IN THE MATTER of an appeal by the Director of Public Prosecutions for the Commonwealth of Australia against the grant of bail to Joseph Terrence Thomas
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA
Appellant
V
JOSEPH TERRENCE THOMAS
Respondent
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JUDGE:
TEAGUE J
WHERE HELD:
Melbourne
DATE OF HEARING:
15 March 2005
DATE OF JUDGMENT:
15 March 2005
DATE OF REASONS:
31 March 2005
CASE MAY BE CITED AS:
DPP (Cth) v Thomas
MEDIUM NEUTRAL CITATION:
[2005] VSC 85
1st Revision 6 April 2005
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APPEAL – Bail – Appeal by Commonwealth Director of Public Prosecutions against grant of bail by the Chief Magistrate– Finding of exceptional circumstances open to the Chief Magistrate - Appeal dismissed
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr R. Maidment S.C.
Solicitor for the Director of Public Prosecutions (Cth)
For the Respondent
Mr L. Lasry Q.C. with Mr M. Taft
Robert Stary and Associates
HIS HONOUR:
These are my reasons for having dismissed an appeal against the making of a bail order. The appeal was brought by the Commonwealth Director of Public Prosecutions (“the appellant”). The bail order was made in favour of Mr Thomas by the Chief Magistrate on 14 February 2005.
Three charges were laid against Mr Thomas. The first was that between November 2002 and January 2003 at Karachi in Pakistan and elsewhere, he did, contrary to paragraph 102.6(1) of the Criminal code (Cth), intentionally receive funds from a terrorist organisation, namely, Al Qa’ida, knowing that it was a terrorist organisation. The second was that between 5 July 2002 and 4 January 2003 at Karachi and elsewhere, he did, contrary to paragraph 102.7(1) of the code, intentionally provide support or resources to a terrorist organisation, Al Qa’ida, that would help it directly or indirectly engage in planning, assisting in or fostering the doing of a terrorist act, knowing it was a terrorist organisation. The third was that on 4 January 2003 at Karachi and elsewhere, he did, contrary to paragraph 94(1) of the Passports Act 1938 (C’th) have in his possession or under his control an Australian passport that he had falsified. There was evidence before me that the respondent intended to plead guilty as to the third charge.
The respondent had made two previous applications for bail. The first was made to the Chief Magistrate in November 2004. I will refer to it as the November hearing and as to the reasons given by the Chief Magistrate for denying bail as the November reasons. The second was made to Hansen J in this court in December 2004. I will refer to it as the December hearing and as to the reasons given by Hansen J for denying bail as the December…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
DPP (Cth) v Thomas [2005] VSC 85
Case
[2005] VSC 85
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions (Commonwealth) versus Thomas, the Court of Appeal was tasked with reviewing the decision of the Chief Magistrate to grant bail to the accused. The central issue in this appeal was whether the Chief Magistrate correctly exercised his discretion to find exceptional circumstances under section 45P(1) of the Crimes Act 1914 (Cth) when granting bail to Thomas. The appeal centred on whether the Chief Magistrate had sufficient grounds to conclude that exceptional circumstances existed, which warranted the granting of bail despite the potential risk to the community.
The legal issue before the court was whether the Chief Magistrate's decision to find exceptional circumstances when granting bail to Thomas was open to him under the statutory framework. The court examined whether the evidence presented to the Chief Magistrate was sufficient to justify the conclusion that exceptional circumstances existed, warranting the exercise of the discretion afforded by the Act. The Commonwealth argued that the Chief Magistrate had erred in finding exceptional circumstances, while Thomas contended that the Chief Magistrate's decision should be upheld as it was within his discretion.
The Court of Appeal held that the Chief Magistrate had the authority to find exceptional circumstances as per section 45P(1) of the Crimes Act 1914 (Cth). The court found that the Chief Magistrate had considered the relevant factors and had a reasonable basis for concluding that exceptional circumstances existed. The evidence provided supported the finding that the accused's release on bail would not pose an undue risk to the community. Consequently, the Court of Appeal dismissed the appeal by the Director of Public Prosecutions (Commonwealth) against the grant of bail. The decision underscored the broad discretion afforded to the Chief Magistrate in determining whether exceptional circumstances exist under the statutory framework.