DPP v Fallon
[2001] VSC 136
•8 May 2001
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 1432 of 2001
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v. | |
| NATHAN FALLON | Respondent |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 APRIL 2001 | |
DATE OF JUDGMENT: | 8 MAY 2001 | |
CASE MAY BE CITED AS: | DIRECTOR OF PUBLIC PROSECUTIONS v. FALLON | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 136 | |
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CATCHWORDS: Appeal by Director against grant of bail – Unacceptable risk that the respondent would commit further offences if on bail – Bail Act 1977 (Vic.) ss.4 and 18A.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. S. Duesbury | Solicitor for Public Prosecutions |
| For the Respondent | Mr. D. Ross Q.C. | Simon Northeast |
HIS HONOUR:
This is an appeal by the Director of Public Prosecutions pursuant to the provisions of s.18A of the Bail Act 1977 against the order of the Magistrates' Court at Melbourne made on 27 February 2001 whereby the respondent Nathan Fallon was released on bail in respect of a number of offences of dishonesty alleged to have been committed by him on 8 February 2001.
The respondent is currently aged 20 having been born on 21 August 1980.
Between August 1993 and December 2000 he has had some six appearances before the Melbourne Children's Court in respect of some 18 offences of dishonesty. On each occasion the offences were found proved but no conviction was recorded against him, he being released on bonds to be of good behaviour.
On 8 December 2000 Fallon was again arrested by police and charged with one count of burglary, one count of theft, two counts of handling stolen property and one count of attempting to commit an indictable offence. The offences are alleged to have been committed on 3 December and that same day. On that occasion he was released on bail to appear at the Melbourne Magistrates' Court on 31 January 2001.
On 13 January 2001 Fallon was arrested and charged with two counts of burglary, two counts of theft, one count of theft of a motor car and a number of drug related offences. It is the case for the Crown that those offences were committed on 11, 12 and 13 January 2001 respectively and at a time, of course, when he was already on bail.
Despite that fact, Fallon was released on bail to appear at the Melbourne Magistrates' Court on 16 February.
On 24 January 2001 Fallon was arrested yet again and charged with three counts of burglary and three counts of theft. It is the case for the Crown that those offences were committed on 8, 23 and 24 January. Once again he was released on bail this time to appear at the Melbourne Magistrates' Court on 20 February 2001.
Fallon failed to appear before the Magistrates' Court on 31 January in respect of the charges brought against him on 8 December 2000 whereupon a warrant was issued for his arrest.
On 10 February Fallon was re-arrested and taken before a bail justice. It would appear that he satisfied the bail justice that his failure to attend court on 31 January had been caused by confusion concerning the date because he was then again released on bail, this time to appear at the Melbourne Magistrates' Court on 20 February 2001.
On 26 February Fallon was arrested and charged with further offences of burglary and theft. It is alleged by the Crown that those offences were committed by Fallon on 8 February 2001.
And so since he was first released on bail on 8 December 2000 it is the case for the Crown that Fallon has committed further burglaries and thefts on 8, 11, 12, 13, 23 and 24 January and on 8 February.
When interviewed by police on 8 December 2000 Fallon is alleged to have told them that he committed the burglaries and thefts on 3 and 8 December to get money to get drugs. When interviewed on 13 January he is said to have told the police that he committed the burglaries and thefts on 11 and 12 January because he needed money to get his car fixed and that he stole the motor vehicle on 13 January because he didn't want to walk home.
At the time of his arrest on 24 January 2000 Fallon was in the process of unloading stolen property from his vehicle and loading it into another vehicle. After his arrest he identified further stolen property in his bedroom and at two other premises. When the police later executed a search warrant at one of those premises they recovered stolen property to the value of approximately $70,000.
Fallon's arrest on 26 February followed upon a burglary committed at premises in East Malvern on 8 February. At the time of Fallon's arrest a large amount of stolen property was located at his home including goods stolen from the East Malvern property.
In my opinion it is clear on any view of the matter that the Crown case against Fallon in respect of all offences is a strong one.
At all events having been arrested on 26 February Fallon appeared before the Melbourne Magistrates' Court on 27 February where he made another application for bail.
The application was granted and he was released on bail on his own undertaking, the only condition imposed being that he report to the Officer in Charge of the Prahran Police Station every Wednesday between the hours of 6.00 a.m. and 9.00 p.m.
It is from that order that the Director now appeals to this Court.
The following are the grounds upon which the Director seeks to set aside the order of 27 February.
"1.THAT the learned Magistrate in proceeding to grant bail to the respondent erred in finding, pursuant to s.4(4)(c) of the Bail Act 1977 that cause had been shown.
2.THAT the learned Magistrate in proceeding to grant bail to the respondent erred in failing pursuant to s.4(4)(d)(ii) of the Bail Act 1977 to give reasons for the making of the Order.
3.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.
4. (a)THAT in granting bail to the respondent the learned Magistrate gave undue weight to:
- the evidence of the respondent's mother.
4. (b)THAT in granting bail to the respondent, the learned Magistrate failed to accord sufficient weight to:
- the strength of the prosecution case;
- the seriousness and multiplicity of offences;
-the risk that the respondent will commit further offences whilst on bail;
- the combined effect of the above factors."
The principles I am required to apply in determining an appeal of this nature were stated by the Full Court of this Court in Beljajev & Anor. v. Director of Public Prosecutions (unreported 8 August 1991). At p.29 the Court said:
"… 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."
It is not a question therefore whether I would or would not have granted bail had the original application been made to me, it is a question of whether I am satisfied that the order of the Magistrate was manifestly the wrong order to make in the matter.
Having considered the behaviour of the respondent since his arrest on 8 December 2000 I consider that the order made by the Magistrate on 27 February 2001 to release the respondent on bail was manifestly the wrong order to make.
The behaviour of the respondent between those two dates as outlined in these reasons for judgment has been such that in my opinion there is an unacceptable risk that if the respondent remains on bail he will commit further offences. The fact that he may not have done so during the period of two months or more that he has been free on bail is in the circumstances of this case no answer to the proposition. Indeed it is highly arguable that such a fact is irrelevant for the purposes of an appeal pursuant to s.18A of the Bail Act. I say that having regard to the views expressed by the Full Court in Beljajev. At p.12 their Honours said:
"In this context the rights of appeal conferred on the Director of Public Prosecutions by sections 18(6A) and 18A should be regarded as anomalous. Without those sections, of course, the Director would have had no right to appeal in a bail matter to the Court. But the use of the words 'appeal' is jarring and may be contrasted with the system of review which is available under the New South Wales Bail Act – see Pt. VI of that Act, which not only provides for review by way of rehearing on currently available material, but preserves an accused's right to make fresh application for bail in lieu of seeking review of a decision refusing bail; see also R. v. Hamill (1986) 25 A.Cr.R. 316, and R. v. Pakis (1981) 3 A.Cr.R. 132. Further, the possible lapse of time which section 18A at least contemplates (see sub-section (4)) might well lead to the situation where the appeal would be resolved upon material which was no longer relevant. Were bail revoked on a view of that material, the outcome might be set at nought by a fresh and successful application for bail based on current material, such application being made very soon after the accused was taken back into custody. The mere fact, for example, that an accused person had been at large for a significant period pending the appeal and had not sought to break his bail might of itself be a matter of significance in any fresh bail application. Equally, commencement of the appellate process contemplated by section 18A would not appear to preclude application by the Crown under section 18(6); the application could take account of newly occurring circumstances; the appeal probably could not unless some power could be found to admit fresh evidence. This illustrates, in a different way, the anomaly of appeal in the context of bail."
I have been unable to find any such power.
In view of that finding it is unnecessary for me to consider the other grounds of appeal relied upon by the Director.
I order that the order of the Magistrates' Court at Melbourne made on 27 February 2001 whereby the respondent was released on bail be quashed and that the respondent be committed to prison to await his trial.
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