Henderson v DPP

[2005] VSC 512

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1601 of 2005

JOHN HENDERSON	Plaintiff
v
DIRECTOR OF PUBLIC PROSECUTIONS	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 December 2005
DATE OF JUDGMENT:	22 December 2005
CASE MAY BE CITED AS:	Henderson v DPP
MEDIUM NEUTRAL CITATION:	[2005] VSC 512

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Criminal law – bail – long period in custody – show cause situation – bad criminal history – serious firearms offence – trial date fixed – bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. F. Thomson	Andrew George, Solicitors
For the Respondent	Mr A. Albert	Mr S. Carisbrooke Acting Solicitor for Public Prosecutions

HIS HONOUR:

1. John William Henderson is a prisoner on remand awaiting trial on a number of charges which include the possession and trafficking in drugs of addiction, and the possession of a number of unregistered firearms.  He is also to be tried in respect of fourteen counts of handling stolen goods.

1. He comes before this court on an application for bail, his trial being currently fixed for 19 April 2006.  He has been on remand since 25 March 2004, and the basis of his application is, essentially, that it is appropriate that he be bailed because of the delay which has occurred and which will occur before he is tried.  And the other matters, the other ordinary - what I might call the ordinary matters, which go to questions of bail.  Such as the no risk of re-offending, the no risk of absconding, et cetera.

1. Because the charges which he is facing include charges which bring him within the provisions of s.4 of the Bail Act and because some of those charges arise from events which are said to have occurred whilst he was on bail for other offences, he is a situation where he must show cause as to why he should be granted bail. That is to say, the ordinary presumption in favour of bail does not operate in his case. He bears the onus of demonstrating that he ought to be given bail.

1. In a cogent argument put by Mr Thomson the delay attendant upon Mr Henderson's proceedings has been highlighted.  By the time his trial commences he will have been in gaol for two years and twenty-five days, and that is assuming that it commences on 19 April, as is currently scheduled.  It has been listed before.  It didn't get on before, and has now got that date.

1. Mr Thomson says that a delay of that length is not justifiable, and that that of itself ought to constitute cause being shown as to why bail ought to be granted.  He further says that there is no unacceptable risk of Mr Henderson absconding, or his committing other offences, or his interfering with witnesses, all of which matters Mr Thomson says can be accommodated by appropriate stringent conditions.  Mr Henderson offers a surety and offers to accept conditions, which include daily reporting to police and living at a specific address.

1. Mr Thomson makes the point that being in prison makes it difficult for Mr Henderson to prepare his defence, particularly as the case against him involves a selection of excerpts from some 60 odd hours of interception tapes which can only be listened to at St Kilda Road police complex, and that giving instructions to his counsel in those circumstances is difficult.

1. The Crown opposes bail.  It points to the fact that Mr Henderson is a career criminal, having spent most of his life engaged in illegal activities of, in many cases, a very serious kind.  He has spent long periods from time to time in gaol, and has engaged in all manner of offences, particularly firearms and the like offences.  The Crown says that the case against him is strong, particularly with respect to the possession of one particularly very dangerous weapon.  Apparently it is a military weapon which originated either in China or in Russia, and could only be obtained here by some highly illegal activity.

1. The delay to which Mr Henderson has been subjected is unacceptable.  Mr Thomson referred to a number of cases in which judges of this Court have commented on the fact that delay itself can, in some circumstances, constitute just cause and even exceptional circumstances in relation to the question of bail.  Certainly two years and twenty-five days is too long, and it ought not to have occurred.

1. However, having regard to his history, having regard to the charges which he faces, having regard to the fear expressed by the police informant in respect of witnesses, and perhaps in particular those who have, or might have, informed on him and because of his antecedents; and his propensity for criminal activity in the past, I am not satisfied that cause has been shown in this case.

1. If this trial were, for some reason, not to go on on 19 April the balance may well tip in Mr Henderson's favour, and it may be that then a bail application might succeed.  Indeed, it would be very difficult for the Crown to oppose bail if the trial did not commence on or about 19 April 2006.  But however that may be - that would be a matter for the discretion of whatever judicial officer was dealing with the question of bail at that time.  At this time the application for bail is refused.

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