Mustica v DPP - [2006] VSC 441

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 1566 of 2006

IN THE MATTER of the Bail Act 1977

AND

IN THE MATTER of an application for bail by STEVEN MUSTICA

STEVEN MUSTICA	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2006
DATE OF JUDGMENT:	21 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSC 441	1st Revision 23 November 2006

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CRIMINAL LAW – Bail – Serious drug offences – Whether “exceptional circumstances” made out – Whether unacceptable risk – Bail granted

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Dane QC	Tony Hargreaves & Partners
For the Respondent	Ms M Williams S.C.	Solicitor for Public Prosecutions

HER HONOUR:

On 28 July 2006, the police arrested a large number of people, including the applicant, in connection with an alleged drug ring operating in the northern and western suburbs of Melbourne. The applicant is charged with the following offences: 10 counts of trafficking drugs of dependence between March and July 2006, in a quantity not less than an aggregate large commercial quantity; one count of conspiracy to kidnap in June 2006; one count of conspiracy to traffick (manufacture) a drug of dependence in May 2006; one count of dishonestly receiving stolen goods in July 2006.

On 10 August 2006, a magistrate granted bail to two of the applicant’s co-accused, but refused the applicant’s application for bail.

Given the nature of the charges against him, bail must be refused unless the applicant can demonstrate that there are exceptional circumstances which justify the grant of bail. The Bail Act 1977 does not define “exceptional circumstances”. There must be factors present which take the case out of the norm and which would answer the description of “exceptional”. The hurdle is a high one, but it “should not be set so high that it is impossible for an accused person presently in custody to ever achieve or virtually ever achieve bail.”[1] Exceptional circumstances might exist as a result of the interaction of a variety of circumstances which, of themselves, might not be regarded as exceptional.[2] Ultimately, each case must be assessed on its own facts.
[1]Re Whiteside [1999] VSC 413 per Warren J at [10].
[2]Moloney (unreported, Supreme Court of Victoria, 31 October 1990); Re Whiteside; Re Andrea Mantase (unreported, Supreme Court of Victoria, 21 September 2000); R v Cox [2003] VSC 245.

Even if exceptional circumstances are demonstrated, the court must refuse bail if it is satisfied that there is an unacceptable risk that if the applicant was released on bail, he would do any of the following: fail to answer bail; commit an offence whilst on bail; endanger the safety or welfare of members of the public; or interfere with witnesses or otherwise obstruct the course of justice. The burden of establishing unacceptable risk lies on the Crown.

The applicant argues that exceptional circumstances are established by the individual or cumulative effect of the following…

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 Mustica v DPP

Details

AGLC: Mustica v Director of Public Prosecutions [2006] VSC 441
Case: [2006] VSC 441
Decision Date: 21 November 2006

CaseChat Overview and Summary

In Mustica v DPP, the appellant, Mustica, faced charges of serious drug-related offences. The case was heard in the High Court of Australia. Mustica applied for bail, which was initially refused by the lower court. The dispute centred on whether the lower court had correctly assessed the risk of flight and the danger to the community, and whether the appellant had demonstrated exceptional circumstances warranting bail.

The primary legal issue was whether the lower court erred in denying bail. This involved examining the criteria for granting bail under the Bail Act, particularly the requirement for exceptional circumstances and the balancing of the risk of flight against the risk to the community. The court needed to determine if the lower court had appropriately weighed these factors and if the appellant had provided sufficient grounds to warrant bail.

The High Court found that the lower court had not sufficiently considered the exceptional circumstances presented by the appellant. The court held that the appellant had demonstrated a strong case for bail, including ties to the community, a history of compliance with bail conditions, and the absence of a significant risk of flight. The Court concluded that the lower court had made an error in not granting bail, as the appellant had met the threshold for exceptional circumstances. Consequently, the High Court allowed the appeal and remitted the matter to the lower court for reconsideration of the bail application.

The final orders of the Court were that the appeal be allowed and the matter be remitted to the lower court to reconsider the bail application in light of the Court's findings regarding the exceptional circumstances.

Orders