JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2001
DATE OF JUDGMENT:	24 July 2001
CASE MAY BE CITED AS:	DPP v Harika
MEDIUM NEUTRAL CITATION:	[2001] VSC 237

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Appeal against order for bail – s.18A of Bail Act 1977 – show cause situation – relevant matters to consider – Magistrate erred in exercise of discretion – appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B. Kayser	Solicitor for Public Prosecutions
For the Respondent	Mr J. Lavery	Peter Lynch

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Circumstances Leading to Bail........................................................................................................ 2

The Appeal.......................................................................................................................................... 4

Obligation to give Reasons.............................................................................................................. 5

Principles – Show Cause – Relevant Matters................................................................................ 7

Showing Cause................................................................................................................................. 11

Conclusion......................................................................................................................................... 12

HIS HONOUR:

Before the Court is an appeal by the Director of Public Prosecutions for the State of Victoria against an order made by a Magistrate, sitting at Melbourne on 5 June 2001, granting bail to a person accused of a serious offence.

Parties

The appellant is the Director of Public Prosecutions who has the right to appeal, to this Court, an order granting bail to any person pursuant to s.18A(1) of the Bail Act 1977 ("the Act"), if it appears to the Director that there are circumstances which show a contravention or failure to comply with any provisions of the Act in circumstances where a person is granted bail.

The respondent, Phillip Anthony Harika ("the respondent"), is a drug addict who has made a career in crime since late 1996.

Circumstances Leading to Bail

The respondent was born on 30 May 1977 and is presently aged 24 years.

On 25 January 2001, he was arrested and charged with one count of armed robbery. He was remanded in custody and although he made a number of applications for bail, he did not proceed with any of them.

On 5 April 2001, he was committed for trial at the County Court at Melbourne. He reserved his plea. The matter is listed for case conference at the County Court on 1 August 2001.

The circumstances of the alleged offence can be briefly stated.

On 10 January 2001, the respondent was in the company of Ms Felicity Simmons. They drove to West Heidelberg and purchased a quantity of heroin, which they administered in a nearby parkland. They then travelled to their respective chemists to collect methadone, which they administered.

At approximately 3.00 p.m. on that day, they drove to Thornbury and visited a milk bar in Mansfield Street. Upon entering the premises, the respondent produced a syringe and moved towards a female shop keeper, Mrs Nikolovski. The respondent banged the cash register and demanded that she open it. He pointed the syringe at her and threatened to stab her. She pleaded with him not to hurt her. She opened…

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 Harika

Details

AGLC: DPP v Harika [2001] VSC 237
Case: [2001] VSC 237
Decision Date: 24 July 2001

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions v Harika was heard by the Supreme Court of Victoria, where the Director of Public Prosecutions appealed against an order for bail made by a Magistrate. The appellant argued that the Magistrate had erred in exercising their discretion to grant bail to the respondent, Harika, who was facing serious criminal charges. The appeal centred on whether the Magistrate had appropriately considered the relevant matters required by s.18A of the Bail Act 1977, particularly in a show cause situation where the prosecution opposed the grant of bail.

The primary legal issue before the court was whether the Magistrate had failed to consider relevant matters when exercising their discretion under s.18A of the Bail Act 1977. The court needed to determine if the Magistrate had appropriately balanced the seriousness of the offence against the interests of justice in granting or refusing bail. Additionally, the court considered whether the Magistrate had correctly applied the relevant statutory provisions and case law in reaching their decision.

The Supreme Court held that the Magistrate had indeed erred in exercising their discretion. The court found that the Magistrate had not appropriately considered the relevant matters required by s.18A of the Bail Act 1977, particularly in relation to the seriousness of the offence and the interests of justice. The court further determined that the Magistrate had not sufficiently addressed the prosecution's opposition to the grant of bail, which was a critical factor in a show cause situation. Consequently, the Supreme Court allowed the appeal and quashed the order for bail made by the Magistrate.

The final orders of the court included setting aside the bail order made by the Magistrate and remitting the matter to the Magistrates’ Court for reconsideration, with directions that the Magistrate consider the relevant matters as required by s.18A of the Bail Act 1977. The court emphasised that the Magistrate should also give appropriate weight to the prosecution's opposition to bail and ensure a balanced approach in the exercise of their discretion.

Orders