DPP v Dale
[2009] VSC 107
•26 March 2009
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
No. 1415 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL DALE |
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JUDGE: | WARREN CJ | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 March 2009 | |
DATE OF JUDGMENT: | 26 March 2009 | |
CASE MAY BE CITED AS: | DPP v Dale | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 107 | |
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CRIMINAL LAW – Bail application – Applicant charged with murder – Applicant a serving police officer at the time of the alleged offence - Whether exceptional circumstances exist to warrant grant of bail – Whether family circumstances, state of business affairs, custodial conditions and/or potential for delay between arrest and trial constitute exceptional circumstances – Strength of Prosecution case.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr I D Hill QC | Tony Hargreaves & Partners |
HER HONOUR:
Before delivering my judgment in this matter, I would remind all those present of the suppression order that applies to this proceeding and I would encourage the media to continue the very responsible attitude that they seem to have adopted so far to the reporting of this proceeding.
(JUDGMENT FOLLOWS)
HER HONOUR
1 The applicant, Paul Dale, is charged with the murder of Terrence Hodson (‘the deceased’), an alleged police informant, at Kew between 15 and 16 May 2004. He applies for bail.
2 The applicant was arrested on 13 February 2009 and has remained in custody since. He is presently located in the Acacia Unit at Barwon Prison. He is 39 years old and married with young children. He was, until his arrest, operating a combined service station, convenience store and laundry at Wangaratta under a franchise agreement.
3 The applicant was formerly a member of Victoria Police. In 2004 he was charged with certain drug related offences.
4 On 19 March 2004, the applicant, the deceased and another police officer, one David Miechel, appeared at a committal mention hearing with respect to the drug related offences. They were co-accused. The deceased was expected to give evidence against the applicant. A committal hearing was listed for 4 October 2004. On 16 May 2004, after the mention and before the committal date, the deceased was found dead, having been shot from behind in the head.
5 It appears from materials provided to the court that the prosecution will allege the applicant arranged the killing of the deceased in order to prevent the deceased from giving evidence against him at the committal hearing.
6 The Director opposes bail on three grounds:
(1)the applicant cannot make out exceptional circumstances;
(2)there is an unacceptable risk that the applicant would commit an offence whilst on bail; and
(3)there is an unacceptable risk that if released, the applicant would endanger the public or interfere with witnesses or otherwise obstruct the course of justice.
7 Affidavits have been filed on behalf of the applicant in support of the following propositions:
(1)The applicant is the linchpin of the service station business. Without him, his presence, skill and management techniques, the business will not be able to meet the contractual obligations under a franchise agreement. Hence, the franchisor will exercise its rights under the agreement and the applicant and his wife will lose the business, their interest in it and their main source of income; and
(2)Without the income of the service station business, the applicant and his wife will in all likelihood be forced to sell their family home as they would otherwise not be able to service their debt.
8 None of the facts in these affidavits, as I have broadly summarised them, are challenged by the Director.
9 The applicant is subject to a reverse burden.[1] He must prove exceptional circumstances. It is well established that such circumstances can be made out by a single factor or a combination of factors. Further, the decision to grant or refuse bail is ‘to a very considerable extent a matter of impression.’[2] There must be factors that take the case outside ‘the norm’.[3] Ultimately each case must be assessed on its own facts. Even where exceptional circumstances are made out, if the court is satisfied that there is nevertheless an unacceptable risk if the applicant was released on bail, then bail must be refused.
[1]Bail Act 1977, s4(2).
[2]DPP v Cozzi [2005] VSC 195.
[3]Mustica v DPP [2006] VSC 441.
10 To make out exceptional circumstances the applicant relies on the following factors:
(1)He is a married man with young children who is needed by his family and his family business.
(2)He is without prior convictions.
(3)He has known of the allegations against him for over five years and has tried to cope and lead his life as a normal citizen.
(4)He has been coercively examined on approximately six occasions and has not resiled from his position of denial. He further underwent a record of interview in 2004 asserting his innocence, which he has maintained ever since.
(5)His business will fail without him as his involvement is integral to its ongoing operation.
(6)The circumstances of his custody - described as ‘unprecedented’, ‘appalling’ and ‘de-humanising’. He is located on his own in the high security unit, Acacia, within Barwon prison.
(7)The anticipated delay between arrest and trial.
(8)The weakness of the Crown case which relies upon the evidence of a convicted criminal witness R who has been described by a Supreme Court judge as a liar and the evidence of a lawyer witness F to which legal professional privilege will be claimed. Further, the individual said to be the executioner of the deceased, one Ray Collins, at the time of this application had not been charged. I note that since the hearing it seems Mr Collins has been charged with the murder of the deceased and one other.
(9)The surveillance recordings of the applicant have not been made fully available to the applicant and his legal representatives but allowing for that, it is believed the transcript excerpts relied on by the Director are selective and when heard in their entirety demonstrate the weakness of the prosecution case against the applicant.
11 Turning to my assessment of exceptional circumstances.
12 The factors relating to the family and business of the applicant do not constitute exceptional circumstances.[4] They may be arduous but personal deprivation and inconvenience can be a consequence of the criminal justice system. I further observe that in the ordinary course the applicant ought, as any sensible business person would, be able to arrange managerial staff to take his place. I observe that in the covert recording I listened to (and will refer to shortly) the applicant refers to the fact of satisfactory staff providing him with more freedom, time and flexibility. I am simply not persuaded of the arguments put for the applicant in this respect.
[4]Memory v R [2000] VSC 495.
13 As for the allegations against the applicant, it is true that he has maintained his innocence for five years. However, it has only been, it seems, since about December 2008 that significant, if not dramatic, developments have occurred in the prosecution case, namely the position and statements of witness R and witness F.
14 As for the custodial conditions of the applicant, doubtless they are difficult. The Corrections authorities have made their assessment of the applicant’s needs and the necessary security levels. Although the isolation is undesirable, if avoidable, it is a matter for the Corrections authorities. However, if the applicant was to be held in such conditions without review for months on end, then his position may change. It is not suggested, and the question was directly raised by me to his counsel, that the applicant will be handicapped in the preparation of his defence by virtue of his custodial arrangements. Again, if that occurred, his position may change. Overall, as matters stand, and whilst difficult, the custodial arrangements do not constitute exceptional circumstances at this time. Doubtless, they are primarily for his protection.
15 The question of the strength of the prosecution case is not one I need to decide. I could not be satisfied at this time that the case is weak. I have listened, at the urging of counsel for the applicant and with the applicant’s consent, to the covert recording of a critical conversation between witness F and the applicant. I am informed that the issue of legal professional privilege and the admissibility of the evidence will be strongly contested. That is a question for another time. However, I observe that the fact that a statement is made by an individual to a lawyer does not, of itself, render the statement subject to privilege. Much more is required.
16 Having heard the recording, which is of some duration, I would not make any observation as to the prosecution case other than to observe I cannot be satisfied it is a weak case.
17 As for delay, there is no untoward delay yet developed in this case. Indeed, on the face of things at present, it may be a matter capable of expedition. Indeed, in light of the gravity of the charge against the applicant, it may well be desirable and in the public interest for the prosecution to seek to have the committal and any trial expedited if practicable.
18 Taking all these matters individually or collectively, I am not satisfied exceptional circumstances are made out.
19 Even if I was so persuaded there would remain the question of the risk that would attach to the applicant being granted bail. It is not suggested he is a flight risk. However, the circumstances of the killing of the deceased, alleged as they are against the applicant when a serving police officer for the purpose of eliminating a witness against him, create a risk that in my view would need to be taken into account. In view of the gravity of those circumstances I would be persuaded by the Director’s assessment that the applicant would pose an unacceptable risk.
20 It follows I refuse the application for bail.
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