Bail – Appeal by DPP pursuant to s. 18A Bail Act 1977 against grant of bail by Magistrate – Serious drug offences – Whether open to Magistrate to find exceptional circumstances pursuant to s. 4(2)(aa) of Act – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr J. Rapke QC
Steven Carisbrooke Acting Solicitor for Public Prosecutions
For the Respondent
Mr C. Heliotis QC
Kenna Teasdale Lawyers
HIS HONOUR:
On 30 March 2005, at the Magistrates' Court at Melbourne, the respondent, Sabino Cozzi was admitted to bail on his own undertaking on one count of cultivating a narcotic plant (cannabis) being a commercial quantity; two counts of possessing cannabis and one count of trafficking a large commercial quantity of cannabis (23/3/05); there was an additional charge of cultivate a narcotic plant (cannabis) being a large commercial quantity (1/9/04 – 23/3/05).
The following special conditions were imposed on the grant of bail:
"1.Report to Glen Waverley Police Station daily between 6.00 a.m. and 9.00 p.m.;
2. Reside at 53 Holmbury Blv, Mulgrave Vic. 3170;
3.Surrender all valid passports or any other valid travel document held within 24 hours of release to the Informant;
4.Not attend any points of international departure;
5.Not leave Australia;
6.Not associate with any co-accused."
On 22 April 2005, the Director of Public Prosecutions filed a notice of appeal against the grant of bail. It specified the following 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 there were 'exceptional circumstances';
2(a)THAT in granting bail to the Respondent the learned Magistrate gave undue weight to;
Parity in terms of the fact that a co-defendant Dennis Sofianos was granted bail;
The fact that the Respondent has a stable residence;
The Respondent's ties to the jurisdiction;
The likely delay in proceedings;
The Respondent's family support;
The Respondent's bail history;
The Respondent's health;
2(b)THAT in granting bail to the Respondent, the learned Magistrate failed to accord sufficient weight to:
The fact that the likely delay in the proceedings is not greater than usual."
In summary, the circumstances giving rise to the charges are that on 23 March 2005, police who were on a property adjacent to 269 Old Cape Schanck Road Boneo for matters unrelated to that before this Court, detected the smell of cannabis emanating from the latter property. They observed five hot houses (or igloos) on that property which, upon investigation, were found to contain numerous cannabis plants. While on the premises the respondent was disturbed as he was about to enter one of the hot houses. Upon observing…
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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Details
AGLC
DPP v Cozzi [2005] VSC 195
Case
[2005] VSC 195
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions v Cozzi involved an appeal by the Director of Public Prosecutions against the grant of bail to the respondent, Cozzi, by a magistrate. The appeal centred on whether the magistrate was correct in finding that exceptional circumstances existed for the grant of bail, in light of the serious drug offences with which Cozzi was charged. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.
The central legal issue before the Court was whether the magistrate had the discretion to find exceptional circumstances under section 4(2)(aa) of the Bail Act 1977 when dealing with an accused facing serious drug charges. The Court had to examine the circumstances that the magistrate considered in granting bail, and determine if these circumstances were indeed exceptional within the meaning of the Act. The Court also considered the relevant statutory criteria and whether the magistrate had erred in exercising the discretion granted by the Act.
In dismissing the appeal, the Court found that the magistrate had correctly exercised the discretion afforded under section 4(2)(aa) of the Bail Act. The Court held that the magistrate's decision to find exceptional circumstances was supported by the evidence and reasoning presented. The Court emphasised the importance of considering the individual circumstances of each case and acknowledged that in some instances, exceptional circumstances could warrant the grant of bail even in cases involving serious drug offences. The Court concluded that the magistrate's decision was not so unreasonable as to justify interference by the appellate court.
No further orders were made by the Court beyond the dismissal of the appeal.