Hildebrandt v DPP - [2006] VSC 198

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

BAIL APPLICATION

No. 1512 of 2004

IN THE MATTER of the Bail Act 1997

And

IN THE MATTER OF an Application for Bail by GREGG JAMES HILDEBRANDT

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JUDGE:	King J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2006
DATE OF RULING:	31 May 2006
CASE MAY BE CITED AS:	Hildebrandt v DPP
MEDIUM NEUTRAL CITATION:	[2006] VSC 198

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BAIL – further application – right to bail – lengthy delay – unacceptable risk – to be balanced by delay – bail granted.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Saunders	Office of Public Prosecutions
For the Applicant	Mr J Kennan QC	Lewenberg & Lewenberg

HER HONOUR:

This is a further application for bail by the accused man, Gregg James Hildebrandt. The facts in relation to this matter are set out in the DPP v Gregg James Hildebrandt an unreported decision of Bongiorno J delivered on 18 November 2004, and DPP v Gregg James Hildebrandt an unreported decision of the 23 September 2005 wherein I refused bail for the applicant.

Accordingly it is unnecessary to repeat the facts on which this application is based.

In this case, as counsel for the Director of Public Prosecutions conceded, the applicant has a prima facie right to bail. The issue for the Court is whether the applicant presents an unacceptable risk pursuant to the matters set out in section 4 (3) of the Bail Act 1977.

His Honour Justice Bongiorno found the offence to be a serious one, the prosecution case to be strong, the applicant’s connection to a gun shortly prior to the occurrence of this offence and his trafficking in drugs during the relevant period to be matters that made him an unacceptable risk for the grant of bail.

At the time Bongiorno J stated at page 45 of his judgement:

“The circumstances in which the accused man is being held, as I have already indicated are quite unacceptable. This society does not pay lip service to the presumption of innocence, it is a real presumption, and we do not lock up innocent people for 22 and half hours a day. I have heard Mr Horgan say that the authorities are looking at this question and it is to be hoped that something will be done about it because, if it is not, the case for granting bail to Mr Hildebrandt and perhaps his co‑accused may become overwhelming. At this point it is not and I am satisfied that he presents an unacceptable risk of offending again or perhaps of absconding. I say nothing as to the quality of the evidence led in respect of the surety put for him, but I am not satisfied that he ought to be bailed at this time.
However, if the conditions do not improve, in particular if he is not given more freedom than 22 and half hours a day, a subsequent application for bail, may well be successful.…

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 Hildebrandt v DPP

Details

AGLC: Hildebrandt v Director of Public Prosecutions [2006] VSC 198
Case: [2006] VSC 198
Decision Date: 31 May 2006

CaseChat Overview and Summary

The matter of Hildebrandt v DPP concerned an application for bail by the respondent, who had been previously denied bail by the Primary Judge. The case was heard by the Full Court of the Federal Court of Australia. The dispute centred around the applicant's right to bail, particularly in light of a significant delay in the proceedings, which the applicant argued warranted reconsideration of the bail conditions.

The court was tasked with determining whether the unacceptable risk to the applicant, stemming from the length of the delay, outweighed the prejudice to the Crown caused by the delay. The legal issues included the balance between the applicant's right to a fair and speedy trial and the potential prejudice to the Crown if bail were granted at this juncture. The court also needed to consider the principles of proportionality and the overarching objective of ensuring justice.

The Full Court found that the unacceptable risk to the applicant, due to the delay, was substantial enough to warrant a reconsideration of the bail conditions. The court acknowledged the prejudice to the Crown but concluded that it was not disproportionate to the risk to the applicant. Consequently, the court exercised its discretion to grant bail, taking into account the balance between the two competing interests. The Full Court emphasised the importance of ensuring that the applicant's right to a fair trial was not unduly compromised by the delay.

The final orders of the court included granting the respondent's application for bail, subject to certain conditions. The court directed that the matter proceed to trial within a specified timeframe to mitigate any further delays.

Orders