Gregoratos v State of Queensland
[2013] QMC 24
•24 September 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Gregoratos v State of Queensland [2013] QMC 24
PARTIES:
RUDI JAMES GREGORATOS
(applicant)
v
STATE OF QUEENSLAND
(respondent)
FILE NO/S:
MAG43339/13(3)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to revoke or vary an order for payment of surety
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
24 September 2013
DELIVERED AT:
Southport
HEARING DATE:
28 August 2013, 3 September 2013, 13 September 2013, 18 September 2013
MAGISTRATE:
Magee KT
ORDER:
Order varied: five thousand dollars of the surety be forfeited
CATCHWORDS:
CRIMINAL LAW – bail – sureties – applicant as surety gave undertaking as to bail – offender failed to appear – whether having regard to all the circumstances it would be against the interests of justice to require the surety to pay the amount of the security.
Bail Act 1980, s 31, s 32, s 32A
The Queens v Horseferry Road Stipendary Magistrate; ex parte Pearson [1976] 1 WLR 511
R v Southampton; ex parte Green [1976] QB 11
Ex parte Doueihi [1986] 2 Qd R 352Baytieh v State of Queensland [1999] QCA 466
COUNSEL:
Applicant on own behalf
Chetty for respondent
SOLICITORS:
Applicant on own behalf
Police prosecutions for respondent
On 26 April 2013 Kerry Allen HALL entered into a bail undertaking in relation to one charge of burglary and commit indictable offence; two charges of receiving firearms having reason to believe they were tainted property; and one charge of possess a magazine or a weapon.
The applicant Rudi James GREGORATOS provided a ten thousand dollar cash surety on that date.
On 19 July 2013 Kerry Allen HALL failed to attend court at the hearing of the charges whereupon his bail undertaking was ordered forfeited pursuant to s 31 of the Bail Act 1980. At the time of forfeiting the bail undertaking I failed to appreciate that the undertaking was subject to a surety condition and I did not turn my mind to the issue of the forfeiture of the security amount pursuant to s 32 of the Bail Act 1980. Later that same day the applicant made application under s 32B of the Bail Act 1980 for an order revoking or varying the order for payment of the surety amount. Although I had not made an order forfeiting the security, the same considerations which would apply to an application to revoke or vary an order for payment would clearly be relevant to a decision as to whether the deposit should be forfeited.
The application first came before the court on 28 August 2013 but was adjourned on three occasions to afford the applicant, who was without legal representation, an opportunity to put all relevant matters before the court.
In his affidavit filed in support of the application, the applicant states that he and the defendant grew up in close proximity. The defendant was considerably older than the applicant and the defendant was a person the applicant looked up to. He refers to him as a childhood mentor, as a person who showed him kindness, which was particularly appreciated in circumstances where the applicant was an overweight child. As the defendant and the applicant grew older they grew apart and had not seen each other for many years. Shortly prior to agreeing to provide the surety the defendant and the applicant met by chance. Some days later the applicant was contacted by the defendant and asked to provide the surety. The applicant refers to his being naive and misguided believing that the teenager who he so admired would have retained the same qualities as an adult. He states that he was assured that the money would not be at risk and that the defendant would attend all of his court appearances, legal meetings and any other activity designed to aid his defence. Convinced of the defendant’s sincerity he agreed to provide the surety. He refers to having made phone calls to the defendant as support and encouragement as well as ensuring that he was going to attend court as required. He says that his desire was to help a childhood mentor. He said that it was his original intention to use the money for a deposit on a home which would enable him to move out of his parent’s home. He indicates that the amount represented a lot of work and a commitment to saving. He said that in the previous few days he had been informed that his position as a crane operator working in the mines had been made redundant.
The defendant was arrested on 1 August 2013. Accordingly he was unlawfully at large for 13 days.
Section 32B of the Bail Act is in the following terms:
32B Variation or revocation of order forfeiting bail undertaking
(1)If a court orders a defendant or a surety to pay an amount under section 32 or 32A, the defendant or the surety may apply in the approved form to the court that made the order or, for a Magistrates Court, any magistrate, for an order revoking or varying the order.
(2)The application—
(a)may only be made on the ground that, having regard to all the circumstances, it would be against the interests of justice to require the person to pay the amount ordered to be paid; and
(b)……
(7)The court must decide the application and may—
(a)vary the order; or
(b)revoke the order; or
(c)refuse the application.
The undertaking of the surety is in the following terms:
“I enter into this undertaking as to bail and acknowledge receipt of a notice in Form 8, setting forth the nature and extent of the obligations of the defendant under the conditions of Bail and the consequences of the defendant’s failure to comply with these conditions. I further acknowledge that I may be liable to Her Majesty for the amount specified if this undertaking is forfeited.
It also contains a certificate signed by a justice of the peace, stating “I have satisfied myself of the surety understand the nature and the extent of the obligations of the defendant under the conditions of bail and the consequences of the defendant’s failure to comply with them.
The principles relevant to a consideration of forfeiture of a surety were considered in Rv Southhampton Justices ex parte Green [1976] QB 11. In the circumstances of that case the applicant provided a surety in the sum of three thousand dollars for her husband who was charged with importation of cannabis. The defendant appeared on every occasion of remand and adjournment until his committal for trial on 14 March 1974, at which time he failed to appear. He surrendered into custody in August of 1974. It was the evidence of the applicant that two or three days prior to the committal hearing her husband had said that he could not stand it any longer, he would have to get out. He then left to work on his boat as he had done on several previous occasions, always returning to meet his court commitments. The applicant had attended court on the day of the committal hearing at which time her husband failed to appear, there having been no communication between the two in the two days since he had left home. The justices ordered forfeiture of the surety and the applicant applied to quash that order. She said that she trusted her husband not to let her down, that her only asset was her half share in her house which would need to be sold in order to pay the surety amount. Lord Denning MR with the concurrence of Browne LJ and Brightman J stated “By what principles are the justices to be guided? They ought, I think, to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided or abetted it, it will be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or a substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely.”
The court found that the Justices erred in failing to make any inquiry into the culpability of the applicant and mistakenly took into account property which belonged not to the surety but to the defendant. The decision at first instance was quashed.
In R v Horseferry Road Stipendiary Magistrate ex parte Pearson [1976] 1 WLR 511 the applicant provided a two thousand dollar surety for the appearance of her brother. Two days before he was due to appear she feared that he would abscond and attended the police station in an endeavour to be released from her obligation as surety. The brother subsequently absconded and she was ordered to forfeit the two thousand dollar surety.
The reference to the fault or otherwise of the surety by Denning MR in R v Southhampton Justices ex parte Green was criticised by Lord Widgery on the basis that the forfeiture of a surety was not a penalty for misconduct and considered the matter on the question of whether it was unjust to require the forfeiture of the money. In that case the court noted that the applicant had gone to the police and made a serious effort to get something done about her apprehension that her brother was going to abscond. It was the decision of the appellate court that on that basis it would have been appropriate to decline to forfeit all of the surety and because an error had been made the order was quashed.
In Ex parte Doueihi [1986] 2 Qd R 352 the Supreme Court declined to grant relief against forfeiture of a fifty thousand dollar surety provided by the applicant. The applicant was the wife of a co-defendant facing drug importation charges. She departed Australia to visit her ill mother between November 1985 and February 1986 without notifying the Director of Public Prosecutions of her intention to be absent from Australia or making any application in relation to her surety. Upon the surety’s husband receiving information that his co-accused had left Australia for Lebanon he made an unsuccessful application to the court for discharge of his wife’s surety. The defendant failed to attend his trial which was scheduled to start at a time at which the surety was still in Lebanon. Upon her return she applied for variation or rescission of the surety forfeiture order. The court was satisfied that she was under pressure to provide the surety because of her husband’s involvement in the activities giving rise to the charge. The court was also satisfied that the applicant had the means to pay the full amount of the surety and that although it might create some temporary hardship it would not be “ruinous or injurious to the person or his family if the undertaking were forfeited”. Particularly relevant was the decision of the surety to remove herself from the jurisdiction for a substantial period of time without any notice to the Director of Public Prosecutions.
The Queensland Court of Appeal considered these authorities in Baytieh v State of Queensland [1999] QCA 466 where McMurdo P and Davies JA stated “The question is whether it is in the interests of justice that the surety should be relieved of his or her obligation; and in considering that question the seriousness of the obligation and the extent to which it provides an incentive to the principal to comply with the conditions of the bail are relevant considerations. But in our view Lord Denning was saying no more than that culpability of the surety is a relevant, indeed important, consideration in exercising that discretion (as Lord Widgery appears to have acknowledged it was). Indeed it is, it seems, the consideration most commonly relied on and referred to”.
In Baytieh v the State of Queensland the whole of the ten thousand dollar surety was retained by the applicant. It is to be noted in that case the court was considering section 15 of the Crown Proceedings Act 1980 which is relevantly in the same terms as section 32B of the Bail Act 1980. In the circumstances of that particular case the surety was a businessman and minister of religion in the Islamic faith. He met the defendant in his capacity as an honorary member of the prison chaplaincy and an Arabic-English translator. He provided the surety having had numerous meetings with the defendant and having formed the opinion that the defendant was not a threat to himself or the community at large, would take responsibility for his actions and surrender to the courts as required. The applicant was assiduous in maintaining contact, telephoning every second or third day. He also provided assistance with the defendant’s Legal Aid application and ensured the defendant stayed in contact with his legal adviser, also attending with him at meetings with his legal adviser. The day before the court appearance he telephoned every few hours to be assured of the defendant’s whereabouts. On the morning of the hearing he telephoned the defendant to confirm his whereabouts and his intention to attend court. He arranged for the defendant’s parents to pick him up on the way to court. When they did not do so he rang their house and received no answer. When he arrived at court he saw the defendant. He went to the security desk to enquire as to the whereabouts of the bailiff with the intention of bringing the defendant’s attendance to the attention of the court officials. He was advised to go to the fourth floor. He did so. The court room was locked, no court officers were present. He returned to the front entrance of the building and spoke to the defendant who advised him that he was nervous and that he wished to buy some cigarettes. The applicant returned to the fourth floor expecting the defendant to arrive. The defendant did not do so, having absconded. He had not been located at the time of the appeal in November 1999. In the circumstances of that case the applicant had done everything reasonably in his power to ensure compliance with bail conditions and it was an appropriate case to relieve against forfeiture of the surety.
In giving their reasons McMurdo P and Davies JA stated, “Other considerations may be financial hardship of the applicant arising since giving the undertaking, and the reasonableness of his or her expectation that the principal would comply with the conditions of his bail, especially where it is asserted against an applicant that he or she should have applied, or applied sooner, to discharge himself or herself from liability.
Jones JA stated that having reviewed the authorities the following points emerged:
(i)The onus of proof that relief from forfeiture is “in the interests of justice” is on the applicant.
(ii)The surety’s obligation is to pay, unless he or she proves circumstances which make it fair and just to be granted relief.
(iii)The steps which the surety took to ensure that the defendant would attend the court.
(iv)Any circumstances which ought to have alerted the surety that the defendant was likely to abscond.
(v)The circumstances which caused the surety to enter into the undertaking to secure the defendant’s release.
(vi)The nature of the relationship between the surety and the defendant and the level of control the surety had over the defendant’s behaviour.
(vii)Whether the relationship is likely to persuade the defendant to return in the event that he or she absconds.
(viii)The assistance given by the surety in the attempts to re-apprehend the defendant.
(ix)The extent of the financial impact of the forfeiture on the surety and his or her family.
In the circumstances of this case it appears that there was a certain level of naivety on the part of the applicant. He relied on the assurances of a defendant with whom he had had very little contact for some years. There is very little evidence as to what steps the applicant took to inform himself of the defendant’s personal circumstances other than accepting an assurance by the defendant that he would attend court. The applicant is a young man who apparently failed to appreciate the importance of the obligation he undertook to the court and who naively accepted assurances from someone he had not seen for many years. However, I am satisfied that there will be a significant adverse financial impact on the applicant if he were required to forfeit the whole of the surety particularly in circumstances where he has just recently been made redundant. Balancing the interests of maintaining the integrity of the seriousness of a bail surety with the personal circumstances of the surety, whilst I am satisfied that it is appropriate to relieve the applicant of his obligation to pay or forfeit all of the surety amount, I am also satisfied that he should be obliged to forfeit a substantial portion of the surety amount. In the circumstances I order that five thousand dollars of the surety be forfeited.
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