[d] the Court with some further security”.
Orders of the County Court
The record of orders in the County Court records that the application was “granted”; that the “[o]riginal order has been varied”; and that the judge “[d]irect[ed] that the bail of [the respondent] be varied” and that the respondent “be released on bail to attend [on 9 June 2015] … in the County Court …” and be “[b]ailed on [his] own undertaking [w]ith sureties in the amount of … $207,000 [and] $15,000”.
The record of orders then records the special conditions, which are that the respondent:
1) is to reside at [a particular address];
2) is not to attend any points of international departure;
3) is not to apply for an Australian passport or passport of any other country;
4) is not to contact witnesses for the prosecution except the informant [and certain others]; and
5) is not to leave Australia.
The record of orders then records the following:
By order of Judge McInerney this day:
a) the bail conditions of [the respondent] be suspended to allow [him] to travel to Lebanon between 19 December 2014 and 9 January 2015, being:
i. the requirement that [the respondent] surrender his passport;
ii. the requirement not to attend any point of international departure; and
iii. the requirement not to leave Australia;
b) [the respondent] is to advise the informant of his return to Australia by Monday 12 January 2015; and
c) [the respondent] is to surrender his Australian passport to the County Court at Melbourne by 12 January 2015, 4:00 p.m., and not apply for any other.
Is the appeal incompetent?
Introduction
I turn now to the question whether the appeal is incompetent, and the related questions mentioned earlier.
Section 18A of the Bail Act1977 (Vic) presently reads as follows:
18AAppeal by Director of Public Prosecutions against insufficiency of bail etc.
(1)If a person is granted bail, the Director of Public Prosecutions may appeal to the Supreme Court against the order granting bail if—
(a)the Director is satisfied that—
(i)the conditions of bail are insufficient; or
(ii)the decision to grant bail contravenes this Act; and
(b)the Director is satisfied that it is in the public interest to do so.
(2)Where the Director of Public Prosecutions desires to appeal to the Court under subsection (1) he shall cause notice of appeal setting forth the grounds thereof to be given to the person granted bail (hereafter in this section called the respondent) and to each of the sureties (if any).
(3)A notice required to be given to a surety under subsection (2) may be given personally or by post or by causing the notice to be delivered at the place of residence of the respondent or surety (as the case requires) shown in the affidavit or declaration of justification for bail.
(4)Notice of appeal shall not be given under subsection (1) more than one month after the bail is granted without first obtaining the leave of the Supreme Court.
(5)The Director of Public Prosecutions or a legal practitioner on his behalf may appear on behalf of Her Majesty on any appeal under this section and any respondent or surety to whom notice is given under subsection (3) may appear by himself or by a legal practitioner on his behalf.
(6)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.
(7)If the respondent is not present in Court when an order granting bail is revoked or varied under this section the Court shall cause a warrant to be issued for apprehending the respondent and bringing him before the Court.
(8)If the Court revokes an order granting the respondent bail the Court shall remand the respondent in custody to await his trial.
(9)If the Court makes an order varying the amount or conditions of bail the Court shall require the respondent to find further or other surety or securities for the attendance of the respondent and may remand him in custody until further or other surety or security is provided.
(10)On the hearing and determination of an appeal under this section no costs shall be allowed on either side.
(11)A respondent if he so desires is entitled to be present on the hearing of an appeal under this section notwithstanding that he may be in custody but the Court may make any order under this section where the respondent is for any reason not present.
(12)The respondent or the Director of Public Prosecutions may appeal to the Court of Appeal from a decision of a single judge of the Supreme Court made under this section.
Note
Sections 18AG and 24(4) also provide for certain appeals.
Does s 18A allow the Director to appeal against an order varying bail?
Ms Ellis, who appeared for the respondent before Judge McInerney and in this Court, submitted that the appeal was incompetent. She submitted that, because s 18A(1) of the Bail Act clearly provides that “[i]f a person is granted bail” the Director may appeal to the Supreme Court “against the order granting bail” if the Director is satisfied about certain matters, by no stretching of language can it be said that that provision extends to a right in the Director to appeal against an order varying bail that, as in this case, has already been granted on another occasion.
Ms Ellis pointed out that ss 18AC(1) and (2) (and s 18AD) provide for an accused and the Director respectively to apply to vary the amount or conditions of bail but that there is no express provision giving a right to the Director to appeal a decision with respect to such an application. This, she submitted, is to be contrasted with s 18AG, which provides a right in the Director to appeal against a refusal of an application to revoke bail made under ss 18AE and 18AF.
Mr D’Arcy, who appeared for the Director in this Court, submitted that, when an existing bail is varied, a new bail order must be made by the court and the corresponding undertaking must be made anew by the applicant. Thus, even if the appeal mounted is, as here, in substance, an appeal against the order varying bail, the fact that the order actually appealed is the new order granting bail and that the successful applicant must enter a new undertaking means that s 18A is engaged in such a case.
Mr D’Arcy also submitted that one would not expect s 18A(1)(a)(i) to refer to the Director’s belief as to the conditions of bail being insufficient, nor that s 18A(9) would refer to the Court’s power to make an order varying the amount or conditions of bail, if the right of appeal in s 18A(1) did not extend, in substance, to an appeal against an order varying bail, albeit that it is the order granting bail that must be appealed.
In support of his argument, Mr D’Arcy also referred to the decision in DPP v Bey.[3] In that case, Beach J allowed an appeal by the Director against a magistrate’s order varying an existing bail, as it happens, to allow the accused to travel to Lebanon for 14 days to visit his father. While the terms of s 18A(1) were slightly different in 1996[4] and while his Honour does not appear directly to have addressed the preliminary question at issue in this appeal, it is nevertheless a decision of this Court supporting the argument that s 18A(1) does provide the Director with a right of appeal in a case such as the present.
[3] (Unreported, Supreme Court of Victoria, Beach J, 13 March 1996).
[4] In 1996, s 18A(1) was in the following terms: “Where a person is granted bail in an amount which appears to the Director of Public Prosecutions to be inadequate or on conditions which appear to the Director … to be insufficient or in circumstances appearing to the Director … to contravene or fail to comply with any of the provisions of this Act and the Director … is satisfied that an appeal should be brought in the public interest the Director … on behalf of Her Majesty may appeal to the Supreme Court against the order granting bail to that person”.
Mr D’Arcy also referred to the Explanatory Memorandum to the Bail Amendment Bill 2010, which was the bill that became the Act which effected various amendments to the Bail Act, including those which amended s 18A(1) to bring it into its current form. He noted that it is there said (at p 12) that the “[n]ew subsection (1) clarifies the drafting of [the] current subsection (1) without changing the law”. Thus, the argument continued, if the law was as it must have been assumed to be by Beach J in DPP v Bey, then it must still be so today under the new s 18A(1).
Did the judge make an order granting bail?
Mr D’Arcy also submitted that, in the present case, while the orders set out earlier correctly speak of variation in parts, they also speak of the respondent being “released on bail” and his being “[b]ailed on [his] own undertaking”. This, he submitted, particularly when coupled with the fact that sureties were added, shows that Judge McInerney did in fact make a new order granting bail.
Is the Director’s notice of appeal deficient?
The notice of appeal gave notice that the Director would “appeal … against the order granting a variation of bail to permit the respondent to travel to Lebanon”. The ground of appeal is set out thereafter. It reads: “That the learned judge erred in finding that, if the respondent’s bail was varied as sought, there was no unacceptable or unreasonable risk that he would fail to surrender himself into custody in answer to his bail”.
Plainly, the notice purports to mount an appeal against the order varying bail, not the order granting bail.
Thus, even on the Director’s construction of s 18A(1), the notice of appeal was deficient.
Should leave be given to amend the notice?
Mr D’Arcy indicated that, if the Court took the view that the notice needed to be amended, he would make the necessary application to do so. While he did not articulate the precise form of words he would seek to substitute, I understood Mr D’Arcy to submit that the notice should say that the Director would appeal the order granting bail, and leave the existing ground of appeal untouched.
Ms Ellis opposed the application. She submitted that there was no reason why the Director should not be held to his notice.
Mr D’Arcy submitted, however, that Ms Ellis did not point to any relevant prejudice to the respondent in making the proposed amendment.
Conclusions
As indicated at the outset of these reasons, despite hearing helpful submissions from both counsel on the matter, I consider it unnecessary in this case to decide whether the appeal is incompetent. This, in turn, means that the related questions I have just considered will have to await another day for their resolution. In taking this course, I am mindful that, on the one hand, the question whether s 18A(1) does give the Director a right to appeal against a variation of bail is important and needs to be determined but that, on the other, such a decision should not be rushed and, yet, time is of the essence, as the respondent is due to fly to Lebanon tonight. Thus, in circumstances where I have taken the view that the appeal must be dismissed in any event, there would seem to be little utility in producing a judgment on an important matter that might have been improved with the benefit of a tad more time.
That said, it seems to me that there is enough in the arguments for each side to cause the legislature to consider an amendment to the Bail Act to make clear whether the Director does, or does not, have a right of appeal against an order varying bail. Whether the Director should, or should not, have such a right of appeal is, of course, a matter for the legislature.
Was the judge’s decision manifestly wrong?
I turn now to the substance of the purported appeal.
The relevant principles
The principles governing appeals under s 18A are not in dispute. Relatively recently, they were set out by J Forrest J in DPP (Cth) v Barbaro[5] 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).[6] In both judgments, the following passage of the joint judgment of the Full Court in Beljajev v DPP (Vic) & DPP (Cth)[7] 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.
The Director’s submissions
[5] [2009] VSC 27 at [2]-[3] & [15]-[18].
[6] [2009] VSCA 26 at [9]-[11].
[7] (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Crockett and Ashley JJ, 8 August 1991) at 29-30.
In the present case, the Director’s appeal was confined to the complaint that the variation made was manifestly the wrong order to make. In particular, Mr D’Arcy submitted that the judge was manifestly wrong to find that, if the variation sought were made, there would not be an unacceptable risk that the respondent would fail to answer his bail. Rather, he submitted, the only conclusion reasonably open was that there was an unacceptable risk that the respondent would fail to answer bail if allowed to travel to Lebanon.
As I understood him, Mr D’Arcy relied on essentially the same arguments that appear to have been put to Judge McInerney.[8] First, the respondent has an incentive not to return from Lebanon as there is a considerable risk that he will be convicted and returned to prison for a substantial period. Secondly, it would be relatively easy for him to stay in Lebanon given that he has citizenship in that country, had lived there for almost all of the first 21 years of his life and still has family there. Thirdly, it would be difficult for the authorities to bring him back to Victoria as there is no extradition treaty between Lebanon and Australia. Fourthly, were he to fail to appear, there would only be a monetary cost – and even then, it is a cost to the sureties, not to him.
[8]I say “appear to have been put to Judge McInerney” because I was not provided with a transcript of the evidence or the submissions before his Honour. Rather, I was given transcript of his Honour’s reasons for granting the application, from which I was able to glean the arguments put. (I was also given copies of the affidavits and exhibits, and the agreed chronology of events, that were before his Honour.)
Mr D’Arcy also referred to other cases in which appeals under s 18A had succeeded where magistrates had fixed conditions that would have allowed overseas travel when an accused was at risk of a substantial term of imprisonment. While he recognized that other decisions in appeals in bail matters were not precedents to be distinguished or applied and that each case turns on its own facts, he nevertheless drew my attention to DPP v Bey[9] and DPP v Basic.[10]
[9] (Unreported, Supreme Court of Victoria, Beach J, 13 March 1996).
[10] [2013] VSC 412.
Respondent’s submissions
Ms Ellis submitted that the judge’s decision was well open to him and should not be disturbed. She relied on several factors. First, while the respondent has ties to Lebanon, he has stronger ties to Australia. His fiancée and her family are here. He and his fiancée are to be married next April, after a long relationship. Secondly, he voluntarily surrendered his passport even before he was charged and without any obligation to do so. Thirdly, he has been on summons or bail for four-and-a-half years, both before and after trial and after appeal, all without incident. Fourthly, he has had his passport since the order of Judge McInerney but has not left the country despite being allowed to do so lawfully. Fifthly, the respondent has no criminal history. Sixthly, that his fiancée and her parents are willing to risk the equity in their properties shows that they consider the risk is worth taking. Equally, it is unlikely that the respondent would inflict on his fiancée and her parents the loss of money that would result from forfeiture of the sureties should he fail to appear.
As to the other cases, Ms Ellis submitted that DPP v Bey was quite different from the present case. Mr Bey had been charged with, and bailed on, charges of conspiracy to defraud the revenue to the tune of $17 million. He was then charged with further offences, allegedly committed while on bail, concerning attempts to bribe police and like offences. After being refused bail, he was eventually granted bail again. His wife was living in Lebanon and he had substantial assets there. In DPP v Basic, the offending, as it appeared to be at the time bail was granted, was very serious commercial drug trafficking (although it ultimately resulted in a sentence of a similar order to the sentence imposed on the respondent at the first trial in the present case). Further, Mr Basic’s reason for wanting to travel overseas was less than compelling and, perhaps more importantly, was not supported by viva voce evidence from Mr Basic himself.
Conclusion
As I have indicated earlier, I am not persuaded that the judge’s decision to vary bail as he did was manifestly wrong.
It is plain from his Honour’s reasons that he wrestled with the matter and took into account all relevant considerations.[11] He accepted that there was a risk that the respondent would not return from Lebanon but was satisfied that that risk was not unacceptable.[12] The judge was well entitled to come to that view.
[11]Judge McInerney was referred to, and considered, various authorities, including DPP v Bey (Unreported, Supreme Court of Victoria, Beach J, 13 March 1996); DPP v Basic [2013] VSC 412; Barbaro v DPP (Cth) [2009] VSCA 26; and Haidy [2004] VSC 247.
[12]Strictly speaking, his Honour did not need to be so satisfied. Rather, it was the Director who had the onus of showing that the risk was unacceptable (see s 4(2)(d)(i) of the Bail Act 1977 (Vic)).
There is no rule that accused persons facing substantial periods of imprisonment, should they be convicted at trial, are not entitled to have their bail varied so that they might travel overseas to countries without extradition treaties with Australia. Each case turns on its own facts.
In this case, the evidence – as opposed to the (understandable) speculation – was all pretty much one way. Earlier, the judge had heard part of the retrial before it had to be aborted. He had witnessed the respondent comply with his bail conditions, repeatedly. His Honour knew that the respondent had been doing so ever since he had been on bail. Indeed, the respondent had been behaving in the same responsible manner even before he was charged. His Honour had observed the respondent, his fiancée and her family in his Court. He was satisfied as to the strength of their relationship. He had the singular benefit of hearing sworn evidence from the respondent, including his reasons for wanting to travel overseas. There is nothing quite like looking someone in the eye in the witness box. His Honour, a judge of vast experience in the criminal law, was satisfied that he was being told the truth. But he did not accept that evidence unthinkingly. He questioned the reason for the trip. He made the point that, if the application to vary bail had all been a ruse, then the respondent had duped not only his fiancée but also her parents, and would be as base a person as any awful character in any Dickens novel he had read. But, of course, he was satisfied there was no ruse and no base motive.
I do not think it is open to me to gainsay those conclusions and conclude instead that it was not reasonable for his Honour to grant the application and vary bail as he did.
As the passage from the judgment in Beljajev extracted earlier makes clear, in appeals in bail matters, there is imposed on an appellate court “a severe restraint upon interference with the order appealed from”. There is no warrant for interfering with the order varying bail in this case.
In my view, the appeal must be dismissed.
Orders
The order of the Court is that the appeal is dismissed.
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