In the Matter of an Application for Bail by Cardona
[2005] VSC 186
•17 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1460 of 2005
IN THE MATTER OF an Application for Bail by:
FRANK CARDONA
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 May 2005 | |
DATE OF JUDGMENT: | 17 May 2005 | |
CASE MAY BE CITED AS: | IMO an Application for Bail by Cardona | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 186 | |
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CRIMINAL LAW – Bail application – Exceptional circumstances including age, poor health, previous compliance with bail conditions – Delay – Bail Act 1977 s.4(2)1(i).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Sarah | Office of Public Prosecutions |
| For the Applicant | Mr S. Shirrefs, S.C. | Slades and Parsons |
HIS HONOUR:
The applicant is presently in custody facing a number of offences including conspiring with others to traffick in a drug of dependence namely pseudoephedrine being not less than a commercial quantity contrary to s.79 sub-s.1 of the Drugs Poisons and Controlled Substances Act 1981 and furthermore being an accessory after the fact contrary to s.325 of the Crimes Act 1958.
Section 4 sub-s.(2)(1) of the Bail Act 1977 provides that in the case of a person charged with conspiring to commit an offence under s.79(1) of the Drugs Poisons and Controlled Substances Act the court shall refuse bail unless satisfied that there are exceptional circumstances which justify the grant of bail.
In this case there is no contention by the Director of Public Prosecutions that in the event that exceptional circumstances exist there is any basis to argue that the applicant is an unacceptable risk within the meaning of s.4.
Accordingly, the discrete issue before me is whether the applicant has established, as he must, that there are exceptional circumstances as to why he should be granted bail.
In essence the history of this matter is that the applicant is a man presently aged 62 years. He was arrested on 13 August 2003 in relation to matters which took place throughout 2000 and 2001.
Magistrate, Mr Raleigh granted him bail some days after his initial arrest. Mr Raleigh was satisfied on the material then before him in September of 2003 that there were exceptional circumstances. Conditions were set by Mr Raleigh. Subsequently those conditions were varied by relaxation of requirements for reporting by magistrate, Ms Cotterell.
The evidence before me is, and it is not contended otherwise by the prosecution, that the applicant complied with his bail conditions from the period of the setting of those bail conditions by Mr Raleigh in September 2003 up until 3 May of this year when the applicant was committed for trial.
Upon his committal for trial on 3 May 2005 the magistrate who heard the committal refused bail. He did not refuse bail on the basis that there was an unacceptable risk. As I understand the position he was not satisfied that the matters which had earlier been relied upon by Magistrate Raleigh as exceptional circumstances were indeed exceptional circumstances.
Before me there is medical evidence both as to the psychological and the physical state of the applicant. The psychological evidence and given viva voce by Mr Ian Joblin, a psychologist, before me this morning is to the effect that the accused man suffers from chronic anxiety and depression. Mr Joblin provided a report to the magistrate, Mr Raleigh, in 2003 and confirmed that since Mr Raleigh had granted bail in 2003 he had seen the applicant on some 12 occasions and spoken to him regularly by way of telephone.
In addition to the psychological evidence, which on one view may not be all that remarkable, there is before me evidence by way of a report from the applicant’s general practitioner, Dr Kruimink, that the applicant suffers from reflux oesophagus of a serious nature. Indeed at the time of the committal hearing there was serious consideration being given to fundoplication surgery to ensure that the symptoms of oesophagus reflux do not continue and furthermore to ensure that there is no further deterioration. The applicant suffers from severe pain in the upper abdomen on a daily basis. He suffers from heartburn and a choking feeling in the throat. In January of this year a gastroscopy revealed he suffered from Barrets metaplasia and scarring of the oesophagus.
I am satisfied that that medical evidence is of some considerable strength and that there is every likelihood that the oesophageal surgery, which may well be required, will be unlikely to be provided during the period of time that the accused man is upon remand.
Mr Shirrefs of Senior Counsel relies upon that medical material, but in addition he relies upon the other factors of age and the fact that the accused man has complied with his bail conditions. He has strong family connections in Victoria and has family support. The other matters previously considered by the magistrate Mr Raleigh to be taken into account in the balance in terms of exceptional circumstances included the likely delay of the hearing of the proceeding and the availability of treatment for the applicant whilst he is on bail.
In addition, the applicant suffers from obstructive airways disease. His general practitioner reports that medical investigation by specialist is ongoing.
It is contended by the prosecution, however, that a combination of circumstances cannot constitute exceptional circumstances. In my view this contention is not consistent with established authority. In R v Abbott[1] Justice Gillard said:
“I do not doubt for one moment that in the end the court must consider the totality of factors put forward and consider the question whether in all the circumstances they are exceptional”.
[1](97) A Crim R 19 at 27.
In R v Sanareeve[2] Justice Vincent said:
“I do not consider any one of these matters alone constitutes exceptional circumstances but I consider the situation must be considered as a whole and it is one which demonstrates exceptional circumstances”.
[2]Unreported Victorian Supreme Court 3 July 1986.
In that case His Honour considered a combination of factors including the lack of strength of the prosecution case, delay and the personal circumstances of the defendant.
Likewise in the R v Hoffer,[3] a 50 year old married man who had been charged with various offences as a result of the importation of some 500 kilograms of cannabis had been arrested. The matter said by the applicant to constitute exceptional circumstances were parity, the nature of the drug, a delay of up to 17 months, the health of the defendant and, in particular, his need for treatment of his back and the likely effect of refusal of bail upon his wife. In that case Justice Smith rejected the submission with regard to parity and with regard to the nature of the drug but he held that the combination of delay, the defendant’s back problem and the effect of refusing bail as a combination amounted to exceptional circumstances.
[3]Unreported Victorian Supreme Court 9 December 1991.
Accordingly, I am satisfied as a matter of law that I do not have to find that any one of the matters put before me is exceptional. I am entirely satisfied that the appropriate approach to the legislation in question is to consider the totality of the circumstances.
In my view the various circumstances in this case do combine to demonstrate exceptional circumstances. First the age of the accused man is a relevant matter. Quite clearly being 62 years of age would not by itself demonstrate an exceptional circumstance but put into combination with the other matters it is a relevant matter to be considered in the totality. He has a stable residence and he has a connection to the jurisdiction with his family being in Victoria.
I take into account the likely delay of trial for a period of perhaps 12 months. It is unlikely to be less and may be some time more. I take into account the applicant’s psychological state which although a chronic state of anxiety that is not in an acute stage may not amount to an exceptional circumstance alone. Taken into account with the combination of other factors however it appears to me to be a relevant factor.
Of significance in all of the circumstances in my view is his bail history. Having been granted bail in September 2003 on the basis of the existence of exceptional circumstances, the applicant complied in every way with the bail conditions which, at first, were considerably stricter than they were later in the period leading up to this month. In particular he complied with a requirement that he abide by the lawful directions of Mr Joblin as to his treatment.
Finally, and perhaps if there was any hierarchy of combination of circumstances, of great significance is the evidence that there is at least a likelihood that he will require fundoplication surgery in the near future. It appears to me that it is unlikely that this surgery would be provided if he is in custody during the next twelve months, unless he reached a point where his symptoms were of such an acute nature that the demonstrable requirement for such surgery appeared to those in charge of his custody to be a necessity. In my view this is a matter of significance and he should be given the opportunity to take specialist advice and to have such surgery as is required.
I am satisfied that the applicant has fulfilled his obligation to establish before me that there are exceptional circumstances, in all of those circumstances put together, and in consideration of their totality.
I propose to order that the applicant be admitted to bail on his own undertaking and give one surety of $50,000 conditioned in the proper form for his appearance as required by law at the County Court of Victoria, at a time to be advised by the Office of Public Prosecutions and upon the following special conditions.
(1)That the said applicant reside at 2 Wills Court, Taylors Lakes.
(2)That the applicant report Monday, Wednesday and Friday, to the officer in charge of the Keilor Downs Police Station, or his nominee, between the hours of 6 a.m. and 9 p.m.
(3)That the applicant give 72 hours notice to the informant, or his nominee, of any proposed change of address.
(4)That the applicant not contact directly, or indirectly, any witness for the prosecution except the informant, or his nominee, such order not to apply to witness Debbie Hum.
(5)That the applicant not attend any point of international departure during the period of bail.
(6)That he obey all lawful directions of psychologist, Mr Ian Joblin, in relation to counselling and treatment for his psychological condition.
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