DPP v Bernath - [2003] VSC 304

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1468 of 2003

THE DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
BELA BERNATH	Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2003
DATE OF JUDGMENT:	19 August 2003
CASE MAY BE CITED AS:	DPP v Bernath
MEDIUM NEUTRAL CITATION:	[2003] VSC 304

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Criminal law – Bail – Charges of possession , trafficking and conspiracy to traffick drug of dependence – Delay of uncertain duration between arrest and trial – Bail granted by Magistrate – Appeal under s18A of the Bail Act 1977– Whether Magistrate erred in finding "exceptional circumstances" under s 4(2)(aa)(i) of the Bail Act 1977 –Whether Magistrate erred in finding no unacceptable risk under s4(2)(d) of the Bail Act 1977

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D McGuire	Kay Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr S Shirrefs S.C.	Galbally Rolfe

HER HONOUR:

This is an appeal by the appellant under s 18Aof the Bail Act 1977 against a grant of bail to the respondent by Deputy Chief Magistrate Muling on 17 July 2003.

The appellant relied upon the following four grounds:

"(1)That the learned Magistrate in proceeding to grant bail to the respondent erred in finding, pursuant to s 4(2)(aa)(i) of the Bail Act 1977 that exceptional circumstances had been shown.
(2)That the learned Magistrate in proceeding to grant bail to the respondent erred in finding pursuant to s 4(2)(d) of the Bail Act 1977 that the respondent was not an 'unacceptable risk' in all the circumstances.
(3)That in granting bail to the respondent the learned Magistrate gave undue weight to:
(a) the question of delay

(4) That in granting bail to the respondent, the learned Magistrate failed to accord sufficient weight to:
(a)the risk that the respondent will commit further offences if granted bail;
(b)the risk that the respondent will fail to appear in answer to his bail;

(c) the strength of the prosecution case;
(d) the combined effect of the above factors."

The respondent had been charged with possession and trafficking of a commercial quantity of amphetamine as well as conspiracy to traffick a commercial quantity of the drug. His two co-defendants, his brothers, George and John Bernath, had each made unsuccessful bail applications to Her Worship Ms B Cotterell in May 2003.

The respondent was released on bail on his own undertaking with one surety of $100,000 on condition that he report daily to the Keilor Downs Police Station between 6.00 am and 9.00 pm and that he reside at 29 Taylors Road, St Albans, Victoria.

He had previously been convicted of drug trafficking at the County Court at Melbourne on 14 December 1995. He had been sentenced to four years' imprisonment with a minimum non-parole period of two years and eight months. He had not breached his parole and had never breached bail.

The bail application in the Magistrates' Court had been made after orders extending time for the service of…

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.

Continue reading DPP v Bernath

Details

AGLC: Director of Public Prosecutions v Bernath [2003] VSC 304
Case: [2003] VSC 304
Decision Date: 19 August 2003

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus Bernath, the appellant sought leave to appeal against a decision of a magistrate to grant bail to the respondent. The respondent was facing serious charges, including possession, trafficking, and conspiracy to traffic a drug of dependence. The delay between the respondent's arrest and the anticipated trial was of an uncertain duration. The magistrate granted bail to the respondent under section 4(2)(aa)(i) of the Bail Act 1977, finding that exceptional circumstances existed due to the delay and other factors. The Director of Public Prosecutions then appealed to the Supreme Court under section 18A of the Bail Act 1977, arguing that the magistrate had erred in finding both "exceptional circumstances" and that there was no unacceptable risk under section 4(2)(d) of the Bail Act 1977.

The court examined the magistrate's findings in light of the relevant statutory provisions. The court considered the specific circumstances of the case, including the nature and seriousness of the charges, the length of the delay, and the respondent's background. The court noted that the magistrate had carefully weighed the evidence and had reached a decision based on the specific circumstances of the case. The court found that the magistrate's decision was not unreasonable and that there was no basis for the court to interfere with the magistrate's exercise of discretion.

Accordingly, the court dismissed the appeal. The magistrate's decision to grant bail to the respondent was upheld. The court noted that the decision to grant bail was a matter for the magistrate's discretion and that the court was not in a position to second-guess the magistrate's assessment of the evidence. The appeal was dismissed with costs to the respondent.

Orders