R v Hayden
[2005] VSC 160
•6 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 1449 of 2005
IN THE MATTER of an Application for Bail by:
MARK CLIFFORD HAYDEN
---
JUDGE: | KELLAM, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 May 2005 | |
DATE OF JUDGMENT: | 6 May 2005 | |
CASE MAY BE CITED AS: | IMO an Application for Bail by Hayden | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 160 | |
---
BAIL APPLICATION – Trafficking in a drug of dependence – Applicant required to show cause why detention not justified – Unacceptable risk – Bail Act 1997 – Section 4(1),(2),(3)(4) Bail Act 1997.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M. Croucher | The Office of David Grace Q.C. |
| For the Respondent | P. Atkinson | The Solicitor to the Office of Public Prosecutions |
HIS HONOUR:
This is an application for bail by Mark Clifford Hayden, who is charged with trafficking in a drug of dependence, namely pseudoephedrine.
The allegations, briefly summarised, are that the accused, together with his co‑accused, was arrested on 22 April 2005 following a police operation investigating persons purchasing tablets containing pseudoephidrine in Melbourne and in the Geelong area. A search warrant was executed in a caravan park in Leopold and soon thereafter a vehicle in which the applicant was travelling was intercepted by police. A search was conducted.
The search of the cabin revealed a significant quantity of pseudoephidrine-based tablets in the form of Demazin and other proprietary lines. Subsequently, a search of the vehicle in which the accused was found to be travelling revealed similar drugs. As I understand the position, the total quantity of pseudoephidrine is alleged to equate to 585 grams and an estimate of its worth at street value exceeds half a million dollars.
It is alleged that the co-accused, Smith, Gwynne, Burton and Gonthier, who are all from Queensland, used false identification to purchase the tablets over the preceding days. It is further alleged that it was the applicant who provided that false identification to them.
The applicant was found to be in possession of a Queensland driver's licence in the name of Mark Hayden and another Queensland driver's licence with his picture on it in the name of Brian Brown.
Police have now obtained statements from each of the co-accused who were arrested in company with the applicant on 22 April 2005. Those statements by each of them allege that the applicant was the organiser of the trip to Melbourne from Queensland. It is alleged that the applicant gave four of the co-accused a fake Queensland licence as well as a sum of $3,000 each in cash for the purchase of tablets from various pharmacies in Victoria. It is alleged that the applicant said that he would pay each of the co-accused $50 or $60 for each packet of proprietary drugs purchased from such pharmacies.
An accused person is entitled to bail by reason of the general rule laid down in s.4(1) of the Bail Act 1997. However, in some circumstances the right to bail is abbrogated and instead the applicant must prove to the satisfaction of a judge of this court why his detention in custody is not justified.
In the circumstances before me, the applicant, having been charged pursuant to s.71AC of the Drugs Poisons and Controlled Substances Act Act 1981, has the burden of proving pursuant to s.4(4) of the Bail Act that his detention in custody is not justified.
However, that is not the end of inquiry. If he establishes cause, the court shall nevertheless refuse bail if it is satisfied that there is an unacceptable risk that if the applicant is released on bail he may commit one or more of the prohibited acts set out in s.4(2)(d) of the Bail Act, including failure to answer bail, committing another offence while on bail or interfering with a witness. The factors that must be weighed in considering the question of unacceptable risk as set out in s.4(3) of the Bail Act are that the court must consider all relevant matters, and in that regard the list of specified matters is not exhaustive. I am bound to consider the nature and seriousness of the offence, the background of the applicant, the strength of the evidence against him, as well as other matters.
The burden of establishing unacceptable risk lies upon the prosecution. I suppose it can be said that the two inquiries overlap in the sense that the unacceptable risk factors have to be weighed when considering whether the applicant for bail has shown cause. The Act has not defined what is meant by the phrase "show cause why his detention in custody is not justified". It is trite to observe that all the relevant circumstances must be considered.
I have before me three affidavits, one of them by Mr Grace QC, of the firm of solicitors acting for the applicant, another by the applicant's sister, and a third by Mr Atkinson sworn on behalf of the prosecution.
The matters which are relevant in terms of the necessity by the applicant to show cause are that he is a young man, having been born on 18 May 1981. He has no prior convictions and there are personal factors of considerable substance which are demonstrated by the affidavit of Fiona Hayden. In particular, there is evidence before me that the applicant has been in a relationship with a person whose mother died in recent days and is to be buried in the next several days, and that her father, in addition, is extremely unwell, having had an operation to remove a brain tumour on 12 April 2005. His mother is present in court with him and it is intended that he reside with his family if granted bail.
Those matters, put together with his relative youth, his lack of prior convictions and the circumstances under which he is presently in custody, demonstrate to me that the applicant has shown cause. The question then is whether there is an unacceptable risk. As I said to Mr Croucher in the course of the submissions made by him, the issues which go against his client in this regard are that, on any view, the conduct of his client, if established, amounts to a serious offence. It appears to me, on the basis of the statements which have been made by his co‑accused to police, that the evidence against the applicant is of considerable strength. It is a matter of concern that the applicant and his co-accused all come from Queensland, and it is a matter of concern that the applicant, it would appear, is responsible for the production of four false driver’s licences. Thus, it would appear that the applicant was high in the hierarchy of organisation of the drug offence in question. However, as Mr Croucher properly submits to me, there is no evidence as to the level of sophistication of the fake documents.
There is, before me, no evidence which would demonstrate that the accused is likely to not appear to answer his charges. One could infer that there is some risk that he may seek to interfere with co-accused who have made statements which implicate him, but other than that possible risk there is no other evidence to suggest that he may do so. Accordingly, I am not satisfied that the prosecution has established, as they must establish, that the accused man is an unacceptable risk if granted bail, and primarily by reason of his lack of prior convictions and his age and his personal circumstances, it appears to me, in consideration of all of the circumstances, that bail should be granted.
However, that said, the issue of risk, which might be said to arise by way of inference by reason of the fact of the statements made by his co-accused, is such that the conditions of the grant of bail should be strict.
I propose to order that the applicant be admitted to bail on his own undertaking with one surety in the sum of $20,000 conditioned in the proper form for his appearance for trial at the Geelong Magistrates' Court on 17 June 2005 as required by law and upon the following special conditions:
1.That the applicant reside with his parents at 31 Gibraltar Circuit, Parkinson, Queensland, 4115;
2.That the applicant report daily to the Officer-in-Charge of the police station at Calemvale (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 Crown or any co-accused person except the informant or his nominee;
5.That the applicant surrender any passport which he may hold to the officer in charge of the police station at Calemvale within 48 hours of being admitted to bail and not apply for another passport;
6.That the applicant not attend any point of international departure during the period of bail.
---
0
0
0